Jim Barrett v. Walker County School District

Case: 16-11952 Date Filed: 10/02/2017 Page: 1 of 50

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-11952
________________________

D.C. Docket No. 4:15-cv-00055-HLM

JIM BARRETT,

Plaintiff - Appellee,

versus

WALKER COUNTY SCHOOL DISTRICT;
MR. DAMON RAINES,
in his official and individual capacities;
MR. MIKE CARRUTH,
in his official capacity;

Defendants - Appellants.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(October 2, 2017)
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Before ROSENBAUM, JULIE CARNES, and GILMAN,∗ Circuit Judges.

ROSENBAUM, Circuit Judge:

Control the clock and control the game. Winning coaches in many sports

have employed this strategy. 1 And Plaintiff-Appellee Jim Barrett asserts that the

lesson wasn’t lost on Defendant-Appellant Walker County School District, either.

To speak at a Walker County Board of Education meeting, the District requires a

member of the public to first go through a process that can consist of several steps.

If the entire process is not completed at least one week before the Board meeting,

the citizen may not speak at the meeting. Yet critically, the Board completely

controls the timing of a step at the beginning of the process. If the Board drags its

feet in completing this step, a member of the public cannot finish the rest of the

steps in time to be permitted to speak.

Barrett is a public-school teacher who believes that the District has wielded

this policy to unconstitutionally censor speech critical of the Board and its
∗
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
1
The legendary basketball coach Dean Smith was famous for, among other things, his
Four Corners offense, a strategy all about controlling the clock. Dean Smith Dies at Age of 83,
ESPN.com (Feb. 12, 2015), http://www.espn.com/mens-college-basketball/story/_/id/12296176
/dean-smith-former-north-carolina-tar-heels-coach-dies-age-83 (“Smith’s Four Corners time-
melting offense led to the creation of the shot clock to counter it.”). During his 36 seasons
coaching basketball at the University of North Carolina in Chapel Hill, Coach Smith amassed a
.776 winning percentage that included eleven Final Four appearances, two national
championships, seventeen ACC regular-season titles, and thirteen ACC tournament titles. Id.
When Coach Smith passed away, the Tar Heels paid tribute to him by running his Four Corners
offense in their first offensive possession in the game following his death. UNC Honors Dean
Smith by Running Four Corners Offense, SportsIllustrated.com (Feb. 21, 2015),
https://www.si.com/college-basketball/2015/02/21/dean-smith-unc-four-corners-tar-heels.
2
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employees at school-board meetings. He filed suit in federal court, asserting a

variety of First Amendment facial and as-applied claims in his quest for, among

other things, an injunction against various aspects of the Board’s policy governing

public comment at its meetings.

The district court ultimately granted Barrett a permanent injunction based on

some of his facial claims and enjoined the Board’s public-comment policy. It also

allowed a number of Barrett’s other claims to proceed to discovery.

Defendants now appeal the injunction. We have appellate jurisdiction under

28 U.S.C. § 1292(a)(1), which allows us to review “[i]nterlocutory orders . . .

granting . . . injunctions.” After careful review, and with the benefit of oral

argument, we affirm in part, vacate in part, and remand for further proceedings.

I.

A. 2

According to his verified complaint, Barrett is employed by the District as a

seventh- and eighth-grade social-studies teacher. He is also the president of the

Walker County Association of Educators (“WCAE”).

The District is managed by the Walker County Board of Education, which

itself is composed of five elected officials. One of those officials, Defendant Mike

2
As we explain later, we assess Barrett’s standing as a matter of fact and not merely
based on the pleadings. For that reason, in this section, we provide the factual circumstances
relating to the issue of Barrett’s standing based on the record as it had been developed by the
parties as of the entry of partial summary judgment.
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Carruth, is the Chairperson of the Board; in that capacity, he presides over Board

meetings, signs documents on behalf of the Board, and performs other duties.

Defendant Damon Raines is the Superintendent of the District, a job that makes

him responsible for all operations of the District, including the implementation of

District policies and procedures.

Except in January and February, the Board holds a meeting every month.

The Board also holds a planning session each month. Members of the public are

allowed to comment at the meetings and planning sessions. In advance of each

meeting or planning session, the Board publishes an agenda of items to be

discussed, and the agenda indicates the time allotted for public comment. The

Board has a policy that governs how members of the public may obtain permission

to speak during these public-comment sessions (the “Policy”).

Barrett is no stranger to the public-comment sessions of Board meetings:

according to his complaint, he “has publicly participated in Board meetings in the

past by endorsing actions of the Board, commending the Board on past actions and

recognizing employees of the Board for good deeds.” And he contends that,

despite the existence of the Policy, he “has not been subjected to the procedural

requirements of [the Policy] prior to making such public comments.”

But Barrett asserts that the Board’s tune changed when Barrett’s comments

began to strike the wrong chord with the Board: Barrett contends that the Board

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started requiring him to comply with the Policy only when he started speaking

critically of the Board.

Barrett’s litigation saga begins with a topic controversial in any school:

grades. In the period from May 2014 to January 2015, Barrett became a “vocal

critic” of new grading procedures that the Superintendent had implemented

without the Board’s having taken any official action. As Barrett saw things, this

new grading policy negatively affected student performance and teacher-

performance evaluations.

So in his capacity as President of WCAE, Barrett publicly criticized the

grading policy during meetings of WCAE and during in-person discussions with

the Superintendent. According to Barrett, he had “several discussions with

Superintendent Raines on this topic” during which the Superintendent “vehemently

disagreed with Mr. Barrett about the impact of his new procedures” and “often

became agitated and upset with Mr. Barrett for his attempts to raise this issue with

the Board and in public.”

Barrett eventually took the issue of the grading policy to the membership of

WCAE, and “the organization agreed to publicly speak against the new grading

policy.” The Board meeting scheduled for February 17, 2015, presented “the first

opportunity for WCAE to speak to the Board in opposition to the policy.” So

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Barrett set out to obtain permission from the Board to speak during the public-

comment session of that meeting.

To comply with the Policy, Barrett e-mailed the Superintendent on January

20, 2015, “requesting to meet with [the Superintendent] in order to speak with the

[Board] at its next Planning Session with respect to matters of school/district

administration.” The Superintendent responded that he was “available” eight days

later, “on Wednesday, January 28.” Barrett and the Superintendent met on the

agreed-upon day, and Barrett “presented his concerns in writing and requested the

process to be completed so that he could appear at the February Board meeting.”

After the meeting, Barrett followed up with the Superintendent by e-mail,

asking that the Superintendent respond in writing to Barrett’s written concerns.

The Superintendent replied by e-mail on February 4, stating that he would “have

written documentation prepared addressing the concerns” and that he would

“deliver [the documentation] on Monday, February 9.”

Barrett and the Superintendent met for about an hour on February 9. The

Superintendent gave Barrett four single-spaced written pages in response to

Barrett’s previously raised concerns, and the two discussed the results of the

Superintendent’s investigation. As Barrett tells the story, “The Superintendent

expressed his dissatisfaction with Mr. Barrett’s views on the issues and Mr.

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Barrett’s efforts to speak to the Board about education policy issues that were

critical of actions taken by [the District] and the Superintendent.”

Immediately after the meeting, Barrett mailed a letter to the Superintendent.

The letter, dated February 9, asked that the Superintendent “accept th[e] letter as

[Barrett’s] written request to speak at the February 16, 2015 regular meeting of the

Walker County Board of Education.” Barrett explained in the letter that he wished

to speak about the new grading policy and three other topics.

