                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3039
                         ___________________________

                                     Jason Powell

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

   Larry Noble, in his official capacity as Commissioner of Iowa Department of
Public Safety; Gary Slater, in his official capacity as Fair Secretary/Manager/CEO
of Iowa State Fair; D. Smith, individually and in his official capacity as Officer for
    Iowa State Fair Patrol; Michael Cunningham, individually and in his official
                    capacity as Trooper for the Iowa State Patrol

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                             Submitted: April 13, 2015
                              Filed: August 14, 2015
                                  ____________

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
                              ____________

SHEPHERD, Circuit Judge.

     Jason Powell brought a civil rights action pursuant to 42 U.S.C. §§ 1983 and
1988 against four Iowa officials—Larry Noble, Gary Slater, Doug Smith, and
Michael Cunningham—after he was ejected from the Iowa State Fairgrounds while
engaging in religious expression. Powell also moved for a preliminary injunction,
which the district court granted in part and denied in part. Powell filed this
interlocutory appeal challenging the denial. Having jurisdiction under 28 U.S.C.
§ 1292(a)(1), we affirm the district court’s denial of Powell’s motion based on his
First Amendment claim and remand the case to the district court to consider Powell’s
request for preliminary injunctive relief based on his due process claim.

                                   I. Background

      Powell is a Christian who contends that his beliefs compel him to publicly
share his faith with others. To achieve this goal, Powell seeks out public places
where he can find significant numbers of people near his home in Des Moines, Iowa,
and shares his faith by wearing clothing bearing Christian messages, holding signs,
engaging in open-air speech, and having conversations with individuals willing to
speak with him. Powell asserts he does not try to draw crowds, interfere with traffic,
conduct any form of demonstration, or otherwise cause a disturbance with his speech,
but only seeks to share his message with those willing to receive it.

      The events leading to this lawsuit occurred on August 15 and 16, 2013, when
Powell went to the Iowa State Fairgrounds seeking to share his Christian message.
The fairgrounds, which are owned by the State of Iowa and managed by the Iowa
State Fair Board, cover approximately 435 acres in Des Moines and include
campgrounds, fair facilities, and parking areas. The fairgrounds are the home of the
Iowa State Fair, an annual event that attracts more than one million visitors per year.
The fair takes place within a select portion of the fairgrounds, and fairgoers must pay
admission to enter the fair.

     The 2013 Iowa State Fair ran from August 8 to August 18. On August 15,
Powell went to the fairgrounds in the late afternoon and positioned himself on a

                                         -2-
sidewalk on the west side of the fairgrounds, outside the paid admission area. Powell
stood close to the intersection of East 30th Street and Grand Avenue near the main
gate to the fair, Gate 11. During the fair, East 30th Street is open to vehicles and
often heavily trafficked, while Grand Avenue is generally closed to automobile
traffic. Vehicles drop off and pick up fairgoers at Gate 11. Des Moines police
officers are stationed at Gate 11 during the fair to help control traffic. Powell stated
he chose to stand in this location because it offered a convergence of pedestrian
traffic, and indeed, of the approximately 86,000 people who attended the fair on
August 15, about 30,000 people entered or exited through Gate 11. After choosing
this location, Powell began sharing a religious message via oral presentation, a sign,
an expressive t-shirt, and one-on-one conversations. Powell asserts he did not block
any pedestrian traffic, create congestion, or otherwise cause a disturbance. Around
8:00 p.m., several uniformed Iowa State Fair Patrol Officers, including Appellee
Smith, approached Powell and told him to leave the fairgrounds. He asked the
officers to confirm whether he was standing on public property and they reiterated
that he needed to leave the property immediately. Powell again tried to clarify why
he was being asked to leave, and Smith told him he would be arrested for criminal
trespass if he did not leave immediately. Smith also told Powell he could continue
his expressive activities across the street on non-fairground property. Powell did not
find the location across the street suitable for his purposes and left the area.

