58 F.4th 824
5th Cir.2023Background
- The Texas State Preservation Board maintained a 1987 "Capitol Exhibit Rule" allowing the public to display exhibits in the Capitol if they met modest administrative criteria and had a qualifying state official sponsor; acceptance was mandatory if criteria were met.
- In December 2015 the Freedom From Religion Foundation (Foundation) applied to display a Bill-of-Rights themed nativity; the Board approved but Governor Abbott directed removal and the exhibit was taken down; Foundation sued, alleging viewpoint discrimination under the First Amendment.
- The district court ruled for the Foundation, finding a limited public forum and viewpoint discrimination; this Court remanded for consideration of injunctive relief in 2020 (955 F.3d 417).
- After that decision the Board amended the rule (2020) to declare accepted exhibits government speech and to make approvals permissive, then repealed the rule entirely in 2022; the Foundation has not re-applied.
- The Fifth Circuit held the repeal mooted the Foundation’s claim (no ongoing injury from exclusion from a public forum), concluded the voluntary-cessation exception did not apply, vacated the district court’s permanent injunction, but left the district court’s declaratory judgment intact and remanded for fee proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness after repeal of the Capitol Exhibit Rule | The controversy remains because the Board can still display exhibits and may again exclude viewpoint-based exhibits; repeal is litigation posturing | Repeal closed the limited public forum; without the rule there is no avenue for exclusion and no live controversy | Moot — repeal eliminated the limited public forum and plaintiff's requested prospective relief |
| Voluntary-cessation exception to mootness | Repeal was prompted by litigation and future discrimination is reasonably likely (Board can still display exhibits informally) | Formal repeal after notice-and-comment removes a reasonable expectation of recurrence; state bears lighter burden | Exception does not apply — record contains no evidence the Board will reinstate the prior public-application program or resume viewpoint discrimination |
| Government-speech vs. limited-public-forum characterization | The pre-amendment rule created a limited public forum; the Board’s denial was viewpoint discrimination | Amended rule declared exhibits government speech and made approvals discretionary, closing the forum | Court did not reinstate merits relief; declaratory judgment that prior exclusion violated the First Amendment remains, but the injunction enforcing participation in a forum that no longer exists was vacated |
| Vacatur of district-court injunction (equitable relief under U.S. Bancorp) | Injunction should remain to vindicate rights and preserve precedent against relitigation | Injunction is meaningless because the rule was repealed; federalism and public-interest equities counsel vacatur of the permanent injunction | Permanent injunction vacated; declaratory judgment and order preserved; case remanded for attorney-fee proceedings |
Key Cases Cited
- Freedom From Religion Found. v. Abbott, 955 F.3d 417 (5th Cir. 2020) (prior Fifth Circuit opinion remanding for consideration of prospective relief)
- New York State Rifle & Pistol Ass'n v. City of New York, 140 S. Ct. 1525 (2020) (statutory or regulatory amendment can render a case moot)
- Friends of the Earth, Inc. v. Laidlaw Env't Servs., Inc., 528 U.S. 167 (2000) (voluntary cessation exception to mootness)
- U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994) (equitable factors for vacatur when a case becomes moot on appeal)
- Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022) (government can convert a limited public forum into government speech; government speech doctrine discussed)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (framework distinguishing types of public fora)
- Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006) (statutory changes discontinuing challenged practice typically moot)
- Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009) (standard for voluntary cessation and state actors' lighter burden)