Two days later, on February 11, 2015, Barrett received a letter from the

Superintendent postmarked February 11. The letter noted that, on February 11, the

Superintendent received Barrett’s request to speak. This, the letter explained, was

too late under the Policy for Barrett to be permitted to speak at the Board’s

February 17 meeting. The letter further indicated that the Board agenda for the

February 17 meeting would not include a public-comment session. Nevertheless,

the Superintendent’s letter did state that the Superintendent was “happy to place

[Barrett’s] name on the agenda under public participation at the Board planning

session scheduled for Tuesday, March 10, 2015.”

Barrett did not attend the March 10 planning session. Timing was critical

for Barrett, because in anticipation of the February 17 meeting, he “had organized

a large number of employees of the [District] to appear at the Board meeting to

show their dissatisfaction with the switch in grading procedures implemented by

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the Superintendent.” Barrett asserts that the Superintendent, who knew of Barrett’s

association with WCAE, decided “to deny Barrett’s request and to cancel all public

comment at the February 17, 2015 Board meeting . . . for viewpoint-specific

reasons related to Mr. Barrett, and the association he represents, and their critical

views of the actions taken with respect to the switch in grading procedures.”

Despite this setback, Barrett states that he “seeks to speak to the Board in the

future about timely matters, often in a manner critical of Defendants.” Barrett is

concerned, however, that Defendants “will often bar his speech by refusing to

place him on [a] meeting agenda.”

B. 3

The Policy states, in relevant part,

Meetings of [the Board] are held to conduct the affairs and business of
the school system. Although these meetings are not meetings of the
public, the public is invited to attend all meetings and members of the
public are invited to address the Board at appropriate times and in
accordance with procedures established by the Board or the
Superintendent.

The Superintendent shall make available procedures allowing
members of the public to address the Board on issues of concern.
These procedures shall be available at the Superintendent’s office and
shall be given, upon request, to anyone requesting a copy.

3
The only claim we address on appeal is Barrett’s facial challenge to the Policy insofar
as the Policy allegedly grants the Board unbridled discretion in violation of the Free Speech
Clause of the First Amendment to the U.S. Constitution. Because the claim is a facial challenge,
we concern ourselves only with the face of the Policy and the “Procedures” promulgated
pursuant to the Policy.
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Prior to making a request to be heard by the Board, individuals or
organizations shall meet with the Superintendent and discuss their
concerns. If necessary, the Superintendent shall investigate their
concerns, and within ten work days, report back to the individual or
organization. After meeting with the Superintendent, individuals or
organizations still desiring to be heard by the Board shall make their
written request to the Superintendent at least one week prior to the
scheduled meeting of the Board stating name, address, purpose of
request, and topic of speech. Any individual having a complaint
against any employee of the Board must present the complaint to the
Superintendent for investigation. The Board will not hear complaints
against employees of the Board except in the manner provided for
elsewhere in Board policies, procedures, and Georgia law.

All presentations to the Board are to be brief and are intended for the
Board to hear comments or concerns without taking action.

The procedures (“Procedures”) promulgated by the Superintendent under the

Policy4 provide, as pertinent here, as follows:

Meetings of the [Board] are structured to allow the Board to conduct
its public business. Meetings of the Board are open to the public, but
are not to be confused with public forums. When time permits, the
[Board] as a matter of general operating procedures offers an
opportunity for citizens of the school district to address the Board in
open session.

The following rules shall be adhered to:

1. Refer to [the Policy] concerning required meeting with
Superintendent.
2. After meeting with the Superintendent, individuals or
organizations shall make written request to the Superintendent
at least one week prior to the scheduled meeting of the Board.
Please include name, address, purpose of the request, and topic
of speech.

4
For ease of expression, and where appropriate, the term “Policy” includes the Policy
and Procedures collectively.
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3. Each person whose name is placed on the agenda will be given
five (5) minutes to make their comments.
4. Where several citizens wish to address the same topic or issue,
the Board reserves the right to limit discussions should they
become repetitive.
5. While citizens may use their allotted time to take serious issue
with Board decisions, the Board will not permit anyone to
become personally abusive of individual Board members or
Board employees.
6. When issues arise that stimulate high community interest, the
Board may schedule special meetings specifically to invite
public comment. In those circumstances, the Board will
establish special guidelines for participation.
7. The Board Chair may:
a. Interrupt, notify, or terminate a participant’s statement when the
statement exceeds the prescribed time limit, is abusive or
disruptive, is obscene, or is irrelevant to a subject under
consideration; . . . if a speaker fails to follow these rules one
time during a meeting, he or she loses the opportunity to
continue to speak at the meeting.

* * *

8. The Board will not respond to comments or questions posed by
citizens in their presentations, but will take those comments and
questions under advisement.

II.

Barrett filed a complaint, together with a motion for a preliminary and

consolidated permanent injunction, against the District, Carruth, and Raines. In

Count I of the complaint, Barrett requested a declaratory judgment, injunctive

relief, and damages for Defendants’ alleged violation of his rights under the Free

Speech Clause of the First Amendment to the U.S. Constitution, as incorporated

against the states under the Fourteenth Amendment, based on various facial and as-
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applied challenges. In Count II, Barrett sought a declaratory judgment, injunctive

relief, and damages for Defendants’ alleged violation of his rights under the

Georgia Constitution based on essentially the same theories as those asserted in

Count I.

In his motion for injunctive relief, Barrett asked the court to consolidate the

grant of preliminary injunctive relief with the grant of permanent injunctive relief

by way of a summary trial on the merits pursuant to Federal Rule of Civil

Procedure 65(a)(2). In support of his request, Barrett contended that no

evidentiary hearing was warranted because the court could grant injunctive relief

by ruling on those claims of his that did not require resolution of disputed facts,

and his claims for damages could be resolved at a later trial.

While Barrett’s motion was pending, the court, in accordance with the

parties’ request, stayed discovery until ten days after the court ruled on the motion.

The court then stayed the entire case, again based on the parties’ request, because

the parties had been in settlement talks and expected that the case could be settled

without the court’s having to rule on Barrett’s motion. The potential settlement

fell through. But instead of ruling on the motion for injunctive relief, the court

referred the case to the magistrate judge for mediation, which was likewise

unfruitful.

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Although Barrett’s motion for injunctive relief was still pending and the

parties had conducted no discovery, Barrett filed a motion in January 2016 for

partial summary judgment. As relevant here, Barrett’s motion sought a declaration

that the Policy was facially unconstitutional as well as a permanent injunction

against the enforcement of the Policy. 5 The motion also clarified that it was

premised on only the argument that the Policy was facially unconstitutional, that it

sought relief against only the District and against Raines in his official capacity,

and that Barrett wanted all other claims (i.e., the as-applied claims and the

remaining claims against the individual defendants) to proceed through discovery.

In support, as relevant on appeal, Barrett contended that the Policy gave

unbridled discretion to Raines. 6 He also notified the court that he “relie[d] on

[only] those facts necessary to support this motion, specifically including

Defendant’s policy and procedure and the minimal facts necessary to support

standing.”

5
Barrett also sought a finding that the District and Raines were liable to Barrett for
damages, but he later conceded that the claims against Raines and Carruth in their official
capacities should be dismissed as long as any injunction entered against the District applied to
Raines and Carruth by virtue of their affiliation with the District. The district court therefore
dismissed the claims against Raines and Carruth in their official capacities.
6
He also complained that the Policy (1) was not content neutral or narrowly tailored and
(2) improperly blocked spontaneous speech and speech on recently occurring matters. The
district court agreed with Barrett on the first of these two contentions but not the second. As
Barrett clarified at oral argument, he has chosen not to defend the district court’s partial
injunction as it relates to the first issue. We therefore vacate those aspects of the injunction and
partial summary judgment without further discussion.
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Barrett’s filing of his motion for partial summary judgment prompted the

court to deny without prejudice the motion for a preliminary and consolidated

permanent injunction. Instead, the court directed the parties to brief the motion for

partial summary judgment.

