Jacobsen, Harlan L. v. IL Dept Trans ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1115
HARLAN L. JACOBSEN,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 3099—Jeanne E. Scott, Judge.
____________
ARGUED NOVEMBER 1, 2004—DECIDED AUGUST 17, 2005
____________
Before CUDAHY, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Single Scene, Solo RFD, and
Country Singles are a few of the magazines Harlan L.
Jacobsen distributes through coin-operated newsracks at
highway rest areas across the country. Although he has
been flouting them for nearly a decade, Jacobsen considers
the Illinois Department of Transportation’s (IDOT) news-
rack regulations overbearing and unconstitutional. Indeed,
he is convinced that the regulations, which require him to
place his newsracks in a particular part of the rest areas,
2 No. 04-1115
pay five cents per newspaper sold, keep the racks in decent
condition, and label them with a phone number, transform
Illinois’s highway rest areas into “First Amendment Free
Zones.” Seeking a remedy to this perceived injustice,
Jacobsen filed a claim under 42 U.S.C. § 1983 against
various state officials and asked the district court perma-
nently to enjoin the state from enforcing its regulations
against him. After a bench trial, the district court granted
the state officials’ motion for judgment as a matter of law
and denied Jacobsen’s request for an injunction with re-
spect to everything except the five-cent fee requirement. We
agree with these conclusions and therefore affirm the
court’s judgment.
I
Jacobsen is no stranger to the federal courts. With vary-
ing degrees of success, he has sued all across the country to
protect his right to distribute his magazines without being
fettered by petty regulations. See Jacobsen v. U.S. Postal
Service, 993 F.2d 649 (9th Cir. 1992) (post offices); Jacobsen
v. U.S. Postal Service, 812 F.2d 1151 (9th Cir. 1987) (same);
Jacobsen v. City of Rapid City, 128 F.3d 660 (8th Cir. 1997)
(airport terminal); Jacobsen v. Harris, 869 F.2d 1172 (8th
Cir. 1989) (city sidewalks); Jacobsen v. Crivaro, 851 F.2d
1067 (8th Cir. 1988) (same); Jacobsen v. Bonine, 123 F.3d
1272 (9th Cir. 1997) (highway rest areas); Jacobsen v.
Howard, 109 F.3d 1268 (8th Cir. 1997) (same). Despite this
experience (he normally proceeds pro se), Jacobsen has not
learned the importance of following certain rules of appel-
late procedure. He did not submit a statement of facts to
this court, in violation of Federal Rule of Appellate Proce-
dure 28(a)(7), nor did he order a transcript of the proceed-
ings below, as permitted by Federal Rule of Appellate
Procedure 10(b). As we will explain shortly, these oversights
prevent us from questioning the heart of the district court’s
conclusion.
No. 04-1115 3
Although we do not have an adequate record before us, we
can glean the gist of the underlying facts from the district
court’s opinion. In late December 1995, Jacobsen and then-
Secretary of IDOT, Kirk Brown, signed a document titled,
Rest Area Distribution Agreement (Agreement). The
Agreement granted Jacobsen a nonexclusive right to place
newspaper racks in public rest areas along Illinois’s
interstate highways, provided that he maintain the racks,
place a decal on each rack identifying the person to call in
the event of operating difficulties, pay IDOT a five-cent fee
for each newspaper sold, and give IDOT ten days’ notice
before installing a rack at a particular rest area. IDOT
retained the authority to remove or relocate the racks for
any reason so long as it gave Jacobsen ten days’ notice, an
explanation, and an opportunity for Jacobsen to respond.
The Agreement also gave IDOT an unqualified right to de-
termine where within the rest area Jacobsen could place the
racks. Jacobsen signed the Agreement grudgingly, writing
beneath his signature, “Signed under protest that requiring
a contract is a prior restraint on a protected activity and a
fee requirement is a violation of a constitutionally protected
right of the free press to distribute printed material on a
public sidewalk or activity compatible public area.”
Soon after signing the agreement, Jacobsen’s magazines
began gracing Illinois’s rest areas. Although IDOT had des-
ignated particular locations within the rest areas for all
newsracks, Jacobsen thought that these locations were un-
desirable. Instead, he preferred to place his rack beside the
front doors of the rest areas’ main buildings, and he did so.
