ROSENBAUM, Circuit Judge:
Control the clock and control the game. Winning coaches in many sports have employed this strategy.
Barrett is a public-school teacher who believes that the District has wielded this policy to unconstitutionally censor speech critical of the Board and its employees at school-board meetings. He filed suit in federal court, asserting a variety of First Amendment facial and as-applied claims in his quest for, among other things, an injunction against various aspects of the Board's policy governing public comment at its meetings.
The district court ultimately granted Barrett a permanent injunction based on some of his facial claims and enjoined the Board's public-comment policy. It also allowed a number of Barrett's other claims to proceed to discovery.
Defendants now appeal the injunction. We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1), which allows us to review "[i]nterlocutory orders ... granting... injunctions." After careful review, and with the benefit of oral argument, we affirm in part, vacate in part, and remand for further proceedings.
According to his verified complaint, Barrett is employed by the District as a seventh and eighth-grade social-studies teacher. He is also the president of the Walker County Association of Educators ("WCAE").
The District is managed by the Walker County Board of Education, which itself is composed of five elected officials. One of those officials, Defendant Mike Carruth, is the Chairperson of the Board; in that capacity, he presides over Board meetings, signs documents on behalf of the Board, and performs other duties. Defendant Damon Raines is the Superintendent of the District, a job that makes him responsible for all operations of the District, including the implementation of District policies and procedures.
Except in January and February, the Board holds a meeting every month. The Board also holds a planning session each month. Members of the public are allowed to comment at the meetings and planning sessions. In advance of each meeting or planning session, the Board publishes an agenda of items to be discussed, and the agenda indicates the time allotted for public comment. The Board has a policy that governs how members of the public may obtain permission to speak during these public-comment sessions (the "Policy").
Barrett is no stranger to the public-comment sessions of Board meetings: according to his complaint, he "has publicly participated in Board meetings in the past by endorsing actions of the Board, commending the Board on past actions and recognizing employees of the Board for good deeds." And he contends that, despite the existence of the Policy, he "has not been subjected to the procedural requirements of [the Policy] prior to making such public comments."
But Barrett asserts that the Board's tune changed when Barrett's comments began to strike the wrong chord with the Board: Barrett contends that the Board started requiring him to comply with the Policy only when he started speaking critically of the Board.
Barrett's litigation saga begins with a topic controversial in any school: grades. In the period from May 2014 to January 2015, Barrett became a "vocal critic" of new grading procedures that the Superintendent had implemented without the Board's having taken any official action. As Barrett saw things, this new grading policy negatively affected student performance and teacher-performance evaluations.
So in his capacity as President of WCAE, Barrett publicly criticized the grading policy during meetings of WCAE and during in-person discussions with the Superintendent. According to Barrett, he had "several discussions with Superintendent Raines on this topic" during which the Superintendent "vehemently disagreed with Mr. Barrett about the impact of his new procedures" and "often became agitated and upset with Mr. Barrett for his attempts to raise this issue with the Board and in public."
Barrett eventually took the issue of the grading policy to the membership of WCAE, and "the organization agreed to publicly speak against the new grading policy." The Board meeting scheduled for February 17, 2015, presented "the first opportunity for WCAE to speak to the Board in opposition to the policy." So Barrett set out to obtain permission from the Board to speak during the public-comment session of that meeting.
After the meeting, Barrett followed up with the Superintendent by e-mail, asking that the Superintendent respond in writing to Barrett's written concerns. The Superintendent replied by e-mail on February 4, stating that he would "have written documentation prepared addressing the concerns" and that he would "deliver [the documentation] on Monday, February 9."
Barrett and the Superintendent met for about an hour on February 9. The Superintendent gave Barrett four single-spaced written pages in response to Barrett's previously raised concerns, and the two discussed the results of the Superintendent's investigation. As Barrett tells the story, "The Superintendent expressed his dissatisfaction with Mr. Barrett's views on the issues and Mr. Barrett's efforts to speak to the Board about education policy issues that were critical of actions taken by [the District] and the Superintendent."
Immediately after the meeting, Barrett mailed a letter to the Superintendent. The letter, dated February 9, asked that the Superintendent "accept th[e] letter as [Barrett's] written request to speak at the February 16, 2015 regular meeting of the Walker County Board of Education." Barrett explained in the letter that he wished to speak about the new grading policy and three other topics.
Two days later, on February 11, 2015, Barrett received a letter from the Superintendent postmarked February 11. The letter noted that, on February 11, the Superintendent received Barrett's request to speak. This, the letter explained, was too late under the Policy for Barrett to be permitted to speak at the Board's February 17 meeting. The letter further indicated that the Board agenda for the February 17 meeting would not include a public-comment session. Nevertheless, the Superintendent's letter did state that the Superintendent was "happy to place [Barrett's] name on the agenda under public participation at the Board planning session scheduled for Tuesday, March 10, 2015."