In response, Defendants filed a motion requesting that their time to respond

to the motion for partial summary judgment be extended until thirty days after the

close of discovery. As Defendants saw it, even though Barrett purported to limit

his basis for summary judgment to his facial challenges to the Policy, Barrett

nevertheless relied on information outside of the pleadings in support of his

motion. Plus, Defendants filed this motion on January 29, and the stay on

discovery was not set to lift until February 5. Because Defendants would have

been required to respond to the motion for partial summary judgment well before

the end of discovery, Defendants asked for the extension of time so that they could

use the factual record that would be developed through discovery to respond to the

factual contentions that Barrett asserted in his motion.

The district court denied Defendants’ request for an extension of time,

finding that Defendants had all the information they needed to respond to the

arguments raised at that juncture. So Defendants later filed their response to

Barrett’s motion for partial summary judgment and their own cross-motion for

partial summary judgment.

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The district court granted in part Barrett’s motion for partial summary

judgment. At the beginning of its legal analysis, the court made clear that,

consistent with the parties’ motions, the court was addressing Barrett’s facial

challenges only—not his as-applied challenges. For that reason, the court

explained that it would “not consider whether the Policy is unconstitutional as

applied to Plaintiff or whether Plaintiff satisfied the Policy’s requirements.” As for

the threshold issue of Barrett’s standing, the court briefly found that, because the

evidence showed that the Policy chilled his speech, Barrett had standing to pursue

his facial claims.

Turning to the merits, as relevant on appeal, the district court first conducted

a forum analysis and determined that the public-comment portions of the Board’s

meetings were limited public fora. It then found the Policy violated the unbridled-

discretion doctrine: by not setting time limits on Raines’s second meeting with

individuals who wish to speak at a public-comment session, the district court

concluded, the Policy gave Raines unbridled discretion to set that meeting at a time

that would preclude the individuals from satisfying the remaining prerequisites for

obtaining permission to speak. But the court did not address Barrett’s argument

that the Policy failed to impose a constitutionally required time limit on when

Raines must schedule an initial—rather than a second—meeting.

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The district court also found that Barrett easily established the elements for a

permanent injunction. So the court permanently enjoined the District, “as well as

its agents, representatives, and employees, from enforcing the Policy.”

As for matters of procedure, the court clarified that Barrett’s as-applied

claims, his claims against the individual defendants in their individual capacities,

and his claims for damages remained pending and would proceed through

discovery.

Defendants appeal, and we now consider whether the Policy granted the

Superintendent unbridled discretion. We also address Barrett’s standing and the

propriety of the district court’s denial of Defendants’ motion for extension of time.

III.

We begin with the threshold issue of standing because if Barrett does not

have standing to pursue his unbridled-discretion claim, then we do not have

subject-matter jurisdiction over the claim. 7 See Strickland v. Alexander, 772 F.3d

876, 883 (11th Cir. 2014). We review questions of standing de novo. See id. at

882.

7
Although “[s]tanding is not dispensed in gross,” and “a plaintiff must demonstrate
standing for each claim he seeks to press and for each form of relief that is sought,” Davis v.
FEC, 554 U.S. 724, 734 (2008) (internal quotation marks and citations omitted), Barrett
presently pursues, for purposes of this appeal, only his facial unbridled-discretion claim. So we
determine Barrett’s standing with respect to that claim only. On remand, Barrett’s standing with
respect to any other claims he may still pursue is for the district court to determine at the
appropriate time and in the appropriate manner.
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Our inquiry is simple in a case involving a facial challenge to a speech

regulation based on a theory of unbridled discretion. It is long-settled that “when a

licensing statute allegedly vests unbridled discretion in a government official over

whether to permit or deny expressive activity, one who is subject to the law may

challenge it facially without the necessity of first applying for, and being denied, a

license.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56

(1988). In other words, a plaintiff has standing to facially challenge a law that

allegedly grants unbridled discretion as long as the plaintiff “is subject to” or

“imminently will be subject to” that particular law. CAMP Legal Def. Fund, Inc. v.

City of Atlanta, 451 F.3d 1257, 1274 (11th Cir. 2006) (internal quotation marks

omitted) (quoting Lakewood, 486 U.S. at 755).

In CAMP, for example, we held that a plaintiff had standing to challenge

regulations that purportedly granted unbridled discretion to city officials because

the plaintiff had applied for permits in the past and intended to apply for permits in

the future, and those permit applications were or would be subject to the

challenged regulations. See id. at 1274-75. We found that it made no difference

that “city officials ha[d] not yet exercised their discretion to refuse [the plaintiff]’s

[permit applications] . . . because it [wa]s the existence, not the imposition, of

standardless requirements that cause[d] [the plaintiff’s] injury.” Id. at 1275.

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Here, it is undisputed that, like the plaintiff in CAMP, Barrett has at least

once in the past applied for permission to speak at a Board meeting and intends in

the future to seek permission to speak at upcoming Board meetings or planning

sessions. That prior request was, and any future requests would be, subject to the

provisions of the Policy that Barrett claims grants the Superintendent unbridled

discretion. And since “the existence, not the imposition, of standardless

requirements . . . causes [Barrett] injury,” id., on this record, 8 and under this line of

precedent within the law of standing, Barrett may pursue his facial unbridled-

discretion claim.

IV.

By limiting to one the claims that he would defend on appeal, Barrett

effectively agreed at oral argument that, as Defendants have urged, the entry of

summary judgment in his favor on the remainder of his claims should be vacated.

So based solely on the parties’ stipulation, and without reaching the merits, we

8
Standing normally is assessed on the pleadings when the parties have not yet conducted
discovery. Here, however, the parties disputed Barrett’s standing as a matter of fact by creating
a factual record limited to that issue. The district court then used that factual record to rule on
standing in granting Barrett’s motion for partial summary judgment. On appeal, however, the
parties do not dispute the narrow set of facts necessary to establish Barrett’s standing for his
facial unbridled-discretion claim. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. May
1981) (explaining that, when a factual attack on subject-matter jurisdiction is premised entirely
on undisputed facts, “our review is limited to determining whether the district court’s application
of the law is correct and . . . th[e] [undisputed] facts are indeed undisputed”). Opinions of the
Fifth Circuit issued prior to October 1, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

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vacate the district court’s entry of summary judgment in favor of Barrett on all

claims other than the facial unbridled-discretion claim.

We therefore consider whether the district court correctly granted summary

judgment in favor of Barrett on his facial unbridled-discretion claim and whether

the district court properly entered a permanent injunction as a remedy for that

claim. We review for abuse of discretion a district court’s decision to grant a

permanent injunction, but in conducting that review, we consider all underlying

legal determinations, including the propriety of the entry of summary judgment, de

novo. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1266 (11th Cir.

2006). Because we review the entry of summary judgment on a facial—as

opposed to an as-applied—challenge to the Policy, we do not concern ourselves

with the facts of Barrett’s particular case—we simply interpret the Policy de novo.

See Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189, 1197 (11th Cir. 1991).

A.

