Rodney Keister v. Stuart Bell ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12152
____________________
RODNEY KEISTER,
Plaintiff-Appellant,
versus
STUART BELL,
in his official capacity as President of
the University of Alabama,
JOHN HOOKS,
in his official capacity as Chief of Police for
the University of Alabama Police Department,
MITCHELL ODOM,
individually and in his official capacity as
Police Lieutenant for the University of
Alabama Police Department,
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2 Opinion of the Court 20-12152
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:17-cv-00131-RDP
____________________
Before WILSON, ROSENBAUM, and ED CARNES, Circuit Judges.
ROSENBAUM, Circuit Judge:
Sidewalks have long been a part of Americana. 1 Cultural
anthropologist Margaret Mead remarked that “[a]ny town that
doesn’t have sidewalks doesn’t love its children.” And Shel Silver-
stein named an entire book after his famous poem “Where the
1 In fact, sidewalks go back much further. Ancient Rome is a case in point.
William Smith & Charles Anthon, A School Dictionary of Greek and Roman
Antiquities 355 (Harper & Bros., 1851) https://archive.org/de-
tails/aschooldictiona00smitgoog/page/n2/mode/2up (last visited Mar. 17,
2022). Even today, visitors to Pompeii can see remnants of sidewalks from
that era. See, e.g., @pompeii_sites (Official Twitter Account of Archaeologi-
cal Park of Pompeii), tweet posted Mar. 10, 2021 https://twitter.com/pom-
peii_sites/status/1369657737592926208 (showing a photograph and explain-
ing, “The sidewalks, just like the pedestrian crossings, were elevated . . . and
they were useful for not walking on the road . . . .”).
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20-12152 Opinion of the Court 3
Sidewalk Ends.” 2 The significance of sidewalks was not lost on
traveling evangelical preacher Plaintiff-Appellant Rodney Keister,
either. This case stems from Keister’s efforts to use a sidewalk at
Defendant-Appellee University of Alabama to spread the good
word.
Not long after Keister set up shop on that University side-
walk, he learned that University policy required him to have a per-
mit to engage in public speech there. That did not suit Keister. So
he brought a 42 U.S.C. § 1983 action against University officials,
alleging that the University’s policy violated his First and Four-
teenth Amendment rights.
Among other relief, Keister sought to preliminarily enjoin
the University from enforcing its policy. The district court denied
his motion. That precipitated Keister’s first trip to our Court. On
appeal, we affirmed the district court. We concluded, among other
things, that Keister had not shown a substantial likelihood of suc-
cess on the merits of his case. More specifically, we agreed with
the district court that the sidewalk in question is a limited public
forum, so the University’s permitting requirement needed to be
only reasonable and viewpoint-neutral. Keister v. Bell, 879 F.3d
1282 (11th Cir. 2018).
2 Shel Silverstein, “Where the Sidewalk Ends,” Where the Sidewalk Ends
(1974).
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4 Opinion of the Court 20-12152
On remand, Keister amended his complaint. After discov-
ery, the parties filed cross-motions for summary judgment. Once
again, the district court concluded that the sidewalk at the intersec-
tion is a limited public forum and upheld the University’s permit
policy as reasonable.
Now, on his second trip to this Court, Keister asserts that
the evidence uncovered in discovery shows that the City of Tusca-
loosa owns the sidewalk at issue. Consequently, he reasons, the
sidewalk is a traditional public forum, and the University’s permit-
ting requirement is unconstitutional.
After careful consideration and with the benefit of oral argu-
ment—and even assuming that the City of Tuscaloosa owns the
sidewalk at issue—we disagree with Keister that any facts material
to our analysis have changed. So we once again conclude that the
sidewalk is a limited public forum. And this time, we also review
the permitting requirement. Because we find it is reasonable, we
affirm the judgment of the district court.
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I.
A. Factual Background3
As a Christian evangelist, Keister believes his mission is to
share his faith and beliefs with others in public spaces. Typically,
he presents his message on public sidewalks and thoroughfares by
passing out religious literature, preaching, and engaging passersby
in one-on-one conversation. He likes speaking with college stu-
dents, so he often visits college campuses to spread his message.
On March 10, 2016, Keister and a companion went to Tus-
caloosa, Alabama, to disseminate their message to the students at
the University of Alabama—a state-funded public University. Keis-
ter and his friend started preaching on a sidewalk next to Sixth Av-
enue, in the middle of campus. They were located between two
school buildings, Smith and Lloyd Halls, and across from the
Quad—a grassy area at the center of campus. Keister set up a ban-
ner and passed out literature, while his companion preached
through a megaphone.
Soon after Keister and his friend began, campus police and a
University representative approached. They informed Keister that
the University’s Policy for the Use of University Space, Facilities
and Grounds (“Policy”) required him to obtain a permit before
3 We are reviewing an order granting summary judgment, so we present the
evidence in the light most favorable to Keister, against whom the district court
granted summary judgment. See Rodriguez v. City of Doral, 863 F.3d 1343,
1349 (11th Cir. 2017).
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participating in expressive conduct on University grounds. Accord-
ing to Keister, the University representative told him that campus
“is open to the public, and Keister was allowed to be there, but he
could not engage in his [preferred form] of expression on [Univer-
sity] campus without first obtaining a permit.”
After further discussion with the campus police and a Uni-
versity representative, Keister and his companion decided to move
to the sidewalk at the northeast corner of University Boulevard and
Hackberry Lane (the “Sidewalk” or “Intersection”). He chose that
corner because, he says, one of the campus police officers told him,
“On that corner, you’re good.” Keister also thought that the Side-
walk was public and not part of the University’s campus.
So Keister and his companion moved to the front of Russell
Hall, a University building, to continue preaching. Later that day,
the weather started to turn, and they decided to leave.
That’s when one of the officers who had stopped them ear-
lier approached them again. The officer said he and the other Uni-
versity employees were mistaken earlier when they told Keister he
could preach at the Intersection. In fact, the officer explained, Keis-
ter could not preach in front of Russell Hall without a permit. Keis-
ter claims that when he questioned the officer about the policy, the
officer confirmed that Keister could not return without a permit
and that, if he did, he would be arrested for trespass.
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20-12152 Opinion of the Court 7
Keister wishes to go back to that spot to share his message
with University students. He has not returned, though, because he
worries he will be arrested.
B. Relevant Procedural History and Evidence
1. Complaint and Preliminary Injunction
On January 25, 2017, Keister filed a complaint under 42
U.S.C. §§ 1983 and 1988 against Stuart Bell, the President of the
University of Alabama; John Hooks, the Chief of Police for the Uni-
versity Police Department; and Mitch Odom, the University police
lieutenant who stopped Keister on March 10, 2016. Keister sued all
defendants in their official capacity. For this reason and for con-
venience, we refer to the three defendants collectively as the “Uni-
versity.”
