     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
    Case: 18-50610    Document: 00515371821    Page: 2   Date Filed: 04/03/2020



                                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

                                      2
      Case: 18-50610   Document: 00515371821     Page: 3   Date Filed: 04/03/2020



                                 No. 18-50610
       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.




                                       3
    Case: 18-50610     Document: 00515371821      Page: 4   Date Filed: 04/03/2020



                                  No. 18-50610




      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
                                        4
       Case: 18-50610      Document: 00515371821     Page: 5   Date Filed: 04/03/2020



                                      No. 18-50610
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.
                                             5
    Case: 18-50610    Document: 00515371821    Page: 6   Date Filed: 04/03/2020



                                No. 18-50610
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.


                                      6
    Case: 18-50610    Document: 00515371821     Page: 7   Date Filed: 04/03/2020



                                 No. 18-50610
                                        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
                                        7
    Case: 18-50610     Document: 00515371821      Page: 8    Date Filed: 04/03/2020



                                  No. 18-50610
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
                                         8
    Case: 18-50610    Document: 00515371821     Page: 9      Date Filed: 04/03/2020



                                 No. 18-50610
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
                                       9
    Case: 18-50610     Document: 00515371821       Page: 10    Date Filed: 04/03/2020



                                    No. 18-50610
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
                                          10
   Case: 18-50610     Document: 00515371821     Page: 11     Date Filed: 04/03/2020



                                 No. 18-50610
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
                                       11
    Case: 18-50610    Document: 00515371821      Page: 12   Date Filed: 04/03/2020



                                  No. 18-50610
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
                                       12
    Case: 18-50610    Document: 00515371821      Page: 13    Date Filed: 04/03/2020



                                  No. 18-50610
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.
                                        13
   Case: 18-50610     Document: 00515371821     Page: 14   Date Filed: 04/03/2020



                                 No. 18-50610
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.

                                       14
   Case: 18-50610     Document: 00515371821     Page: 15   Date Filed: 04/03/2020



                                 No. 18-50610
      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
                                       15
    Case: 18-50610    Document: 00515371821      Page: 16    Date Filed: 04/03/2020



                                  No. 18-50610
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)
                                        16
    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
