explaining that it is well-established that a plaintiff has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license
How later courts described this case
- explaining that it is well-established that a plaintiff has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license
- holding amendment to challenged park regulations did not moot case because “[w]here a superseding statute leaves objectionable features of the prior law substantially undisturbed” and challenged aspects “remain essentially as they were before the amendments,” the case is not moot
- noting that an appellate court reviewing a district court decision after the amendment of a challenged law must consider the law as it then stands, since “a superseding statute or regulation moots a case ... to the extent that it removes challenged features of the prior law”
- holding that new regulation dealing with certain aspects of the complaint mooted plaintiff's demand for an injunction but not its facial challenge to the statutory scheme
Written by the judges who cited it.
The opinion
CLARK, Senior Circuit Judge,
concurring in part, dissenting in part:
I concur in Part A of the opinion which relates to Justiciability.
I concur in part and dissent in part with respect to Part B which relates to the damages claim and forum considerations.
In this first amendment free speech case we find ourselves in a quandary over labels: public forum, limited public forum, or non-public forum. In the majority opinion at note 7 reference is made to the fact that the district court did not explicitly hold that the park is a non-public forum. I am less concerned with labels than I am with results although I agree that the forum here is closer to being public than non-public. I like Justice Kennedy’s approach to the problem of labels:
It is not necessary, however, to make a precise determination whether this sidewalk and others like it are public or nonpublic forums; in my view, the postal regulation at issue meets the traditional standards we have applied to time, place and manner restrictions of protected expression. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 , 104 S.Ct. 3065, 3068-3069 , 82 L.Ed.2d 221 (1984).
United States v. Kokinda, 497 U.S. 720 , 110 S.Ct. 3115, 3125-26 , 111 L.Ed.2d 571 (1990) (Kennedy, J. concurring).
In Kokinda volunteers for the National Democratic Policy Committee set up a table on the sidewalk near the entrance of the Bowie, Maryland, post office to solicit contributions, sell books, etc. The sidewalk was on postal property and provided the means of access to the post office, but there is no suggestion that access was obstructed. The Fourth Circuit, 866 F.2d 699 (1989), reversed the convictions of those charged with trespassing, holding that the *1525 postal sidewalk was a traditional public forum and analyzed the regulation [forbidding solicitations on postal property] as a time, place, and manner regulation. In reversing, Justice O’Connor, speaking for four justices, with Justice Kennedy separately concurring, wrote:
Since Lehman [v. City of Shaker Heights, 418 U.S. 298 , 94 S.Ct. 2714 , 41 L.Ed.2d 770 (1974) ], “the 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. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum.” Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 800 , 105 S.Ct. 3439, 3448 , 87 L.Ed.2d 567 (1985).
Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Id. [460 U.S.], at 45, 103 S.Ct., at 954-955. Regulation of speech on property that the Government has expressly dedicated to speech activity is also examined under strict scrutiny. Ibid. But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness. Id., at 46, 103 S.Ct., at 955-956.
Even conceding that the forum here has been dedicated to some First Amendment uses, and thus is not a purely non-public forum, under Perry, regulation of the reserved non-public uses would still require application of the reasonableness test. See Cornelius, supra, 473 U.S., at 804-806 , 105 S.Ct., at 3450-3451 .
Thus, the regulation at issue must be analyzed under the standards set forth for nonpublic fora:
it must be reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, supra, 460 U.S. at 46, 103 S.Ct. at 955.
Kokinda, 110 S.Ct. at 3125-26 .
There is nothing in the record in this case that even suggests that the State of Florida has dedicated its public beaches to First Amendment activity. It is obvious to all of us that each First Amendment case requires a separate analysis. In this case I think the district court’s result was 100% correct and his analysis passes the reasonableness test established in Cornelius :
Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities. Cf . Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 136 , 97 S.Ct. 2532, 2543 , 53 L.Ed.2d 629 (1977). Recognizing that the Government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,” Greer v. Spock, 424 U.S. 828, 836 , 96 S.Ct. 1211, 1217 , 47 L.Ed.2d 505 (1976), the 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. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum.
Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 800 , 105 S.Ct. 3439, 3447 , 87 L.Ed.2d 567 (1985).
The majority concludes its Part B. 1. section with this statement: “Many of the facts which the district court found to distinguish John D. MacArthur Beach State Park from the typical city park do not go to the forum analysis, but rather show that the government may set time, place, and manner restrictions on speech which reflect *1526 the special character of public beaches”. The majority then in Part B. 2. states that we are remanding to the district court for it to determine “whether Fillyaw’s limitations constituted legitimate time, place and manner restrictions”. The district court has already made that determination. I think it is correct. I concur with the district court that people enjoying the beaches with their families should be free from solicitations, that there would be a right of privacy even if the beach is a public forum, and that the plaintiffs were given an ample opportunity to publicize their views on nudity and to solicit new adherents to their view when they were permitted to demonstrate on July 9, 1988, at a fixed location approximately one hundred yards north of the park’s entrance.
In addition to agreeing with the district court’s opinion and judgment with respect to the reasonableness of the park’s regulations and Fillyaw’s implementation of them, I agree that Fillyaw has qualified immunity from any of plaintiffs’ claims for damages. The plaintiffs have failed to show that Fillyaw’s actions violated clearly established constitutional law. Thus the judgment in his favor should be affirmed.