       The next day, Powell returned to the fairgrounds in the late afternoon and stood
in front of some public restrooms near Gate 15 on the north side of the fairgrounds,
again outside the paid admission area. Gate 15 is near some of the primary parking
areas for the fair, and the roadways in this area experience heavy vehicular and
pedestrian traffic. Of the approximately 95,000 visitors who came to the fair on
August 16, about 24,000 came through Gate 15. At this location, Powell began
sharing his message by holding up a sign attached to an aluminum pole. He did not
make an oral presentation. Powell asserts he was careful to stand in a spot where he
was not blocking access to the restrooms or fair entrance. Shortly after 7:00 p.m.,

                                          -3-
Fair Patrol Officers approached Powell and told him to leave. Powell asked why he
had to leave, and the officers told him the fair owned the property and did not want
him there. When Powell asked if he was on public or private property, one of the
officers asked if he was the same person who caused a problem the prior day and then
radioed the Iowa State Patrol, who sent Appellee Cunningham, an Iowa State
Trooper, and another officer to the scene. Cunningham escorted Powell to a booking
area inside the fair, where he told Powell he had committed trespass and issued him
an ejection notice stating he was banned from the fair for its duration. Cunningham
warned Powell to stay away and told him he would be charged with criminal trespass
if he returned to the fairgrounds for any reason during the duration of the fair.
Fearing arrest, Powell left and did not return to the fairgrounds during the 2013 fair.

       In June 2014, Powell filed a complaint against four defendants: Smith and
Cunningham, who were involved in ejecting him from the fair; Slater, the manager
and CEO of the fair; and Noble, the Commissioner of the Iowa Department of Public
Safety. The complaint alleged that Powell’s ejection violated his free speech and due
process rights. Powell also filed a motion for preliminary injunction asking the
district court to enjoin the appellees from “applying [a] First Amendment ban on
Powell’s expression . . . so as to prevent Powell and other disfavored third party
speakers from engaging in protected expression on public sidewalks outside of the
Iowa State Fair during the 2014 event and all other future Iowa State Fairs.” R. Doc.
3, at 1. Appellees resisted Powell’s motion, arguing he failed to meet his burden of
showing he was entitled to a preliminary injunction. In their response to Powell’s
motion, appellees stated that while the fair does not have any written rules regulating
visitors’ exercise of free speech during the fair, the fair does enforce two unwritten
rules, which they described as follows: (1) “the activity must not impede the flow of
people into, out of, or within the Fairgrounds;” and (2) “if a visitor brings a sign, the
sign must not be attached to any kind of pole or stick due to safety concerns with the
pole or stick being used as a weapon.” R. Doc. 12-4, at 2-3. Regarding the first rule,
appellees explained that “[w]ith more than a million people visiting the fair each year,

                                          -4-
maintaining the flow of people throughout the Fairgrounds becomes a paramount
concern. People standing in the entryways of the fairgrounds can impede or interfere
with the flow of people.” R. Doc. 12-4, at 2-3. In his reply to the appellees’
response, Powell argued that these unwritten rules are unconstitutional because they
violate his First Amendment and due process rights. Powell asked the court to enjoin
application of these rules, in addition to his earlier request that the court enjoin the
“ban on Powell’s expression on public ways outside [the] Fair.” R. Doc. 15, at 3.

        The district court held a hearing on Powell’s motion. Powell testified at that
hearing, as did Slater and two Fair Patrol Officers who were involved in ejecting
Powell from the fairgrounds, Rhonda Hummel and Terry Orr. Hummel testified she
was dispatched to Gate 11 on the evening of August 15 because someone reported
there was a person standing outside that gate impeding the flow of pedestrians. When
Hummel arrived at Gate 11, she observed Powell standing approximately 15 feet from
a ticket booth holding a poster-sized sign attached to a pole and obstructing
pedestrian traffic on the sidewalk, causing pedestrians to enter the street to pass him.
Hummel was not part of the conversation between Smith and Powell, but she
observed Smith speak to Powell and then saw Powell leave the fairgrounds. Hummel
testified she would not have been concerned about Powell impeding traffic if he had
moved farther north or south of the main gate to less-congested portions of the
fairgrounds. Orr was dispatched to Gate 15 on the evening of August 16 based on a
report that there was an individual standing partially in the street who was impeding
people from entering the fair. When Orr arrived at Gate 15, he observed Powell
standing partially in the street, holding a sign attached to an aluminum pole, and
stopping people as they tried to enter the fair. Orr asked Powell to leave the
fairgrounds and told him he could cross the street to a convenience store to continue
his speech. Orr testified he was not concerned about the metal pole Powell was
holding, and while he was concerned that Powell was impeding traffic, he did not
mention that concern to Powell during their conversation. Slater testified about the
fair’s safety concerns regarding traffic impediments and specifically regarding the

                                          -5-
locations Powell chose for his speech. Slater stated he would not be concerned with
an individual positioning himself in less-trafficked areas north or south of Gate 11 or
north of Gate 15. Powell testified that none of the officers he encountered ever gave
him a reason for his ejection from the fair, told him he was impeding traffic, or
suggested he could move to less-trafficked areas on the fairgrounds, but rather only
told him he was trespassing and demanded that he leave.

