Rodney Keister v. Stuart Bell , 879 F.3d 1282 ( 2018 )

Case: 17-11347 Date Filed: 01/23/2018 Page: 1 of 18
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11347
________________________
D.C. Docket No. 7:17-cv-00131-RDP
RODNEY KEISTER,
Plaintiff-Appellant,
versus
STUART BELL,
in his official capacity as President of the University of Alabama,
JOHN HOOKS,
in his official capacity as Chief of Police for the University of Alabama Police
Department,
MITCHELL ODOM,
in his official capacity as Police Lieutenant for the University of Alabama Police
Department,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 23, 2018)
Case: 17-11347 Date Filed: 01/23/2018 Page: 2 of 18
Before ED CARNES, Chief Judge, and BLACK, Circuit Judge, and MAY, ∗
District Judge.
MAY, District Judge:
Rodney Keister appeals the district court’s denial of a preliminary
injunction. Mr. Keister sought to enjoin University of Alabama (“UA”) officials
from applying UA’s grounds use policy to the intersection of University Boulevard
and Hackberry Lane. Application of this grounds use policy prevents him from
speaking on UA’s campus unless he complies with its terms. Because the district
court properly found the intersection is a limited public forum within UA’s
campus, we affirm.
I. BACKGROUND
Mr. Keister is a traveling Christian evangelist who claims he is called to
publicly share his religious beliefs throughout the country. Mr. Keister typically
shares his beliefs on public sidewalks by preaching, passing out gospel tracts, and
having one-on-one conversations and praying with passers-by. Because he desires
to reach young people, Mr. Keister routinely visits college and university
campuses.
∗
Honorable Leigh Martin May, United States District Judge for the Northern District of Georgia,
sitting by designation.
2
Case: 17-11347 Date Filed: 01/23/2018 Page: 3 of 18
On March 10, 2016, Mr. Keister went to UA, a state-funded public
university located in Tuscaloosa, Alabama, to share his beliefs. Around 4 p.m. that
afternoon, Mr. Keister and his friend—neither of whom are UA students, faculty,
nor employees—began to preach using a loudspeaker, held up a banner, and passed
out religious literature on a sidewalk adjacent to 6th Avenue on UA’s campus. This
sidewalk is near Smith and Lloyd Halls and across the street from the Quad—a
well-traveled, wide-open grassy field surrounded by UA buildings. Shortly after
they began, Mr. Keister and his friend were approached by two UA police
department officers and UA official Donna McCray, 1 who advised them that they
would be unable to speak at that location because they did not have a Grounds Use
Permit (“GUP”) as required by UA’s Policy for the Use of University Space,
Facilities and Grounds (“grounds use policy”). They advised that the grounds use
policy required 10 working days advance notice and university organization
sponsorship.
Because Mr. Keister and his friend had not obtained a GUP, they moved to
the intersection of University Boulevard and Hackberry Lane (“the intersection”)
to continue preaching and passing out literature. Mr. Keister contends he was told
to go to that location by a UA police supervisor who advised him, “On that corner,
1
Ms. McCray is the Senior Director of Facilities Operation and Grounds Use Permits at UA.
3
Case: 17-11347 Date Filed: 01/23/2018 Page: 4 of 18
you’re good.” Mr. Keister also thought that the intersection appeared to be a public
city sidewalk as opposed to a part of UA’s campus.
Not long after Mr. Keister and his friend moved locations, they were again
met by UA police. The police advised them that the intersection and sidewalk were
part of UA’s campus, and the grounds use policy would also apply to the
intersection. Fearing arrest for criminal trespass, Mr. Keister and his friend left.
