Freedom From Religion Fdn Inc. v. Greg Abbott, et

Case: 18-50610 Document: 00515371821 Page: 1 Date Filed: 04/03/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 3, 2020

No. 18-50610

Lyle W. Cayce

Clerk

FREEDOM FROM RELIGION FOUNDATION, INCORPORATED,

Plaintiff - Appellee Cross - Appellant

v.

GREG ABBOTT GOVERNOR OF THE STATE OF TEXAS, Chairman of the

State Preservation Board; ROD WELSH, Executive Director of Texas State

Preservation Board,

Defendants - Appellants Cross - Appellees

Appeals from the United States District Court

for the Western District of Texas

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Texas Governor Greg Abbott and Texas State Preservation Board

Executive Director Rod Welsh appeal a district court judgment declaring that

they violated the First Amendment rights of Freedom From Religion

Foundation, Incorporated (“FFRF”). However, appellants do not challenge the

merits of the district court’s finding that they violated FFRF’s First

Amendment rights by engaging in viewpoint discrimination. Rather, they

argue, based on principles of sovereign immunity, that the district court lacked

jurisdiction to enter retrospective relief against them. They further argue that

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No. 18-50610

there is no longer jurisdiction to enter prospective relief because the

controversy is not ongoing. FFRF cross-appeals the district court’s failure to

grant prospective injunctive relief and the district court’s summary judgment

dismissal of FFRF’s unbridled discretion First Amendment claims against

Governor Abbott and Mr. Welsh.

We find that the district court had jurisdiction to entertain this suit.

FFRF sought prospective relief, and there was, and still is, a live controversy

between the parties. However, the district court did not have jurisdiction to

enter a retrospective declaratory judgment. Therefore, we VACATE the

judgment and REMAND to the district court to consider FFRF’s request for

injunctive relief and enter appropriate prospective relief for FFRF.

Additionally, we REVERSE the district court’s grant of summary judgment on

FFRF’s unbridled discretion claims, clarify the appropriate application of the

unbridled discretion doctrine in the context of a limited public forum, and

REMAND for the district court to apply that standard in the first instance.

I

The Texas State Preservation Board (“the Board”) is a state agency that

preserves and maintains the Texas Capitol and its grounds. TEX. GOV’T CODE

§ 443.007(a)(1). Governor Abbott is the chairman of the Board, which allows

private citizens to display exhibits within the Texas Capitol building. TEX.

GOV’T CODE § 443.004(a); TEX. ADMIN. CODE § 111.13. Each exhibit application

must be sponsored by the Governor, the Lieutenant Governor, a member of the

Texas Senate, or a member of the Texas House of Representatives. TEX. ADMIN.

CODE § 111.13. Each exhibit must also serve a “public purpose,” defined as:

The promotion of the public health, education, safety, morals,

general welfare, security, and prosperity of all of the inhabitants

or residents within the state, the sovereign powers of which are

exercised to promote such public purpose or public business. The

chief test of what constitutes a public purpose is that the public

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generally must have a direct interest in the purpose and the

community at large is to be benefitted. This does not include

activities which promote a specific viewpoint or issue and could be

considered lobbying. Political rallies, receptions, and campaign

activities are prohibited in the public areas of the Capitol.

Id.

FFRF is a non-profit organization that advocates for the separation of

church and state and educates on matters of nontheism. On July 20, 2015, after

FFRF learned that a Christian nativity scene had been approved by the Board

and displayed in the Texas State Capitol, FFRF submitted an application to

the Board regarding a Bill of Rights nativity exhibit. The application requested

that the exhibit be displayed in the Texas Capitol building from December 18,

2015 to December 23, 2015. The application was sponsored by Texas

Representative Donna Howard, and it included the following “artist’s mockup

and diagram” of the proposed display, which depicts Benjamin Franklin,

Thomas Jefferson, George Washington, and the Statute of Liberty gathered

around a manger containing the Bill of Rights.

