Keister v. Bell, 17-11347
| Decision Date | 23 January 2018 |
| Docket Number | No. 17-11347,17-11347 |
| Citation | 879 F.3d 1282 |
| Parties | Rodney KEISTER, Plaintiff–Appellant, v. 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, in his official capacity as Police Lieutenant for the University of Alabama Police Department, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Nathan W. Kellum, Center for Religious Expression, Memphis, TN, Jason Bryon Tingle, Jauregui & Lindsey, LLC, Birmingham, AL, for Plaintiff–Appellant.
Jay Michael Ezelle, Cole Robinson Gresham, Michael R. Lasserre, Sybil Vogtle Newton, Starnes Davis Florie, LLP, Birmingham, AL, for Defendants–Appellees.
Before ED CARNES, Chief Judge, and BLACK, Circuit Judge, and MAY,* District Judge.
Rodney Keister appeals the district court's denial of a preliminary injunction. Mr. Keister sought to enjoin University of Alabama ("UA") officials from applying UA's grounds use policy to the intersection of University Boulevard and Hackberry Lane. Application of this grounds use policy prevents him from speaking on UA's campus unless he complies with its terms. Because the district court properly found the intersection is a limited public forum within UA's campus, we affirm.
Mr. Keister is a traveling Christian evangelist who claims he is called to publicly share his religious beliefs throughout the country. Mr. Keister typically shares his beliefs on public sidewalks by preaching, passing out gospel tracts, and having one-on-one conversations and praying with passers-by. Because he desires to reach young people, Mr. Keister routinely visits college and university campuses.
On March 10, 2016, Mr. Keister went to UA, a state-funded public university located in Tuscaloosa, Alabama, to share his beliefs. Around 4 p.m. that afternoon, Mr. Keister and his friend—neither of whom are UA students, faculty, nor employees—began to preach using a loudspeaker, held up a banner, and passed out religious literature on a sidewalk adjacent to 6th Avenue on UA's campus. This sidewalk is near Smith and Lloyd Halls and across the street from the Quad—a well-traveled, wide-open grassy field surrounded by UA buildings. Shortly after they began, Mr. Keister and his friend were approached by two UA police department officers and UA official Donna McCray,1 who advised them that they would be unable to speak at that location because they did not have a Grounds Use Permit ("GUP") as required by UA's Policy for the Use of University Space, Facilities and Grounds ("grounds use policy"). They advised that the grounds use policy required 10 working days advance notice and university organization sponsorship.
Because Mr. Keister and his friend had not obtained a GUP, they moved to the intersection of University Boulevard and Hackberry Lane ("the intersection") to continue preaching and passing out literature. Mr. Keister contends he was told to go to that location by a UA police supervisor who advised him, "On that corner, you're good." Mr. Keister also thought that the intersection appeared to be a public city sidewalk as opposed to a part of UA's campus.
Not long after Mr. Keister and his friend moved locations, they were again met by UA police. The police advised them that the intersection and sidewalk were part of UA's campus, and the grounds use policy would also apply to the intersection. Fearing arrest for criminal trespass, Mr. Keister and his friend left.
Mr. Keister admits that the intersection lies within the bounds of UA's campus, and the district court determined that it is in the "heart" of the UA campus. While the two streets that form that intersection run through much of UA's campus, University Boulevard and Hackberry Lane are public Tuscaloosa streets which extend beyond the UA campus perimeter. Sidewalks run alongside these two streets both within and outside the UA campus, and UA's campus is not fenced off, gated, or otherwise self-contained to prevent public access. However, within the campus (including at the intersection), landscaping fences line the sidewalks, street signs bear the script "A" UA logo, and UA signs hang from streetlamps. Some of the city's transportation grid also runs through campus.
Visible from the intersection are numerous UA facilities and landmarks. The intersection is approximately one block from the Quad. Russell Hall sits prominently at the northeast corner, where Mr. Keister was preaching. Gallalee Hall and a UA parking lot with a sign restricting its use to UA faculty and staff occupy the northwest corner. The southwestern corner includes Farrah Hall and its adjacent UA-only parking lot. A park sits at the southeastern corner, which ultimately connects to the campus Episcopal ministry building further south on Hackberry Lane. About a block away from the intersection on one side of University Boulevard there are private businesses interspersed among UA buildings.
UA's grounds use policy is intended to provide access to UA grounds while upholding the "primacy" of UA's "teaching and research mission," including to "facilitate responsible stewardship of institutional resources and to protect the safety of persons and the security of property." The grounds use policy governs when, where, and how those who are unaffiliated with UA may speak publicly on campus. It specifically includes UA sidewalks within its auspices.
To obtain approval to speak publicly at UA, an unaffiliated potential speaker must: (1) be sponsored by or affiliated with a UA department or registered student organization; and (2) fill out a GUP form. GUP forms must be submitted at least 10 working days prior to an intended event, unless the intended event is "spontaneous," in that it is "occasioned by news or issues coming into public knowledge with[in] the preceding two (2) calendar days," or it is a "counter-event," meaning that it is in response to an event for which a GUP has already been issued. For either of those exceptions, UA will attempt to accommodate the request within 24 hours.
The stated purpose of the required lead-time is to facilitate review by all UA departments that would be responsible for aspects of an event, such as UA police, food service, and electrical service. If the intended event does not require multiple UA department approvals, UA may issue its approval in as few as three days' time.
Once a GUP form is submitted, UA will approve the application unless one of the following conditions are present:
If an application is denied, the grounds use policy also sets out an appeal process.
On January 25, 2017, Mr. Keister filed this action in the Northern District of Alabama under 42 U.S.C. §§ 1983 and 1988, asserting UA's grounds use policy violates the First Amendment's free speech clause and the Fourteenth Amendment's due process clause.2 The next day, Mr. Keister filed a Motion for Preliminary Injunction, contending that UA's ground use policy violates the First Amendment and UA officials should be enjoined from enforcing UA's policy because the intersection is a traditional public forum and UA's policy fails scrutiny. After a hearing on the matter, the district court denied Mr. Keister's motion. Among other reasons, it found that the intersection was a limited public forum and the grounds use policy met the lower level of scrutiny required. This appeal followed.
We generally review for an abuse of discretion a district court's preliminary injunction denial, but review de novo the district court's underlying legal conclusions. ACLU of Fla., Inc. v. Miami–Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) [hereinafter " ACLU"]. "Ordinarily, we review district court factfindings only for clear error, but First Amendment issues are not ordinary." Id. at 1203. "Where the First Amendment Free Speech Clause is involved our review of the district court's findings of 'constitutional facts,' as distinguished from ordinary historical facts, is de novo. " Booth v. Pasco Cty., 757 F.3d 1198, 1210 (11th Cir. 2014) (quoting ACLU, 557 F.3d at 1203 ).
Historical facts "are facts about the who, what, where, when, and how of the controversy," and we review them for clear error.
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