A. THE INTERSECTION
Mr. Keister admits that the intersection lies within the bounds of UA’s
campus, and the district court determined that it is in the “heart” of the UA
campus. While the two streets that form that intersection run through much of
4
Case: 17-11347 Date Filed: 01/23/2018 Page: 5 of 18
UA’s campus, University Boulevard and Hackberry Lane are public Tuscaloosa
streets which extend beyond the UA campus perimeter. Sidewalks run alongside
these two streets both within and outside the UA campus, and UA’s campus is not
fenced off, gated, or otherwise self-contained to prevent public access. However,
within the campus (including at the intersection), landscaping fences line the
sidewalks, street signs bear the script “A” UA logo, and UA signs hang from
streetlamps. Some of the city’s transportation grid also runs through campus.
Visible from the intersection are numerous UA facilities and landmarks. The
intersection is approximately one block from the Quad. Russell Hall sits
prominently at the northeast corner, where Mr. Keister was preaching. Gallalee
Hall and a UA parking lot with a sign restricting its use to UA faculty and staff
occupy the northwest corner. The southwestern corner includes Farrah Hall and its
adjacent UA-only parking lot. A park sits at the southeastern corner, which
ultimately connects to the campus Episcopal ministry building further south on
Hackberry Lane. About a block away from the intersection on one side of
University Boulevard there are private businesses interspersed among UA
buildings.
B. UA’S GROUNDS USE POLICY
UA’s grounds use policy is intended to provide access to UA grounds while
upholding the “primacy” of UA’s “teaching and research mission,” including to
5
Case: 17-11347 Date Filed: 01/23/2018 Page: 6 of 18
“facilitate responsible stewardship of institutional resources and to protect the
safety of persons and the security of property.” The grounds use policy governs
when, where, and how those who are unaffiliated with UA may speak publicly on
campus. It specifically includes UA sidewalks within its auspices.
To obtain approval to speak publicly at UA, an unaffiliated potential speaker
must: (1) be sponsored by or affiliated with a UA department or registered student
organization; and (2) fill out a GUP form. GUP forms must be submitted at least
10 working days prior to an intended event, unless the intended event is
“spontaneous,” in that it is “occasioned by news or issues coming into public
knowledge with[in] the preceding two (2) calendar days,” or it is a “counter-
event,” meaning that it is in response to an event for which a GUP has already been
issued. For either of those exceptions, UA will attempt to accommodate the request
within 24 hours.
The stated purpose of the required lead-time is to facilitate review by all UA
departments that would be responsible for aspects of an event, such as UA police,
food service, and electrical service. If the intended event does not require multiple
UA department approvals, UA may issue its approval in as few as three days’ time.
Once a GUP form is submitted, UA will approve the application unless one
of the following conditions are present:
a) The applicant, if a student or a recognized student organization, is
under a disciplinary penalty withdrawing or restricting privileges
6
Case: 17-11347 Date Filed: 01/23/2018 Page: 7 of 18
made available to the student or a recognized student organization[],
such as use of a facility.
b) The proposed location is unavailable at the time requested because
of events previously planned for that location.
c) The proposed date or time is unreasonable given the nature of the
Event and the impact it would have on University resources.
d) The Event would unreasonably obstruct pedestrian or vehicular
traffic.
e) The Event would prevent, obstruct, or unreasonably interfere with
the regular academic, administrative, or student activities of, or other
approved activities at, the University.
f) The Event would constitute an immediate and actual danger to
University students, faculty, or staff, or to the peace or security of the
University that available law enforcement officials could not control
with reasonable effort.
g) The University Affiliate on whose behalf the application is made
has on prior occasions:
1) Damaged University property and has not paid in full for such
damage, or
2) Failed to provide the designated University official with notice of
cancellation of a proposed activity or Event at least two (2) University
working days prior to a scheduled activity or Event.
If an application is denied, the grounds use policy also sets out an appeal process.
