Keister v. Bell et al

Filing 49

MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/14/2019. (KAM)

FILED
2019 Mar-14 AM 10:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
RODNEY KEISTER,
Plaintiff,
v.
STUART BELL, et al.,
Defendants.

}
}
}
}
}
}
}
}
}

Case No.: 7:17-cv-00131-RDP

MEMORANDUM OPINION
This matter is before the court on Defendants’ Motion to Dismiss the Verified Amended
Complaint (Doc. # 41). For the reasons explained below, the motion is due to be denied.
I.

Background1
Plaintiff is a traveling evangelist who desires to speak to college students at the

University of Alabama in Tuscaloosa, Alabama. (Doc. # 39 at ¶¶ 12, 26-27). He specifically
seeks to share the message of Christianity on sidewalks bordering the intersection of University
Boulevard and Hackberry Lane on the University’s campus. (Id. at ¶ 27). Plaintiff wants to
evangelize by passing out gospel tracts and engaging in prayer and one-on-one conversations
with passers-by. (Id. at ¶¶ 17-18). Occasionally, he also preaches to those within hearing
distance. (Id. at ¶ 19).
The University has a speech policy that prohibits individuals who are neither affiliated
with the University nor sponsored by a University group from using its campus grounds to
engage in expressive activity. (Id. at ¶¶ 57-61, 74; Doc. # 22 at 4). Unaffiliated individuals who

1

For purposes of ruling on Defendants’ motion to dismiss, the court treats the factual allegations of the
Amended Complaint (Doc. # 39) as true, but not its legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009).

wish to speak on the University’s campus must be sponsored by an academic or administrative
department or a registered student organization and complete a Grounds Use Permit application.
(Doc. # 22 at 4). The permit application must be filed at least ten business days in advance. (Id.).
On March 10, 2016, the University applied its speech policy to Plaintiff. Plaintiff and his
friend went to the University’s campus to evangelize. (Doc. # 39 at ¶ 45). They initially went to a
sidewalk along Sixth Avenue, across the street from a wide-open, grassy field on campus known
as “the Quad.” (Id. at ¶¶ 52-54). While there, Plaintiff passed out literature on the sidewalk while
his friend stood several feet away from him on the same sidewalk and preached a gospel
message. (Id. at ¶ 54). After University police officers informed them that they would need a
permit to speak in that area, Plaintiff and his friend moved to a sidewalk at the intersection of
University Boulevard and Hackberry Lane, in front of Russell Hall. (Id. at ¶¶ 55-68). The
officers’ supervisor, Lieutenant Odom, told Plaintiff and his friend, “On that corner, you’re
good.” (Id. at ¶¶ 60, 67).
At his new location, Plaintiff passed out religious literature and preached with his natural
voice in short bursts to draw attention. (Id. at ¶ 69). He did not use amplification. (Id.). A short
time later, however, Lieutenant Odom returned to the scene and told Plaintiff that the sidewalks
at the intersection of University Boulevard and Hackberry Lane were in fact owned by the
University and subject to the University’s speech policy. (Id. at ¶¶ 71-74). As an unaffiliated and
unsponsored speaker without a grounds use permit, Plaintiff was not permitted under the policy
to pass out literature, preach, or converse with passers-by at that location. (Id. at ¶ 74). Fearing
arrest for criminal trespass, Plaintiff left. (Id. at ¶ 75).
Plaintiff subsequently filed a lawsuit the University’s President, the Chief of Police for
the University Police Department, and Lieutenant Odom of the University Police Department.