       At the motion hearing, Powell clarified that he sought to enjoin three separate
rules or policies: (1) the “policy of treating public property as though it is private
property so as to empower the Fair Authority to dispose unwelcome individuals and
specifically serving as a ban on Mr. Powell’s speech”; (2) the “general prohibition on
things as they would determine it that could possibly impede traffic”; and (3) “the ban
on the poles and sticks that would be attached to signage.” R. Doc. 23, at 70-71.
Powell argued all three rules violate both his free speech and due process rights.
Regarding free speech, Powell argued the rules are not narrowly tailored and there is
no evidence they address legitimate concerns, particularly as-applied to him. He also
argued the unwritten rules violate due process because they did not and do not give
Powell fair notice of what conduct is prohibited and lend themselves to arbitrary
enforcement. Powell cited Stahl v. City of St. Louis, Missouri, 687 F.3d 1038 (8th
Cir. 2012), to argue that the unwritten rule against impeding traffic violates due
process because it does not give people notice of what conduct violates the law and
because whether a violation occurs could depend on the reactions of third parties
rather than the behavior of the person charged with a violation. Powell asked the
district court to enjoin fair officials from applying these three rules to prohibit his
expression. He is concerned that if he returns to the fair to try to share his message,
he will again be ejected and possibly arrested.

      The district court granted Powell’s motion for preliminary injunction on one
narrow issue, enjoining appellees from “arresting or threatening to arrest [Powell]
solely for engaging in protected speech on the Fairgrounds in locations where

                                         -6-
[appellees] have already conceded that he is not impeding or would not be likely to
impede the flow of traffic.” R. Doc. 18, at 31. The court otherwise denied Powell’s
request for preliminary injunctive relief. Powell now appeals the denial of his motion
for a preliminary injunction.

                             II. First Amendment Claim

       We review a district court’s denial of a preliminary injunction for an abuse of
discretion. Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864, 870 (8th
Cir. 2012) (en banc).1 “An abuse of discretion occurs where the district court rests
its conclusion on clearly erroneous factual findings or erroneous legal conclusions.”
Id. (internal quotation marks omitted). To determine whether to issue a preliminary
injunction, the district court must consider: (1) the threat of irreparable harm to the
movant; (2) the balance between that harm and the injury that granting the injunction
will inflict on the other interested parties; (3) the probability the movant will succeed
on the merits; and (4) whether the injunction is in the public interest. Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc).

      1
        The parties express some confusion about the appropriate standard of review
in this case. Both cite Families Achieving Independence & Respect v. Nebraska
Department of Social Services (FAIR), 111 F.3d 1408 (8th Cir. 1997) (en banc), with
Powell arguing FAIR dictates we “conduct an independent examination of the record
as a whole without deference to the district court” and appellees asserting FAIR
conflicts with our application of the abuse-of-discretion standard in Blue Moon
Entertainment, LLC v. City of Bates City, Missouri, 441 F.3d 561, 564 (8th Cir.
2006). “We consistently have held that the grant of preliminary relief is within the
discretion of the district court.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109,
114 n.8 (8th Cir. 1981) (en banc). FAIR presents no conflict because the court was
not reviewing a denial of preliminary injunctive relief. See FAIR, 111 F.3d at 1414.
We note that “[w]hen purely legal questions are presented . . . this court owes no
special deference to the district court, and we review its legal conclusions de novo.”
St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1021 (8th Cir. 2015) (internal
quotation marks and citations omitted).

                                          -7-
       The district court first considered the likelihood that Powell would succeed on
the merits of his First Amendment claim. The court preliminarily concluded that the
disputed portion of the fairgrounds should be considered a limited public forum, at
least during the Iowa State Fair. The court relied on a number of factors in reaching
this conclusion, including the presence of a fence around most of the fairgrounds,
marking it as separate and distinct from other public streets and sidewalks; the
presence of fair personnel and law enforcement around the fairgrounds; and the fact
that the areas in question are not continually open, uncongested thoroughfares used
to travel from one public point to another but rather, at least during the fair, are busy
and subject to significant congestion as thousands of people use them for ingress and
egress to the fair. The court acknowledged that the disputed areas are outside the
paid admission area, a distinction from other cases it cited finding fairs to be limited
public forums, but concluded the logic from those cases applied because the paid
admission area cannot serve its purpose without mechanisms to provide parking and
access points to the fair.