C. RELEVANT PROCEDURAL HISTORY
On January 25, 2017, Mr. Keister filed this action in the Northern District of
Alabama under 42 U.S.C. §§ 1983 and 1988, asserting UA’s grounds use policy
violates the First Amendment’s free speech clause and the Fourteenth
7
Case: 17-11347 Date Filed: 01/23/2018 Page: 8 of 18
Amendment’s due process clause. 2 The next day, Mr. Keister filed a Motion for
Preliminary Injunction, contending that UA’s ground use policy violates the First
Amendment and UA officials should be enjoined from enforcing UA’s policy
because the intersection is a traditional public forum and UA’s policy fails
scrutiny. After a hearing on the matter, the district court denied Mr. Keister’s
motion. Among other reasons, it found that the intersection was a limited public
forum and the grounds use policy met the lower level of scrutiny required. This
appeal followed.
II. STANDARDS OF REVIEW
We generally review for an abuse of discretion a district court’s preliminary
injunction denial, but review de novo the district court’s underlying legal
conclusions. ACLU of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177,
1198 (11th Cir. 2009) [hereinafter “ACLU”]. “Ordinarily, we review district court
factfindings only for clear error, but First Amendment issues are not ordinary.” Id.
at 1203. “Where the First Amendment Free Speech Clause is involved our review
of the district court’s findings of ‘constitutional facts,’ as distinguished from
2
In a footnote, Mr. Keister raises in passing that the ground use policy is unconstitutionally
vague in violation of the Fourteenth Amendment. However, we need not address this argument
because Mr. Keister has not properly raised the issue on appeal and it is therefore waived. See
Old W. Annuity & Life Ins. Co. v. Apollo Grp., 605 F.3d 856, 860 n.1 (11th Cir. 2010)
(“Although Coast mentions the lack of supporting pleading in a footnote in its appellate brief,
Coast has not presented substantive argument on this point on appeal; the issue is therefore
waived.”).
8
Case: 17-11347 Date Filed: 01/23/2018 Page: 9 of 18
ordinary historical facts, is de novo.” Booth v. Pasco Cty., 757 F.3d 1198, 1210
(11th Cir. 2014) (quoting ACLU, 557 F.3d at 1203).
Historical facts “are facts about the who, what, where, when, and how
of the controversy,” and we review them for clear error. “By contrast,
under the assumptions about the law that we [make] for purposes of
deciding this case, we must determine the ‘why’ facts. Those are the
core constitutional facts that involve the reasons the [defendant] took
the challenged action.”
Flanigan’s Enters. Inc. of Ga. v. Fulton Cty., 596 F.3d 1265, 1276 (11th Cir. 2010)
(internal citations omitted) (quoting ACLU, 557 F.3d at 1206).3
To receive a preliminary injunction, the plaintiff must clearly establish the
following requirements: “(1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable injury; (3) that the threatened injury to the plaintiff
outweighs the potential harm to the defendant; and (4) that the injunction will not
disserve the public interest.” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.
2002) (citing Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th
Cir. 2001)).
“A preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly establishes the burden of persuasion as to the
3
The parties dispute whether the district court’s finding that the intersection is in the “heart of
the campus” is a historical fact or a constitutional fact. Mr. Keister argues that although the
intersection is technically “where” the event occurred, because that fact is so crucial to the
ultimate constitutional analysis, this Court must review de novo the district court’s finding that
the sidewalk’s location is within campus. However, we need not decide that question. Under
either standard of review—clear error or de novo—it is apparent that the intersection is indeed
within the heart of UA’s campus.
9
Case: 17-11347 Date Filed: 01/23/2018 Page: 10 of 18
four requisites.” ACLU, 557 F.3d at 1198 (quoting All Care Nursing Serv., Inc. v.
Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)). If Mr. Keister
is unable to demonstrate a substantial likelihood of success on the merits, we do
not need to address the remaining preliminary injunction requirements. Bloedorn v.
Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
III. DISCUSSION
Mr. Keister contends that the district court erred in finding the intersection is
a limited public forum, arguing that it is instead properly classified as a traditional
public forum. This distinction matters because the type of forum determines the
level of scrutiny applied. Id. at 1230 (“[T]he degree of scrutiny we place on a
government’s restraint of speech is largely governed by the kind of forum the
government is attempting to regulate.”). 4
4
Notably, Mr. Keister did not argue on appeal that the policy could not survive scrutiny if the
district court correctly found the intersection was a limited public forum. See Christian Legal
Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 679
(2010) (noting that speech restrictions within a limited public forum are permitted when the
restrictions are “reasonable and viewpoint neutral”). While this Court does have some concerns
about whether UA’s 10 working day advance notice requirement would be reasonable for events
that do not require multiple department approvals, because Mr. Keister did not raise that issue in
his initial brief, we have no occasion to address it here. Access Now, Inc. v. S.W. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law is by now well settled in this Circuit that a
legal claim or argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.”).
10
Case: 17-11347 Date Filed: 01/23/2018 Page: 11 of 18
As a preliminary matter, the First Amendment does not guarantee access to
property merely because the government owns it. Id. (citing Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 803 (1985)). Rather, courts use
“‘forum analysis’ to evaluate government restrictions on purely private speech that
occurs on government property.” Walker v. Tex. Div. Sons of Confederate
Veterans, Inc., 576 U.S. ___, 135 S. Ct. 2239, 2250 (2015) (citing Cornelius, 473
U.S. at 800).
The Supreme Court has recognized four categories of government fora: the
traditional public forum; the designated public forum; the limited public forum;
and the nonpublic forum. Barrett v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1224
(11th Cir. 2017). The parties agree there are only two possible fora at issue here:
the traditional public forum and the limited public forum.
A traditional public forum is government property which “ha[s]
immemorially been held in trust for the use of the public, and, time out of mind,
ha[s] been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quoting Hague v. Comm. for Indus.
Org., 307 U.S. 496, 515 (1939)). The Supreme Court has restricted traditional
public forum status to its “historic confines.” Walker, 135 S. Ct. at 2250 (quoting
Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 678 (1998)).
11
Case: 17-11347 Date Filed: 01/23/2018 Page: 12 of 18
Quintessential examples are parks and streets. Barrett, 872 F.3d at 1224. “[A] time,
place, and manner restriction can be placed on a traditional public forum only if it
is content neutral, narrowly tailored to achieve a significant government interest,
and ‘leave[s] open ample alternative channels of communication.’” Bloedorn, 631
F.3d at 1231 (quoting Perry, 460 U.S. at 45).
In contrast, a limited public forum is established when governmental entities
open their property but limit its use to “certain groups or dedicate[] [it] solely to
the discussion of certain subjects.” Christian Legal Soc’y, 561 U.S. at 679 n.11
(quoting Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009)). It is plain
that governments may exclude a speaker “if he is not a member of the class of
speakers for whose especial benefit the forum was created.” Cornelius, 473 U.S. at
806 (citing Perry, 460 U.S. at 49). “Indeed, implicit in the idea that a government
forum has not been opened widely and intentionally to the general public is the
government’s right to draw distinctions in access based on a speaker’s identity.”
Bloedorn, 631 F.3d at 1235 (citing Perry, 460 U.S. at 49). Limitations made in a
limited public forum need to be only “reasonable and viewpoint neutral.” Id. at
1231.
We have also made clear that “[t]he physical characteristics of the property
alone cannot dictate forum analysis.” Id. at 1233. “Instead, we look to the
traditional uses made of the property, the government’s intent and policy
12
Case: 17-11347 Date Filed: 01/23/2018 Page: 13 of 18
concerning the usage, and the presence of any special characteristics.” Id. “[T]he
scope of the relevant forum is defined by ‘the access sought by the speaker.’” Id. at
1232 (quoting Cornelius, 473 U.S. at 801). As Mr. Keister solely seeks to speak at
the intersection, that is the scope of our forum assessment today.