Barrett did not attend the March 10 planning session. Timing was critical for Barrett, because in anticipation of the February 17 meeting, he "had organized a large number of employees of the [District] to appear at the Board meeting to show their dissatisfaction with the switch in grading procedures implemented by the Superintendent." Barrett asserts that the Superintendent, who knew of Barrett's association with WCAE, decided "to deny Barrett's request and to cancel all public comment at the February 17, 2015 Board meeting ... for viewpoint-specific reasons related to Mr. Barrett, and the association he represents, and their critical views of the actions taken with respect to the switch in grading procedures."
Despite this setback, Barrett states that he "seeks to speak to the Board in the future about timely matters, often in a manner critical of Defendants." Barrett is concerned, however, that Defendants "will often bar his speech by refusing to place him on [a] meeting agenda."
The procedures ("Procedures") promulgated by the Superintendent under the Policy
The following rules shall be adhered to:
Barrett filed a complaint, together with a motion for a preliminary and consolidated permanent injunction, against the District, Carruth, and Raines. In Count I of the complaint, Barrett requested a declaratory judgment, injunctive relief, and damages for Defendants' alleged violation of his rights under the Free Speech Clause of the First Amendment to the U.S. Constitution, as incorporated against the states under the Fourteenth Amendment, based on various facial and as-applied challenges. In Count II, Barrett sought a declaratory judgment, injunctive relief, and damages for Defendants' alleged violation of his rights under the Georgia Constitution based on essentially the same theories as those asserted in Count I.
In his motion for injunctive relief, Barrett asked the court to consolidate the grant of preliminary injunctive relief with the grant of permanent injunctive relief by way of a summary trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). In support of his request, Barrett contended that no evidentiary hearing was warranted because the court could grant injunctive relief by ruling on those claims of his that did not require resolution of disputed facts, and his claims for damages could be resolved at a later trial.
While Barrett's motion was pending, the court, in accordance with the parties' request, stayed discovery until ten days after the court ruled on the motion. The court then stayed the entire case, again based on the parties' request, because the parties had been in settlement talks and expected that the case could be settled without the court's having to rule on Barrett's motion. The potential settlement fell through. But instead of ruling on the motion for injunctive relief, the court referred the case to the magistrate judge for mediation, which was likewise unfruitful.
Although Barrett's motion for injunctive relief was still pending and the parties had conducted no discovery, Barrett filed a motion in January 2016 for partial summary judgment. As relevant here, Barrett's motion sought a declaration that the Policy was facially unconstitutional as well as a permanent injunction against the enforcement of the Policy.
In support, as relevant on appeal, Barrett contended that the Policy gave unbridled discretion to Raines.
Barrett's filing of his motion for partial summary judgment prompted the court to deny without prejudice the motion for a preliminary and consolidated permanent injunction. Instead, the court directed the parties to brief the motion for partial summary judgment.
In response, Defendants filed a motion requesting that their time to respond to the motion for partial summary judgment be extended until thirty days after the close of discovery. As Defendants saw it, even though Barrett purported to limit his basis for summary judgment to his facial challenges to the Policy, Barrett nevertheless relied on information outside of the pleadings in support of his motion. Plus, Defendants filed this motion on January 29, and the stay on discovery was not set to lift until February 5. Because Defendants would have been required to respond to the motion for partial summary judgment well before the end of discovery, Defendants asked for the extension of time so that they could use the factual record that would be developed through discovery to respond to the factual contentions that Barrett asserted in his motion.
The district court denied Defendants' request for an extension of time, finding that Defendants had all the information they needed to respond to the arguments raised at that juncture. So Defendants later filed their response to Barrett's motion for partial summary judgment and their own cross-motion for partial summary judgment.
The district court granted in part Barrett's motion for partial summary judgment. At the beginning of its legal analysis, the court made clear that, consistent with the parties' motions, the court was addressing Barrett's facial challenges only — not his as-applied challenges. For that reason, the court explained that it would "not consider whether the Policy is unconstitutional as applied to Plaintiff or whether Plaintiff satisfied the Policy's requirements." As for the threshold issue of Barrett's standing, the court briefly found that, because the evidence showed that the Policy chilled his speech, Barrett had standing to pursue his facial claims.
Turning to the merits, as relevant on appeal, the district court first conducted a forum analysis and determined that the public-comment portions of the Board's meetings were limited public fora. It then found the Policy violated the unbridled-discretion doctrine: by not setting time limits on Raines's second meeting with individuals who wish to speak at a public-comment session, the district court concluded, the Policy gave Raines unbridled
The district court also found that Barrett easily established the elements for a permanent injunction. So the court permanently enjoined the District, "as well as its agents, representatives, and employees, from enforcing the Policy."