2

(Doc. # 1). He claimed the University’s policy abridged the freedom of speech protected by the
First Amendment and was so vague as to violate the Due Process Clause of the Fourteenth
Amendment. (Id. at 13-14). Plaintiff moved for a preliminary injunction enjoining those officials
from enforcing the University’s speech policy. (Doc. # 6). This court denied the motion, ruling
(based upon the preliminary record supplied by the parties) that the intersection where Plaintiff
wished to speak was a limited public forum and that Plaintiff was unlikely to succeed on the
merits of his First Amendment claim under the standard governing limited public forums. (Doc.
# 22). Plaintiff appealed this court’s denial of his preliminary injunction motion to the Eleventh
Circuit. (Doc. # 26). The Eleventh Circuit affirmed. Keister v. Bell, 879 F.3d 1282, 1284 (11th
Cir. 2018). The Eleventh Circuit held that this court properly found that the intersection of
University Boulevard and Hackberry Lane was a limited public forum and therefore did not
abuse its discretion in denying Plaintiff’s motion for a preliminary injunction. Id. at 1284, 1291.
Because Plaintiff did not press the issue on appeal, the Eleventh Circuit did not address whether
the University’s speech policy was constitutional under the limited-public-forum standard. Id. at
1288 n.4. It held only that the intersection in question was a limited public forum, and that
Plaintiff’s First Amendment claim should be analyzed in light of that holding. Id. at 1291.
Following remand, Plaintiff filed an Amended Complaint, again alleging violations of
both the First Amendment and the Due Process Clause. (Doc. # 39). Defendants have moved to
dismiss the Amended Complaint for failure to state a claim upon which relief may be granted.
(Doc. # 41).
II.

Legal Standard
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The

3

complaint must include enough facts “to raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a
formulaic recitation of the elements of a cause of action” do not satisfy Rule 8, and neither do
pleadings that are based merely upon “labels and conclusions” or “naked assertion[s]” without
supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss,
courts view the allegations in the complaint in the light most favorable to the nonmoving party.
Watts v. Fla. International Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136,
138 (11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2010)). That task is context specific, and to survive the motion, the allegations must permit the
court, based on its “judicial experience and common sense . . . to infer more than the mere
possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded
facts, accepted as true, do not state a claim that is plausible, the claims must be dismissed.
Twombly, 550 U.S. at 570.
III.

Analysis
Plaintiff has adequately alleged a violation of the First Amendment and the Due Process

Clause in his Amended Complaint. Defendants’ motion to dismiss is therefore due to be denied.
As an initial matter, the parties dispute the legal effect of the Eleventh Circuit’s decision
affirming this court’s denial of Plaintiff’s motion for a preliminary injunction. See Keister, 879
F.3d at 1284. Defendants contend that under the law-of-the-case doctrine, Keister’s holding that

4

the intersection of University Boulevard and Hackberry Lane in Tuscaloosa is a limited public
forum prevents that issue from being relitigated on remand. Plaintiff contends that because the
Eleventh Circuit’s decision merely affirmed the denial of a preliminary injunction, it has no lawof-the-case implications for the intersection’s forum status.
The court believes the proper way forward is a middle path between the parties’
positions. Regardless of how the law-of-the-case doctrine applies, Keister, as a published
Eleventh Circuit decision, is binding precedent in this court. That means its conclusion that the
intersection of University Boulevard and Hackberry Lane in Tuscaloosa is a limited public forum
is binding on this court. Keister, 879 F.3d at 1289-91. Though based on a preliminary record, the
Eleventh Circuit held the intersection was a limited public forum because it “is within the UA
campus, is not intended as an area for the public’s expressive conduct, and contains markings
clearly identifying it as an enclave.” Id. at 1291. Discovery is unlikely to reveal additional or
contrary facts that would change the result in Keister. In other words, given the Eleventh
Circuit’s holding in Keister, and the facts that holding was based on, it is doubtful that any
amount of discovery by Plaintiff is likely to show that the intersection of University Boulevard
and Hackberry Lane is in fact not a limited public forum.2 However, Plaintiff’s claims may
nevertheless proceed because, even under the less stringent limited-public-forum standard, the
Amended Complaint adequately alleges violations of the First Amendment and the Due Process
Clause.

2

If discovery shows that the relevant facts on which the Eleventh Circuit’s decision was based were, in
fact, not the real facts, then Plaintiff will of course be free to argue that the intersection is not a limited public forum.
Even under the law-of-the-case doctrine, a prior judicial decision is not binding if, since the prior decision, “new and
substantially different evidence is produced.” This That And The Other Gift And Tobacco, Inc. v. Cobb Cty., 439
F.3d 1275, 1283 (11th Cir. 2006) (internal quotation marks omitted). Thus, while the facts on which the Eleventh
Circuit’s decision was based do not appear subject to reasonable dispute, that does not prohibit Plaintiff from trying
to show otherwise.