To begin, we address the merits of the unbridled-discretion claim. Perhaps

the plainest example of an unconstitutional grant of unbridled discretion is a law

that gives a government official power to grant permits but that provides no

standards by which the official’s decision must be guided. See Sentinel Commc’ns,

936 F.2d at 1198-99. In these circumstances, the official can grant or deny a

permit for any reason she wishes. Such a grant of unconstrained power is

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unconstitutional under the First Amendment for two reasons: first, it creates an

incentive for speakers to self-censor in hopes of being granted a permit, and

second, it is difficult for courts to determine whether an official’s standardless

permit decision was impermissibly based on content or viewpoint. See Lakewood,

486 U.S. at 757-59.

But unbridled discretion can also exist when a permitting official has no

time limit within which she must make a decision on a permit application. In

Granite State Outdoor Advertising, Inc. v. City of St. Petersburg, 348 F.3d 1278

(11th Cir. 2003), we set forth a framework for determining whether a prior restraint

that imposes no time limit on a permitting official to grant or deny permission to

speak represents an unconstitutional grant of unbridled discretion. See id. at 1281-

83.

Under the Granite State framework, if the prior restraint is content based,

then the lack of a time limit necessarily renders the prior restraint unconstitutional.

See Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1270-72 (11th Cir.

2005). But if the prior restraint is content neutral, then the lack of a time limit does

not necessarily invalidate the regulation. See Granite State, 348 F.3d at 1282 n.6

(holding that “time limits are not per se required when the licensing scheme at

issue is content-neutral”). Rather, the court evaluates whether the content-neutral

prior restraint “contain[s] ‘adequate standards to guide the licensing official’s

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discretion and render it subject to effective judicial review.’” Solantic, 410 F.3d at

1270-71 (quoting Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002)). Driving

this analytical framework is the constitutional concern that an official with

unbridled discretion could censor speech with which the official disagrees by

inordinately delaying a decision on a potential speaker’s application. See id. at

1272.

Barrett assails two parts of the Policy as improperly lacking a time limit: the

scheduling of the initial meeting with the Superintendent and the scheduling of the

alleged “second meeting” with the Superintendent. Defendants argue, as a

preliminary matter, that the Policy does not require a second meeting and that the

district court erred in interpreting the Policy as requiring such a meeting. We agree

with Defendants.

The Policy requires an initial meeting, and then, if the Superintendent

decides to investigate an issue raised in the initial meeting, the Superintendent

must “report back” to the prospective speaker with the results of his investigation

within ten days. In Barrett’s case, that “report back” took the form of a second

meeting, but nothing in the Policy prevents the Superintendent from reporting back

via telephone or e-mail. Regardless of the form of the “report back,” it must take

place within ten days of the initial meeting. The “report back” requirement has a

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time limit, so, at least in this respect, it does not render the Policy unconstitutional

under an unbridled-discretion theory.

The scheduling of the initial meeting, however, has no time limit attached to

it. We therefore engage in the Granite State analysis to discern whether that lack

of a time limit effectively grants the Superintendent unbridled discretion in

contravention of the First Amendment. For the reasons below, we hold that it

does.

1.

Before conducting the Granite State analysis, we consider Defendants’

argument that the unbridled-discretion doctrine does not apply here. According to

Defendants, the unbridled-discretion doctrine applies to only prior restraints on

speech, and the Policy is not a prior restraint. Our precedents recognize that the

unbridled-discretion doctrine applies to prior restraints, see, e.g., Solantic, 410 F.3d

at 1270, but we need not decide today whether the unbridled-discretion doctrine

could somehow be applied beyond the context of prior restraints because the

Policy before us today is indeed a prior restraint.

“A prior restraint on expression exists when the government can deny access

to a forum for expression before the expression occurs.” United States v.

Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000). Permitting ordinances, see

Burk v. Augusta-Richmond County, 365 F.3d 1247, 1250-51 (11th Cir. 2004), and

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licensing ordinances, see Solantic, 410 F.3d at 1270, are classic examples of prior

restraints, but the category is not rigid because court-ordered injunctions that

forbid speech can also be considered prior restraints, see Alexander v. United

States, 509 U.S. 544, 550 (1993). Without a permit or a license, the would-be

speaker subject to the prior restraint cannot legally engage in the speech that the

permit or license authorizes. Prior restraints contrast with “subsequent

punishments,” which regulate a given type of speech by penalizing the speech only

after it occurs. Alexander, 509 U.S. at 550, 553-54; see also Neb. Press Ass’n v.

Stuart, 427 U.S. 539, 559 (1976) (“If it can be said that a threat of criminal or civil

sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the

time.”).

The Policy, although not formally a licensing or permitting scheme, is a

prior restraint and not a subsequent punishment because it prevents members of the

public from speaking at a Board meeting unless they comply with the Policy’s

requirements. Nor are we persuaded by Defendants’ argument that the Policy is

not a prior restraint because the Superintendent has no power to grant or deny a

request to speak so long as the Policy’s prerequisites are satisfied. True, the Policy

does not expressly confer on the Superintendent the right to grant or deny a request

to speak. But the Policy also does not provide that any individual who seeks

permission necessarily gets it.

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It is the Procedures that fill that gap. The Procedures state that an individual

may submit to the Superintendent a request to speak after meeting with the

Superintendent and that the request must include the individual’s name, address,

purpose for making the request, and topic of speech. The Procedures next provide

that “[e]ach person whose name is placed on the agenda will be given five (5)

minutes to make their comments.” But still missing from the Procedures is any

explanation for how an individual’s name gets placed on the agenda.

When we read the Procedures together with the Policy, however, we see that

the Superintendent uses both substantive and procedural criteria to decide who can

speak. The Policy provides that members of the public may “address the Board on

issues of concern” unless the issue of concern is a “complaint against any

employee of the Board.” It also states that the Superintendent may deny access to

a speaker whose speech he deems “repetitive” of another speaker’s speech or

“abusive or disruptive.” The Superintendent likewise enjoys the power to redirect

speech to a “special meeting[]” if he believes that the speech “stimulate[s] high

community interest.” These are substantive criteria that the Superintendent uses to

decide whether to put an individual’s name on the agenda. In addition to these

criteria, the Superintendent uses procedural criteria (attending an initial meeting

with the Superintendent, submitting a written request, complying with time

requirements, etc.) to determine who can speak. Because the Policy prohibits

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speech by those who do not satisfy the Policy’s criteria, the Policy is a prior

restraint.

2.

Courts use “‘forum analysis’ to evaluate government restrictions on purely

private speech that occurs on government property.” Walker v. Tex. Div., Sons of

Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015) (citation omitted). In

forum analysis, we identify the type of government forum involved and then apply

the test specific to that type of forum in evaluating whether a restriction violates

the First Amendment.

Defendants argue that the unbridled-discretion doctrine does not apply to a

limited public forum, such as the public-comment session of a Board meeting. As

an initial matter, we agree with the parties that the public-comment sessions of the

Board’s meetings and planning sessions are limited public fora.9

The Supreme Court has referred to four categories of government fora: the

traditional public forum, the designated public forum, the limited public forum,

and the nonpublic forum. It is undisputed that the public-comment sessions are not

traditional public fora, which are defined as government properties that “ha[ve]

immemorially been held in trust for the use of the public and, time out of mind,

9
We consider the public-comment sessions in particular and not the Board meetings or
Board planning sessions as a whole because forum analysis is limited to the particular part of the
forum to which the would-be speaker has sought access. See Bloedorn v. Grube, 631 F.3d 1218,
1232 (11th Cir. 2011).
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ha[ve] been used for purposes of assembly, communicating thoughts between

citizens, and discussing public questions.” Walker, 135 S. Ct. at 2250 (internal

quotation marks and citation omitted). The quintessential examples of traditional

public fora are streets and parks. See id. As their name suggests, traditional public

fora are defined by history: the Court has stated that this category of government

property does not “extend[] beyond its historic confines.” Id. (internal quotation

marks and citation omitted).