As for matters of procedure, the court clarified that Barrett's as-applied claims, his claims against the individual defendants in their individual capacities, and his claims for damages remained pending and would proceed through discovery.
Defendants appeal, and we now consider whether the Policy granted the Superintendent unbridled discretion. We also address Barrett's standing and the propriety of the district court's denial of Defendants' motion for extension of time.
We begin with the threshold issue of standing because if Barrett does not have standing to pursue his unbridled-discretion claim, then we do not have subject-matter jurisdiction over the claim.
Our inquiry is simple in a case involving a facial challenge to a speech regulation based on a theory of unbridled discretion. It is long-settled that "when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). In other words, a plaintiff has standing to facially challenge a law that allegedly grants unbridled discretion as long as the plaintiff "is subject to" or "imminently will be subject to" that particular law. CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1274 (11th Cir. 2006) (internal quotation marks omitted) (quoting Lakewood, 486 U.S. at 755, 108 S.Ct. 2138).
In CAMP, for example, we held that a plaintiff had standing to challenge regulations that purportedly granted unbridled discretion to city officials because the plaintiff had applied for permits in the past and intended to apply for permits in the future, and those permit applications were or would be subject to the challenged regulations. See id. at 1274-75. We found that it made no difference that "city officials ha[d] not yet exercised their discretion to refuse [the plaintiff]'s [permit applications]... because it [wa]s the existence, not the imposition, of standardless requirements that cause[d] [the plaintiff's] injury." Id. at 1275.
Here, it is undisputed that, like the plaintiff in CAMP, Barrett has at least once in the past applied for permission to
By limiting to one the claims that he would defend on appeal, Barrett effectively agreed at oral argument that, as Defendants have urged, the entry of summary judgment in his favor on the remainder of his claims should be vacated. So based solely on the parties' stipulation, and without reaching the merits, we vacate the district court's entry of summary judgment in favor of Barrett on all claims other than the facial unbridled-discretion claim.
We therefore consider whether the district court correctly granted summary judgment in favor of Barrett on his facial unbridled-discretion claim and whether the district court properly entered a permanent injunction as a remedy for that claim. We review for abuse of discretion a district court's decision to grant a permanent injunction, but in conducting that review, we consider all underlying legal determinations, including the propriety of the entry of summary judgment, de novo. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1266 (11th Cir. 2006). Because we review the entry of summary judgment on a facial — as opposed to an as-applied — challenge to the Policy, we do not concern ourselves with the facts of Barrett's particular case — we simply interpret the Policy de novo. See Sentinel Commc'ns Co. v. Watts, 936 F.2d 1189, 1197 (11th Cir. 1991).
To begin, we address the merits of the unbridled-discretion claim. Perhaps the plainest example of an unconstitutional grant of unbridled discretion is a law that gives a government official power to grant permits but that provides no standards by which the official's decision must be guided. See Sentinel Commc'ns, 936 F.2d at 1198-99. In these circumstances, the official can grant or deny a permit for any reason she wishes. Such a grant of unconstrained power is unconstitutional under the First Amendment for two reasons: first, it creates an incentive for speakers to self-censor in hopes of being granted a permit, and second, it is difficult for courts to determine whether an official's standardless permit decision was impermissibly based on content or viewpoint. See Lakewood, 486 U.S. at 757-59, 108 S.Ct. 2138.
Under the Granite State framework, if the prior restraint is content based, then the lack of a time limit necessarily renders the prior restraint unconstitutional. See Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1270-72 (11th Cir. 2005). But if the prior restraint is content neutral, then the lack of a time limit does not necessarily invalidate the regulation. See Granite State, 348 F.3d at 1282 n.6 (holding that "time limits are not per se required when the licensing scheme at issue is content-neutral"). Rather, the court evaluates whether the content-neutral prior restraint "contain[s] `adequate standards to guide the licensing official's discretion and render it subject to effective judicial review.'" Solantic, 410 F.3d at 1270-71 (quoting Thomas v. Chi. Park Dist., 534 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002)). Driving this analytical framework is the constitutional concern that an official with unbridled discretion could censor speech with which the official disagrees by inordinately delaying a decision on a potential speaker's application. See id. at 1272.
Barrett assails two parts of the Policy as improperly lacking a time limit: the scheduling of the initial meeting with the Superintendent and the scheduling of the alleged "second meeting" with the Superintendent. Defendants argue, as a preliminary matter, that the Policy does not require a second meeting and that the district court erred in interpreting the Policy as requiring such a meeting. We agree with Defendants.
The Policy requires an initial meeting, and then, if the Superintendent decides to investigate an issue raised in the initial meeting, the Superintendent must "report back" to the prospective speaker with the results of his investigation within ten days. In Barrett's case, that "report back" took the form of a second meeting, but nothing in the Policy prevents the Superintendent from reporting back via telephone or e-mail. Regardless of the form of the "report back," it must take place within ten days of the initial meeting. The "report back" requirement has a time limit, so, at least in this respect, it does not render the Policy unconstitutional under an unbridled-discretion theory.
