The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus. In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result? The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.

The plaintiff preacher, whom the university kicked off a campus sidewalk for failing to secure its required grounds use permit, sued, arguing that the policy violated his First Amendment right to freedom of speech. Whether it did turned in large part on the nature of space—the “forum”—in which he’d been preaching. The preacher argued that the university had attempted to regulate speech in a traditional public forum because (1) the sidewalks in question bordered a public street; (2) Tuscaloosa maintained an easement on the land; and (3) the sidewalks were indistinguishable from other sidewalks throughout the city. If he couldn’t tell the difference, he argued, then neither should the law.

Several years earlier, however, the Eleventh Circuit had already concluded in Bloedorn v. Grube, 531 F.3d 1218, 1232–34 (11th Cir. 2011), that the internal sidewalks of a university were a limited public form. The preacher’s arguments therefore presented only a slight twist, and the panel rejected them, stating that “because the intersection is within the UA campus, is not intended as an area for the public’s expressive conduct, and contains markings clearly identifying it as an enclave, the district court properly determined it was a limited public forum.” Whether that conclusion will affect other property adjacent to government facilities remains to be seen.

https://law.justia.com/cases/federal/appellate-courts/ca11/17-11347/17-11347-2018-01-23.html