recognizing as meritorious the argument that state system of permitting the placement of news racks at interstate rest area, a non-public forum, was a facially unconstitutional prior restraint because it subjected the constitutionally protected distribution of newspapers to the “standardless, unfettered discretion of Florida state officials”
How later courts described this case
- recognizing as meritorious the argument that state system of permitting the placement of news racks at interstate rest area, a non-public forum, was a facially unconstitutional prior restraint because it subjected the constitutionally protected distribution of newspapers to the “standardless, unfettered discretion of Florida state officials”
- finding that the Eleventh Circuit “has joined an increasingly lengthy body of Supreme Court and federal precedent emphasizing that there is ‘no doubt’ that the right to distribute and circulate newspapers through the use of newsracks is protected by the first amendment”
- holding that “there is ‘no doubt’ that the right to distribute and circulate newspapers through the use of news racks is protected by the first amendment.”
- holding that interstate rest area is nonpublic forum for purposes of First Amendment analysis
Written by the judges who cited it.
The opinion
EDMONDSON, Circuit Judge,
dissenting:
I agree with most of what the court says in today’s opinion, but I write separately to dissent from the court’s decision to remand for further proceedings in the district court. I agree, for the reasons offered by the court, that Florida’s unwritten regulatory scheme is facially unconstitutional. I also agree that interstate rest areas are nontraditional public forums, allowing for state regulation of First Amendment activity taking place in these locations as long as the regulation is “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry Educational Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 , 103 S.Ct. 948, 955 , 74 L.Ed.2d 794 (1983). And, even assuming the regulatory scheme as a whole satisfies the First Amendment, I agree that the licensing fee and liability insurance provisions imposed on plaintiff by the state of Florida are unconstitutional as applied, for the reasons the court suggests.
Despite resolving — and, in my view, resolving correctly — the issues presented by plaintiff’s appeal, the court treats these conclusions as tentative, preliminary holdings and remands the case for a further evidentiary hearing and more complete findings of fact and conclusions of law. I see no need for further fact-finding and decision-making by a district court. We know enough now to decide the case before us. The parties have stipulated that the relevant facts are undisputed, and the district court has made factual findings and entered final judgment after a full-blown bench trial. 1
Rather than dispose of the issues presented on appeal, today’s court tells *1208 “the state agencies in this case [to] establish some type of written regulatory or statutory scheme with specific criteria to guide the discretion of officials administering it.” 2 After these new regulations are adopted, the district court is told to review the new scheme, “keeping] in mind” the advisory conclusions the court expresses in today’s opinion. I believe that if the state of Florida chooses to adopt new regulations in the face of today’s opinion 3 and if Sentinel finds these new regulations objectionable, then the new regulations ought to be challenged in another lawsuit. I worry that the effect of the court’s rulings today will be to recast the district court in an ongoing role as overseer of Florida’s regulation of newsracks in public rest areas. I see no reason to adopt this approach, especially when Sentinel has not requested it.
. The court nowhere addresses from where it derives the authority to tell the state of Florida to adopt new regulations, especially when today’s court has explicitly declined to make a final ruling on the constitutionality of the existing, unwritten regulatory scheme.
. Under the general delegation of authority provided in 23 U.S.C. § 111 (b), the state of Florida presumably could choose to adopt no new regulations (that is, choose to allow unlimited access) or could choose to prohibit all vendors, or possibly even all newspaper vendors, from placing machines in interstate rest areas located within the state. Cf. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 , 762 n. 7, 108 S.Ct. 2138 , 2147 n. 7, 100 L.Ed.2d 771 (1988) (leaving open the possibility that municipality could ban newsrack placement entirely); id., 108 S.Ct. at 2155-58 (White, J., dissenting) (three justices conclude that municipality may constitutionally ban newsrack placement entirely from traditional public forums). Even if this were not the situation, and today's opinion leads inevitably to the adoption in the future of a new set of state regulations limiting newsrack placement, this lawsuit by Sentinel against the existing regulatory scheme does not bestow upon federal courts the authority to supervise indefinitely state regulation in this area.
. Federal Rule of Civil Procedure 52(a) provides that "[i]n all actions tried upon the facts without a jury, ... the [trial] court shall find the facts specially and state separately its conclusions of law thereon....” As the court points out, the district court below erroneously characterized plaintiffs attack on the state scheme as an "as-applied” challenge and therefore did not "state separately its conclusions of law” on the issue of the scheme’s facial constitutionality. But, Rule 52(a) is not a jurisdictional requirement and is intended to provide an adequate basis for appellate review of a district court’s decision. As a result, “a remand is not required 'if a complete understanding of the issues may be had without the aid of separate findings.’ ” Armstrong v. Collier, 536 F.2d 72, 77 (5th Cir.1976). A remand is unnecessary here where “all the evidence is documentary and the appellate court can pass upon the facts as well as the trial court, or if all the facts relied upon to support the judgment are in the record and are undisputed, or if the record as a whole presents no genuine issue as to any material fact.” Id. (citations *1208 omitted). Not only are all of these factors present in this case, but the district court’s exhaustive factual findings are unchallenged on appeal.