The scheduling of the initial meeting, however, has no time limit attached to it. We therefore engage in the Granite State analysis to discern whether that lack of a time limit effectively grants the Superintendent unbridled discretion in contravention of the First Amendment. For the reasons below, we hold that it does.
Before conducting the Granite State analysis, we consider Defendants' argument that the unbridled-discretion doctrine does not apply here. According to Defendants, the unbridled-discretion doctrine applies to only prior restraints on speech, and the Policy is not a prior restraint. Our precedents recognize that the unbridled-discretion doctrine applies to prior restraints, see, e.g., Solantic, 410 F.3d at 1270, but we need not decide today whether the unbridled-discretion doctrine could somehow be applied beyond the context of prior restraints because the Policy before us today is indeed a prior restraint.
The Policy, although not formally a licensing or permitting scheme, is a prior restraint and not a subsequent punishment because it prevents members of the public from speaking at a Board meeting unless they comply with the Policy's requirements. Nor are we persuaded by Defendants' argument that the Policy is not a prior restraint because the Superintendent has no power to grant or deny a request to speak so long as the Policy's prerequisites are satisfied. True, the Policy does not expressly confer on the Superintendent the right to grant or deny a request to speak. But the Policy also does not provide that any individual who seeks permission necessarily gets it.
It is the Procedures that fill that gap. The Procedures state that an individual may submit to the Superintendent a request to speak after meeting with the Superintendent and that the request must include the individual's name, address, purpose for making the request, and topic of speech. The Procedures next provide that "[e]ach person whose name is placed on the agenda will be given five (5) minutes to make their comments." But still missing from the Procedures is any explanation for how an individual's name gets placed on the agenda.
When we read the Procedures together with the Policy, however, we see that the Superintendent uses both substantive and procedural criteria to decide who can speak. The Policy provides that members of the public may "address the Board on issues of concern" unless the issue of concern is a "complaint against any employee of the Board." It also states that the Superintendent may deny access to a speaker whose speech he deems "repetitive" of another speaker's speech or "abusive or disruptive." The Superintendent likewise enjoys the power to redirect speech to a "special meeting" if he believes that the speech "stimulate[s] high community interest." These are substantive criteria that the Superintendent uses to decide whether to put an individual's name on the agenda. In addition to these criteria, the Superintendent uses procedural criteria (attending an initial meeting with the Superintendent, submitting a written request, complying with time requirements, etc.) to determine who can speak. Because the Policy prohibits speech by those who do not satisfy the Policy's criteria, the Policy is a prior restraint.
Courts use "`forum analysis' to evaluate government restrictions on purely
Defendants argue that the unbridled-discretion doctrine does not apply to a limited public forum, such as the public-comment session of a Board meeting. As an initial matter, we agree with the parties that the public-comment sessions of the Board's meetings and planning sessions are limited public fora.
The Supreme Court has referred to four categories of government fora: the traditional public forum, the designated public forum, the limited public forum, and the nonpublic forum. It is undisputed that the public-comment sessions are not traditional public fora, which are defined as government properties that "ha[ve] immemorially been held in trust for the use of the public and, time out of mind, ha[ve] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Walker, 135 S.Ct. at 2250 (internal quotation marks and citation omitted). The quintessential examples of traditional public fora are streets and parks. See id. As their name suggests, traditional public fora are defined by history: the Court has stated that this category of government property does not "extend beyond its historic confines." Id. (internal quotation marks and citation omitted).
Similar to the traditional public forum is the designated public forum. A designated public forum is "government property that has not traditionally been regarded as a public forum [but] is intentionally opened up for that purpose." Id. (internal quotation marks and citation omitted). So a designated public forum consists of government property that has been opened for the purpose of functioning, more or less, as a traditional public forum, even though it does not possess the historical pedigree of a traditional public forum. Nevertheless, a designated public forum differs from a traditional public forum in an important way: unlike in a traditional public forum, expressive activity in a designated public forum can be limited to a particular class of speakers instead of being opened to the general public. See Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677-80, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). But once the designated public forum has been limited to that particular class, all members of that class must receive general access. See id. at 679-80, 118 S.Ct. 1633.
