FREE SPEECH ON CAMPUS SIDEWALKS: SUPREME COURT MAY TAKE AIM AT FIRST AMENDMENT FORUM BALANCING TEST IN KEISTER

By: John M. Stack, Volume 107 Staff Member

Keister v. Bell is the latest major case petitioned to the Supreme Court to confront classifying the status of a public forum for First Amendment purposes.[1] While the Court is unlikely to grant certiorari, if they do I predict that they will fundamentally alter forum categorization under the First Amendment.

I. BACKGROUND

The extent to which the government can regulate speech varies depending on this classification.[2]  Currently, the Supreme Court classifies public property in four different ways.[3] Relevant here are the traditional public fora, where the government may only confine speech with regulations that pass the high bar of strict scrutiny.[4] In limited public fora, on the other hand, the government may regulate speech subject only to those regulations being “reasonable” and “content-neutral.”[5]

The Keister case involves an evangelical preacher, Rodney Keister, who decided to spread the good word on a sidewalk in the middle of the University of Alabama.[6] Soon after he began preaching, Keister was informed that he must have a permit through the University to do so. Refusing to apply for a permit with sponsorship of a University affiliate (of which most all get approved, and after five business days on average),[7] Keister instead sued the University in federal district court.[8] On Keister’s second trip up to the Eleventh Circuit Court of Appeals on this matter,[9] the court affirmed his loss on summary judgment.[10] The Eleventh Circuit ruled that the sidewalk Keister was preaching on was a limited public forum for First Amendment purposes, and thus subject to the “reasonable and content-neutral” permitting scheme by the University.[11] The Eleventh Circuit considered multiple factors to determine this, including the nature of how the sidewalk had been used, its purpose, and, controversially, the intent of the University (read: government entity) for the sidewalk’s purposes.[12] Finding that the sidewalk was in the “heart of campus” at the University of Alabama, shown by abutment to University buildings and the central Quad, the court ruled it to be a limited public forum.[13]

Now, Keister petitions to the Supreme Court, alleging that the Eleventh Circuit erred reversibly by explicitly considering the government’s intent in determining this sidewalk to be a limited public forum.[14] This is not the first time that the Court has had to decide to what extent the right to free speech can be infringed on governmental property because of its attributes.[15] The Eleventh Circuit likened this to sidewalks abutting a military base that the Supreme Court found to be a limited public forum in Greer v. Spock,[16] or a sidewalk used by postal workers in United States v. Kokinda.[17]

II. WILL THE COURT GRANT CERTIORARI IN KEISTER?

While Keister presents the Court an opportunity to strengthen First Amendment free speech protections by applying its newly favored test for constitutional rights,[18] there exists a serious possibility the Court does not grant certiorari.[19] In his petition to the Supreme Court, Keister alleges a deep and pervasive circuit split regarding the test for determining First Amendment forum status.[20] Circuit splits are highly favored by the Supreme Court when making decisions about whether to grant certiorari.[21] This split, as alleged by Keister, involves the D.C. Circuit, the Tenth Circuit, and the Ninth Circuit Courts of Appeals facing off with the Second, Eighth, and now Eleventh Circuits for whether to explicitly include government intent in determining First Amendment Forum status.[22] However, this split may not be as concrete as Keister alleges. For example, in Henderson v. Lujan the D.C. Circuit allowed for the prospect of the government creating and designating a space where speech could be limited, arguing that just that intent alone was insufficient to relegate an area to limited forum status.[23] This is not necessarily inconsistent with the approach taken by the Eleventh Circuit in the instant case.[24] Likewise in First Unitarian Church of Salt Lake City v. Salt Lake City Corp., the Tenth Circuit considered government purpose for the forum in question for determining its First Amendment status, just holding that government intent may be overridden by public objectives.[25]

Keister alleges that the Eleventh Circuit also split with the Fifth, Sixth, and Eighth Circuits that decided that that sidewalks on public university campuses are, indeed traditional public fora for First Amendment purposes.[26] However, the Eleventh Circuit already made pains to distinguish its holding in Keister from the Fifth and Sixth Circuits, that Keister pertains to sidewalks in the “heart of campus” versus the “perimeter” sidewalks in those other cases.[27] So, too, in Bowman v. White, the Eight Circuit explicitly used government intent in its test and came to the same result regarding campus perimeter sidewalks that the Fifth and Sixth Circuit did without government intent considerations.[28] These courts came to the same conclusion regarding campus perimeter sidewalks while giving different weight to the intent of the government, further showing that this split is illusory.[29]

The Supreme Court may also reject this petition for certiorari on standing or mootness grounds.[30] The Court generally avoids cases with serious vehicle issues, where they are forced to dismiss it on procedural grounds without reaching the substantive legal holdings.[31] Here, the Eleventh Circuit in its opinion fended off serious mootness and standing issues, choosing to reject them using relatively recent and undeveloped case law.[32] This tinge of vehicle problem may just be enough to encourage the Justices to deny Keister cert.[33]

III. OUTCOME: A NEW TEST FOR FIRST AMENDMENT FORUM STATUS

If the Supreme Court does indeed take on this case, the Nine will likely reverse the Eleventh Circuit and articulate a new test for determining the status of fora for First Amendment free speech purposes. Under current precedent, the Eleventh Circuit probably got it right, that even when the Supreme Court in Greer and Kokinda were not explicitly considering the government’s intent in designating a sidewalk as a limited public forum as part of an official test, they were at least somewhat considering those factors by looking to other elements of the government’s design of place.[34] This, paired with the largely illusory circuit split, informs that the Court would be more likely to take the case to change precedent.[35]

After Dobbs and Bruen, the Court has made clear that text, history, and tradition are the currently preferred factors of analysis for determining constitutional rights.[36] Keister, reading these tea leaves, explicitly urged the Court to adopt such a standard in their brief seeking certiorari.[37] In adopting such a standard, as Keister urges, the court would do away with the current multi-factor balancing test that the Circuits have used, and potentially adopt a more bright line rule, something that may read as explicitly as, “public sidewalks are always traditional public fora and subject to strict scrutiny.”[38]

While it may be too soon to tell the full extent of Keister’s impact, court watchers and free speech advocates alike should keep themselves apprised of this file as it makes its way through the Court.