5

A limited public forum exists “when governmental entities open their property but limit
its use to certain groups or dedicate it solely to the discussion of certain subjects.” Keister, 879
F.3d at 1289 (internal quotation marks and brackets omitted). In limited public forums,
government restrictions on speech need only be “reasonable and viewpoint neutral.” Id. (internal
quotation marks omitted).
Plaintiff has plausibly alleged that the University of Alabama’s speech policy, at least as
applied to him, is not reasonable and viewpoint neutral. According to the Amended Complaint,
University officials informed Plaintiff that the University’s speech policy prohibited him from
engaging “in any form of expression” on the University campus without a grounds use permit.
(Doc. # 39 at ¶¶ 57, 74). The speech policy extended not only to Plaintiff’s preaching, but also to
his distribution of literature and consensual conversations with passers-by. (Id. at ¶¶ 59, 74).
Moreover, the officials made clear that the University campus was open to the public and that
Plaintiff was allowed to be there, but that he could not engage in his expression on campus
without first obtaining a permit (which would require ten business days’ advance notice to the
University and sponsorship by a university entity to obtain). (Id. at ¶¶ 57, 60, 66).
Plaintiff’s allegations give rise to a plausible claim that the University’s policy is
unreasonable and unduly burdens speech, even in a limited public forum like the intersection of
University Boulevard and Hackberry Lane. Given that the University does not prohibit
unaffiliated individuals from accessing its campus altogether, the questions are whether (1) the
University prohibits nearly all expressive activity by unaffiliated individuals who walk through
the University’s publicly accessible campus and (2) whether it is reasonable to do so. It is
difficult to see what government interest could justify a ban on unaffiliated persons who are
otherwise permitted to be on a campus sidewalk from engaging in consensual conversations with

6

passers-by. Plaintiff has a plausible claim that such a restriction is unreasonable. Discovery will
be necessary to determine whether the University in fact has and enforces such a policy. But, at
this point, taking the allegations of the Amended Complaint as true, Plaintiff’s First Amendment
claim is plausible.
Plaintiff’s allegations also give rise to a plausible claim that the University’s speech
policy is unconstitutionally vague, in violation of the Due Process Clause. Regulations of speech
are unconstitutionally vague when they are so ambiguous that a reasonable person cannot tell
what expression is forbidden and what is allowed. Coates v. City of Cincinnati, 402 U.S. 611,
614 (1971) (explaining that a law is vague if “men of common intelligence must necessarily
guess at its meaning”) (internal quotation marks omitted). In addition to ensuring adequate notice
to citizens, vagueness doctrine also ensures that governments “establish minimal guidelines to
govern law enforcement,” thus preventing selective or arbitrary enforcement. Kolender v.
Lawson, 461 U.S. 352, 358 (1983).
The policy Plaintiff challenges as unconstitutionally vague exempts from its permitting
requirements uses of campus grounds that qualify as “casual recreational or social activities.”
(Doc. # 6-7 at 1). Plaintiff argues that the term “casual,” which the policy does not define, does
not give fair notice to Plaintiff about which kinds of campus activities require a permit and which
do not, and also encourages arbitrary enforcement of the policy by campus officials. Plaintiff
might reasonably presume that passing out religious literature or, at the very least, engaging in
consensual conversations with passers-by, is simply a “casual” social activity. But whether
Plaintiff faces punishment for engaging in those expressive activities without a permit depends
entirely on whether any given University official views his conduct as “casual” or not. At this

7

early stage in the litigation, the court cannot say that Plaintiff’s vagueness claim is so implausible
as to warrant dismissal on a Rule 12(b)(6) motion.
IV.

Conclusion
For the reasons explained above, Defendants’ motion to dismiss (Doc. # 22) is due to be

denied. A separate order will be entered.
DONE and ORDERED this March 14, 2019.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

8