A limited public forum, by contrast, "exists where a government has reserv[ed a forum] for certain groups or for the discussion of certain topics." Walker, 135 S.Ct. at 2250 (internal quotation marks and citation omitted). Unlike a designated public forum, then, a limited public forum cannot, by definition, be open to the public at large for discussion of any and all topics. And a limited public forum differs from a designated public forum in this respect because a designated public forum grants "general access" to the designated class, while a limited public forum can be set up to grant only "selective access" to that class. Forbes, 523 U.S. at 679-80, 118 S.Ct. 1633. Under a system of selective
The final forum category — the nonpublic forum — refers to property at which the government "act[s] as a proprietor, managing its internal operations." Walker, 135 S.Ct. at 2251. Earlier Supreme Court precedent used to consider what we now understand to be nonpublic fora simply "not fora at all," but at that time, the term "nonpublic forum" was synonymous with "limited public forum." Forbes, 523 U.S. at 677-78, 118 S.Ct. 1633. The Supreme Court has since clarified that the terms "limited public fora" and "non-public fora" delineate two distinct types of fora. See Walker, 135 S.Ct. at 2250-51.
Here, the public-comment portions of the Board meetings and planning sessions fall into the category of limited public fora because the Board limits discussion to certain topics and employs a system of selective access. First, public comment is limited to "issues of concern," and speakers may not raise complaints against Board employees or engage in "abusive or disruptive" speech. This is content-based discrimination, which is permitted in a limited public forum if it is viewpoint neutral
And second, the Board grants only selective access to speakers: only those speakers who satisfy the Policy's substantive and procedural criteria may speak. In sum, then, the comment sessions are open to the public, but they are not open to the public at large for discussion of any and all topics. That makes the public-comment sessions limited public fora. See Rowe v. City of Cocoa, Fla., 358 F.3d 800, 802 (11th Cir. 2004); see also Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 759 (5th Cir. 2010).
Returning to Defendants' contention that the unbridled-discretion doctrine does not apply to limited public fora, we reject that position. Precedent of this Court already compels the conclusion that prior restraints on speech can exist in limited public fora.
In Atlanta Journal & Constitution v. City of Atlanta Department of Aviation, 322 F.3d 1298 (11th Cir. 2003) (en banc), our Court sitting en banc considered whether Hartsfield Atlanta International Airport's newsrack-rental policy vested in the official charged with administering the policy unbridled discretion to set rental fees and to choose which rental applications to grant. See id. at 1307. We held that the discretion granted was unconstitutional because no standards governed the setting of the rental fee or the criteria upon which publications' rental applications were to be granted. See id. at 1310-11. We reasoned that this holding was necessary because, otherwise, the plan allowed the official who administered it to make his decisions "for any reason whatsoever, including unconstitutional reasons such as viewpoint discrimination." Id. at 1311 (citation omitted).
As we have noted, however, more recent Supreme Court precedent clarifies that four types of government fora actually exist: the aforementioned three, and also the limited public forum. See Walker, 135 S.Ct. at 2250-51. And the Supreme Court has indicated that it has, in the past, used the term "nonpublic forum" when it should have employed the term "limited public forum." Compare Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 53-54, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (referring to "other non-public forum cases"), with Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 691, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (transcribing but altering the same quote from Perry as "other [limited public] forum cases"). Perhaps the airport we denominated in Atlanta Journal as a "nonpublic forum" is better understood, in today's parlance, as a limited public forum; after all, the public was granted selective access to engage in the content-limited expressive conduct of newspaper circulation.
If that's true, then we have already applied the unbridled-discretion doctrine to a limited public forum, and so Atlanta Journal controls. But even if we decline to engage in a revisionist reading of Atlanta Journal (which would require us to reinterpret the Supreme Court's ISKCON decision), and if we instead view Atlanta Journal as pertaining to a nonpublic forum, we still must hold that the unbridled-discretion doctrine applies in limited public fora.
In Atlanta Journal, we applied the unbridled-discretion doctrine because of the risk that the airport's unrestrained permitting official would covertly engage in viewpoint discrimination, which was impermissible in a nonpublic forum, such as the airport. Limited public fora likewise do not tolerate viewpoint discrimination, see Good News Club, 533 U.S. at 106-07, 121 S.Ct. 2093, so the unbridled-discretion doctrine can serve the same purpose in a limited public forum that it serves in a nonpublic forum: combatting the risk of unconstitutional viewpoint discrimination. Naturally, then, the unbridled-discretion doctrine applies in a limited public forum. Accord Child Evangelism Fellowship of Md., Inc. v. Montgomery Cty. Pub. Schs., 457 F.3d 376, 386-87 (4th Cir. 2006).
Because the Policy is a prior restraint, and because Barrett takes issue with the lack of a time limit for the initial meeting, we next consider, under the Granite State framework, whether the Policy is content based or content neutral. Defendants argue that no risk of content-based discrimination exists here because the Policy does not require prospective speakers to disclose before the initial meeting the subject matter about which they wish to speak. And formalistically speaking, Defendants are correct.
But the unbridled-discretion doctrine is not so formalistic. Governing precedent establishes that prior-restraint schemes, when put into practice, might present enough of a risk of chilling otherwise-permissible speech on the basis of content that the schemes become, for all intents and purposes, content based.