Mr. Keister contends that the intersection is a traditional public forum
because: (1) it is a sidewalk bordering a public street; (2) Tuscaloosa maintains an
easement on this land 5; and (3) the sidewalks are indistinguishable from other
sidewalks, blending in with Tuscaloosa’s urban grid and not suggesting a special
enclave. Mr. Keister likens his case to other cases in which courts have ruled that
sidewalks, which are indistinguishable from the public landscape, are traditional
public fora. See United States v. Grace, 461 U.S. 171, 180, 183 (1983) (holding
that because “[t]here is no separation, no fence, and no indication whatever to
persons stepping from the street to the curb and sidewalks that serve as the
perimeter of the Court grounds that they have entered some special type of
enclave,” the public sidewalks surrounding the Supreme Court were public fora
and noting that “[t]here is nothing to indicate to the public that these sidewalks are
5
Because Mr. Keister pled in his Complaint that the intersection is within UA campus’s bounds,
we need not resolve the parties’ disputes as to who maintains and owns the sidewalks at issue.
What is clear is that the intersection is within UA’s campus and UA treats it as such, as the
district court found. And that is all that matters for our purposes today. See Bloedorn, 631 F.3d at
1233 (11th Cir. 2011) (“Publicly owned or operated property does not become a public forum
simply because members of the public are permitted to come and go at will. Instead, we look to
the traditional uses made of the property, the government’s intent and policy concerning the
usage, and the presence of any special characteristics.” (internal quotations and citations
omitted)).
13
Case: 17-11347 Date Filed: 01/23/2018 Page: 14 of 18
part of the Supreme Court grounds or are in any way different from other public
sidewalks in the city”); McGlone v. Bell, 681 F.3d 718, 732 (6th Cir. 2012)
(holding that perimeter sidewalks around Tennessee Technological University’s
campus were traditional public fora but noting that “Appellees have not attempted
to dispute Plaintiff’s characterization of the perimeter sidewalks as traditional
public fora”); Brister v. Faulkner, 214 F.3d 675, 681–83 (5th Cir. 2000) (holding
that the sidewalks surrounding the University of Texas at Austin’s Erwin Center,
which all abutted public streets, were traditional public fora as they were
indistinguishable from the City of Austin’s public sidewalks as the only indication
that a person was entering University property was a verbal warning from a police
officer).
This Court has previously provided controlling guidance on how to
determine the type of forum on a public college campus. In Bloedorn, the plaintiff
wished to preach on Georgia Southern University’s (“GSU”) campus and, when
denied, filed suit asserting that GSU’s speech policy violated the First Amendment.
631 F.3d at 1225–27. This Court held that GSU’s sidewalks, pedestrian mall, and
rotunda were limited public fora because (1) a state-funded university is not per se
a traditional public forum6; and (2) there was no evidence GSU intended to open
6
See Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981) (“A university differs in significant
respects from public forums such as streets or parks or even municipal theaters. A university’s
mission is education, and decisions of this Court have never denied a university’s authority to
14
Case: 17-11347 Date Filed: 01/23/2018 Page: 15 of 18
those areas for public expressive conduct. Id. at 1232. By limiting who may use its
facilities to a discrete group of people—the GSU community—we concluded
“[t]his is precisely the definition of a limited public forum.” Id.
We also held that “it is of lesser significance that the GSU sidewalks and
Pedestrian Mall physically resemble municipal sidewalks and public parks. The
physical characteristics of the property alone cannot dictate forum analysis.” Id. at
1233. Noting that although GSU’s campus possessed many features similar to
public parks—such as sidewalks, pedestrian malls, and streets—we held its
essential function was quite different: education. Id. at 1233–34 (“Perhaps most
important, the purpose of a university is strikingly different from that of a public
park. Its essential function is not to provide a forum for general public expression
and assembly; rather, the university campus is an enclave created for the pursuit of
higher learning by its admitted and registered students and by its faculty.”). Thus,
because GSU did not intend to open its sidewalks to public discourse, it was a
limited public forum.
