990 F.3d 1150
8th Cir.2021Background
- Street Fest is an annual, permitted two-day festival in Davenport on public streets/sidewalks, enclosed by temporary fencing, with paid vendor booths and required off-duty police security.
- The City’s Special Events Policy requires organizers to apply for permits, authorizes fee-based vendor spaces, and allows organizers to limit vendor activities (e.g., literature distribution, amplified sound) to protect the event’s safety and purpose.
- On July 28, 2018, Cory Sessler (not a permitted vendor) preached inside the fenced festival area with signs and a speaker; vendors and attendees complained that he interfered with vendors and disturbed the festival.
- Officers directed Sessler to relocate within the festival area; after further complaints he was ordered to leave the festival area and told he could continue preaching on the public sidewalk across the street, where he did so for several hours.
- Sessler sued the City and three officers seeking declaratory and injunctive relief (alleging First Amendment free speech and free exercise violations) and moved for a preliminary injunction; the district court denied the motion and found the officers’ relocation decision likely a content-neutral time/place/manner restriction and that Sessler failed to show irreparable harm.
- The Eighth Circuit affirmed, emphasizing Sessler’s speculative future plans and failure to show likely irreparable harm (an independent ground to deny preliminary relief) and declining to resolve the public-forum question presented in the cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City’s Special Events Policy (as applied) violated Sessler’s First Amendment rights | Policy prioritizes paid vendor speech and permitted event space, allowing exclusion of dissenting speakers — violated free speech/free exercise | Policy is a content-neutral permitting/time-place-manner scheme that allows organizers and police to prevent disruption of a permitted event | Court treated the Policy as a content-neutral permitting scheme and that officers’ relocation/removal was likely a content-neutral time/place/manner restriction (not a content-based exclusion) |
| Whether Street Fest area is a traditional public forum | Sessler presumed public-forum protections apply to festival area | City argued forum status differed given permit/ enclosure and vendor-paid spaces | Circuit did not resolve forum issue on appeal (not necessary to affirm denial of injunction) |
| Whether Sessler demonstrated likelihood of success on the merits | Sessler argued his speech was protected and its suppression was unlawful | City argued officers lawfully protected the permit-holder’s event from disruption | District court found Sessler unlikely to succeed; Eighth Circuit affirmed denial of injunction without deciding the ultimate merits |
| Whether preliminary injunctive relief was warranted (irreparable harm & specificity) | Sessler sought broad injunction to prevent restriction of his public preaching across City public spaces, citing fear of future enforcement | City argued Sessler lacked concrete plans to engage in conduct covered by the Policy and thus failed to show likely irreparable harm; injunction was overbroad and an "obey-the-law" injunction | Court held Sessler failed to show likely irreparable harm (fatal to preliminary relief); requested injunction also lacked the specificity required by Rule 65(d) and appeared to be an overbroad obey-the-law injunction |
Key Cases Cited
- Wood v. Moss, 572 U.S. 744 (2014) (government officials may not exclude speakers solely because they disagree, but speakers are not entitled to speak whenever/wherever)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (permit schemes regulating time, place, and manner must be content neutral, narrowly tailored to serve a significant interest, and leave open ample alternatives)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (movant must show likelihood of irreparable harm to obtain preliminary injunction)
- Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008) (First Amendment does not protect disruption of a permitted event; police may prevent counter-protestors from interfering with permit-holder’s use)
- Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (Dataphase factors govern preliminary injunction analysis)
- Watkins Inc. v. Lewis, 346 F.3d 841 (8th Cir. 2003) (failure to show irreparable harm is independently sufficient to deny a preliminary injunction)
- Duhe v. City of Little Rock, 902 F.3d 858 (8th Cir. 2018) (plaintiffs who did not apply for a permit and lack concrete plans may lack standing or fail to show a risk that ordinance will apply)