UPDATES & ANALYSIS

5.03

Sidewalk evangelist loses again before federal Court of Appeals

by Rox Laird | May 3, 2017

A Christian evangelist who wants to take his religious message to the Iowa State Fair has again been rebuffed by the U.S. Court of Appeals for the Eighth Circuit.

The federal appeals court based in St. Louis, which has jurisdiction in seven Midwest states including Iowa, ruled that Jason Powell failed to show a likelihood of irreparable harm or a reasonable probability of showing State Fair officials violated his rights under the due-process clause of the Constitution.

Powell filed suit in federal court asserting that his First Amendment and due-process rights were violated when State Fair officials ordered him not to stand on sidewalks just outside fairgrounds entrances because he blocked pedestrian traffic.

In 2015, U.S. District Judge Robert Pratt in Des Moines denied Powell’s request for an injunction that would have allowed him to carry a pole-mounted sign and engage with fairgoers while standing on fairgrounds property. Pratt held that the area immediately outside the fairgrounds was a limited public forum and the restrictions on Powell’s speech were reasonable and viewpoint-neutral.

The Eighth Circuit upheld that decision but remanded the case for the trial court to consider Powell’s due-process claim. Pratt subsequently rejected Powell’s due-process claim, and a three-judge panel of the court Tuesday upheld that ruling.

“Powell’s complaint is that the unwritten Fair rules are too vague to provide fair notice of what conduct is prohibited and to avoid arbitrary and discriminatory enforcement,” Eighth Circuit Judge Steven Colloton of Des Moines wrote for the panel.

“This court ruled in the first appeal that Powell is unlikely to succeed on a First Amendment claim, because the rules are reasonable restrictions on the time, place, and manner of speech.  Given that speech covered by the Fair’s rules is properly restricted, Powell’s notice claim must be that the rules threaten to chill speech that falls outside the scope of the rules. In other words, Powell contends that the alleged vagueness of the rules leads fairgoers to ‘steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.’ We see no likelihood of success on this claim.”

Moreover, the panel held, leading court precedents on vagueness doctrine involve threats of punishment whereas a violation of the State Fair rules “triggers no criminal liability and no civil monetary penalty; the only sanction for violating rules of the Fair is ejection from the Fair. Criminal penalties might apply only if an ejected person commits a separate offense of trespass after receiving clear notice of his ejection.”

Circuit Judge Bobby Shepherd of Arkansas in a separate opinion concurred with the majority on Powell’s claim of irreparable harm but said he would have held that Powell had a “reasonable probability” of succeeding on the merits of his due-process claim.

Unlike the majority, Shepherd saw the State Fair’s policy as potentially punitive because Powell would have faced arrest if he returned to the fairgrounds after being ejected for violating the policies. “I would therefore hold that the Fair policies, though not outright threats to liberty, are at least quasi-criminal.” Shepherd also said Powell did not have sufficient notice of the State Fair’s unwritten policy forbidding his sidewalk speech that is required by due process.

In addition to Colloton and Shepherd, Powell’s latest appeal was heard by Circuit Judge Michael Melloy of Cedar Rapids.

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