Keister alleged that the University’s Policy violates the First
Amendment’s Free Speech Clause and the Fourteenth Amend-
ment’s Due Process Clause. The next day, he filed a motion for
preliminary injunction seeking to prevent the University from en-
forcing its Grounds Use Policy. In his motion, Keister argued that
the University should be enjoined from enforcing its Policy because
the Intersection is a traditional public forum, and the policy fails
appropriate scrutiny.
Following briefing and a hearing, the district court issued a
written opinion denying Keister’s injunction motion. The district
court determined that the Intersection is a limited public forum,
and it found that the Policy satisfied the requisite level of scrutiny.
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Keister filed an interlocutory appeal. In a published opinion,
we affirmed. Keister, 879 F.3d at 1291. We held that the Intersec-
tion is a limited public forum. Id. But because Keister did not raise
the issue on appeal, we did not consider whether the University’s
Policy would survive the level of scrutiny applied to limited public
forums. Id. at 1288 n.4. Keister filed a petition seeking rehearing
en banc and a petition for a writ of certiorari with the Supreme
Court. Both petitions were denied.
Back in the district court, Keister filed an amended com-
plaint, again alleging First Amendment and Fourteenth Amend-
ment Due Process claims. He asserted that the Intersection did not
actually fall within campus bounds, but rather, was only near cam-
pus. After the University unsuccessfully moved to dismiss, the par-
ties engaged in discovery, which produced more information on
the property at issue and the University’s Policy.
2. Evidence Gleaned from Discovery
a. The Intersection
For orientation purposes, we begin with a map of the Uni-
versity of Alabama. Circled in red is the Intersection (where Uni-
versity Boulevard and Hackberry Lane meet).
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University Boulevard and Hackberry Lane are Tuscaloosa
city streets that, as the map reflects, run through the University’s
campus. Sidewalks open to the public line both streets. The Inter-
section is just one block east of the University Quad. It’s sur-
rounded by clearly identified University buildings: Farrah Hall on
the southwest corner of the Intersection, Gallalee Hall on the
northwest corner, Russell Hall on the northeast corner, and a pub-
lic park on the southeast corner. Keister, as we have mentioned,
was preaching in front of Russell Hall, to which the red arrow on
the map points.
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Objective signs literally indicate the Intersection is on cam-
pus: the street signs at the Intersection are embossed with the
script “A” logo, and University banners adorn the streetlamps.
Landscaping fences, which run throughout campus, also sit on
each corner of the Intersection. Roughly two blocks to the east, on
University Boulevard, some private businesses are interspersed
among University buildings. But all the property immediately
around the Intersection is University property.
The parties dispute who owns the Sidewalk at issue: the
City of Tuscaloosa or the University. 4 Because we are reviewing
an order granting the University’s motion for summary judgment,
we assume for purposes of our analysis Keister’s contention—that
the City owns the Sidewalk.
Nevertheless, Keister and the University agree that the Uni-
versity maintains it. The University is responsible for clearing the
sidewalks, and its police respond to incidents there.
4 Keister originally alleged that the Intersection was within the University’s
bounds, Keister, 879 F.3d at 1290 n.5, but in his amended complaint, he as-
serted that the Intersection is near campus but not a part of it. The evidence
reflects that in 1921, the University conveyed the property on the northeast
corner of the Intersection to the City of Tuscaloosa to build a hospital. Then,
in 1944, the City of Tuscaloosa granted an easement to Tuscaloosa County on
the land that includes the Sidewalk for making a public street or highway.
Two years later, in 1946, the City transferred the land it received in 1921 back
to the University “except that portion of the above-described parcel which was
conveyed by said CITY OF TUSCALOOSA and others to Tuscaloosa County
for the purpose of widening the highway.”
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b. The Policy
The University’s Grounds Use Policy governs when, where,
and how a person not affiliated with the University may engage in
public speaking on campus. It applies to any activities or events
that occur on campus grounds, including on campus sidewalks,
other than “casual recreational or social activities.”
According to the University’s Senior Director of Facilities
Operation and Grounds Use Permits, the Policy is “intended to fa-
cilitate responsible stewardship of institutional resources and to
protect the safety of persons.” It is also meant to “preserv[e] the
primacy of the university’s teaching and research mission.”
When Keister attempted to speak publicly on campus, 5 the
Policy required individuals who are not affiliated with the Univer-
sity to (1) be sponsored by a University academic department or
student organization (the “University Affiliate” requirement), and
(2) apply for and obtain a Grounds Use Permit (“Permit”). Under
the Policy, applications for a Permit “should” be submitted ten
working days before the public-speaking engagement occurs. The
Policy set forth this aspirational waiting period to “facilitate the re-
view by all the different University departments that have respon-
sibility for the various aspects of an Event (e.g., tents, food service,
UAPD, electrical service, etc.).” But the Policy did not require that
5 As we further explain later, see infra at 13, the Policy in effect during Keister’s
attempts to speak on campus has since been superseded.
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12 Opinion of the Court 20-12152
an application be submitted ten days in advance. Nor did it make
the failure to do so a basis for denial. Rather, the Policy explained
that “[i]f an Event does not involve factors that require multiple
University department approvals, approval may be given in as few
as three (3) days, if the [Permit] form is filled out completely and
accurately.”
And the University’s practice showed that was the case.
Usually, an applicant had to wait much less time than ten days to
receive a response. In 2018, for example, Permit applications were
approved in an average of 4.4 days. Some months, the average was
even lower. Take March 2018, for instance. That month, the Uni-
versity averaged only 2.9 days to approve an application. (Keister
visited the University in March 2016).
The University could also approve “spontaneous” events
and “counter-events” in as little as twenty-four hours. Spontane-
ous events concern issues that have become public knowledge
within two days of the event. And counter-events are those held
in response to an event for which a Permit has been issued. Keister
is not claiming that his preaching and leafletting qualified as a spon-
taneous or counter-event.
Outside speakers who obtain a Permit and sponsorship can
also seek permission to use amplification equipment. But speakers
must submit these applications ten working days before use. Sim-
ilarly, Permit holders may distribute printed materials (including
leaflets) in conjunction with an event.
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Although the University receives a fair number of Permit ap-
plications, it approves almost all of them. Nevertheless, the Uni-
versity may deny an application under certain, content-neutral con-
ditions. For example, the University may deny an application if the
“proposed location [for the event] is unavailable . . . because of
events previously planned for that location.” It may also deny an
application if the event would unreasonably obstruct pedestrian or
vehicular traffic or unreasonably interfere with regular academic
and student activities. Applicants may challenge the denial of their
applications.
In July 2020, after Keister filed a notice of appeal for this case,
the University instituted a new Grounds Use Policy (“New Pol-
icy”). The New Policy still requires outside speakers to obtain a
sponsorship and a permit before hosting an expressive event on
campus. And it still has an exception for “casual recreational or
social activities.” But the New Policy does slightly change the ad-
vance notice provision and sponsorship requirement. Under the
New Policy, outside speakers “are strongly encouraged” to apply
for a permit at least ten business days before an event, and “at a
minimum” they must apply “no less than five” business days before
the event. The New Policy also requires University Affiliates who
reserve campus space to “actively participate in any activity associ-
ated with that reservation.”