The prior-restraint sign-permitting scheme in Café Erotica of Florida, Inc. v. St. Johns County, 360 F.3d 1274 (11th Cir. 2004), presented this problem. The county government in that case argued that the scheme was not content based because the scheme's permit application did not require applicants to disclose the messages they intended to put on their signs, so the official who administered the application process would not be aware of the content of those messages. See id. at 1289.
We rejected the county's contention for two reasons. First, the permit application required applicants to indicate, on a more general level, whether their sign would display commercial or political messages. See id. at 1279, 1287-89. And second, we were equally concerned with the potential for the permit administrator to more finely evince the content of applicants' intended messages by using context clues. We reasoned that an administrator "can often infer the content based on the nature of the applicant's business," especially when "a long history of conflict" exists between the business (in that case, an adult-entertainment business) and the county. Id. at 1289. For these reasons, we observed that "[w]ithout discretion-checking guidelines, there is a distinct possibility that the County could decline to issue ... a permit based on content," and that, consequently, the ordinance itself "d[id] in fact distinguish based on content." Id.
To reach that conclusion, we relied on Lakewood, in which the Supreme Court considered a city's ordinance that required
Such circumstances are before us again today. In this close-knit school-board community, it is quite possible — indeed, likely, in many situations — that the Superintendent will have an idea of what a prospective speaker's proposed subject matter will be before the Superintendent schedules an initial meeting with the speaker. In a scenario like Barrett's, for example, a critic of a Board policy who spoke against that policy at a prior meeting may attempt to speak against it again at the next Board meeting. The Superintendent can avoid scheduling an initial meeting with that critic, preventing him from complying with the Policy, which in turn bars the critic from speaking at the next meeting, thus censoring that critic's point of view.
As an another example, an individual seeking an initial meeting with the Superintendent could be a representative of an organization with a narrowly defined purpose, such as a religious group or labor union, and the nature of the organization could strongly suggest to the Superintendent the group's topic of speech — whether in terms of content or viewpoint. In another scenario like Barrett's, a speaker could have an initial meeting with the Superintendent, be placed on the agenda with permission to speak at the next meeting, but then fail to attend the meeting for whatever reason. If the speaker went through the approval process again in order to speak at the following meeting, the Superintendent, upon receiving the speaker's request for a new initial meeting, would have a pretty good idea of what the speaker's intended topic of speech is — and this time around, the Superintendent might have second thoughts about allowing that speaker to speak.
Nor does anything in the Policy preclude the Superintendent from inquiring into a speaker's speech content or viewpoint before scheduling an initial meeting. Of course, if the Superintendent made such an inquiry, the speaker could respond that the Superintendent had no right to make the inquiry. But the Superintendent could take the speaker's refusal to disclose her topic as an indication that the content might not be friendly towards the Board. And many speakers would simply disclose to the Superintendent the subject matter of their intended speech. Indeed, in requesting an initial meeting with the Superintendent, some speakers would disclose their intended topic of speech without being prompted to do so.
These concerns only increase when we consider that related parts of the Policy are content based. The issues about which the speaker wishes to speak are discussed at the initial meeting. The Superintendent then has the power to conduct his own
In short, the Policy's requirement that potential speakers schedule an initial meeting with the Superintendent is content based because it poses enough of a risk that speech will be chilled or effectively censored on the basis of content or viewpoint. And because the initial-meeting provision lacks any time limit with which the Superintendent must comply, the requirement is unconstitutional under the Granite State framework. If Defendants wish to continue requiring potential speakers to meet with the Superintendent before submitting a request to speak, Defendants must impose a reasonable time limit within which the Superintendent must respond to the speaker's request, schedule the initial meeting, and hold the initial meeting. The district court properly entered summary judgment in favor of Barrett on his facial unbridled-discretion claim, although we affirm that judgment solely for the reasons laid out in this opinion.
Next, we address whether the court properly entered a permanent injunction as the remedy for Barrett's unbridled-discretion claim. To obtain a permanent injunction, a plaintiff must show (1) that he has suffered an irreparable injury; (2) that his remedies at law are inadequate; (3) that the balance of hardships weighs in his favor; and (4) that a permanent injunction would not disserve the public interest. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006).