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The display was to be accompanied by a banner reading, “Happy Winter

Solstice / At this Season of the Winter Solstice, we honor reason and the Bill of

Rights (adopted December 15, 1791) / Keep State & Church Separate / On

Behalf of Texas Members of the Freedom From Religion Foundation.”

According to the application, the exhibit had several purposes: “[t]o educate

the public,” to “celebrate the 224th anniversary of the ratification of the Bill of

Rights,” “to celebrate the Winter Solstice on December 22,” and “to educate

the public about the religious and nonreligious diversity within the State.” The

Board approved the application, and, at the request of the Capitol Events and

Exhibits Coordinator, the following language was added to the banner:

“Private display, not endorsed by the state.”

FFRF’s exhibit was displayed in the Texas Capitol building from

December 18, 2015 to December 22, 2015. The day before the display was to be

taken down, Governor Abbott sent a letter to then Executive Director of the

Board John Sneed urging him to “remove this display from the Capitol

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immediately.” The letter explained that the exhibit was inappropriate for

display because “[s]ubjecting an image held sacred by millions of Texans to the

Foundation’s tasteless sarcasm does nothing to promote the morals and the

general welfare,” “the exhibit promotes ignorance and falsehood insofar as it

suggests that George Washington, Benjamin Franklin, and Thomas Jefferson

worshipped (or would worship) the bill of rights in the place of Jesus,” and “it

is hard to imagine how the general public ever could have a direct interest in

mocking others’ religious beliefs.” Mr. Sneed removed the exhibit that same

day.

On July 21, 2016, FFRF submitted another exhibit application that was

identical to the previous application. On August 8, 2016, Mr. Sneed stated that

“any application to display the same exhibit which was removed last year will

be denied for failure to satisfy the public purpose requirement.” Citing to the

letter from Governor Abbott, Mr. Sneed explained that the exhibit does not

promote a public purpose because “the exhibit purposefully mocked Christians

and Christianity by crudely satirizing one of the most sacred symbols of the

Christian faith.”

In February 2016, FFRF filed a complaint against Governor Abbott and

Mr. Welsh in their individual and official capacities, alleging: (1) a free-speech

claim under the First Amendment; (2) an equal protection claim under the

Fourteenth Amendment; (3) a claim under the Establishment Clause of the

First Amendment; (4) a claim of unbridled discretion under the First

Amendment; and (5) a due process claim under the Fourteenth Amendment. 1

FFRF sought declaratory and injunctive relief, including a declaration “that

the criteria to approve exhibits for display in the State Capitol, facially and/or

as applied by the Defendants, violate” the First Amendment and an injunction

1 The complaint was amended in May 2016.

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preventing “the Defendants from excluding the Plaintiff’s exhibit at issue from

future display.”

On June 21, 2016, the district court dismissed the claims against Mr.

Welsh in his individual capacity on qualified immunity grounds. On December

20, 2016, the district court granted Governor Abbott and Mr. Welsh summary

judgment on FFRF’s equal protection, due process, and unbridled discretion

claims. On October 13, 2017, the district court granted FFRF summary

judgment on its viewpoint discrimination First Amendment claims against

Governor Abbott and Mr. Welsh in their official capacities and dismissed the

Establishment Clause claim against Governor Abbott in his individual

capacity on qualified immunity grounds. The district court found that there

remained a material dispute of fact as to FFRF’s Establishment Clause claims

against Governor Abbott and Mr. Welsh in their official capacities and FFRF’s

viewpoint discrimination First Amendment claim against Governor Abbott in

his individual capacity.

On May 11, 2018, the parties filed a joint stipulation of voluntary

dismissal as to the remaining claims. The court dismissed the remaining

claims on May 14, 2018 and entered a final judgment on June 19, 2018. In

relevant part, the final judgment stated:

IT IS ORDERED, ADJUDGED, and DECREED that judgment is

granted in favor of FFRF on FFRF’s First Amendment freedom of

speech claim; and

IT IS FURTHER DECLARED that Defendants violated FFRF’s

First Amendment rights and engaged in viewpoint discrimination

as a matter of law when the FFRF’s exhibit was removed from the

Texas Capitol building under the circumstances of this case.

