29 F.4th 1239
11th Cir.2022Background
- Rodney Keister, an evangelical preacher, attempted to preach and distribute literature on a sidewalk adjacent to University of Alabama buildings and was told by University officials he needed a permit under the University's Grounds Use Policy.
- Keister sued under 42 U.S.C. § 1983 alleging First and Fourteenth Amendment violations and sought injunctive relief; a prior interlocutory appeal upheld the district court's preliminary determination that the sidewalk was a limited public forum.
- After discovery, Keister argued the City of Tuscaloosa owns the sidewalk, so it should be treated as a traditional public forum; the district court granted summary judgment for the University, and Keister appealed.
- The Eleventh Circuit (assuming city ownership for purposes of appeal) again held the sidewalk is a limited public forum given campus signage, surrounding university buildings, University maintenance/control, and the University's intent not to open the area to unrestricted public expression.
- The court also held the case was not moot despite the University adopting a new policy (nominal damages claim preserved redressability under Uzuegbunam) and that Keister had standing; it upheld the University’s permitting scheme as reasonable and viewpoint-neutral.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum classification | Sidewalk is municipally owned and thus a traditional public forum allowing broad First Amendment protections | Sidewalk functions as part of campus (maintained/controlled by University) and is a limited public forum subject to reasonable, viewpoint-neutral limits | Sidewalk is a limited public forum despite assumed city ownership; University intent and campus indicia control forum analysis |
| Mootness | New University policy does not moot suit because past harms and nominal damages preserve the controversy | New Policy moots the case by replacing challenged policy | Not moot: nominal damages and Uzuegbunam preserve redressability; merits considered |
| Standing | Keister lacks redressable injury because he would not seek a permit, so relief would be ineffectual | Keister has standing via nominal damages and could have sought injunctive relief while old policy was in effect | Keister has Article III standing (nominal damages and prospective relief at time of filing suffice) |
| Leafletting / sponsor requirement | Sponsor requirement effectively bans leafletting by outsiders | Permit + sponsor scheme is a reasonable, content-neutral permission system; many potential affiliates exist | Permit/sponsorship requirement is reasonable in a limited public forum (analogous to Greer) |
| Vagueness of "casual recreational or social activities" and advance notice | Phrase is vague and allows arbitrary enforcement; 10-working-day notice is unreasonably long | Phrase is sufficiently clear in context; the 10-day term is advisory (applications could be approved in 3 days) and tailored to campus needs | Exception is not unconstitutionally vague; advance-notice is reasonable as applied (policy used “should,” allowed fast-tracking, and three days sufficed for simple events) |
Key Cases Cited
- Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (nominal damages can prevent mootness for past First Amendment violations)
- Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011) (university sidewalks can be limited public fora; forum determined by location, intent, and characteristics)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (limited public forum doctrine and reasonableness standard)
- Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015) (forum-analysis framework)
- Greer v. Spock, 424 U.S. 828 (1976) (military base sidewalks not traditional public forums; permission schemes can be upheld)
- United States v. Kokinda, 497 U.S. 720 (1990) (sidewalk adjacent to federal facility not necessarily a traditional public forum)
- Widmar v. Vincent, 454 U.S. 263 (1981) (universities have distinctive missions affecting forum analysis)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (forum categories and applicable scrutiny)
- Lee v. Int’l Soc’y for Krishna Consciousness, Inc., 505 U.S. 672 (1992) (airport leafletting restrictions analysis; contrasted with permitting schemes)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness doctrine and fair-warning requirement)