       The district court next concluded that the applicable standard of scrutiny for
the limited public forum at issue was the “reasonableness” and “viewpoint neutral”
standard. Applying this level of scrutiny, the court concluded all three rules at issue
are viewpoint-neutral and considered whether each is reasonable. Regarding the first
rule, which Powell characterized as a policy of “treating the public property like
private property so as to ban unwelcome speech,” the court found no evidence on the
record indicating appellees actually ascribe to or apply any such policy, and thus
found nothing for it to analyze or enjoin. The court found the two unwritten rules,
regarding traffic and poles and sticks, are reasonable except in one narrow
application, namely, appellees’ threat to arrest Powell in areas of the fairgrounds
where they conceded he would likely not impede traffic. The court thus concluded
Powell had not demonstrated a likelihood of success on the merits of his First
Amendment claim except as to this one narrow issue.



                                          -8-
        The district court next considered the threat of irreparable harm to Powell. It
concluded that, except on the aforementioned narrow issue, Powell’s failure to
demonstrate a likelihood of success on the merits also implied a lack of irreparable
harm. The court further found that as there was no evidence on the record that the
rule against poles and sticks played a role in appellees’ decision to eject Powell from
the fairgrounds, Powell only demonstrated a mere possibility of harm arising from
that rule, which was insufficient to show a threat of irreparable harm. The court thus
concluded Powell was not entitled to injunctive relief on the poles-and-sticks rule and
continued to consider the balance of harms to Powell and other interested parties if
it preliminarily enjoined enforcement of the traffic rule. The court concluded that an
injunction barring appellees from enforcing the traffic rule would damage appellees’
interest in ensuring safe access to the fair and could pose a substantial risk of danger
to the public. The court discerned no particular harm from enjoining appellees from
arresting or threatening to arrest Powell solely for engaging in protected speech in
areas of the fairgrounds where he is not impeding the flow of traffic. The court thus
enjoined appellees from “arresting or threatening to arrest [Powell] solely for
engaging in protected speech on the Fairgrounds in locations where [appellees] have
already conceded that he is not impeding or would not be likely to impede the flow
of traffic.” R. Doc. 18, at 39. The court pointed to appellees’ testimony regarding
locations where Powell could stand and encouraged appellees to provide Powell with
a list of any other areas on the fairgrounds where he could exercise his free speech
activities without impeding traffic. Powell now appeals, focusing on the district
court’s holdings on the two unwritten rules against impeding traffic and bringing
poles and sticks to the fair.

                      A. Likelihood of Success on the Merits

      The rules Powell challenges are unwritten, informal rules, not “‘government
action based on presumptively reasoned democratic processes,’” and thus he “need
only show a reasonable probability of success, that is, a ‘fair chance of prevailing’”

                                          -9-
on his claims to warrant possible preliminary injunctive relief. Kroupa v. Nielsen,
731 F.3d 813, 818 (8th Cir. 2013) (quoting Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc)). “The standards that we apply
to determine whether a State has unconstitutionally excluded a private speaker from
use of a public forum depend on the nature of the forum.” Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 106 (2001). Traditional and designated public
forums receive the greatest protection, while public entities have more flexibility to
regulate speech in limited public forums to facilitate the intended purposes of those
forums. See id.; Victory Through Jesus Sports Ministry Found. v. Lee’s Summit R-7
Sch. Dist., 640 F.3d 329, 334 (8th Cir. 2011). “Once a court makes a determination
on the nature of the forum, it then applies the appropriate standard of scrutiny to
decide whether a restriction on speech passes constitutional muster.” Bowman v.
White, 444 F.3d 967, 974 (8th Cir. 2006).

       The parties agree that Powell’s religious expression is protected speech. They
disagree on the nature of the forum and on the appropriate standard of scrutiny.
Powell argues that the areas in question are traditional public forums, as they are
sidewalks the public can freely access, as opposed to the paid admission areas of the
fair. Alternatively, he argues the areas should be treated as designated public forums,
as the fair has opened them to the public for speech purposes and has not limited that
use to certain groups or subjects. He argues that regardless of how the areas are
classified, the fair’s restrictions should be subject to intermediate scrutiny. Appellees
argue the district court correctly classified the areas a limited public forum and
correctly applied the appropriate level of scrutiny in evaluating whether the fair’s
rules are viewpoint-neutral and reasonable.