The parties timely appealed and cross-appealed.

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II

“We review questions of federal jurisdiction de novo.” Envtl.

Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2009). This

includes questions of sovereign immunity, Moore v. La. Bd. of Elementary &

Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014), and mootness, Envtl.

Conservation Org., 529 F.3d at 524. We also review the district court’s

summary judgment dismissal de novo, employing the same standard used by

the district court. McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).

Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” FED R. CIV. P. 56(a).

III

We begin by addressing jurisdiction. Governor Abbott and Mr. Welsh

argue that the district court’s declaratory judgment is retrospective and

therefore barred by sovereign immunity. They further argue that there is no

longer jurisdiction to enter prospective relief because the controversy is not

ongoing. FFRF argues that the declaratory judgment “operates effectively as

prospective relief against ongoing misconduct” and is therefore not barred by

sovereign immunity. FFRF also cross-appeals the district court’s failure to

grant prospective injunctive relief.

“State sovereign immunity is a fundamental aspect of the sovereignty

that the states enjoyed before the ratification of the Constitution and the

Eleventh Amendment, and it was preserved intact by the Constitution.”

Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005). In most

cases, Eleventh Amendment sovereign immunity deprives federal courts of

jurisdiction to hear private suits against states. Warnock v. Pecos Cty., 88 F.3d

341, 343 (5th Cir. 1996). However, the Supreme Court has recognized several

exceptions to Eleventh Amendment immunity. A state may waive its sovereign

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immunity “at its pleasure,” and, in some circumstances, “Congress may

abrogate it by appropriate legislation.” Va. Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247, 253–54 (2011).

The Supreme Court’s holding in Ex parte Young, 209 U.S. 123 (1908),

provides a third exception. Under Ex parte Young, a litigant may sue a state

official in his official capacity as long as the lawsuit seeks prospective relief to

redress an ongoing violation of federal law. NiGen Biotech, L.L.C. v. Paxon, 804

F.3d 389, 394–95 (5th Cir. 2015). The applicability of this exception has been

“tailored to conform as precisely as possible to those specific situations in which

it is ‘necessary to permit the federal courts to vindicate federal rights and hold

state officials responsible to the supreme authority of the United States.’”

Papasan v. Allain, 478 U.S. 265, 277 (1986) (quoting Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 105 (1984)). Therefore, in order to fall within

the Ex parte Young exception, a suit must: (1) be brought against state officers

who are acting in their official capacities; (2) seek prospective relief to redress

ongoing conduct; and (3) allege a violation of federal, not state, law. NiGen

Biotech, L.L.C., 804 F.3d at 394–95.

FFRF’s suit falls within the Ex Parte Young exception to sovereign

immunity. FFRF sued Governor Abbott and Mr. Welsh in their official

capacities. FFRF alleged violations of the federal Constitution. And FFRF

sought prospective declaratory and injunctive relief, including a declaration

“that the criteria to approve exhibits for display in the State Capitol, facially

and/or as applied by the Defendants, violate” the First Amendment and an

injunction preventing “the Defendants from excluding the Plaintiff’s exhibit at

issue from future display” (emphasis added).

Moreover, FFRF established an ongoing violation of federal law.

Governor Abbott and Mr. Welsh do not contest that Mr. Sneed’s letter to FFRF,

stating that “any application to display the same exhibit which was removed

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last year will be denied for failure to satisfy the public purpose requirement,”

initially established the ongoing nature of the violation. Rather, they contend

that the Supreme Court’s decision in Matel v. Tam, 137 S. Ct. 1744 (2017),

constituted a sea change in the law, obligating plaintiffs to provide new

evidence illustrating the ongoing nature of the violation.