Similar to the traditional public forum is the designated public forum. A

designated public forum is “government property that has not traditionally been

regarded as a public forum [but] is intentionally opened up for that purpose.” Id.

(internal quotation marks and citation omitted). So a designated public forum

consists of government property that has been opened for the purpose of

functioning, more or less, as a traditional public forum, even though it does not

possess the historical pedigree of a traditional public forum. Nevertheless, a

designated public forum differs from a traditional public forum in an important

way: unlike in a traditional public forum, expressive activity in a designated public

forum can be limited to a particular class of speakers instead of being opened to the

general public. See Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677-

80 (1998). But once the designated public forum has been limited to that particular

class, all members of that class must receive general access. See id. at 679-80.

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A limited public forum, by contrast, “exists where a government has

reserv[ed a forum] for certain groups or for the discussion of certain topics.”

Walker, 135 S. Ct. at 2250 (internal quotation marks and citation omitted). Unlike

a designated public forum, then, a limited public forum cannot, by definition, be

open to the public at large for discussion of any and all topics. And a limited

public forum differs from a designated public forum in this respect because a

designated public forum grants “general access” to the designated class, while a

limited public forum can be set up to grant only “selective access” to that class.

Forbes, 523 U.S. at 679-80. Under a system of selective access, members of the

class do not enjoy unhindered access to the forum; instead, each individual

member must obtain permission from the governmental proprietor of the forum,

who in turn has discretion to grant or deny permission. See id.

The final forum category—the nonpublic forum—refers to property at which

the government “act[s] as a proprietor, managing its internal operations.” Walker,

135 S. Ct. at 2251. Earlier Supreme Court precedent used to consider what we

now understand to be nonpublic fora simply “not fora at all,” but at that time, the

term “nonpublic forum” was synonymous with “limited public forum.” Forbes,

523 U.S. at 677-78. The Supreme Court has since clarified that the terms “limited

public fora” and “nonpublic fora” delineate two distinct types of fora. See Walker,

135 S. Ct. at 2250-51.

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Here, the public-comment portions of the Board meetings and planning

sessions fall into the category of limited public fora because the Board limits

discussion to certain topics and employs a system of selective access. First, public

comment is limited to “issues of concern,” and speakers may not raise complaints

against Board employees or engage in “abusive or disruptive” speech. This is

content-based discrimination, which is permitted in a limited public forum if it is

viewpoint neutral 10 and reasonable in light of the forum’s purpose. See Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001).

And second, the Board grants only selective access to speakers: only those

speakers who satisfy the Policy’s substantive and procedural criteria may speak. In

sum, then, the comment sessions are open to the public, but they are not open to

the public at large for discussion of any and all topics. That makes the public-

comment sessions limited public fora. See Rowe v. City of Cocoa, Fla., 358 F.3d

800, 802 (11th Cir. 2004); see also Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d

747, 759 (5th Cir. 2010).

Returning to Defendants’ contention that the unbridled-discretion doctrine

does not apply to limited public fora, we reject that position. Precedent of this

10
“Viewpoint discrimination is . . . an egregious form of content discrimination.”
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Although a
limited public forum may rightly limit speech at the forum to only certain content, the First
Amendment does not tolerate viewpoint-based discrimination against speech within the scope of
the forum’s subject matter. See Good News Club, 533 U.S. at 106-07. Viewpoint discrimination
occurs “when the specific motivating ideology or the opinion or perspective of the speaker is the
rationale for the restriction.” Rosenberger, 515 U.S. at 829.
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Court already compels the conclusion that prior restraints on speech can exist in

limited public fora.

In Atlanta Journal & Constitution v. City of Atlanta Department of Aviation,

322 F.3d 1298 (11th Cir. 2003) (en banc), our Court sitting en banc considered

whether Hartsfield Atlanta International Airport’s newsrack-rental policy vested in

the official charged with administering the policy unbridled discretion to set rental

fees and to choose which rental applications to grant. See id. at 1307. We held

that the discretion granted was unconstitutional because no standards governed the

setting of the rental fee or the criteria upon which publications’ rental applications

were to be granted. See id. at 1310-11. We reasoned that this holding was

necessary because, otherwise, the plan allowed the official who administered it to

make his decisions “for any reason whatsoever, including unconstitutional reasons

such as viewpoint discrimination.” Id. at 1311 (citation omitted).

We identified viewpoint discrimination as a particular evil with which we

were concerned because, earlier in our opinion, we ruled that the airport was a

“nonpublic forum” and that, consequently, viewpoint-based discrimination was, as

a general matter, impermissible in the airport even if content-based discrimination

was permissible. See id. at 1306-07. At the time, we relied on International

Society for Krishna Consciousness, Inc. v. Lee (“ISKCON”), 505 U.S. 672 (1992),

to identify only three potential types of fora at issue: public fora, designated public

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fora, and nonpublic fora. See Atlanta Journal, 322 F.3d at 1306 & n.9. We easily

concluded, based on ISKCON, that the airport was a nonpublic forum.

As we have noted, however, more recent Supreme Court precedent clarifies

that four types of government fora actually exist: the aforementioned three, and

also the limited public forum. See Walker, 135 S. Ct. at 2250-51. And the

Supreme Court has indicated that it has, in the past, used the term “nonpublic

forum” when it should have employed the term “limited public forum.” Compare

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 53-54 (1983)

(referring to “other non-public forum cases”), with Christian Legal Soc’y Chapter

of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 691 (2010)

(transcribing but altering the same quote from Perry as “other [limited public]

forum cases”). Perhaps the airport we denominated in Atlanta Journal as a

“nonpublic forum” is better understood, in today’s parlance, as a limited public

forum; after all, the public was granted selective access to engage in the content-

limited expressive conduct of newspaper circulation.

If that’s true, then we have already applied the unbridled-discretion doctrine

to a limited public forum, and so Atlanta Journal controls. But even if we decline

to engage in a revisionist reading of Atlanta Journal (which would require us to

reinterpret the Supreme Court’s ISKCON decision), and if we instead view Atlanta

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Journal as pertaining to a nonpublic forum, we still must hold that the unbridled-

discretion doctrine applies in limited public fora.

In Atlanta Journal, we applied the unbridled-discretion doctrine because of

the risk that the airport’s unrestrained permitting official would covertly engage in

viewpoint discrimination, which was impermissible in a nonpublic forum, such as

the airport. Limited public fora likewise do not tolerate viewpoint discrimination,

see Good News Club, 533 U.S. at 106-07, so the unbridled-discretion doctrine can

serve the same purpose in a limited public forum that it serves in a nonpublic

forum: combatting the risk of unconstitutional viewpoint discrimination.

Naturally, then, the unbridled-discretion doctrine applies in a limited public forum.

Accord Child Evangelism Fellowship of Md., Inc. v. Montgomery Cty. Pub. Schs.,

457 F.3d 376, 386-87 (4th Cir. 2006).11

11
Just as the unbridled-discretion doctrine applies in a limited public forum, it is also
true, contrary to our concurring colleague’s suggestion, that a prior restraint can exist in a limited
public forum. As we discuss above, the Supreme Court has made clear that speech regulations
fit into one of two categories: prior restraints and subsequent punishments. The Policy fits neatly
within the category of a prior restraint, just as the public-comment sessions of the Board
meetings fit neatly within the category of a limited public forum. A prior restraint is simply a
regulatory mechanism that can be used to deny a speaker permission to speak before the speech
occurs. That type of mechanism can exist in a limited public forum just as easily as it can exist
in any other type of forum. Similarly, an official could operate a prior restraint with unbridled
discretion in a limited public forum just as he could operate it with unbridled discretion in a
forum of another type.
It is true, as our colleague points out, that content-based discrimination is less of a
constitutional concern in limited public fora as it is in traditional and designated public fora. But
it is also true that, although limited public fora are more tolerant of content-based discrimination,
limited public fora are no less inhospitable to viewpoint-based discrimination than any other type
of forum is, and viewpoint discrimination is but “an egregious form of content discrimination,”
Rosenberger, 515 U.S. at 829. And content-based discrimination can still occur in a limited
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3.

