Keister v. Bell

• Decision Date: 06 March 2017
• Docket Number: Case No.: 7:17–cv–00131–RDP
• Citation: 240 F.Supp.3d 1232
• Parties: Rodney KEISTER, Plaintiff, v. Stuart BELL, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

240 F.Supp.3d 1232

Rodney KEISTER, Plaintiff,

v.Stuart BELL, et al., Defendants.

Case No.: 7:17–cv–00131–RDP

United States District Court, N.D. Alabama, Western Division.

Signed March 6, 2017

Jason B. Tingle, Jauregui & Lindsey LLC, Birmingham, AL, Nathan W. Kellum, Center for Religious Expression, Memphis, TN, for Plaintiff.

Cole Robinson Gresham, Jay M. Ezelle, Michael R. Lasserre, Starnes Davis Florie LLP, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

I. Introduction

This matter is before the court on Plaintiff's Amended Motion for Preliminary Injunction (Doc. # 7). The motion is fully briefed. (Docs. # 10, 15, 17). Plaintiff, a traveling evangelist, moves for a preliminary injunction to enjoin Defendants, University of Alabama ("UA") officials, from enforcing UA's "Grounds Use Policy" and permit scheme. Specifically, Plaintiff desires to speak at the northeast corner of the intersection of University Boulevard and Hackberry Lane, and he contends that UA's Policy unlawfully infringes on his First Amendment right to do so at that location. Defendants contend that the specific sidewalk involved in this dispute is not a traditional public forum, and in turn, UA's Policy does not infringe on Plaintiff's First Amendment rights.

II. Relevant Undisputed Facts

Plaintiff is a travelling Christian missionary, who shares his religious beliefs in public places across the country. (Doc. # 1 at ¶¶ 12–14). He typically conveys his message¹ on public sidewalks, and he frequently visits college campuses to share his beliefs. (Doc. # 1 at ¶¶ 15, 16).

On March 10, 2016, Plaintiff's travels took him to the University of Alabama, a state-funded public university located in Tuscaloosa, Alabama. (Docs. # 6–1 at ¶¶ 19–21, # 15 at ¶ 5). At around 4:00 p.m., Plaintiff—who is not a UA student, employee, or faculty member—began sharing his religious beliefs on UA's campus. (Doc. # 6–1 at ¶¶ 19–23). Plaintiff, as well as a companion of his, began spreading their message² on a sidewalk next to 6th Avenue, near the corners of Smith Hall and Lloyd Hall on UA's campus. (Id. ; Doc. # 15 ¶¶ 41–43). Shortly after Plaintiff and his companion began, they were approached by campus police and a UA representative, who informed the pair that they could not continue their activities because UA policy required that they obtain a grounds use permit before engaging in such expressive conduct. (Doc. # 6–1 at ¶¶ 33–35; Doc. # 15 at ¶ 44).

Because Plaintiff did not have a grounds use permit, he moved to the sidewalk at the intersection of University Boulevard and Hackberry Lane ("the intersection") to continue handing out gospel tracts and preaching. (Doc. # 6–1 at ¶ 42, 44–45). Plaintiff contends that he picked this spot because he believed that it was a public city sidewalk, as opposed to university owned property (where UA's grounds use policy applied). (Doc. # 6–1 at ¶ 42). Plaintiff further contends that, while speaking with a UA police supervisor on 6th Avenue, Plaintiff specifically proposed that he move locations and preach at the University Boulevard and Hackberry Lane intersection. (Doc. # 6–1 at ¶ 36–37). He asserts that UA police specifically told him: "On that corner, you're good." (Id. at ¶ 41).

A short while after moving to the intersection sidewalk, UA campus police again approached Plaintiff and informed him that the intersection (and sidewalk) were indeed part of campus, and UA's ground use applied at that physical location. Fearing arrest for criminal trespass, Plaintiff left UA's campus and has not returned to the intersection sidewalk since March 10, 2016. (Doc. # 6–1 at ¶¶ 51–52). However, Plaintiff states that he plans to go back to Tuscaloosa and would like to return to the particular intersection sidewalk to preach when he returns. (Id. at ¶ 57).

A. The Intersection Sidewalk

The intersection of University Boulevard and Hackberry Lane, where Plaintiff sought to preach and hand out gospel tracts, is located in the heart of UA's campus. (Doc. # 15 at ¶ 34). However, while they intersect on campus property (and run through much of UA's campus), both University Boulevard and Hackberry Lane are city streets that run beyond the perimeter of UA's campus.³ (Doc. # 6–5).

Sidewalks abound both University Avenue and Hackberry Lane. (Doc. # 1 at ¶ 37).