He also refused to pay the five-cent fee mentioned in the
Agreement. For seven years, Jacobsen and IDOT were in a
stand-off: Jacobsen did not pay the required fees and re-
peatedly put his racks in an unapproved location, and IDOT
employees just as regularly moved the racks back to the
designated areas. In February 2002, Jacobsen sent three
emails to IDOT complaining that his racks were being
4 No. 04-1115
moved in violation of his First Amendment rights. IDOT
responded by informing Jacobsen that it had the right to
determine where the newsracks should be placed. Following
the protocol set forth in the Agreement, however, IDOT told
Jacobsen his newsracks could remain where he had placed
them, pending a letter from IDOT giving him ten days’
notice of its intent to move the racks back to the designated
areas.
Jacobsen was not appeased. On February 27, 2002, he
wrote letters to the Illinois Governor, IDOT Secretary, and
IDOT Rest Area Administrator, informing them that “the
state of Illinois is repeatedly violating our First Amendment
constitutionally protected right to distribute newspapers on
public sidewalks at Illinois Interstate rest areas.” In
response, IDOT sent Jacobsen a letter informing him that
he was not in compliance with the Agreement because he
(1) failed to give ten days’ notice of his intention to place
newsracks at the rest areas; (2) did not position his news-
racks in the locations IDOT had designated; (3) did not
place a decal on the newsracks listing the person to call if
problems occur; (4) did not maintain the newsracks in good
condition; and (5) had not paid IDOT the five-cent newspa-
per fee. The letter told Jacobsen to correct these deficiencies
and informed him that the letter served as notice that IDOT
intended to relocate his racks.
Instead of providing evidence to IDOT explaining why it
should leave his racks alone, Jacobsen sued, seeking a pre-
liminary and permanent injunction to stop IDOT from en-
forcing its regulations. As Jacobsen told the district court,
“I do not negotiate over constitutional rights.” Jacobsen also
sought damages under 42 U.S.C. § 1983 from the Governor,
the Secretary of IDOT, and IDOT’s Roadside Maintenance
Manager.
The district court denied the preliminary injunction after
a hearing in May 2002 and denied in part and granted in
part the permanent injunction after a bench trial in Novem-
No. 04-1115 5
ber 2003. The court concluded that highway rest areas were
nonpublic fora designed to improve highway safety by
providing the traveling public with places to rest, use
restrooms, and secure travel information. It found that the
regulations were content-neutral and all but the five-cent
fee were reasonable in light of the purpose of the forum.
The court enjoined IDOT from collecting the five-cent fee,
finding it unreasonable because it did not bear any relation
to the administrative cost of allowing newsracks at rest
areas. Since Jacobsen barely was making a profit through
the newsracks, the court determined that the five-cent fee
would drive him out of business in Illinois. The state does
not appeal the court’s decision. The court granted the
individual defendants’ motion for judgment as a matter of
law on Jacobsen’s § 1983 claims against them, because he
presented no evidence showing that these individuals had
either knowingly caused a violation of his constitutional
rights or acted in deliberate disregard of those rights.
II
For First Amendment purposes, the strictness of our
review depends on the type of forum being regulated. If the
state is regulating expression at traditional public fora,
such as streets, sidewalks, or parks “that by long tradition
or government fiat have been devoted to assembly and
debate,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983), we will uphold time, manner, or
place restrictions only if they “are content-neutral, are nar-
rowly tailored to serve a significant government interest,
and leave open ample alternative channels of communica-
tion.” Id. at 45. Because a principal purpose of public fora
is the free exchange of ideas, more onerous regulations,
such as an absolute prohibition on a particular type of
expression, will be upheld only if it is necessary to serve a
compelling state interest and is narrowly drawn to achieve
6 No. 04-1115
that interest. See, e.g., Cornelius v. NAACP Leg. Def. and
Educ. Fund, Inc., 473 U.S. 788, 800 (1985). We apply the
same strict standards when the state has intentionally
designated an area a public forum. Id. On the other hand,
if the record reveals that the regulations concern only non-
public fora, “[t]he challenged regulation need only be
reasonable, as long as the regulation is not an effort to
suppress the speaker’s activity due to disagreement with the
speaker’s views.” Int’l Soc’y for Krishna Consciousness, Inc.
v. Lee, 505 U.S. 672, 679 (1992); see also Perry, 460 U.S. at
46. “The Government, ‘no less than a private owner of
property, has the power to preserve the property under its
control for the use to which it is lawfully dedicated.’ ”
United States v. Grace, 461 U.S. 171, 178 (1983) (quoting
Adderly v. Florida, 385 U.S. 39, 47 (1966)).