Because the Policy is a prior restraint, and because Barrett takes issue with

the lack of a time limit for the initial meeting, we next consider, under the Granite

State framework, whether the Policy is content based or content neutral.

Defendants argue that no risk of content-based discrimination exists here because

the Policy does not require prospective speakers to disclose before the initial

meeting the subject matter about which they wish to speak. And formalistically

speaking, Defendants are correct.

But the unbridled-discretion doctrine is not so formalistic. Governing

precedent establishes that prior-restraint schemes, when put into practice, might

present enough of a risk of chilling otherwise-permissible speech on the basis of

content that the schemes become, for all intents and purposes, content based.

The prior-restraint sign-permitting scheme in Café Erotica of Florida, Inc. v.

St. Johns County, 360 F.3d 1274 (11th Cir. 2004), presented this problem. The

county government in that case argued that the scheme was not content based

public forum subject to a prior-restraint regulation that grants its operating official unbridled
discretion. For example, and as our analysis below suggests, an individual who satisfies a
limited public forum’s criteria for speaking about a particular topic that falls within the range of
permissible content in that forum can nonetheless be excluded from the forum on the basis of
content if the official who operates the prior-restraint regulation has unbridled discretion and
decides to covertly discriminate by delaying approval of the undesirable would-be speaker’s
request to speak.
Finally, we note that we broach the concept of a “prior restraint,” instead of merely
applying the unbridled-discretion line of caselaw, because the Board has raised prior-restraint
issues in its briefing, and our resolution of those issues provides further analytical clarity to what
is undeniably a complex area of the law.
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because the scheme’s permit application did not require applicants to disclose the

messages they intended to put on their signs, so the official who administered the

application process would not be aware of the content of those messages. See id. at

1289.

We rejected the county’s contention for two reasons. First, the permit

application required applicants to indicate, on a more general level, whether their

sign would display commercial or political messages. See id. at 1279, 1287-89.

And second, we were equally concerned with the potential for the permit

administrator to more finely evince the content of applicants’ intended messages

by using context clues. We reasoned that an administrator “can often infer the

content based on the nature of the applicant’s business,” especially when “a long

history of conflict” exists between the business (in that case, an adult-

entertainment business) and the county. Id. at 1289. For these reasons, we

observed that “[w]ithout discretion-checking guidelines, there is a distinct

possibility that the County could decline to issue . . . a permit based on content,”

and that, consequently, the ordinance itself “d[id] in fact distinguish based on

content.” Id.

To reach that conclusion, we relied on Lakewood, in which the Supreme

Court considered a city’s ordinance that required newspapers to apply annually for

licenses to use newsracks. See 486 U.S. at 759. Under this scheme, newspapers

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had to “apply for multiple licenses over time, or periodically renew [their] license.”

Id. The Court discerned that “[w]hen such a system is applied to speech, or to

conduct commonly associated with speech, the licensor does not necessarily view

the text of the words about to be spoken, but can measure their probable content or

viewpoint by speech already uttered.” Id. So a licensor would know, based on its

knowledge of the newspaper, the type of content or viewpoint the newspaper

published and thus the type of content or viewpoint it would likely publish in the

future. With that knowledge in mind, the licensor could covertly discriminate on

the basis of content or viewpoint in granting licenses if his discretion were not

sufficiently cabined. See id. In Café Erotica, we took this reasoning to mean that,

under circumstances like those before us in that case, the potential for content-

based discrimination is so high that the prior restraint must be deemed content

based.

Such circumstances are before us again today. In this close-knit school-

board community, it is quite possible—indeed, likely, in many situations—that the

Superintendent will have an idea of what a prospective speaker’s proposed subject

matter will be before the Superintendent schedules an initial meeting with the

speaker. In a scenario like Barrett’s, for example, a critic of a Board policy who

spoke against that policy at a prior meeting may attempt to speak against it again at

the next Board meeting. The Superintendent can avoid scheduling an initial

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meeting with that critic, preventing him from complying with the Policy, which in

turn bars the critic from speaking at the next meeting, thus censoring that critic’s

point of view.

As an another example, an individual seeking an initial meeting with the

Superintendent could be a representative of an organization with a narrowly

defined purpose, such as a religious group or labor union, and the nature of the

organization could strongly suggest to the Superintendent the group’s topic of

speech—whether in terms of content or viewpoint. In another scenario like

Barrett’s, a speaker could have an initial meeting with the Superintendent, be

placed on the agenda with permission to speak at the next meeting, but then fail to

attend the meeting for whatever reason. If the speaker went through the approval

process again in order to speak at the following meeting, the Superintendent, upon

receiving the speaker’s request for a new initial meeting, would have a pretty good

idea of what the speaker’s intended topic of speech is—and this time around, the

Superintendent might have second thoughts about allowing that speaker to speak.

Nor does anything in the Policy preclude the Superintendent from inquiring

into a speaker’s speech content or viewpoint before scheduling an initial meeting.

Of course, if the Superintendent made such an inquiry, the speaker could respond

that the Superintendent had no right to make the inquiry. But the Superintendent

could take the speaker’s refusal to disclose her topic as an indication that the

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content might not be friendly towards the Board. And many speakers would

simply disclose to the Superintendent the subject matter of their intended speech.

Indeed, in requesting an initial meeting with the Superintendent, some speakers

would disclose their intended topic of speech without being prompted to do so.

These concerns only increase when we consider that related parts of the

Policy are content based. The issues about which the speaker wishes to speak are

discussed at the initial meeting. The Superintendent then has the power to conduct

his own investigation of the issues raised and can further inquire into the potential

content and viewpoint of the speaker’s speech. And once the time comes for the

Superintendent to grant or deny permission to speak, the Superintendent accounts

for various content-based criteria: whether the speech involves “issues of concern”;

whether it involves complaints against Board employees; whether it is “repetitive”

of other speech; whether it is “abusive or disruptive”; and whether the speech

should be redirected to a “special meeting[]” because it “stimulate[s] high

community interest.” The Policy, which allows a searching inquiry into content,

differs from the content-neutral prior-restraint scheme in Granite State, under

which the administering official made only superficial and passing review of the

general content of an application. See 348 F.3d at 1282 & n.3.

In short, the Policy’s requirement that potential speakers schedule an initial

meeting with the Superintendent is content based because it poses enough of a risk

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that speech will be chilled or effectively censored on the basis of content or

viewpoint. And because the initial-meeting provision lacks any time limit with

which the Superintendent must comply, the requirement is unconstitutional under

the Granite State framework. If Defendants wish to continue requiring potential

speakers to meet with the Superintendent before submitting a request to speak,

Defendants must impose a reasonable time limit within which the Superintendent

must respond to the speaker’s request, schedule the initial meeting, and hold the

initial meeting. The district court properly entered summary judgment in favor of

Barrett on his facial unbridled-discretion claim, although we affirm that judgment

solely for the reasons laid out in this opinion.

B.