Even assuming that a sea change in the law would obligate FFRF to re-

establish the ongoing nature of the violation, Matel did not constitute such a

change. In Matel, the Court explained, “[w]e have said time and again that ‘the

public expression of ideas may not be prohibited merely because the ideas are

themselves offensive to some of their hearers.’” Id. at 1763 (emphasis added)

(quoting Street v. New York, 394 U.S. 576, 592 (1969)). For this proposition, in

addition to Street, the Court cited eleven previous Supreme Court decisions.

Id. Matel clarified the contours of the First Amendment; it did not constitute a

sea change in the law.

Governor Abbott and Mr. Welsh can also be understood as arguing that

Matel has mooted the case. Because it is now clear that speech cannot be

prohibited on the basis of offensiveness, they assert that the complained-of

conduct will not recur. “A case becomes moot—and therefore no longer a ‘Case’

or ‘Controversy’ for purposes of Article III—‘when the issues presented are no

longer “live” or the parties lack a legally cognizable interest in the outcome.’”

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt,

455 U.S. 478, 481 (1982)). “A defendant claiming that its voluntary compliance

moots a case bears the formidable burden of showing that it is absolutely clear

the allegedly wrongful behavior could not reasonably be expected to recur.”

Already, LLC, 568 U.S. at 91 (quoting Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).

Governor Abbott and Mr. Welsh have only presented arguments through

counsel that their behavior will change post-Matel. Importantly, they have not

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retracted their previous statement to FFRF that future applications for the

relevant display will be denied. While we presume that counsel’s

representations on behalf of Governor Abbott and Mr. Welsh are made in good

faith, our precedent requires that we view attempts to obtain a vacatur of relief

“with a jaundiced eye.” Sossamon v. Lone Star State of Texas, 560 F.3d 316,

325 (5th Cir. 2009). Therefore, we find that the district court had jurisdiction

to entertain the suit, and the controversy is ongoing.

The district court did not, however, have jurisdiction to award FFRF

purely retrospective relief. Papasan, 478 U.S. at 278. In order to determine

whether relief is permitted under the Ex parte Young exception, the court

should look to the “substance rather than to the form of the relief sought,” and

consider the policies underlying the decision in Ex parte Young. Id. at 279. The

backwards-looking, past-tense declaratory judgment issued by the district

court is “tantamount to an award of damages for a past violation of law, even

though styled as something else.” Id. at 278; see also Green v. Mansour, 474

U.S. 64, 68–69 (1985) (finding that the Eleventh Amendment barred a claim

for declaratory relief once the claim for injunctive relief was rendered moot).

While it is true that the declaratory judgment could have some future effect by

clarifying the contours of the First Amendment and deterring similar actions

by the state, “compensatory or deterrence interests are insufficient to overcome

the dictates of the Eleventh Amendment.” Green, 474 U.S. at 68.

Therefore, we VACATE the judgment and REMAND for the district

court to enter appropriate prospective relief for FFRF. FFRF argues that in

addition to declaratory relief, it is entitled to injunctive relief. The district court

never explicitly addressed FFRF’s request. Because the issuing of injunctive

relief “involv[es] some exercise of discretion by the district court . . ., we deem

it advisable for the matter to be decided by the district court in the first

instance” on remand. Am. Bank & Trust Co. of Opelousas v. Dent, 982 F.2d

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917, 922 (5th Cir. 1993); Peaches Entm’t Corp. v. Entm’t Repertoire Assocs.,

Inc., 62 F.3d 690, 693 (5th Cir. 1995) (“We review the trial court’s granting or

denial of permanent injunction for abuse of discretion.”).

IV

FFRF also appeals the district court’s summary judgment dismissal of

its First Amendment unbridled discretion claims. FFRF argues that the

Board’s public purpose requirement violates the First Amendment on its face

because it delegates overly broad discretion to government officials. Governor

Abbott and Mr. Welsh contend that the district court did not err in finding that

the definition of “public purpose” “provides the Board with a reasonable

framework with which to accept or deny exhibit applications in the limited

public forum context.”