3. Summary Judgment and Appeal
Now, we return to the procedural history. After the parties
completed discovery, they filed cross-motions for summary
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judgment. The district court granted the University’s motion and
denied Keister’s. In reaching these resolutions, the district court
concluded that the Sidewalk is a limited public forum because it is
“within the University’s campus, is not intended as an area for the
public’s expressive conduct, and contains markings sufficiently
identifying it as an enclave.” Then, applying the requisite level of
scrutiny, the district court held that the University’s Grounds Use
Policy and its related requirements were reasonable and viewpoint
neutral.
Keister timely appealed. In response, the University moved
to dismiss the appeal as moot based on the University’s adoption
of the New Policy that took effect after Keister filed his notice of
appeal. For the reasons we explain below, we conclude this appeal
is not moot and address the merits.
II.
We review de novo a district court’s grant of summary judg-
ment. Rodriguez v. City of Doral, 863 F.3d 1343, 1349 (11th Cir.
2017). In our review, we draw all inferences and review all evi-
dence in the light most favorable to the non-moving party. Id.III.
Before launching into our analysis, we take a moment to ex-
plain the organization of our discussion. Article III of the Consti-
tution limits our jurisdiction to “[c]ases” and “[c]ontroversies.”
U.S. Const. art. III, § 2. As relevant here, that means the plaintiff
must have standing (a personal stake in the matter, see TransUnion
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LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021)), and the case must
not be moot (it must present a live, ongoing controversy that the
court may redress, see Flanigan’s Enters., Inc. of Ga. v. City of
Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017) (en banc), abro-
gated on other grounds by Uzuegbunam v. Preczewski, 141 S. Ct.
792 (2021))—issues we address in more detail later.
The University argues that Keister may lack standing and
that this case is moot. Because these arguments concern our juris-
diction to entertain the case in the first place, we would normally
consider each of them, in order, before addressing the merits. But
here, the University contends that Keister does not enjoy standing
only if we conclude, in our analysis of his First Amendment claim,
that the Sidewalk is a limited public forum—a concept we explain
more later. So understanding the University’s position on Keister’s
standing requires knowledge of First Amendment forum analysis.
For that reason, we do not consider the University’s standing argu-
ment until after we identify the type of forum the sidewalk repre-
sents.
Nevertheless, and at the risk of ruining the ending, we reveal
now that we conclude Keister enjoys standing. As a result, we
must also address the University’s mootness argument. A finding
of mootness based on the University’s theory that we cannot re-
dress Keister’s claims now that the University has replaced the Pol-
icy at issue would obviate the need for us to consider the merits
here. So we start our analysis by examining the University’s moot-
ness argument.
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A. This case is not moot
Article III requires a “[c]ase[]” or “[c]ontrovers[y]” to exist at
all times during the litigation. Alvarez v. Smith, 558 U.S. 87, 90–91
(2009). Our jurisdiction ceases if a case becomes moot while it
pends before us. See Flanigan’s, 868 F.3d at 1255. A case can be-
come moot, in turn, if an event occurs that ends “any actual con-
troversy about the plaintiff[’s] particular legal rights,” Alvarez, 558
U.S. at 91, and makes redressability by the court an impossibility.
Despite this general rule, a party cannot necessarily moot a
case for injunctive relief by simply voluntarily agreeing to stop the
allegedly illegal conduct. Troiano v. Supervisor of Elections, 382
F.3d 1276, 1282–83 (11th Cir. 2004). This voluntary-cessation ex-
ception to mootness seeks to prevent defendants from returning to
their old ways while nonetheless skirting judicial review. Id. at
1283. But the doctrine of voluntary cessation does not apply when
there is “no reasonable expectation that the voluntarily ceased ac-
tivity will, in fact, actually recur after the termination of the suit.”
Id. That is so because when offending conduct ends or a law is
repealed, it is not able to further injure a party in a way that an
injunction is capable of redressing. Checker Cab Operations, Inc.
v. Miami-Dade Cnty., 899 F.3d 908, 915 (2018).
Government defendants receive the benefit of the doubt in
voluntary-cessation cases: When they voluntarily stop the chal-
lenged conduct, a rebuttable presumption arises that they will not
reengage in it. Troiano, 382 F.3d at 1283. For instance, when a
government fully repeals a challenged law, a case challenging that
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law is almost surely moot. Coral Springs Street Sys., Inc. v. City of
Sunrise, 371 F.3d 1320, 1331 n.9 (11th Cir. 2004). And even when
a challenged law is not fully repealed, we have held that so long as
the law or policy has been “unambiguously terminated,” any chal-
lenge to it is moot, unless a plaintiff identifies a “reasonable basis to
believe that the policy will be reinstated if the suit is terminated.”
Troiano, 382 F.3d at 1285.
Yet the government cannot always moot a case by simply
changing the challenged policy or law. If a new policy leaves the
challenged aspects of the old policy “substantially undisturbed,”
the case avoids mootness. Naturist Soc., Inc. v. Fillyaw, 958 F.2d
1515, 1520 (11th Cir. 1992). A change in policy will moot a case
only if it “fundamentally alter[s]” the original policy so “as to ren-
der the original controversy a mere abstraction.” Id.Here, we need not consider whether the University’s re-
placement of the Policy that was in place when Keister filed his suit
“fundamentally altered” the original Policy. 6 Even if it did, Keis-
ter’s challenge is not moot. After all, he seeks, among other relief,
nominal damages for the University’s past alleged violation of his
First Amendment rights. Ceasing an offending policy going
6 We also do not consider whether the New Policy violates the First Amend-
ment. Because the New Policy was not enacted until after this matter was
already pending on appeal, the parties did not have the opportunity in the dis-
trict court to conduct discovery concerning it, and the district court did not
have a chance to address it. Under these circumstances, any challenge to the
New Policy is better fully developed and first considered in the district court.
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forward does not redress an injury that occurred in the past.
Checker Cab Operations, Inc., 899 F.3d at 916. And the Supreme
Court recently held in Uzuegbunam that, in circumstances materi-
ally indistinguishable from those here, a request for nominal dam-
ages saves a matter from becoming moot as unredressable when
the plaintiff bases his claim on a completed violation of a legal right.
141 S. Ct. 792, 801–02 (2021). Because the University’s adoption of
the New Policy does not render the case moot, we next consider
the merits of Keister’s claim.
B. The Sidewalk at the Intersection of University Boulevard
and Hackberry Lane is a limited public forum
The Free Speech Clause of the First Amendment forbids the
government’s enactment of laws “prohibiting the free exercise” of
speech. U.S. Const. amend. I. As state-funded entities, universities
like the University of Alabama are subject to the First Amendment.
