Harlan Jacobsen v. Kevin Keith

United States Court of Appeals
For the Eighth Circuit
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No. 12-3124
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Harlan L. Jacobsen, Editor/Publisher of Missouri Casino Fun, Diabetes Cure 101,
Country Singles, 18 Wheel Singles, Add 15 Years
lllllllllllllllllllll Plaintiff - Appellant
v.
Kevin Keith, Director of Missouri Department of Transportation, Individually and
in that capacity; Don Hillis, Director of System Management, Missouri Department
of Transportation, Individually and in that capacity; Stacy Armstrong, Roadside
Management, Individually and in that capacity; Rich Tiemeyer, Chief Counsel,
Individually and in that capacity
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: April 2, 2013
Filed: April 5, 2013
[Unpublished]
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Harlan Jacobsen brought a civil-rights action claiming defendants denied him
due process and violated his right to free speech under the United States Constitution
and the Missouri Constitution. Specifically, Jacobsen challenged the constitutionality
of two sets of Missouri regulations, one promulgated in 2001 and the other in 2011,
that concerned publication vending machines at interstate highway rest areas in
Missouri. The district court1 granted defendants’ summary judgment motion and
denied Jacobsen’s summary judgment motion. He appeals. We conclude for the
following reasons that the judgment was proper. See Myers v. Lutsen Mts. Corp., 587
F.3d 891, 892 (8th Cir. 2009) (de novo review); see also State v. Vaughn, 366 S.W.3d
513, 517 n.3 (Mo. 2012) (free-speech protections of United States and Missouri
Constitutions “are comparable”).
First, even if the State had designated its rest areas as public fora--as Jacobsen
argues--the challenged regulations were constitutional speech restrictions, as they
were content-neutral and narrowly tailored to serve Missouri’s significant interests of
promoting rest-area safety and aesthetics. See Victory Through Jesus Sports Ministry
Found. v. Lee’s Summit R-7 Sch. Dist., 640 F.3d 329, 334 (8th Cir. 2011) (content-
neutral speech regulations in designated public forum must be narrowly tailored to
serve significant government interest, and leave open ample alternative channels of
communication); La Tour v. City of Fayetteville, 442 F.3d 1094, 1097 (8th Cir. 2006)
(ordinance is content-neutral if justified without reference to content of regulated
speech); Jacobsen v. Harris, 869 F.2d 1172, 1174 (8th Cir. 1989) (city regulation
limiting newsrack size, type, and location was narrowly drawn to serve significant
government interests of safety and aesthetics).
Next, the licensing-fee requirement was constitutionally permissible because
it covered only administrative costs. See Jacobsen, 869 F.2d at 1174. Likewise, the
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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2011 regulation that required publishers to pay for and install coin mechanisms on
state-provided newsracks if they wanted to charge for their newspapers was
permissible, as the State need not provide the most cost-effective method of
distribution, and the regulations did not deny access to the fora in question. See
Jacobsen v. City of Rapid City, 128 F.3d 660, 664-65 (8th Cir. 1997) (First
Amendment does not grant plaintiff right to “most cost-effective means of expression
or distribution”; newsrack regulations were constitutional so long as they did not deny
access within forum). Last, Jacobsen’s due process rights were not violated when the
State seized his noncompliant newsracks from rest areas without prior notice or a
predeprivation hearing. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (to
determine “specific dictates of due process,” courts should look to three factors:
private interest affected by official action; risk of erroneous deprivation of that interest
through procedures used, and probable value of additional procedures; and
government’s interest); Jacobsen, 869 F.2d at 1174 (no due process violation where
government provided plaintiff written notice of newsrack ordinance requirements,
provided opportunity for him to comply, impounded his newsracks upon his refusal
to comply, and scheduled hearing).
Accordingly, we affirm the judgment of the district court.
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