The First Amendment prohibits laws that “abridge[e] the freedom of

speech.” U.S. CONST. amend. I. However, “the government need not permit all

forms of speech on property that it owns and controls.” Int’l Soc’y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). Rather, the Supreme Court

“has adopted a forum analysis as a means of determining when the

Government’s interest in limiting the use of its property to its intended purpose

outweighs the interest of those wishing to use the property for other purposes.”

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).

There are two broad categories of forums: (1) traditional and designated

public forums and (2) limited public forums and nonpublic forums. See Chiu v.

Plano Indep. Sch. Dist., 260 F.3d 330, 344–47 (5th Cir. 2001); see also Walker

v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250–51

(2015); Three Expo Events, L.L.C. v. City of Dallas, 182 F.Supp.3d 614, 624

n.11 (N.D. Tex. 2016). Traditional public forums are places such as sidewalks,

streets, and parks that have traditionally been devoted to assembly or debate.

Chiu, 260 F.3d at 344. Designated public forums are places that the

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government has designated for the same widespread use as traditional public

forums. Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 758 (5th Cir. 2010).

Regulations on speech in traditional and designated public forums are subject

to strict scrutiny review—they must be narrowly tailored to serve a compelling

state interest. Id. Limited public forums are places that the government has

opened for public expression of particular kinds or by particular groups. Chiu,

260 F.3d at 346. Nonpublic forums are forums that are not open for public

communication by tradition or designation. Id. at 347. The government can

restrict speech in a limited public forum or nonpublic forum as long as the

restriction is (1) reasonable in light of the purpose served by the forum and (2)

does not discriminate against speech on the basis of viewpoint. Id. at 346–47.

The Supreme Court has dealt with a number of facial challenges to prior

restraints on speech. “Facial invalidation is, manifestly, strong medicine.”

Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998) (internal

quotation marks omitted). Nevertheless, the Court has long held that “law[s]

subjecting the exercise of First Amendment freedoms to the prior restraint of

a license, without narrow, objective, and definite standards to guide the

licensing authority, [are] unconstitutional.” Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 150–51 (1969). “[T]he constitution requires . . .

neutral criteria to [e]nsure that the licensing decision is not based on the

content or viewpoint of the speech being considered.” City of Lakewood v. Plain

Dealer Publ’g Co., 486 U.S. 750, 760 (1988). Closely related to viewpoint

discrimination, this is often referred to as the unbridled discretion doctrine.

See id. at 758.

Unbridled discretion runs afoul of the First Amendment because it risks

self-censorship and creates proof problems in as-applied challenges. Id. at 757–

59. “[T]he mere existence of the licensor’s unfettered discretion, coupled with

the power of prior restraint, intimidates parties into censoring their own

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speech, even if the discretion and power are never actually abused.” Id. at 757.

Moreover, even where self-censorship is avoided, “the absence of express

standards makes it difficult to distinguish, ‘as applied,’ between a licensor’s

legitimate denial of a permit and its illegitimate abuse of censorial power.” Id.

at 758. Any “eventual relief may be ‘too little and too late.’” Id.

Under the unbridled discretion doctrine, the Supreme Court has struck

down prior restraints such as: (1) a licensing scheme limiting public

demonstrations on city streets to only those that benefit “public welfare, peace,

safety, health, decency, good order, morals or convenience,” Shuttlesworth, 394

U.S. at 149–50, (2) an ordinance authorizing the mayor to evaluate

applications for the installation of news racks on public property without any

stated criteria, City of Lakewood, 486 U.S. at 753, 769, and (3) a permitting

scheme for parades, assemblies, and demonstrations that required payment of

a fee based on the expenses incident to the maintenance of “public order,”

Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 126–27, 132–33 (1992).