Bloedorn v. Grube, 631 F.3d 1218, 1231 (11th Cir. 2011). Neverthe-
less, the First Amendment does not guarantee a private speaker’s
right to speak publicly on all government property. Id. at 1230.
Rather, the government, similar to a private-property owner, en-
joys the power to maintain its property for a lawfully prescribed
use. Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S.
788, 800 (1985).
To determine when private speakers can use government
property for public expression, we apply a “forum analysis.”
Walker v. Tex. Div. Sons of Confederate Veterans, Inc., 576 U.S.
200, 215 (2015). The type of forum to which a government rule or
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policy pertains determines the level of scrutiny we apply to that
rule or policy. See Barrett v. Walker Cnty. Sch. Dist., 872 F.3d
1209, 1224 (11th Cir. 2017). Assessing the type of forum a particular
piece of government property may be requires us to consider “the
traditional uses made of the property, the government’s intent and
policy concerning the usage, and the presence of any special char-
acteristics.” Bloedorn, 631 F.3d at 1233.
The Supreme Court has identified four categories of govern-
ment fora: the traditional public forum, the designated public fo-
rum, the limited public forum, and the nonpublic forum.7 Barrett,
872 F.3d at 1224. This case presents the question of whether the
Sidewalk at the Intersection is a traditional public forum or limited
public forum.
A “traditional public forum” is government property that
has “immemorially been held in trust for the use of the public[.]”
Walker, 576 U.S. at 215 (cleaned up). It is government property
that has “time out of mind . . . been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
7 We discuss only the traditional public forum and the limited public forum
below. But for reference, a designated public forum is “government property
that has not traditionally been regarded as a public forum [but] is intentionally
opened up for that purpose.” Barrett, 872 F.3d at 1224. And a nonpublic fo-
rum is property for which the government “act[s] as a proprietor, managing
its internal operations.” Id. at 1225. The term “nonpublic forum” was once
synonymous with “limited public forum,” but the Supreme Court has since
clarified that that the terms “limited public forum” and “nonpublic forum” de-
lineate two distinct types of fora. Id.
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questions.” Id. Think fully public parks and streets, for example.
Traditional-public-forum status does not reach further than its “his-
toric confines.” Ark. Educ. Tele. Comm’n v. Forbes, 523 U.S. 666,
678 (1998).
When we evaluate a government regulation on speech in a
traditional public forum, we apply strict scrutiny. See Perry Educ.
Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983). That
means a government entity may subject speech in a traditional
public forum to a time, place, and manner restriction only if its pol-
icy is “content neutral, narrowly tailored to achieve a significant
government interest, and leaves open ample alternative channels
of communication.” Bloedorn, 631 F.3d at 1231 (cleaned up).
The term “limited public forum,” on the other hand, de-
scribes government property where only particular subjects may
be discussed or that only certain groups may use. Id. In other
words, a limited public forum is not “open to the public at large for
discussion of any and all topics.” Barrett, 872 F.3d at 1224. The
government may exclude a speaker from a limited public forum “if
he is not a member of the class of speakers for whose especial ben-
efit the forum was created.” Bloedorn, 631 F.3d at 1231 (quoting
Cornelius, 473 U.S. at 806). When the forum is a limited public
one, regulations on speech must be only reasonable and viewpoint
neutral. Id. We assess reasonableness by looking to the purpose
of the forum and “all the surrounding circumstances.” Id. at 1232
(quoting Cornelius, 473 U.S. at 809).
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The Supreme Court has recognized that universities differ
from other public fora in important ways. Widmar v. Vincent, 454
U.S. 263, 267 n.5 (1981). Among other distinctions, universities
have a particular mission to educate. Id. So when it comes to their
campus and facilities, universities generally may issue reasonable
regulations that are consistent with that mission. Id. For this rea-
son, university public-speaking venues often qualify as limited pub-
lic fora.
Despite this general rule, a college campus “will surely con-
tain a wide variety of fora on its grounds.” Bloedorn, 631 F.3d at
1232. To determine the type of forum at issue, we must first iden-
tify the precise piece of campus the speaker wishes to access. Our
cases instruct that the “scope of the relevant forum is defined by
‘the access sought by the speaker.’” Id. (quoting Cornelius, 473
U.S. at 801). Because Keister seeks to speak on only the Sidewalk
at the Intersection, that is the relevant forum for our purposes.
The first time this case made an appearance in this Court, on
review from the denial of the preliminary injunction, we concluded
that the Sidewalk was a limited public forum. Keister, 879 F.3d at
1290. We reached this conclusion after applying Bloedorn, which
we explained governs us in determining the type of forum a partic-
ular part of a university campus is. Id. For the reader’s conven-
ience and to lay the groundwork for explaining why the evidence
garnered in discovery does not change our conclusion that the
Sidewalk is a limited public forum, we again discuss Bloedorn and
its application here.
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22 Opinion of the Court 20-12152
Bloedorn, an evangelical preacher like Keister, sought to
preach on Georgia Southern University’s (“GSU”) campus. 631
F.3d at 1225. He started speaking on a sidewalk (“Pedestrian Mall”)
near the rotunda and student union. Id. After he’d begun, a uni-
versity official told him that he could not speak on campus without
a permit. Id. at 1226–27. Bloedorn eventually filed suit, arguing
that the policy violated the First Amendment. Id. at 1227. Ulti-
mately, we held that GSU’s Pedestrian Mall and its rotunda were a
limited public forum because state-funded universities are gener-
ally not considered traditional public fora, and GSU “expressed no
intention to open these areas to the general public for expressive
conduct.” Id. at 1232. We concluded that it was of “lesser signifi-
cance that the GSU sidewalks and Pedestrian Mall physically re-
semble municipal sidewalks and public parks” because “[t]he phys-
ical characteristics of the property alone cannot dictate forum anal-
ysis.” Id. at 1233.
In arriving at this conclusion, we noted that the Supreme
Court had found sidewalks not to constitute traditional public fora
in similar circumstances. We pointed out that in Greer v. Spock,
424 U.S. 828, 835–38 (1983), the Supreme Court concluded that the
presence of sidewalks and streets within a military base did not
transform the base into a traditional public forum. Bloedorn, 631
F.3d at 1233. And we observed that in United States v. Kokinda,
497 U.S. 720, 727–28 (1990) (plurality opinion), the Supreme Court
held that a sidewalk running between a parking lot and a post office
was not a traditional public forum—even though it looked exactly
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20-12152 Opinion of the Court 23
like adjacent municipal sidewalks. Bloedorn, 631 F.3d at 1233. The
Court reached this conclusion, we remarked, because the sidewalk
there was not constructed to support expressive activity. Id. Ra-
ther, the government built that sidewalk only to allow postal cus-
tomers to navigate between the parking lot and the post office’s
front door. Kokinda, 497 U.S. at 727.