      We first consider what type of forum the disputed areas in question constitute.
Traditional public forums are “public areas such as streets and parks that, since ‘time
out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.’” Victory Through Jesus, 640 F.3d

                                          -10-
at 334 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983)). Designated public forums are public areas “‘which the State has opened for
use by the public as a place for expressive activity.’” Id. (quoting Perry, 460 U.S. at
45). “‘The government does not create a public forum by inaction or by permitting
limited discourse, but only by intentionally opening a nontraditional forum for public
discourse.’” Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S.
788, 802 (1985)). Limited public forums (sometimes called nonpublic forums)
include public properties that are not by tradition or designation public forums but
have been opened by the government for limited purposes, communicative or
otherwise. Id.

       Powell concedes that the paid admission areas of the fairgrounds constitute a
limited public forum but argues that the sidewalks in the non-paid-admission areas
of the fairgrounds on which he wants to stand do not constitute a limited public forum
because access to them is free and unrestricted. While public sidewalks have most
often been treated as traditional public forums, “‘[p]ublicly owned or operated
property does not become a “public forum” simply because members of the public are
permitted to come and go at will.’” Bowman, 444 F.3d at 978 (alteration in original)
(quoting United States v. Grace, 461 U.S. 171, 177 (1983)). “The government, no
less than a private owner of property, has the power to preserve the property under
its control for the use to which it is lawfully dedicated.” Grace, 461 U.S. at 178
(internal quotation marks omitted). “[T]he location and purpose of a publicly owned
sidewalk is critical to determining whether such a sidewalk constitutes a public
forum.” United States v. Kokinda, 497 U.S. 720, 728-29 (1990). In determining
forum type, we must consider factors such as the nature of the space, “the traditional
use of the property, the objective use and purposes of the space, and the government
intent and policy with respect to the property,” as well as “any special characteristics
regarding the environment in which those areas exist.” Bowman, 444 F.3d at 978.




                                         -11-
       The property in question—at least during the fair—serves the specific purpose
of allowing tens of thousands of people to enter and exit the fair’s paid admission
areas. The sidewalks on which Powell wants to stand are not open, unrestricted
thoroughfares for general public passage but rather are situated near entrance gates
on the fairgrounds and serve as a congested conduit for ingress and egress. The
government’s intent and policy with respect to the use of these areas is to facilitate
safe and efficient access to the fair. The congestion, signage, police presence, and
fencing that mark the fairgrounds during the fair are special characteristics that
clearly set these areas apart from regular public sidewalks. Thus, on this record, we
agree with the district court’s preliminary conclusion that the disputed areas in
question should be considered a limited public forum, at least during the 11 days each
year when the Iowa State Fair is underway.

      We next consider what level of scrutiny applies to restrictions in this forum.
Our precedent makes clear that the appropriate standard for a limited public forum is
whether restrictions on speech are reasonable and viewpoint-neutral. Victory
Through Jesus, 640 F.3d at 334-35; see also Christian Legal Soc’y Chapter of the
Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 679 (2010)
(“Recognizing a State’s right to preserve the property under its control for the use to
which it is lawfully dedicated, the Court has permitted restrictions on access to a
limited public forum . . . with this key caveat: Any access barrier must be reasonable
and viewpoint neutral.” (internal quotation marks and citation omitted)). The district
court properly selected this standard for its analysis.2


      2
        Powell argues the district court should have applied a higher level of scrutiny,
intermediate scrutiny, regardless of forum type, because case law distinguishes
between restrictions that completely exclude someone from a forum, which need only
be reasonable and viewpoint-neutral, and restrictions that restrict access or activity
once someone is allowed inside a forum, which must meet intermediate scrutiny. The
cases Powell relies on—Heffron v. International Society for Krishna Consciousness,
Inc., 452 U.S. 640 (1981), and Good News Club v. Milford Central School, 533 U.S.

