Jason Powell v. Roxann Ryan, 855 F.3d 899

Jason Powell was ejected from the Iowa State Fair in 2013 after holding a sign on a pole and standing on sidewalks outside Fair entrances; officials told him the Fair prohibits impeding pedestrian traffic and signs attached to poles or sticks.
Powell sued state officials under the First Amendment and the Due Process Clause seeking declaratory and injunctive relief and nominal damages.
On first appeal this Court held Powell unlikely to succeed on his First Amendment claim (area outside Fair is a limited public forum; restrictions reasonable and viewpoint-neutral) but remanded to consider his due process vagueness challenge.
On remand the district court denied broader preliminary injunctive relief, finding Powell unlikely to prevail on his due process claim and failing to show irreparable harm; the panel affirms.
The majority reasons that (1) the Fair’s unwritten rules impose only ejection (no direct criminal or monetary penalty), (2) Powell is now on clear notice of rules prohibiting impeding traffic and signs on poles, and (3) Powell produced no evidence of arbitrary or discriminatory enforcement.
Concurrence: Judge Shepherd would find Powell likely to succeed on the due process/vagueness claim (viewing the rules as quasi-criminal and noting lack of prior consistent practice or articulated standards) but concurs in the judgment because Powell failed to show irreparable harm.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness / fair notice (Due Process)	Powell: unwritten rules are vague; he lacked fair notice which chills protected speech.	State: rules (no impeding traffic; no signs on poles/sticks) are clear as applied and Powell has been given notice.	Held: Powell unlikely to succeed — terms are understandable as applied to his conduct and he now has fair notice.
Arbitrary/discriminatory enforcement	Powell: unwritten rules allow standardless discretion and risk arbitrary enforcement (e.g., unequal treatment vs. people pausing on sidewalks).	State: rules provide minimal guidelines; differing applications reflect legitimate distinctions, not impermissible discrimination.	Held: Powell unlikely to succeed — no evidence of viewpoint-based or similarly situated discriminatory enforcement.
Irreparable harm / preliminary injunction	Powell: loss of due process and chilling of speech justify injunction.	State: enforcement does not threaten First Amendment rights or cause irreparable injury.	Held: Powell failed to show irreparable harm; denial of preliminary injunction affirmed.

Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness doctrine: laws must give fair notice and minimal standards for enforcement)
Kolender v. Lawson, 461 U.S. 352 (1983) (vagueness concerns where criminal penalties chill speech)
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (level of precision required varies with law’s nature; more clarity for laws threatening protected rights or criminal penalties)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (a plaintiff whose speech is clearly proscribed cannot successfully raise vagueness for lack of notice)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (perfect clarity not required even for regulations restricting expressive activity)
Stahl v. City of St. Louis, 687 F.3d 1038 (8th Cir. 2012) (criminal ordinance void for vagueness where enforcement depends on third-party reactions)
Families Achieving Independence & Respect v. Neb. Dep’t of Soc. Servs., 111 F.3d 1408 (8th Cir. 1997) (unwritten policy may be constitutional if made explicit by well-established practice)
Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (preliminary injunction factors)
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (standards for preliminary injunction)