In this case, Jacobsen argued that since he was placing
his racks on the sidewalks within the rest areas, the court
should analyze the case as if the racks were placed within
a public forum. The district court disagreed. It found that
“rest area sidewalks are not typical sidewalks, in that they
are not accessible to general pedestrian traffic.” In coming
to this conclusion, the court relied on Ninth and Eleventh
Circuit decisions, which had characterized other states’ in-
terstate highway rest areas as nonpublic fora. See Jacobsen,
123 F.3d at 1274; Sentinel Communications Co. v. Watts,
936 F.2d 1189, 1203 (11th Cir. 1991). As the Eleventh
Circuit said in Sentinel, “[a]s components of the Interstate
System, safety rest areas are hardly the kind of public
property that has by long tradition or by governmental
fiat . . . been devoted to assembly and debate. . . . [A]s
modern phenomena, rest areas have never existed inde-
pendently of the Interstate System; they are optional
appendages that are intended, as part of the System, to
facilitate safe and efficient travel by motorists along the
System’s highways.” 936 F.2d at 1203 (quotation omitted).
For similar reasons, the district court here declined to de-
No. 04-1115 7
clare interstate rest areas intentionally designated public
fora; the “government . . . has provided rest areas as a
safety measure, not for public recourse.”
The district court’s conclusion, as well as the Ninth and
Eleventh Circuit opinions on which it draws so heavily, has
some appeal. It is consistent, for instance, with the charac-
terization of airport terminals as nonpublic fora that the
Supreme Court adopted in Krishna Consciousness, 505 U.S.
at 683. But, in light of the skimpy record, we decline at this
juncture to endorse a conclusion that all interstate rest
areas are necessarily nonpublic fora. The Krishna Con-
sciousness Court itself emphasized the need for case-by-case
examination of the question whether “the transportation
necessities are compatible with various kinds of expressive
activity.” Id. at 681. As we noted earlier, Jacobsen did not
order a transcript of the district court proceedings, failed to
provide a statement of facts within his brief before this
court, and, from what we can tell, proceeded on a record
devoid of detail, resting almost entirely on bare accusations.
As it is a novel issue before this court, we do not want
Jacobsen’s tactics to foreclose future litigants from develop-
ing a more thorough record that might convince us that a
particular highway rest area (or even all such areas) are
best characterized as public fora. According to the Federal
Highway Administration, the Interstate Highway System
contains over 46,000 miles of road, serving over 190 million
licensed drivers. See Federal Highway Administration,
Highway Statistics, 2003, available at http://
www.fhwa.dot.gov/policy/ohim/hs03/index.htm. With so
many drivers on the road, highway rest areas may be the
perfect place to distribute certain types of information,
express a particular opinion, or gather with like-minded
individuals. While rest areas may not have traditionally
been conceptualized as public fora, it is conceivable to us
that over time their role may have evolved to a status that
deserves greater protection. Tradition, after all, is an ever-
8 No. 04-1115
shifting variable. For present purposes, in light of
Jacobsen’s failure to develop an adequate record on the
issue, we assume without deciding that the interstate rest
areas about which he is complaining are nonpublic fora.
So long as the regulations are viewpoint-neutral, as
Jacbosen concedes they are here, the state may impose “rea-
sonable” time, place, or manner restrictions at nonpublic
fora. Cornelius, 473 U.S. at 806. “The Government’s deci-
sion to restrict access to a nonpublic forum need only be
reasonable; it need not be the most reasonable or the only
reasonable limitation.” Id. at 808 (emphasis in original).
With the exception of the five-cent fee requirement, the
district court found IDOT’s regulatory scheme reasonable.