                                         -12-
       Finally, we review the district court’s application of this standard in
considering whether Powell has a “fair chance” of succeeding in proving the fair’s
rules are viewpoint-based or unreasonable, taking into account the fairgrounds’
function and all surrounding circumstances. See Christian Legal Soc’y, 561 U.S. at
685. We conclude the rules are facially viewpoint-neutral, and the record shows no
evidence they are applied in a viewpoint-based manner or were so applied against
Powell. Indeed, Powell states the rules permit “[a]ny kind of expression,” without
creating limitations by speaker or topic, as long as expressive activities do not create
congestion or involve poles or sticks. Thus our analysis focuses on the rules’
reasonableness. “Control over access to a nonpublic forum may be based on the
subject matter of the speech, on the identity or status of the speaker, or on the
practical need to restrict access for reasons of manageability or the lack of resources
to meet total demand.” Victory Through Jesus, 640 F.3d at 335. A restriction “must
be ‘reasonable in light of the purpose which the forum at issue serves’” and “[t]he
reasonableness of a restriction on access is supported when ‘substantial alternative
channels’ remain open for the restricted communication.” Id. (quoting Perry, 460
U.S. at 49, 53).




98 (2001)—do not make this distinction, nor do we find support for this argument
elsewhere in the case law. See, e.g., Green v. Nocciero, 676 F.3d 748, 753-54 (8th
Cir. 2012) (“having chosen to conduct its business in public and to hear citizen views,
the Board could not deny access to the meeting” or “discriminate against a speaker
based on his viewpoint,” but since the meeting was a limited public forum, the Board
“could reasonably restrict public access to this forum based on . . . the practical need
to restrict access for reasons of manageability,” which “necessarily included the
authority to remove an unruly or disruptive member of the audience” (internal
quotation marks omitted)); Victory Through Jesus, 640 F.3d at 335-36 (applying
reasonableness standard where appellants were not excluded from a backpack flyer
distribution program but rather their access to the program was restricted by deadlines
and limits on how often they could distribute flyers).

                                         -13-
       First, we find the district court did not abuse its discretion in holding Powell
is unlikely to succeed in showing the rule against “imped[ing] the flow of people into,
out of, or within the Fairgrounds” is unreasonable. Appellees explain that, “[w]ith
more than a million people visiting the fair each year, maintaining the flow of people
throughout the Fairgrounds becomes a paramount concern.” R. Doc. 12-4, at 2-3.
The Iowa State Fair “is a temporary event attracting great numbers of visitors who
come to the event for a short period to see and experience the host of exhibits and
attractions at the Fair. The flow of the crowd and demands of safety are more
pressing in the context of the Fair.” See Heffron v. Int’l Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 651 (1981). In this context, “[l]imiting congestion
and disruption is, of course, a legitimate and reasonable goal.” See Families
Achieving Independence & Respect v. Neb. Dep’t of Soc. Servs. (FAIR), 111 F.3d
1408, 1421 (8th Cir. 1997) (en banc). The fair’s rule prohibiting impeding the flow
of people in and out of the fairgrounds addresses the need to limit congestion and
disruption and to facilitate safe and efficient access to the fair. And, as evidenced in
the motion hearing, Powell retains alternative channels of communication on the
fairgrounds, so long as he does not position himself in a way that impedes the flow
of people. While these alternatives may not be Powell’s first choice, “‘[t]he First
Amendment does not demand unrestricted access to a nonpublic forum merely
because use of that forum may be the most efficient means of delivering the speaker’s
message.’” Id. at 1422 (alteration in original) (quoting Cornelius, 473 U.S. at 809).

       We also conclude the district court did not abuse its discretion in holding
Powell is unlikely to succeed in showing the rule against bringing signs attached to
poles and sticks to the fair is unreasonable. Appellees assert this rule is “due to safety
concerns with the pole or stick being used as a weapon.” R. Doc. 12-4, at 3. Powell
claims he needs to use a pole to hold signs above his head so his message can be seen
above the crowd. He primarily relies on Edwards v. City of Coeur d’Alene, 262 F.3d
856, 858-60 (9th Cir. 2001), a Ninth Circuit case that struck down a city ordinance
banning the attachment of wooden, plastic, or other types of support to signs carried