By contrast, we distinguished GSU’s sidewalks from the
sidewalks at issue in United States v. Grace, 461 U.S. 171 (1983). In
Grace, the Supreme Court addressed whether the sidewalks in
front of its own building were a traditional public forum. The
Court concluded they were. Id. at 180. It explained that the side-
walks were “indistinguishable from any other sidewalks in Wash-
ington, D.C.,” and contained “no separation, no fence, and no in-
dication whatever to persons stepping from the street to the curb
and sidewalks that serve as the perimeter of the Court grounds they
have entered some special type of enclave.” Id. at 179–80.
We found the opposite to be true of the sidewalks in
Bloedorn: there, the sidewalks and Pedestrian Mall were “con-
tained inside of the GSU campus,” which had entrances “identified
with large blue signs and brick pillars,” buildings with “large blue
signs,” and parking lots with “signs restricting their use to GSU
community members.” 631 F.3d at 1234.
Perhaps not surprisingly, when we applied Bloedorn the first
time Keister’s case reached us, we arrived at the same conclusion
about the University of Alabama Sidewalk as Bloedorn did for the
GSU sidewalk at issue there. Keister, 879 F.3d at 1290–91. We
USCA11 Case: 20-12152 Date Filed: 03/25/2022 Page: 24 of 42
24 Opinion of the Court 20-12152
noted that, in both cases, the University did not intend to open the
sidewalks for non-student use. Id. at 1290. In both cases, too, we
identified objective indicia showing that the sidewalks were on
campus, and they were distinguishable from other municipal
streets, unlike the sidewalks in Grace. Id. at 1291. We pointed out,
for example, in the University’s case, that the Sidewalk was in the
“heart” of campus and was surrounded by University buildings and
“numerous, permanent, visual indications that the sidewalks are on
[University] property including landscaping fences and [University]
signage.” Id. at 1291. In other words, we determined, the Sidewalk
here, like GSU’s at issue in Bloedorn, was clearly inside a special
enclave—the University’s campus. Id.
Now, after discovery, Keister argues that new facts require
the conclusion that the Sidewalk is a traditional public forum. He
claims that new evidence reveals that the Sidewalk is not in the
“heart” of campus, after all, but rather is a simple municipal side-
walk that the City of Tuscaloosa owns. In Keister’s view, city own-
ership renders the Sidewalk a traditional public forum as a matter
of law. Keister also insists that the appearance and function of the
Sidewalk confirm that it is a traditional public forum. We are not
persuaded.
We begin with Keister’s claim that new facts alter the analy-
sis. In Keister’s view, the Sidewalk is not a part of campus. Keister
contends that campus cannot be viewed as a single, uninterrupted
entity because private businesses and non-University property ap-
pear next to and among University property, so it is impossible to
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20-12152 Opinion of the Court 25
locate the “heart” of campus. He also argues that the Sidewalk is
not inside a “special enclave” because unlike with the sidewalks in
Bloedorn, no signs, pillars, or other markers near the Sidewalk in-
dicate to someone that they have entered campus. Instead, Keister
contends the Sidewalk is indistinguishable from the City sidewalks
adjoining it. In insisting that the Sidewalk is not a part of campus,
Keister relies on McGlone v. Bell, 681 F.3d 718, 732 (6th Cir. 2012),
and Brister v. Faulkner, 214 F.3d 675, 681–83 (5th Cir. 2000), where
the courts found the sidewalks there to be traditional public fora.
We disagree that the expanded record warrants the conclu-
sion that the Sidewalk here is a traditional public forum. For start-
ers, we easily conclude that the Sidewalk where Keister wants to
speak is on campus. It’s just a block from the Quad—the center of
campus. And it lies immediately in front of Russell Hall—home to
the University’s history department. Even Keister conceded during
his deposition that he believed Russell Hall and the grounds in front
of Russell Hall were part of the University and were maintained by
it. The buildings across the street from the Sidewalk are also Uni-
versity buildings. On the northeast corner of the Intersection, a
parking lot is explicitly limited to University-affiliated individuals.
Streetlamps by the Sidewalk boast University banners, and the
street signs are inscribed with the University’s script “A” logo. A
chain-linked fence that often surrounds the University’s campus
also borders the Sidewalk around the Intersection.
On top of that, the University controls and maintains the
Sidewalk. It shovels snow there, and its police department is
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26 Opinion of the Court 20-12152
responsible for responding to incidents on that spot. And though
we assume the City owns the Sidewalk, the evidence shows that it
unambiguously granted the University permission to maintain and
repair the sidewalks (including the Sidewalk) on University Boule-
vard. Indeed, no evidence shows that the Sidewalk has ever been
treated as anything other than part of a college campus. In short,
Keister’s fact-based arguments provide no basis for altering the fo-
rum analysis from our first opinion.
Nor do his legal arguments. Regardless of where the side-
walk may end,8 whether a sidewalk is owned by a city has never
been the beginning and end of the forum analysis. Perhaps for this
reason, Keister cites no case that stands for the proposition that
sidewalks are traditional public fora because the government owns
them. In fact, in Keister’s first appeal, we dismissed another flavor
of this per se argument: that “because the intersection is open as a
public thoroughfare, it is per se a traditional public forum.” Keis-
ter, 879 F.3d at 1291.
Keister’s claim that municipal ownership is dispositive also
makes little sense in the forum-analysis context, given that the gov-
ernment owns all property we evaluate under that framework.
Walker, 576 U.S. at 215 (explaining that forum analysis is used “to
evaluate government restrictions on purely private speech that oc-
curs on government property”). If government ownership were
the deciding factor, then we would not need to perform forum
8 See Silverstein, supra, note 2.
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20-12152 Opinion of the Court 27
analysis to differentiate among different types of government prop-
erty. And in any case, even if the Sidewalk were owned by the
University (instead of the municipality), the University is still a pub-
lic entity. So if Keister were correct, his rule would require the
conclusion that the Sidewalk is a public forum even without con-
sidering whether the City owned the Sidewalk. But as we have
explained, Keister is mistaken: the mere fact that the government
may own the property does not determine the type of forum the
property presents.
Keister’s argument that the particular government owner
drives the outcome of the forum analysis fails for similar reasons.
To be sure, as Keister submits, the Supreme Court has held that
public sidewalks that are operated by a “government proprietor”
like a military base, Greer, 424 U.S. at 836–40, or a post office, Kok-
inda, 497 U.S. at 730, are limited public fora. And it has acknowl-
edged in Kokinda that “governmental actions are subject to a lower
level of First Amendment scrutiny” when the government is acting
as a “proprietor, to manage its internal operations.” 497 U.S. at 725(cleaned up).
But again, the Supreme Court has not created a per se rule
that sidewalks are traditional public fora simply because they are
owned by a municipality (as opposed to a different government
owner). Instead, and as we have emphasized, forum analysis re-
quires us to consider the location, purpose, and traditional use of a
piece of government property—whoever the governmental owner
may be. Bloedorn, 631 F.3d at 1233.