The Supreme Court has not explicitly elaborated the unbridled

discretion doctrine in a limited public forum or a nonpublic forum case. Nor do

the parties identify that we have. Among out sister circuits, however, “there is

broad agreement that, even in limited and nonpublic forums, investing

governmental officials with boundless discretion over access to the forum

violates the First Amendment.” Child Evangelism Fellowship of MD, Inc. v.

Montgomery Cty. Pub. Sch., 457 F.3d 376, 386 (4th Cir. 2006); see also Amidon

v. Student Assoc. of the State Univ. of NY at Albany, 508 F.3d 94, 102–05 (2d.

Cir. 2007); Child Evangelism Fellowship of SC v. Anderson Sch. Dist. Five, 470

F.3d 1062, 1069–70 (4th Cir. 2006) (striking down fee waiver policy based on

“the district’s best interest”); Am. Civil Liberties Union v. Mote, 423 F.3d 438,

445–46 (4th Cir. 2005); Southworth v. Bd. of Regents, 307 F.3d 566, 575–80

(7th Cir. 2002); DeBoer v. Vill. of Oak Park, 267 F.3d 558, 572–74 (7th Cir.

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2001) (striking down policy requiring events to “benefit[] the public as a

whole”); Roach v. Stouffer, 560 F.3d 860, 869–70 (8th Cir. 2009); Lewis v.

Wilson, 253 F.3d 1077, 1078–81 (8th Cir. 2001) (striking down policy allowing

denial of custom license plates contrary to “public policy”); Kaahumanu v.

Hawaii, 682 F.3d 789, 805–07 (9th Cir. 2012); Atlanta Journal & Constitution

v. City of Atlanta Dept. of Aviation, 322 F.3d 1298, 1310–11 (11th Cir. 2003);

Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189, 1196–1200; (11th Cir. 1991);

Griffin v. Sec’y of Veterans Affairs, 288 F.3d 1309, 1321–25 (Fed. Cir. 2002);

Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299, 1308–10 (Fed. Cir. 2008).

Indeed, the dangers associated with unbridled discretion are no less present in

limited public forums, and Governor Abbott and Mr. Welsh do not argue to the

contrary.

That is not to say, however, that the unbridled discretion analysis will

be the same for all forum categories. The considerations underlying the

adoption of a forum-specific analysis in the as-applied context are pertinent to

the facial, unbridled discretion context. In the as-applied context, we have

explained that:

[i]f, simply by opening a facility for limited public discourse, the

government were to designate a public forum, the regulation of

which would be subject to strict scrutiny, the government might

elect not to open such property for any public discourse. That result

would conflict with the broad First Amendment policy of

encouraging public discourse on issues of community interest.

Chiu, 260 F.3d at 347 (citing Ark. Educ. Television Comm’n v. Forbes, 523 U.S.

666, 681 (1998)). Similarly, where space, time, or other constraints necessitate

a pre-approval scheme, if, simply by opening a facility for limited public

discourse, the government subjected itself to the same unbridled discretion

analysis that applies in the traditional public forum context, it may elect not

to open such property for any public discourse.

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The district court agreed. First, relying primarily on the Fourth Circuit’s

opinion in Child Evangelism Fellowship of Maryland, it concluded that the

unbridled discretion doctrine applies to limited public forums. See 457 F.3d at

387. Then, citing the Federal Circuit’s Griffin opinion, it explained that

because discretionary access is a defining characteristic of a limited public

forum, the government should be afforded more discretion to use prior

restraints on speech in limited public forums than in traditional public forums.

See 288 F.3d at 1324. The district court then concluded that “the ‘public

purpose’ definition and test provides the Board a reasonable framework with

which to accept or deny exhibition applications in the limited public forum

context.”