                                          -14-
during parades and public assemblies on city streets. The Edwards court, applying
the most stringent scrutiny to a restriction in a traditional public forum, noted the
city’s “substantial interest in safeguarding its citizens against violence,” but
concluded this ban was not “necessary” to serve that interest. Id. at 862-66. In
concluding the restriction could not survive a strict time, place, and manner test, the
court highlighted the unique nature and historical role of picket signs at parades and
public assemblies as a method of communication and protest and noted a number of
less restrictive alternatives the city could consider. Id. Given the differences in
context, forum, and scrutiny, we are not persuaded that the rationale from Edwards
applies here. The state has a valid interest in protecting the safety of fairgoers, see
Heffron, 452 U.S. at 650, and a ban on poles and sticks will likely be found to be a
reasonable restriction given that interest. Neither are we persuaded by Powell’s
argument that the rule is arbitrary because the fair allows mounted poles to support
tents and flags and small sticks for the fair’s many food-on-a-stick offerings. These
materials are generally different from the type of pole or stake a person would
typically use to support a sign above his or her head, and thus we doubt Powell could
show this makes the rule arbitrary. Accordingly, we conclude the district court did
not abuse its discretion in concluding Powell has not demonstrated a likelihood of
success on the merits of his First Amendment claim.

                                B. Irreparable Harm

       We next consider whether the district court abused its discretion in finding
Powell has not shown a threat of irreparable harm. “To succeed in demonstrating a
threat of irreparable harm, a party must show that the harm is certain and great and
of such imminence that there is a clear and present need for equitable relief.” S.J.W.
ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 778 (8th Cir. 2012)
(internal quotation marks omitted). It is well-established that “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Marcus v.

                                         -15-
Iowa Pub.Television, 97 F.3d 1137, 1140 (8th Cir. 1996) (“If [appellants] are correct
and their First Amendment rights have been violated, this constitutes an irreparable
harm.”). But as we have concluded Powell is unlikely to succeed in showing his First
Amendment rights have been violated, we agree with the district court that Powell has
not shown a threat of irreparable harm that warrants preliminary injunctive relief. See
Planned Parenthood Minn., 530 F.3d at 738 n.11 (“[W]ithout a showing that it will
likely prevail on its [First Amendment] claim . . . [appellant’s] asserted threat of
irreparable harm is correspondingly weakened in comparison to the State’s (and the
public’s) interest . . . .”).

        As we conclude the district court did not abuse its discretion in determining
Powell is unlikely to succeed on the merits of his First Amendment claim and has not
shown irreparable harm, we do not need to address the remaining Dataphase factors.
See S.J.W., 696 F.3d at 779. We do share the district court’s concern regarding how
the officers who ejected Powell from the fairgrounds applied the fair’s rules in
handling those confrontations. But we believe the preliminary injunctive relief the
district court granted speaks to those concerns, and we note that our task at this point
is not to decide the merits of this case, but only to determine whether the district court
abused its discretion in assessing “whether the balance of equities so favors [Powell]
that justice requires the court to intervene to preserve the status quo until the merits
are determined.” Dataphase, 640 F.2d at 113; see also Roberts v. Van Buren Pub.
Sch., 731 F.2d 523, 526 (8th Cir. 1984) (“Our review of a district court’s denial of a
preliminary injunction is limited. The granting or denial of a preliminary injunction
is properly a matter within the sound discretion of the trial court and the function of
an appellate court is limited to determining whether there has been an abuse of this
discretion.”). We conclude the district court did not abuse its discretion and thus
affirm the district court’s denial of Powell’s request for preliminary injunctive relief
on his First Amendment claim.




                                          -16-
                               III. Due Process Claim

       Powell also argues he was entitled to a preliminary injunction based on his
likelihood of success on the merits of his due process claim. Powell asserted in his
complaint that appellees’ “policies are vague and lack sufficient objective standards
to curtail the discretion of officials,” in violation of the Due Process Clause of the
Fourteenth Amendment. R. Doc. 1, at 14. Citing City of Chicago v. Morales, 527
U.S. 41 (1999), Powell asserted that due process is a concern because he was
threatened with arrest for criminal trespass for violating rules that are unwritten and
are too vague to give a person clear guidance on when he or she might be violating
a rule. Powell compared this case to Stahl v. City of St. Louis, Missouri, 687 F.3d
1038 (8th Cir. 2012), where the court held that a written ordinance prohibiting
conduct, including speech, that impeded pedestrian or vehicular traffic was
unconstitutionally vague and violated due process. Powell asked the district court to
enjoin the fair from applying its rules against him because they violate his free speech
and due process rights.