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28 Opinion of the Court 20-12152
Here, though we accept for purposes of this appeal that the
City owns it, the Sidewalk—with its location immediately in front
of and across from two University buildings—functions as a part of
the University. And as we have noted, the University maintains
the Sidewalk and is responsible for its upkeep. Even Keister
acknowledges that the University could enforce its Policy on the
Sidewalk. Given the University’s control over the Sidewalk, it’s the
University’s intent that matters with respect to that property. And
there’s no question that the University does not intend to open the
Sidewalk up to unchecked expressive activity by the public at large.
Finally, Keister’s reliance on the out-of-circuit cases
McGlone and Brister is misplaced. In those cases, the sidewalks at
issue were clearly municipal sidewalks that abutted campus.
McGlone, for example, described them as “perimeter sidewalks”
outside of campus. McGlone, 681 F.3d at 732–33. And Brister em-
phasized that “no indication or physical demarcation” told an indi-
vidual that the sidewalks were part of the University of Texas cam-
pus and not just city sidewalks. Brister, 214 F.3d at 681–83. Here,
though, the Sidewalk is just as unambiguously within campus.
That a sprinkling of private businesses sit a few blocks east of the
Intersection does not change this. Anyone approaching the Inter-
section from any direction encounters numerous school buildings
and signage plainly signaling that they are within a college campus,
and not just on a city street.
In sum, we conclude that the Sidewalk on the northeast cor-
ner of the Intersection is a limited public forum.
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20-12152 Opinion of the Court 29
C. Keister has standing to challenge the University’s Policy
The University makes its argument that Keister lacks stand-
ing contingent on our conclusion that the Sidewalk is a limited pub-
lic forum. So now that we have determined that the Sidewalk is,
in fact, a limited public forum, we interrupt our merits analysis to
consider Keister’s standing.
Our Constitution separates legislative, executive, and judi-
cial powers among our three corresponding branches of govern-
ment, so that no one branch has too much power. Under the sep-
aration-of-powers scheme and as we have noted, the Constitution
authorizes the courts to hear only “[c]ases and [c]ontroversies.”
U.S. Const., Art. III. Standing doctrine helps to identify which mat-
ters fall within those bounds. See Spokeo, Inc. v. Robins, 578 U.S.
330, 339 (2016). To enjoy standing, a litigant must show all the
following: (1) he “suffered an injury in fact that is concrete, partic-
ularized, and actual or imminent;” (2) the defendant “likely caused”
his injury; and (3) judicial relief would likely redress his injury.
TransUnion, 141 S. Ct. at 2203.
The gist of the University’s position is that, on this record,
Keister’s injury cannot be redressed by a favorable ruling. More
specifically, the University asserts that the determination that the
Sidewalk is a limited public forum means that Keister would nec-
essarily have to obtain a permit at some point to publicly speak
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30 Opinion of the Court 20-12152
there. 9 But Keister testified he would never apply for a permit be-
fore speaking on campus, no matter how easy the process. Because
Keister refuses to seek a permit, the University reasons, he would
never be able to take advantage of any favorable decision here
based on a finding that the Sidewalk is a limited public forum, so
his claim is not redressable. We disagree.
As an initial matter (and as we have pointed out), Keister
seeks nominal damages to redress the injury he claims to have suf-
fered to his First Amendment rights when University employees
instructed him to stop preaching on University property. That
checks the redressability box to establish standing, since “for the
purpose of Article III standing, nominal damages provide the nec-
essary redress for a complete violation of a legal right.” Uzueg-
bunam, 141 S. Ct. at 802. To put a finer point on it, if we conclude
that the University’s Policy was unreasonable for First Amendment
purposes, then Keister suffered a constitutional injury when the
University enforced the Policy against him on March 10, 2016. As
a result, he could obtain nominal damages, even if he never seeks
a permit.
Not only that, but Keister also had standing to seek declara-
tory and injunctive relief. After all, we assess standing “as of the
time the complaint is filed.” Focus on the Family v. Pinellas Sun-
coast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) (citation
9 If the Sidewalk were a traditional public forum, it could be subjected to only
content-neutral time, place, and manner restrictions.
USCA11 Case: 20-12152 Date Filed: 03/25/2022 Page: 31 of 42
20-12152 Opinion of the Court 31
and quotation marks omitted). And when Keister filed his com-
plaint and right up until the University superseded the old Policy
with the New Policy well into this litigation, we could have en-
joined the University from enforcing its Policy if we concluded that
the Policy was unreasonable or not viewpoint neutral. That is the
exact relief Keister sought in his amended complaint. While the
University argues that Keister would have had to be “willing to ac-
cept a permit at some point in the future,” that was not necessarily
the case before the University revised the old Policy. Had we en-
joined the Policy, that itself was the redress Keister sought.
In short, Keister has standing to challenge the University’s
Policy.
D. The University’s Policy is constitutional
With that resolved, we return to our merits analysis. When
we last left off, we had determined that the Sidewalk is a limited
public forum. For that reason, the University can exclude speakers
who seek “to address a topic not encompassed within the purpose
of the forum” or who are “not a member of the class of speakers
for whose especial benefit the forum was created.” Cornelius, 473
U.S. at 806.
But the University’s power to limit expression is not bound-
less. Rather, restrictions on speech in a limited public forum still
must be viewpoint neutral and reasonable. Bloedorn, 631 F.3d at
1235. The reasonableness standard is not demanding; a restriction
on expression is reasonable even if it is not “the most reasonable or
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32 Opinion of the Court 20-12152
the only reasonable limitation” on expression. Cornelius, 473 U.S.
at 808. At a minimum, a restriction must simply be “reasonable in
light of the purpose which the forum at issue serves.” Bloedorn,
631 F.3d at 1235.
Keister challenges three aspects of the University’s Policy.
First, he asserts that the Policy banned leafletting, which the Su-
preme Court has held is not a reasonable restriction on speech in a
limited public forum. Second, he contends that the Policy’s excep-
tion for “casual recreational or social activities” was vague and
would lead to arbitrary censorship by University officials. And
third, he takes issue with the ten-working-day advance-notice re-
quirement as unreasonable.
1. Leafletting
We begin with leafletting. As it turns out, the University’s
Policy, in fact, allowed outside speakers to distribute leaflets if they
had a Permit. A Permit, though, required a University-affiliated
sponsor. Keister claims that requirement imposed an effective ban
on leafletting because he could not obtain a sponsor. For its part,
the University responds that requiring a Permit and sponsor for
leafletting was not tantamount to a “ban,” but rather a reasonable
time, place, and manner restriction.
We conclude the Policy provisions on leafletting were rea-
sonable. Courts have upheld regulations in limited public fora that
require speakers to obtain permission before distributing leaflets.