 

[1] 29 F.4th 1239 (11th Cir. 2022), petition for cert. filed, No. 22-388 (Oct. 21, 2022). At the time of publication, the Supreme Court has confirmed the prediction of this Post and denied certiorari.

[2] Id.

[3] Id. at 1252.

[4] Id. (describing strict scrutiny in the free speech context as requiring a content neutral, narrowly tailored regulation to achieve a significant government interest, leaving open many alternative means of speech).

[5] Id. (describing the limited public forum as a place where only particular subjects may be discussed and where only certain groups may use).

[6] Id. at 1244–45.

[7] Id. at 1248–49.

[8] See Keister v. Bell, 461 F. Supp. 3d 1152 (N.D. Ala. 2020), aff’d, 29 F.4th 1239 (11th Cir. 2022).

[9] The first time Keister appealed was on a preliminary injunction motion, which he lost. Keister, 29 F.4th at 1244.

[10] See id. at 1261–62.

[11] See id. at 1244–45, 1261–62 (“[T]he sidewalk in question is a limited public forum, so the University’s permitting requirement needed to be only reasonable and viewpoint-neutral.”).

[12] See id. at 1251 (“The type of forum to which a government rule or policy pertains determines the level of scrutiny we apply to that rule or policy. Assessing the type of forum a particular piece of government property may be requires the court to consider the traditional uses made of the property, the government’s intent and policy concerning the usage, and the presence of any special characteristics.”) (citations omitted).

[13] Id. at 1254.

[14] Petition for a Writ of Certiorari at 1, Keister v. Bell, No. 22-388 (filed Oct. 21, 2022).

[15] E.g., Greer v. Spock, 424 U.S. 828 (1976) (finding that free speech can be limited on sidewalks abutting a military base in a manner less restrictive on the government than strict scrutiny).

[16] Keister, 29 F.4th at 1253 (citing Greer, 424 U.S. 828).

[17] Id. at 1253 (citing United States v. Kokinda, 497 U.S. 720 (1990)).

[18] See discussion infra Part II.

[19] See discussion infra Part I.

[20] Petition for a Writ of Certiorari, supra note 10, at 32.

[21] Supreme Court of the United States, Rules of the Supreme Court of the United States 5–6 (2023) (discussing Rule 10, “Considerations Governing Review on Certiorari”).

[22] Petition for a Writ of Certiorari at 12–19, Keister v. Bell, No. 22-388 (filed Oct. 21, 2022).

[23] 964 F.2d 1179, 1180 (D.C. Cir. 1992).

[24] See Keister v. Bell, 29 F.4th 1239, 1244–45 (11th Cir. 2022) (considering government intent as just one of many factors).

[25] 308 F.3d 1114, 1124 (10th Cir. 2002).

[26] See McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012); Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000); Bowman v. White, 444 F.3d 967, 977–79 (8th Cir. 2006).

[27] Keister v. Bell, 29 F.4th 1239, 1255–56 (11th Cir. 2022) (considering government intent as just one of many factors).

[28] 444 F.3d 967, 977–79 (8th Cir. 2006).

[29] See Brief in Opposition at 12–13, Keister v. Bell, No. 22-388 (filed Feb. 10, 2023).

[30] See David R. Stras, Book Review Essay, The Supreme Court’s Gatekeepers, 85 Tex. L. Rev. 947, 974–75 (2007) (“The desire to maintain credibility within the [Supreme Court’s certiorari] pool . . . weighs in favor of recommending a denial when there is the possibility of a vehicle problem . . . .”).

[31] See id.

[32] 29 F.4th 1250–51 (11th Cir. 2022) (citing Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021)) (finding that Keister’s assertion of nominal damages for harm to his First Amendment rights retained his standing and prevented mootness, despite the University of Alabama shifting to a more permissive permitting scheme and suggestions that he would have needed a permit even if the sidewalk was a traditional public forum).

[33] See also Brief in Opposition, supra note 22, at 16–17 (alleging an additional vehicle problem).

[34] United States v. Kokinda, 497 U.S. 720, 729 (1990) (emphasis added) (“[T]he location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum”); Greer v. Spock, 424 U.S. 828, 836 (1976) (citing Adderley v. Florida, 385 U.S. 39, 47 (1966)) (emphasis added) (“The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”).

[35] See discussion supra Part I; See also SCOTUS Case Reversal Rates (2007-Present), Ballotpedia (July 2022), https://ballotpedia.org/SCOTUS_case_reversal_rates_(2007_-_Present) [https://perma.cc/M2G9-885V] (finding a 71.4% reversal rate in cases the Supreme Court granted certiorari since 2007).

[36] See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 (2022) (holding that constitutional protections should be “guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty”); N.Y. State Rifle & Pistol Ass’n. v. Bruen, 142 S. Ct. 2111, 2129 (2022) (looking to history and tradition to evaluate extent of textual Second Amendment protections); See also Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (“An analysis focused on original meaning and history, this Court has stressed, has long represented the rule . . . .”).

[37] Petition for a Writ of Certiorari at 28–30, Keister v. Bell, No. 22-388 (filed Oct. 21, 2022).

[38] See id.