We agree. First, IDOT requires each vendor to enter into an
agreement, setting forth the applicable regulations. If IDOT
administrators retained the authority to reject a vendor
based on its content, this predistribution agreement could
constitute an unconstitutional prior restraint. See Thomas
v. Chicago Park Dist., 534 U.S. 316, 323 (2002) (“Where the
licensing official enjoys unduly broad discretion in deter-
mining whether to grant or deny a permit, there is a risk
that he will favor or disfavor speech based on its content.”).
If, however, the pre-speech permit, license, or contract is
content-neutral and serves only to ease administrative
concerns, it will rarely be unconstitutional. See, e.g., Poulos
v. New Hampshire, 345 U.S. 395, 403 (1953) (“[T]he license
required is not the kind of prepublication license deemed a
denial of liberty since the time of John Milton but a minis-
terial, police routine for adjusting the rights of citizens so
that the opportunity for effective freedom of speech may be
preserved.”). IDOT’s requirement that vendors enter into a
predistribution agreement is a content-neutral, routinized
mechanism for IDOT to inform vendors of the state’s
applicable regulations. It enables IDOT to keep track of the
number of vendors operating at each rest area. As such, it
easily falls on the permissible side of the line.
No. 04-1115 9
Second, IDOT requires all newsrack operators to give
the state ten days’ notice of their intent to place a newsrack
at a particular rest area. Again, we find this regulation
reasonable so long as there is no evidence (as there is none
here) that it is anything but content-neutral. Ten days’
notice allows the state to keep track of the number of
newsracks at each location and ensures that IDOT has time
to accommodate a change in the number of racks at any
particular rest area.
Jacobsen’s most vehement disagreement concerns the
third regulation: IDOT’s retention of the authority to
determine where within each rest area the newsracks will
be located. Jacobsen wants to place his racks in high-traffic
areas (beside building doors, for example) and does not
want to mingle his racks with all the others. Jacobsen ar-
gues that if the garbage cans do not create a safety hazard
when they are placed beside the doors, neither would his
newsracks. The clear flaw in this reasoning is that if
Jacobsen wants to place his racks beside the doors so that
he can garner more sales, other vendors will want to be
beside the doors as well. While a single garbage can might
not be an encumbrance, a garbage can surrounded by news-
racks could be. With no evidence that the racks of all the
vendors are tucked away so that rest area users cannot find
them, we cannot call this regulation unreasonable either.
Indeed, it bears a close resemblance to the size and ad
placement regulations on newsracks that we upheld over a
First Amendment challenge in Chicago Observer, Inc. v.
City of Chicago, 929 F.3d 325, 328-29 (7th Cir. 1991).
The remaining two regulations—that the vendor must
maintain the rack and label each rack with a telephone
number—are straightforward. It is reasonable for IDOT not
to want potentially hazardous, broken-down newsracks
ornamenting the state’s rest areas. Likewise, it is reason-
able for IDOT to require vendors to label the racks with a
phone number. Customers may use the number to seek lost
10 No. 04-1115
change; IDOT may use the number to identify which
newsrack belongs to which vendor.
As for Jacobsen’s § 1983 claims against the individual
defendants, he must show that in their supervisory role,
they “knowingly, willfully, or at least recklessly” caused a
deprivation of his First Amendment rights. See Rascon v.
Hardiman, 803 F.2d 269, 274 (7th Cir. 1986). Here, the only
possible act supported by the record that could have
infringed Jacobsen’s First Amendment rights was IDOT’s
requirement that he pay five cents for every magazine he
sold at the rest areas. Independent of Jacobsen’s failure to
present any evidence establishing the individual defendants’
culpability, his argument is tenuous, as he has never paid
the five-cent fee. Perhaps a different person could show that
the mere threat of the fee stifled her expression, but
Jacobsen presents no evidence of this. In fact, all evidence
suggests the opposite. Since we have found that Jacobsen
failed to demonstrate constitutional problems with IDOT’s
remaining regulations, his § 1983 claims against the indi-
vidual defendants were properly dismissed.
III.
For these reasons, we AFFIRM the judgment of the district
court.
No. 04-1115 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-17-05