In Greer, for example, the military prohibited the distribution of
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20-12152 Opinion of the Court 33
leaflets and other literature in Fort Dix without prior approval from
the commanding general. 424 U.S. at 831. The Supreme Court
upheld the regulation because the commanding general could deny
a request for leafletting only if he believed that it would be a danger
to the “loyalty, discipline or morale” of the military, and he could
not do so “simply because he [did] not like [the leaflet’s] contents,
or because it [was] . . . even unfairly critical of government policies
or officials.” Id. at 840 (cleaned up). Though the Court recognized
the possibility that a commander could, in the future, apply this
requirement “irrationally, invidiously, or arbitrarily,” it observed
that “none of the respondents in the . . . case even submitted any
material for review.” Id.
The University used a similar permission scheme for leaf-
letting in this case. Outside speakers who wished to distribute leaf-
lets on campus were required to seek permission from the Univer-
sity by obtaining a sponsor and applying for a Permit. The Univer-
sity would then approve a properly submitted request for a Permit
unless certain neutral and objective conditions were present. For
example, the University could deny an application if the proposed
location were unavailable at the time requested or if the event
would interfere with regular academic and student activities.
Keister contends that the Policy’s sponsor requirement in
this case is more like the problematic policy in Lee v. International
Society for Krishna Consciousness, Inc., 505 U.S. 672 (1992), where
the Court struck down a ban by the Port Authority on leafletting
at New York City airports. We think not.
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34 Opinion of the Court 20-12152
As Justice O’Connor explained in her concurrence in Lee,
the Port Authority’s policy laid down an absolute ban on leaf-
letting. Id. at 691 (O’Connor, J., concurring in judgment). But
here, the University’s Policy allows leafletting—it just requires a
permit. The University has more than 38,000 students and nearly
7,000 staff members for a permit-seeker to choose from to serve as
an affiliate—roughly 45,000 chances to obtain a permissible spon-
sor. And as in Greer, the Policy does not allow the University to
deny a permit simply because it disagrees with the content of the
speaker’s speech. In sum, the Policy operates similarly to the per-
mission scheme in Greer. 10 And it is likewise constitutional.
2. “Casual Recreational or Social Activities” Exception
Keister also asserts that the Policy’s permit exception for
“casual recreational or social activities” is unconstitutionally vague
and violates due process. As Keister sees it, the University’s answer
that the terms “casual recreational or social activities” are “basic,
[and] well-understood” is an “I know it when I see it approach” that
gives University officials too much power to decide what falls
10 Keister also cites to a nonbinding decision, Parks v. Finan, 385 F.3d 694 (6th
Cir. 2004), to support his argument that requiring a permit for leafletting is
tantamount to a ban on leafletting. But Parks involved a restriction on leaf-
letting in a public forum, so it was subject to strict scrutiny. The permitting
scheme here applies to a limited public forum and therefore need be only rea-
sonable. In a limited public forum, the government may exclude speakers
who are “not a member of the class of speakers for whose especial benefit the
forum was created.” Cornelius, 473 U.S. at 806.
USCA11 Case: 20-12152 Date Filed: 03/25/2022 Page: 35 of 42
20-12152 Opinion of the Court 35
within those categories and therefore invites officials to burden dis-
favored speech by classifying it as not recreational or casual. This
argument fares no better than Keister’s leafletting contention.
Under due-process principles, a law or regulation is “void for
vagueness if its prohibitions are not clearly defined.” Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972). Unconstitutionally
vague laws fail to provide “fair warning” of what the law requires,
and they encourage “arbitrary and discriminatory enforcement” by
giving government officials the sole ability to interpret the scope of
the law. Id. at 108–09. The First Amendment context amplifies
these concerns because an unconstitutionally vague law can chill
expressive conduct by causing citizens to “steer far wider of the un-
lawful zone” to avoid the law’s unclear boundaries. Id. at 109. To
prevent these problems, due process “insist[s] that laws give [a] per-
son of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly.” Id. at 108. Yet
despite this concern, we do not “expect mathematical certainty
from our language.” Id. at 110.
The phrase “casual recreational and social activities” is not
unconstitutionally vague. A person of ordinary intelligence under-
stands what these terms mean. Indeed, the Policy’s exception for
“casual recreational and social activities” is no vaguer than the
Trenton, New Jersey, ordinance in Kovacs v. Cooper, 336 U.S. 77(1949), which prohibited “loud and raucous noises.” And the Su-
preme Court upheld that ordinance. As the Court explained,
though the words “loud and raucous” “are abstract words, they
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36 Opinion of the Court 20-12152
have through daily use acquired a content that conveys to any in-
terested person a sufficiently accurate concept of what is forbid-
den.” Id. at 79. So too with “casual recreation and social activities.”
Not only that, but we do not read the phrase “casual recrea-
tional and social activities” in isolation. Rather we consider it
within the context of the Policy as a whole. See, e.g., Pine v. City
of West Palm Beach, 762 F.3d 1262, 1265 n.2, 1275 (11th Cir. 2014)
(concluding that a sound ordinance that prohibited “unnecessary
noise or amplified sound” was not unconstitutionally vague be-
cause, viewed within the context of the ordinance as a whole, it
was clear that the phrase “prohibit[ed] only shouting and loud, rau-
cous, or unreasonably disturbing amplified noise near health care
facilities or institutions for the sick”). And the Policy’s “announced
purpose,” Grayned, 408 U.S. at 112—furthering the University’s ed-
ucation mission, responsibly allocating its scarce resources, and
protecting the safety and security of the University’s property and
students—further informs the meaning of the phrase.
With these considerations in mind, we have no difficulty
concluding that Keister’s actions do not fall within the “casual rec-
reational and social activities” exception. Keister and his compan-
ion set up a display with signs, preached with an amplifier for a
time, distributed literature, and used short and loud bursts of ora-
tion to draw attention. These actions do not fall within a common-
sense understanding of “casual recreational and social activities.”
In fact, some of these actions—leafletting and using signs—are ex-
pressly covered by the Policy and therefore explicitly do not
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20-12152 Opinion of the Court 37
constitute “casual recreational or social activities.” And it’s obvi-
ous that preaching with an amplifier and speaking loudly for the
purpose of drawing attention, by definition, can interfere with the
University’s educational mission by disrupting ongoing classes and
school activities.
As for one-on-one conversations or prayer, as the district
court noted, “[d]iscussing sports or religion while strolling through
campus with a friend” does not require a permit. But Keister was
not just having a conversation with a friend or quietly praying; he
was using loud oration to try to engage passersby on their way to
class.