Next, we address whether the court properly entered a permanent injunction

as the remedy for Barrett’s unbridled-discretion claim. To obtain a permanent

injunction, a plaintiff must show (1) that he has suffered an irreparable injury; (2)

that his remedies at law are inadequate; (3) that the balance of hardships weighs in

his favor; and (4) that a permanent injunction would not disserve the public

interest. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

The elements for a permanent injunction are satisfied here. First, Barrett

suffered an irreparable injury. His right to speak at the February 17 meeting was

violated and his right to speak at future meetings was chilled and could be

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prevented altogether under the Policy. See Siegel v. LePore, 234 F.3d 1163, 1178

(11th Cir. 2000) (en banc) (“The only areas of constitutional jurisprudence where

we have said that an on-going violation may be presumed to cause irreparable

injury involve the right of privacy and certain First Amendment claims establishing

an imminent likelihood that pure speech will be chilled or prevented altogether.”

(citations omitted)). And since Barrett suffered irreparable harm, his remedies at

law were inadequate. See Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d

328, 338 (5th Cir. Unit B 1981)12 (“An injury is ‘irreparable’ only if it cannot be

undone through monetary remedies.”).

As for weighing the balance of hardships, the Board’s need to redraft one

part of the Policy to provide time constraints and the Superintendent’s subsequent

need to be a bit more disciplined in maintaining his schedule hardly compare to the

deprivation of Barrett’s and all other potential speakers’ constitutional right to

engage in free speech. Finally, the injunction does not disserve the public interest.

See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1276 (11th Cir. 2001)

(“[T]he public interest is always served in promoting First Amendment values.”).

Defendants opine that the district court’s injunction actually disserved the

public interest because Defendants discontinued providing public-comment

sessions at Board meetings in light of the injunction, but Defendants confuse the

12
Decisions rendered by Unit B of the former Fifth Circuit constitute binding precedent
in the Eleventh Circuit. Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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issue. The issue is not whether speech should be allowed at all; as the parties

agree, the comment sessions at Board meetings are limited public fora, meaning

that the Board chose, but was not required, to open those portions of its meetings

for public participation. See Rosenberger, 515 U.S. at 829-30. Consequently, the

Board has the power to close its meetings to public comment if it so wishes. The

problem here, rather, is the fact that the Board allows public comment at its

meetings but then maintains policies that have a significant potential to chill

speech on the basis of content and viewpoint. So the district court’s injunction did

not create a new constitutional wrong, as Defendants suggest—it instead remedied

a wrong of Defendants’ creation.13

The district court did not abuse its discretion in granting a permanent

injunction. But because we affirm the district court’s entry of summary judgment

with respect to only the facial unbridled-discretion claim, the district court must

13
We also reject Defendants’ procedural argument that the injunction should be vacated
because Barrett did not argue the elements for permanent injunctive relief in his motion for
summary judgment. Although Barrett did not so argue in his motion for summary judgment, at
the time he filed that motion, his motion for a preliminary and consolidated permanent injunction
was still pending And there, he extensively argued the elements for permanent injunctive relief.
Plus, only after Barrett filed his summary-judgment motion did the district court deny as moot, in
light of the summary-judgment motion, the motion for a preliminary and consolidated permanent
injunction, since the district court erroneously assumed the later motion to be sufficiently
duplicative of the earlier one. Under these circumstances, the court reasonably could have
concluded that denying Barrett an injunction that he was otherwise entitled to merely because of
a mix-up in the briefing that occurred in part because the court was trying to efficiently manage a
case that was becoming increasingly complex, would be inequitable. We also note that the court
enjoyed the benefit of adversarial briefing, since Defendants vigorously disputed the elements
for injunctive relief in their response to Barrett’s motion for a preliminary and consolidated
permanent injunction.
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alter the scope of the injunction on remand so that the injunction remedies only the

harm created by the unconstitutional grant of unbridled discretion that we have

previously discussed.

V.

Defendants assert a number of arguments for why the district court should

have granted their motion for an extension of time so that they could respond to

Barrett’s motion for partial summary judgment after the close of discovery. We

review both the denial of a motion for extension of time and the denial of a motion

seeking discovery under the abuse-of-discretion standard. See Young v. City of

Palm Bay, Fla., 358 F.3d 859, 863-64 (11th Cir. 2004); R.M.R. v. Muscogee Cty.

Sch. Dist., 165 F.3d 812, 816 (11th Cir. 1999).

Defendants first contend that courts hesitate to rule on facial claims without

the benefit of fully developed factual records. To be sure, there are reasons to be

wary of prematurely adjudicating facial challenges. See Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450-51 (2008). But we have

nevertheless recognized that, when facial challenges raise only questions of law

and do not implicate disputed facts, ruling on a facial challenge without waiting for

the parties to complete discovery is entirely proper. See World Holdings, LLC v.

Federal Republic of Germany, 701 F.3d 641, 654-55 (11th Cir. 2012). For the

reasons we have discussed, this is one of those situations.

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Defendants additionally identify a number of issues as to which they wanted

to conduct discovery. But as our discussion of Barrett’s standing and his

unbridled-discretion claim shows, the information Defendants sought was

immaterial to the resolution of those issues. 14 For this reason, the district court did

not abuse its discretion in denying Defendants’ motion.

VI.

We AFFIRM the district court’s entry of summary judgment in favor of

Barrett with respect to his facial unbridled-discretion claim; we VACATE the

entry of summary judgment concerning all other claims adjudicated in Barrett’s

favor; we AFFIRM the court’s denial of Defendants’ motion for extension of

time; and we REMAND this case to the district court for further proceedings

consistent with this opinion, including a modification of the permanent injunction.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

14
Some of the information sought also should have been in Defendants’ possession.
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JULIE CARNES, Circuit Judge, concurring:

I concur in the panel opinion’s holding that the Walker County School

Board’s public comment policy is unconstitutional because it gives the

Superintendent unbridled discretion to prohibit speech that is within the scope of

and otherwise permitted by the policy. 1 I further agree that the proper remedy to

address the constitutional violation is an injunction precluding the Board from

enforcing the policy to the extent it grants such unbridled discretion to the

Superintendent. I write separately, however, because I conclude that the prior

restraint analysis underpinning the panel opinion is not applicable to a comment

policy governing speech in a limited public forum, which is what the school board

meetings in this case were. Instead of applying prior restraint analysis, I would

resolve the appeal simply by applying the unbridled discretion rule as set forth by

this Court in Atlanta Journal and Constitution v. City of Atlanta Department of

Aviation (“AJC”), 322 F.3d 1298 (11th Cir. 2003).

School board meetings are not traditional public fora. See Bloedorn v.

Grube, 631 F.3d 1218, 1231 (11th Cir. 2011) (“Traditional public fora are public

areas such as streets and parks that [historically] have been used for purposes of

1
As the panel opinion correctly observes, Barrett abandoned all other claims on appeal. I
therefore concur in the panel’s holding that the injunction entered by the district court must be
vacated as to the abandoned claims. I also concur in the opinion’s rulings that (1) Barrett has
standing to purse his unbridled discretion claim and (2) the district court did not abuse its
discretion by denying the Board’s motion for an extension of time to conduct discovery.
 Case: 16-11952 Date Filed: 10/02/2017 Page: 42 of 50

assembly, communicating thoughts between citizens, and discussing public

questions.” (internal quotation marks omitted)). Consequently, the public is not

presumptively entitled to attend or speak at such meetings. See Perry Educ. Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (“As we have stated on

several occasions, the State, 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.” (internal quotation marks omitted)). Nonetheless, although it was not

required to do so, the Board has adopted a public comment policy by which the

public is invited to appear at Board meetings and to address the Board at

“appropriate” times, provided the procedural requirements of the policy are met.