       The district court did not address Powell’s likelihood of success on the merits
of his due process claim. We will not address the merits of this claim for the first
time on appeal, for “[t]he district court is in the best position to evaluate all of the
evidence and weigh the factors to determine whether the injunction should issue.”
Lankford v. Sherman, 451 F.3d 496, 513 (8th Cir. 2006). But the claim warrants
consideration, particularly given that, though we have concluded the district court did
not abuse its discretion in determining Powell will likely not succeed in proving a
violation of his First Amendment rights, the allegation that these rules violate
Powell’s due process rights still implicates speech that both parties agree is protected.
“A law’s failure to provide fair notice of what constitutes a violation is a special
concern where laws ‘abut[] upon sensitive areas of basic First Amendment freedoms’
because it ‘inhibit[s] the exercise’ of freedom of expression and ‘inevitably lead[s]
citizens to steer far wider of the unlawful zone . . . than if the boundaries of the

                                          -17-
forbidden area were clearly marked.’” Stahl, 687 F.3d at 1041 (alterations in
original) (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)). The fair
can prohibit impediments to the flow of people into, out of, and within the
fairgrounds, but it must do so “with reasonable specificity toward the conduct to be
prohibited.” Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); see also Stahl,
687 F.3d at 1041 (“So long as the ordinance is clear and provides fair notice as to
what conduct is deemed likely to cause a traffic problem, these regulations do not
offend due process.”); FAIR, 111 F.3d at 1415 (noting an unwritten rule or policy is
not automatically vague, but should be “made explicit by well-established practice,”
because “[t]o survive a vagueness challenge, a [rule] must give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited and provide explicit
standards for those who apply” it (first alteration in original) (internal quotation
marks omitted)). Accordingly, we remand this case to the district court for
consideration of whether Powell is entitled to preliminary injunctive relief based on
his due process claim.

                                   IV. Conclusion

       For these reasons, we affirm the district court’s denial of a preliminary
injunction on Powell’s First Amendment claim and remand the case to the district
court for consideration of whether Powell is entitled to a preliminary injunction on
his due process claim.

LOKEN, Circuit Judge, concurring in part and dissenting in part.

       I agree with the court that Jason Powell’s First Amendment claim warrants no
greater preliminary injunctive relief than the district court granted. I join Parts I and
II of the court’s opinion. I respectfully dissent from the decision to remand for
further consideration of whether Powell’s void-for-vagueness Due Process claim
warrants additional preliminary injunctive relief.

                                          -18-
         “As generally stated, the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357
(1983). This due process doctrine has been applied more broadly, but facial
vagueness challenges to government restrictions “that do not threaten First
Amendment rights are not favored [and] a concrete showing of irreparable injury is
needed to justify preliminary injunctive relief barring enforcement.” Reproductive
Health Serv. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d
1139, 1143 (8th Cir. 2005). Indeed, when a statute, regulation, or ordinance does not
implicate constitutionally protected conduct such as speech, a court “should uphold
the challenge only if the enactment is impermissibly vague in all of its applications.”
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).

       Here, Powell challenges unwritten policies that carry no criminal or civil
sanction and were adopted to carry out the important police functions of maintaining
order and managing traffic. Cf. Iowa Code §§ 321.229, 321.236(2). That the policies
are unwritten “is not fatal.” Faustin v. City and Cty. of Denver, 423 F.3d 1192, 1202
(10th Cir. 2005). Divorced of First Amendment concerns, the vagueness claim is
inherently dubious. When the challenge is to imprecise non-criminal standards -- for
example, “good taste,” “appropriate manner,” or “good citizenship” -- absent a
showing that policies have a chilling effect on the free speech rights of third parties,
the question is whether they “violate the due process clause as applied to the specific
facts of this case.” Woodis v. Westark Cty. Coll., 160 F.3d 435, 439 (8th Cir. 1998).

       Applying this well-established authority, it is apparent that Powell’s motion for
a preliminary injunction turned on the strength of his First Amendment claim. The
Due Process claim added nothing, and the district court did not err in failing
separately to address it. Indeed, any procedural due process claim Powell may have
had was foreclosed when he acceded to the officers’ commands that he leave the State

                                         -19-
Fair, rather than challenging the validity of their actions. See Stephenson v.
Davenport Cty. Sch. Dist. 110 F.3d 1303, 1312-13 (8th Cir. 1997).

     I would affirm the district court’s order granting in part and denying in part
Powell’s motion for a preliminary injunction.
                      ______________________________




                                       -20-