To the extent the district court only considered the reasonableness of the

public purpose test, this approach falls short, as the Fourth Circuit

persuasively explained in Child Evangelism of Maryland. There, the court

considered whether a school district’s take-home flyer program violated the

unbridled discretion doctrine. 457 F.3d at 378. The policy implementing the

program required that flyers be sponsored or endorsed by one of five groups

and approved by the school district. Id. at 379–80. The school district also

retained the power to withdraw approval if it determined that a flyer “would

undermine the intent of [the policy] . . . or could reasonably be predicted to

cause substantial disruption of, or material interference with, school

activities.” Id. at 380. Under the policy, the plaintiffs were denied the ability

to distribute flyers informing parents about their “Good News Club” meetings,

at which children would sing songs, play games, learn Bible stories, and pray

after school hours. Id. at 378–79.

The Fourth Circuit found that it need not determine what type of forum

the take-home flyer program was because, even assuming the program was a

nonpublic forum, the district court had erred in determining that it was subject

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only to a test of reasonableness. Id. at 383–84. Relying on a number of Supreme

Court cases, the court noted that restrictions on speech in limited public

forums and nonpublic forums must be both reasonable and viewpoint neutral.

Id. at 384 (citing Cornelius, 473 U.S. at 806; Perry Educ. Ass’n v. Perry Local

Educators Ass’n, 460 U.S. 37, 46 (1983); Finley, 524 U.S. at 615 n.10). The court

held that “viewpoint neutrality require[s] not just that a government refrain

from explicit viewpoint discrimination, but also that it provide adequate

safeguards to protect against the improper exclusion of viewpoints.” Id. at 384.

Ultimately, the court struck down the take-home flyer program policy, finding

that it “utterly fail[ed] to provide adequate protection for viewpoint neutrality.”

Id. at 389.

Other circuits agree that the possibility of viewpoint discrimination is

key to deciding unbridled discretion claims in the context of limited or

nonpublic forums. See, e.g., Southworth, 307 F.3d at 575–80; Lewis, 253 F.3d

at 1080; Roach, 560 F.3d at 869; Kaahumanu, 682 F.3d at 806; see also Atlanta

Journal & Constitution, 322 F.3d at 1311. To the extent that the Federal

Circuit’s opinion in Griffin introduced uncertainty on this point, the Federal

Circuit recently clarified that application of the unbridled discretion doctrine

in the nonpublic forum context requires the court to consider reasonableness

and whether the regulation could be used to engage in “undetectable viewpoint

discrimination.” Preminger, 517 F.3d at 1303.

We agree that a reasonableness test would be insufficient. Consistent

with Supreme Court guidance on limited public forums and nonpublic forums,

Cornelius, 473 U.S. at 806; Perry Educ. Ass’n, 460 U.S. at 46, and adhering to

our precedent, Chiu, 260 F.3d at 349–50 (citing Hobbs v. Hawkins, 968 F.2d

471, 481 (5th Cir. 1992)), we hold that prior restraints on speech in limited

public forums must contain neutral criteria sufficient to prevent (1) censorship

that is unreasonable in light of the purpose served by the forum and (2)

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Case: 18-50610 Document: 00515371821 Page: 17 Date Filed: 04/03/2020

No. 18-50610

viewpoint-based censorship. Because the district court only considered

whether the public purpose criteria at issue in this case was reasonable, we

REVERSE and REMAND for the district court to apply the correct unbridled

discretion analysis in the first instance. 2

V

The judgment of the district court is VACATED, and the district court’s

grant of summary judgment on FFRF’s unbridled discretion claims is

REVERSED. The case is REMANDED for the district court to consider FFRF’s

request for injunctive relief, enter appropriate prospective relief for FFRF, and

apply the standards articulated herein to FFRF’s unbridled discretion claims.

2 In doing so, the district court “must consider the [government]’s authoritative

construction[]” of the standard. Forsyth Cty., 505 U.S. at 131. However, “the doctrine

forbidding unbridled discretion disallows” a presumption that the government will “act in

good faith and adhere to standards absent from the ordinance’s face.” City of Lakewood, 486

U.S. at 770.

17