Nor do we agree with Keister that Board of Airport Com-
missioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987), requires the
conclusion that the “casual recreational and social activities” excep-
tion is impermissibly vague. There, Los Angeles International Air-
port (the “Airport”) adopted a resolution that banned all First
Amendment activity. Id. at 574–75. The Airport tried to save the
ban by arguing that “airport related” expression was excepted. Id.
at 576. The Supreme Court rejected the Airport’s argument. Id. It
reasoned that “[m]uch nondisruptive speech—such as the wearing
of a T-shirt or button that contains a political message—may not
be ‘airport related,’ but is still protected speech even in a nonpublic
forum.” Id. And while the Court concluded that “[t]he line be-
tween airport-related speech and nonairport-related speech is, at
best, murky[,]” the Airport could not have described what it be-
lieved qualified as “airport-related” speech more vaguely: “an
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38 Opinion of the Court 20-12152
individual who reads a newspaper or converses with a neighbor at
[the Airport] is engaged in permitted ‘airport-related’ activity be-
cause reading or conversing permits the traveling public to ‘pass
the time.’” Id.The Supreme Court’s holding has little application here for
three reasons. First, unlike the Airport’s resolution, the Univer-
sity’s Policy does not ban all First Amendment activity; rather, it
requires permitting of public-speaking events. Second, unlike with
the phrase “casual recreational and social activities,” which has a
commonly understood meaning, the phrase “airport-related” en-
joys no such common understanding, and to the extent that it car-
ries a common meaning, that meaning is clearly overly narrow to
encompass permissible speech in an airport. Third, to the extent
the Airport attempted to define the term “airport-related” speech,
it did so in the litigation and uniquely for purposes of the Airport
resolution only. So the term “airport-related” had no common
meaning. And even then, the Airport’s definition—First Amend-
ment activity that allows the traveling public to “pass the time”—
was broad enough to include virtually anything, so it could not pro-
vide appropriate notice to those who wished to engage in First
Amendment activity at the Airport.
But the phrase “casual recreational and social activities” re-
quires no special definition because its meaning is sufficiently clear,
especially in the context of the Policy and its purpose. A person
with “ordinary intelligence” knows what kind of activities qualify
as “casual recreational and social activities” and what do not. And
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20-12152 Opinion of the Court 39
that is even more the case when a person considers what activities
can interfere with the school setting and what will not. It is also
not practical to expect a university to draft a policy of this type to
identify by explicit description each and every activity that exists
that requires a permit.
In a nutshell, the Policy’s exception for “casual recreational
and social activities” is not unconstitutionally vague, and Keister’s
actions clearly did not qualify for this exception.
3. Advance-Notice Requirement
Finally, Keister challenges the University’s advance-notice
requirement. The University’s Policy stated that “applicants for
use of the Grounds should request permission for such use ten (10)
working days prior to the Event.”
Keister complains that this notice period is unreasonably
long. He notes that it is much longer than the advance-notice re-
quirements upheld in Bloedorn and other cases, and he asserts that
the University does not have a particular reason for having such a
lengthy notice period. Though Keister acknowledges that under
the Policy, applications for a permit could be approved in as few as
three days, he concludes that’s irrelevant. According to Keister, the
University is free to bar any application that is not submitted ten
working days in advance because it can deny any application not
“properly made.”
The University responds that submitting applications ten
working days in advance is “best practice” but not required. It
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40 Opinion of the Court 20-12152
points out that the Policy expressly provides that Keister’s applica-
tion could have been approved in as few as three days because it
related to a smaller event. The University also points out that Keis-
ter could have planned his trip in advance, since he does that with
churches. Finally, the University argues that it had good reasons
for the notice period: it needs time to make sure that a space is
available and that it will not interfere with University operations,
like ongoing classes in Russell Hall.
As we suggested at the preliminary-injunction stage, a ten-
working-day advance notice period is likely excessive. Keister, 879
F.3d at 1288 n.4 (“[T]his Court does have some concerns about
whether UA’s 10 working day advance notice requirement would
be reasonable for events that do not require multiple department
approvals[.]”). Ten working days is also much longer than the ad-
vance notice periods upheld in other cases. See Bloedorn, 631 F.3d
at 1240 (upholding a 48-hour notice requirement); see also Bow-
man v. White, 444 F.3d 967, 982 (8th Cir. 2006) (upholding a three-
day notice requirement).
But the Policy did not require an application to be submitted
ten working days before an event. Rather, it instructed that an ap-
plication “should” be submitted ten days ahead of time—and even
then only to “facilitate the review by all the different University
departments that have responsibility for the various aspects of an
Event (e.g., tents, food service, UAPD, electrical service, etc.).” In
fact, this record contains no indication that the University ever con-
strued the Policy to require a ten-day lead time.
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20-12152 Opinion of the Court 41
On the contrary, under the express terms of the Policy, Keis-
ter could have submitted his application as few as three working
days in advance and still obtained a permit. His simple event—
standing on a sidewalk and speaking to passersby—did not involve
multiple University departments. Nor did it require tents, food ser-
vice, the University’s police department, or electrical service—the
kinds of things for which the Policy’s advisory ten-day window was
designed. Of course, Keister never actually applied for a Permit,
but there’s no basis to think the University would have taken more
than three days to approve one if he had.
The cases that Keister relies on do not affect our analysis.
The advance-notice provisions in both Bloedorn and Bowman ap-
plied to designated public forums, so they had to satisfy strict scru-
tiny. Bloedorn, 631 F.3d at 1240 (assessing whether the notice pe-
riod was “narrowly tailored”); Bowman, 444 F.3d at 982 (conclud-
ing that the advance notice period was sufficiently “narrowly tai-
lored”). But here, the University applied its advance-notice provi-
sion to a limited public forum, so the provision had to be only rea-
sonable. Other courts have upheld a seven-day notice requirement
in a limited public forum. Sonnier v. Crain, 613 F.3d 436, 445 (5th
Cir. 2010), opinion withdrawn in part on reh’g, 634 F.3d 778 (5th
Cir. 2011). So certainly three days—the amount of time that would
have been required to process a Permit in Keister’s situation—is
not excessive.
And that is particularly so, given the University’s reasons for
requiring that waiting period. The University receives thousands
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42 Opinion of the Court 20-12152
of speaking requests each year. For each speaker, the University
must ensure that the space the speaker seeks is available and that
the speaker will not interfere with classes or other University oper-
ations. Plus, as other courts have recognized, universities are “less
able than a city or other entity . . . to deal with significant disruption
on short notice.” Bowman, 444 F.3d at 982.
The University’s Policy must be reasonable, not perfect.
Here, the Policy satisfies that requirement. It phrases the ten-day
advance-notice period in terms of “should,” not “must,” and the
record contains no evidence that the University has rejected an ap-
plication simply because it was not submitted ten days before the
event. The University’s reasons for the advance-notice require-
ment are also reasonable, and the Sidewalk is a limited public fo-
rum. Besides this, the Policy permits the fast-tracking of a Permit
if an event relates to a current issue or responds to another event.
Under these circumstances, we do not think the University’s three-
day notice requirement is unconstitutional.
IV.
For the reasons we have explained, we affirm the district
court’s entry of summary judgment. The University’s motion to
dismiss this appeal as moot is DENIED.
AFFIRMED.