The elements for a permanent injunction are satisfied here. First, Barrett suffered an irreparable injury. His right to speak at the February 17 meeting was violated and his right to speak at future meetings was chilled and could be prevented altogether under the Policy. See Siegel v. LePore, 234 F.3d 1163, 1178 (11th Cir. 2000) (en banc) ("The only areas of constitutional jurisprudence where we have said that an on-going violation may be presumed to cause irreparable injury involve the right of privacy and certain First Amendment claims establishing an imminent likelihood that pure speech will be chilled or prevented altogether." (citations omitted)). And since Barrett suffered irreparable harm, his remedies at law were inadequate. See Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981)
As for weighing the balance of hardships, the Board's need to redraft one part of the Policy to provide time constraints and the Superintendent's subsequent need to be a bit more disciplined in maintaining his schedule hardly compare
Defendants opine that the district court's injunction actually disserved the public interest because Defendants discontinued providing public-comment sessions at Board meetings in light of the injunction, but Defendants confuse the issue. The issue is not whether speech should be allowed at all; as the parties agree, the comment sessions at Board meetings are limited public fora, meaning that the Board chose, but was not required, to open those portions of its meetings for public participation. See Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510. Consequently, the Board has the power to close its meetings to public comment if it so wishes. The problem here, rather, is the fact that the Board allows public comment at its meetings but then maintains policies that have a significant potential to chill speech on the basis of content and viewpoint. So the district court's injunction did not create a new constitutional wrong, as Defendants suggest — it instead remedied a wrong of Defendants' creation.
The district court did not abuse its discretion in granting a permanent injunction. But because we affirm the district court's entry of summary judgment with respect to only the facial unbridled-discretion claim, the district court must alter the scope of the injunction on remand so that the injunction remedies only the harm created by the unconstitutional grant of unbridled discretion that we have previously discussed.
Defendants assert a number of arguments for why the district court should have granted their motion for an extension of time so that they could respond to Barrett's motion for partial summary judgment after the close of discovery. We review both the denial of a motion for extension of time and the denial of a motion seeking discovery under the abuse-of-discretion standard. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863-64 (11th Cir. 2004); R.M.R. v. Muscogee Cty. Sch. Dist., 165 F.3d 812, 816 (11th Cir. 1999).
Defendants first contend that courts hesitate to rule on facial claims without the benefit of fully developed factual records.
Defendants additionally identify a number of issues as to which they wanted to conduct discovery. But as our discussion of Barrett's standing and his unbridled-discretion claim shows, the information Defendants sought was immaterial to the resolution of those issues.
JULIE CARNES, Circuit Judge, concurring:
I concur in the panel opinion's holding that the Walker County School Board's public comment policy is unconstitutional because it gives the Superintendent unbridled discretion to prohibit speech that is within the scope of and otherwise permitted by the policy.
School board meetings are not traditional public fora. See Bloedorn v. Grube, 631 F.3d 1218, 1231 (11th Cir. 2011) ("Traditional public fora are public areas such as streets and parks that [historically] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." (internal quotation marks omitted)). Consequently, the public is not presumptively entitled to attend or speak at such meetings. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 74
In order to be constitutionally valid, regulations imposed on speech in a limited public forum must be "reasonable and viewpoint neutral." Id. In addition, and regardless of the type of forum involved, the regulatory scheme must not give government officials unbridled discretion to prohibit speech that is otherwise permissible in the forum. See AJC, 322 F.3d at 1310-11 ("A grant of unrestrained discretion to an official responsible for monitoring and regulating First Amendment activities is facially unconstitutional."). In AJC, this Court held that a plan allowing newspaper publishers to apply for permission to rent and place their newspapers in city-owned newsracks in the Atlanta airport was unconstitutional because it lacked clear standards to guide the official charged with granting applications and setting the rental fee. See id. The Court explained that:
Id. at 1311.
Although AJC arose in the context of a non-public forum (the Atlanta airport), its rationale concerning unbridled discretion is equally applicable to a limited public forum. Specifically, in AJC our Court reasoned that when government officials have unbridled discretion to regulate speech, the resulting censorial power creates an unacceptable risk of viewpoint discrimination. Id. The risk of viewpoint discrimination is at least as much of a concern in a limited public forum as it is in a non-public forum. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 120, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (concluding that the denial of a religious club's access to a limited public forum constituted impermissible viewpoint discrimination in violation of the First Amendment).
In my view, a straightforward application of the unbridled discretion rule set forth in AJC resolves this case. As relevant to Barrett's unbridled discretion argument, the Board's public comment policy requires that a would-be speaker who wants to address the Board about an "issue of concern" first "meet with the Superintendent and discuss [his] concern." Following the initial meeting, and any subsequent investigation and "report back" deemed necessary by the Superintendent, the speaker must make a written request to the Superintendent "at least one week prior" to the scheduled Board meeting. The policy, however, does not place any
The panel opinion relies on AJC, but it also purports to apply prior restraint analysis. I, however, do not think that prior restraint analysis applies to the Board's public comment policy, or that it applies more generally in the limited public forum context. As the opinion points out, prior restraint analysis is most commonly applied in the permitting and licensing context. See Café Erotica of Florida, Inc. v. St. Johns Cty., 360 F.3d 1274, 1279-82 (11th Cir. 2004) (applying prior restraint analysis to a municipal sign ordinance); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1270 (11th Cir. 2005) (same); Burk v. Augusta-Richmond Cty., 365 F.3d 1247, 1250-51 (11th Cir. 2004) (describing a county ordinance requiring a permit for public demonstrations by groups of five or more people as a prior restraint); United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000) (applying prior restraint analysis to a federal regulation requiring a permit in order to protest in national parks).