The same is true here. Mr. Keister’s main argument is that the intersection’s
sidewalks look like Tuscaloosa sidewalks and one can walk unimpeded from the
city onto campus. But this argument misses the mark. The relevant inquiry is
impose reasonable regulations compatible with that mission upon the use of its campus and
facilities. We have not held, for example, that a campus must make all of its facilities equally
available to students and nonstudents alike, or that a university must grant free access to all of its
grounds or buildings.”).
15
Case: 17-11347 Date Filed: 01/23/2018 Page: 16 of 18
whether UA intended to open this area up for non-student use. See United States v.
Kokinda, 497 U.S. 720, 730 (1990) (“[T]he government does not create a public
forum by . . . permitting limited discourse, but only by intentionally opening a
nontraditional forum for public discourse.” (quoting Cornelius, 473 U.S. at 802)).
Because UA did not, our precedent dictates that the sidewalks are limited public
fora.
The essential function of UA’s property is congruent with its educational
mission. See Widmar, 454 U.S. at 267 n.5; Bloedorn, 631 F.3d at 1233. It is
entirely reasonable for UA to place some restrictions on who can speak where and
when on its campus, especially with the use of a loudspeaker, while its students are
attempting to learn and its faculty attempting to teach.
Further, there are objective indications that University Boulevard and
Hackberry Lane are within UA’s campus as opposed to “mere” public Tuscaloosa
streets at that intersection. Unlike in Grace, where the Supreme Court held that its
perimeter sidewalks were traditional public fora because they were not
distinguishable from the Washington, D.C. public sidewalks, 461 U.S. at 179–80,
here the intersection, as evident from the UA map, is in the heart of campus.7 It is
surrounded by UA buildings, and there are numerous permanent, visual indications
that the sidewalks are on UA property including landscaping fences and UA
7
Because the intersection is in the heart of campus, we need not address if our analysis would be
different if the intersection were instead at the perimeter of the university’s campus.
16
Case: 17-11347 Date Filed: 01/23/2018 Page: 17 of 18
signage. While physical characteristics are not dispositive for forum analysis, they
independently support a limited public forum in this case as they suggest to the
intended speaker that he has entered a special enclave. See Bloedorn, 631 F.3d at
1234 (holding that because GSU’s campus was clearly defined by large signs and
pillars, among others, and the relevant GSU forum was inside campus, Grace was
inapplicable).
Neither are we persuaded by Mr. Keister’s argument that because the
intersection is open as a public thoroughfare, it is per se a traditional public forum.
As the Supreme Court held in Greer v. Spock, 424 U.S. 828 (1976), the
government permitting its citizenry to access its land via sidewalks and streets does
not automatically convert a nonpublic forum to a public one. Id. at 830, 835–38
(holding that although the military had allowed unimpeded civilian traffic on roads
and sidewalks within a military base’s unrestricted area, that access did not convert
the base to a public forum); Bloedorn, 631 F.3d at 1233 (“Publicly owned or
operated property does not become a ‘public forum’ simply because members of
the public are permitted to come and go at will.”) (quoting Grace, 461 U.S. at
177)).
In sum, because the intersection is within the UA campus, is not intended as
an area for the public’s expressive conduct, and contains markings clearly
identifying it as an enclave, the district court properly determined it was a limited
17
Case: 17-11347 Date Filed: 01/23/2018 Page: 18 of 18
public forum. As Mr. Keister did not challenge the district court’s application of
the relevant level of scrutiny, we conclude the district court did not abuse its
discretion in denying Mr. Keister’s preliminary injunction request.
IV. CONCLUSION
For the reasons set out above, the district court did not abuse its discretion in
denying Mr. Keister’s preliminary injunction motion. As a result, we affirm.
AFFIRMED.
18