The sidewalks at the intersection, however, are maintained by the University.⁴ Russell Hall, a university owned building, sits on the northeast corner of the intersection (the particular corner where Plaintiff did his preaching). (Doc. # 1 at ¶ 60; Doc. # 15 at ¶ 35). On the northwest corner of the intersection is a campus parking lot with a sign restricting its use to university faculty and staff. (Doc. # 15 at ¶ 36). The intersection is further surrounded (on three sides) with other identifiable university buildings, including Gallalee Hall and Farrah Hall. (Id. at ¶ 35). However, on one side of University Boulevard (approximately one city block away from the intersection) there are certain private businesses "mixed in" with the university buildings. (Doc. # 17–1 at ¶¶ 7–8).

There are streetlamps at the intersection. (Doc. # 15 at ¶ 39). University of Alabama signs hang from these streetlamps. (Id. ). Along with the respective street names, the street signs at the intersection display the script "A" logo of the university. (Id. at ¶ 37). Landscaping fences, which run through campus, are on each corner of the intersection. (Id. at ¶ 38).

B. The Speech Policy

UA's Policy governs when, where, and how persons not affiliated with the university may engage in public speaking on campus. (Id. at ¶ 12). The Policy specifically provides for the use of UA sidewalks. (Id. at ¶ 18; Doc. # 15–2 at p. 2). The Policy provides that persons not affiliated with UA who wish to conduct an event or engage in public speaking must: (1) be sponsored by or affiliated with a University academic or administrative department or registered student organization; and (2) complete a Grounds Use Permit ("GUP") form. (Doc. # 15–2 at pp. 2, 4). The Policy requires that applicants request permission ten (10) working days prior to the event "[t]o facilitate the review by all the different University departments that have responsibility for the various aspects of an Event." (Id. at p. 4). The Policy provides 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 GUP form is filled out completely and accurately." (Id. ). The university will approve of an application properly made under the Policy unless there are reasonable grounds to believe that one or more of the conditions listed under Section G(1) of the Policy are present.⁵ (Doc. # 15 at ¶ 26). Further, applicants may appeal a GUP denial as provided by Section H of the Policy.

III. Analysis

The purpose of the preliminary injunction is to preserve the positions of the parties as best as possible until a trial on the merits may be had. Univ. of Tex. v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). It is axiomatic that entry of a preliminary injunction in advance of trial is an extraordinary and drastic remedy not to be granted unless the movant "clearly carries the burden of persuasion" as to the four prerequisites. United States v. Jefferson Cty. , 720 F.2d 1511, 1519 (11th Cir. 1983) (internal citations omitted). A district court may grant injunctive relief if the movant shows:

(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party, and (4) that if issued the injunction would not be adverse to the public interest.

All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc. , 887 F.2d 1535, 1537 (11th Cir. 1989).

Plaintiff brought this action pursuant to 42 U.S.C. §§ 1983 and 1988 and alleges that UA's speech policy unduly restricts religious expression, "including literature distribution and conversational dialogue, taking place on ... sidewalks and ways." (Doc. # 1 at ¶ 1). His motion for preliminary injunction specifically requests that the court enjoin Defendants from enforcing UA's speech policy in the space where Plaintiff desires to speak (i.e. , the sidewalks adjoining University Boulevard and Hackberry Lane). (Doc. # 10 at pp. 4, 11).

Oral and written dissemination of religious views and doctrines is protected by the First Amendment. Heffron v. Int'l Soc. for Krishna Consciousness, Inc. , 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Accordingly, both religiously motivated speech and the distribution of handbills are entitled to constitutional protection. Id. ; Fla Gulf Coast Bldg. & Const. Trades v. NLRB , 796 F.2d 1328, 1332 (11th Cir. 1986) ; Murdock v. Com. of Pennsylvania , 319 U.S. 105, 108, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).

But, the First Amendment does not guarantee access to property just because it is owned by the government. Bloedorn v. Grube , 631 F.3d 1218, 1230 (11th Cir. 2011) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 803, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ). Instead, in determining whether a forum is open to public expression (or whether a prior restraint on expression is permissible) the court is required to do two things. First, a court must "examine the policy and practice of the government to determine whether it intended to open a specific place for public discourse."⁶ Bloedorn , 631 F.3d at 1230, citing Ark. Educ. Television Comm'n v. Forbes , 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). Second, if the government's intent is not to open a specific place for public discourse (or, alternatively, to open that place to only a limited class), the court must engage in a forum analysis. United States v. Frandsen , 212 F.3d 1231, 1236–37 (...