The panel cites a few cases in which prior restraint analysis has been applied in other contexts. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 570, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (holding that a court-ordered injunction forbidding the media from publishing information related to an ongoing criminal proceeding was an unconstitutional prior restraint). But significantly none of the cases cited by the panel apply prior restraint analysis to a speech regulation arising in the limited public forum context.
Prior restraint analysis is readily applicable to regulations imposed on private speech or on speech made in a traditional public forum, because it incorporates the same rigorous standards that are generally applicable in those contexts. See Perry, 460 U.S. at 45, 103 S.Ct. 948 ("In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed."). Specifically, a prior restraint is "presumptively unconstitutional and face[s] strict scrutiny." Burk, 365 F.3d at 1251. See also Café Erotica, 360 F.3d at 1282 (noting that "any system of prior restraint bears a heavy
It is difficult to reconcile the above-described strict prior restraint analysis with the less rigorous standards that govern restrictions imposed on speech in a limited public forum, however. See Good News Club, 533 U.S. at 106, 121 S.Ct. 2093 ("If the forum is a traditional or open public forum, the State's restrictions on speech are subject to stricter scrutiny than are restrictions in a limited public forum."); AJC, 322 F.3d at 1306 ("When [a government] seeks to regulate speech on government-owned property which is not a public forum ... the standard is modified, becoming more deferential to regulation."). For example, it is well-established that the regulation of speech in a limited public forum is only subject to reasonableness review, rather than strict or intermediate scrutiny. See Bloedorn, 631 F.3d at 1231 ("Any restrictions made on expressive activity in a limited public forum only must be reasonable[.]"). Likewise, there is no basis in the case law for treating restrictions on speech as constitutionally suspect in the limited forum context. On the contrary, such restrictions generally are constitutional as long as they are reasonable in light of the purpose served by the forum. See Bloedorn, 631 F.3d at 1231. Indeed, the restrictions need not even be the "most reasonable" ones available. See id.
Another aspect of prior restraint analysis incongruent to examination of a limited public forum is its focus on content-neutrality. See Burk, 365 F.3d at 1255 (suggesting that the constitutionality of a prior restraint often depends on whether the restraint is determined to be content-based and thus subject to strict scrutiny); Solantic, 410 F.3d at 1270 (emphasizing the importance of content-neutrality in determining whether a prior restraint is constitutional). As noted, restrictions on speech in a limited public forum need only be
Yet, under the panel opinion's prior restraint analysis, the constitutionality of the Board's public comment policy purportedly hinges on whether the policy is content-based or content-neutral. Citing Granite State Outdoor Advertising, Inc. v. City of St. Petersburg, 348 F.3d 1278 (11th Cir.
For these reasons, I respectfully decline to join in the panel opinion's prior restraint discussion or in its inquiry concerning whether the Board's public comment policy is content-based. Nevertheless, and based on AJC and other guiding precedents, I concur in the panel's holding that the policy is unconstitutional because it violates the unbridled discretion doctrine. Specifically, the policy creates a forum for public speech, conditions access to the forum on having an initial meeting with a government official, and vests in that official the sole and unfettered discretion to determine when to schedule the meeting. That amounts to a "grant of unrestrained discretion to an official responsible for monitoring and regulating First Amendment activities," which is not permitted by our governing precedent. AJC, 322 F.3d at 1310. See also Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ("Once it has opened a limited forum ... the State must respect the lawful boundaries it has itself set.").
It is true, as our colleague points out, that content-based discrimination is less of a constitutional concern in limited public fora as it is in traditional and designated public fora. But it is also true that, although limited public fora are more tolerant of content-based discrimination, limited public fora are no less inhospitable to viewpoint-based discrimination than any other type of forum is, and viewpoint discrimination is but "an egregious form of content discrimination," Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. And content-based discrimination can still occur in a limited public forum subject to a prior-restraint regulation that grants its operating official unbridled discretion. For example, and as our analysis below suggests, an individual who satisfies a limited public forum's criteria for speaking about a particular topic that falls within the range of permissible content in that forum can nonetheless be excluded from the forum on the basis of content if the official who operates the prior-restraint regulation has unbridled discretion and decides to covertly discriminate by delaying approval of the undesirable would-be speaker's request to speak.
Finally, we note that we broach the concept of a "prior restraint," instead of merely applying the unbridled-discretion line of caselaw, because the Board has raised prior-restraint issues in its briefing, and our resolution of those issues provides further analytical clarity to what is undeniably a complex area of the law.