Although the policy thus allows for public speech under certain conditions, it

expressly states that the primary purpose of Board meetings is not to provide a

public forum but to conduct the business of the school system. As such, the policy

creates a limited public forum for qualified speakers during the public comment

session of Board meetings. See Bloedorn, 631 F.3d at 1231 (explaining that a

limited public forum is created “when the government limits its property to use by

certain groups or dedicates it solely to the discussion of certain subjects.”

(alterations adopted and internal quotation marks omitted)).

In order to be constitutionally valid, regulations imposed on speech in a

limited public forum must be “reasonable and viewpoint neutral.” Id. In addition,

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and regardless of the type of forum involved, the regulatory scheme must not give

government officials unbridled discretion to prohibit speech that is otherwise

permissible in the forum. See AJC, 322 F.3d at 1310–11 (“A grant of unrestrained

discretion to an official responsible for monitoring and regulating First

Amendment activities is facially unconstitutional.”). In AJC, this Court held that a

plan allowing newspaper publishers to apply for permission to rent and place their

newspapers in city-owned newsracks in the Atlanta airport was unconstitutional

because it lacked clear standards to guide the official charged with granting

applications and setting the rental fee. See id. The Court explained that:

[T]he plan permits the [official] to cancel a publisher’s license for any
reason whatsoever, including unconstitutional reasons such as
viewpoint discrimination. Such unbridled discretion vests broad
censorial power in government and this the Constitution does not
permit.

Id. at 1311.

Although AJC arose in the context of a non-public forum (the Atlanta

airport), its rationale concerning unbridled discretion is equally applicable to a

limited public forum. Specifically, in AJC our Court reasoned that when

government officials have unbridled discretion to regulate speech, the resulting

censorial power creates an unacceptable risk of viewpoint discrimination. Id. The

risk of viewpoint discrimination is at least as much of a concern in a limited public

forum as it is in a non-public forum. See Good News Club v. Milford Cent. Sch.,

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533 U.S. 98, 120 (2001) (concluding that the denial of a religious club’s access to a

limited public forum constituted impermissible viewpoint discrimination in

violation of the First Amendment).

In my view, a straightforward application of the unbridled discretion rule set

forth in AJC resolves this case. As relevant to Barrett’s unbridled discretion

argument, the Board’s public comment policy requires that a would-be speaker

who wants to address the Board about an “issue of concern” first “meet with the

Superintendent and discuss [his] concern.” Following the initial meeting, and any

subsequent investigation and “report back” deemed necessary by the

Superintendent, the speaker must make a written request to the Superintendent “at

least one week prior” to the scheduled Board meeting. The policy, however, does

not place any time constraints on the Superintendent’s scheduling of this initial

meeting, which is a prerequisite to speaking at a Board meeting. Rather, the

Superintendent has the sole discretion to schedule—or to avoid scheduling, as the

case may be—the required initial meeting at his will. In short, by declining to ever

schedule a meeting, or by scheduling a meeting too late to satisfy the requirement

that a putative speaker make his request at least a week before the Board meeting,

the Superintendent has the power to prevent the speech. Thus, because it gives the

Superintendent unbridled discretion to indefinitely delay the required initial

meeting—and thereby prohibit speech that is within the scope of the forum and

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otherwise permissible under the policy—this regulatory scheme is constitutionally

impermissible. See AJC, 322 F.3d at 1310–11.

The panel opinion relies on AJC, but it also purports to apply prior restraint

analysis. I, however, do not think that prior restraint analysis applies to the

Board’s public comment policy, or that it applies more generally in the limited

public forum context. As the opinion points out, prior restraint analysis is most

commonly applied in the permitting and licensing context. See Café Erotica of

Florida, Inc. v. St. Johns Cty., 360 F.3d 1274, 1279–82 (11th Cir. 2004) (applying

prior restraint analysis to a municipal sign ordinance); Solantic, LLC v. City of

Neptune Beach, 410 F.3d 1250, 1270 (11th Cir. 2005) (same); Burk v. Augusta-

Richmond Cty., 365 F.3d 1247, 1250–51 (11th Cir. 2004) (describing a county

ordinance requiring a permit for public demonstrations by groups of five or more

people as a prior restraint); United States v. Frandsen, 212 F.3d 1231, 1236–37

(11th Cir. 2000) (applying prior restraint analysis to a federal regulation requiring a

permit in order to protest in national parks).

The panel cites a few cases in which prior restraint analysis has been applied

in other contexts. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 570 (1976)

(holding that a court-ordered injunction forbidding the media from publishing

information related to an ongoing criminal proceeding was an unconstitutional

prior restraint). But significantly none of the cases cited by the panel apply prior

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restraint analysis to a speech regulation arising in the limited public forum

context. 2 Instead, the cited cases apply prior restraint analysis to speech

regulations imposed on private speech or on speech made in a traditional public

forum.

Prior restraint analysis is readily applicable to regulations imposed on

private speech or on speech made in a traditional public forum, because it

incorporates the same rigorous standards that are generally applicable in those

contexts. See Perry, 460 U.S. at 45 (“In places which by long tradition or by

government fiat have been devoted to assembly and debate, the rights of the state

to limit expressive activity are sharply circumscribed.”). Specifically, a prior

restraint is “presumptively unconstitutional and face[s] strict scrutiny.” Burk, 365

F.3d at 1251. See also Café Erotica, 360 F.3d at 1282 (noting that “any system of

prior restraint bears a heavy presumption against its constitutional validity”

(alterations adopted and internal quotation marks omitted)); Frandsen, 212 F.3d at

1237 (“Although prior restraints are not per se unconstitutional, there is a strong

presumption against their constitutionality.”). Nevertheless, a prior restraint may

2
I recognize that the term “prior restraint” has been used in some non-public forum cases to
describe speech regulations that are subject to a facial constitutional challenge because they grant
government officials unbridled discretion to prohibit disfavored speech. See Sentinel Commc’ns
Co. v. Watts, 936 F.2d 1189, 1197 (11th Cir. 1991). But the panel opinion does more than just
use the term; it incorporates aspects of an analysis that typically applies only to regulations that
are called prior restraints because they either prohibit private expression or deny access to a
public forum before any expression has occurred. I refer to this analysis as “prior restraint
analysis.”
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be constitutionally sound if it qualifies as a content-neutral regulation on the “time,

place, and manner of expression rather than a regulation of content” and if it

“survive[s] intermediate scrutiny.” Burk, 365 F.3d at 1251.

It is difficult to reconcile the above-described strict prior restraint analysis

with the less rigorous standards that govern restrictions imposed on speech in a

limited public forum, however. See Good News Club, 533 U.S. at 106 (“If the

forum is a traditional or open public forum, the State’s restrictions on speech are

subject to stricter scrutiny than are restrictions in a limited public forum.”); AJC,

322 F.3d at 1306 (“When [a government] seeks to regulate speech on government-

owned property which is not a public forum . . . the standard is modified, becoming

more deferential to regulation.”). For example, it is well-established that the

regulation of speech in a limited public forum is only subject to reasonableness

review, rather than strict or intermediate scrutiny. See Bloedorn, 631 F.3d at 1231

(“Any restrictions made on expressive activity in a limited public forum only must

be reasonable[.]”). Likewise, there is no basis in the case law for treating

restrictions on speech as constitutionally suspect in the limited forum context. On

the contrary, such restrictions generally are constitutional as long as they are

reasonable in light of the purpose served by the forum. See Bloedorn, 631 F.3d at

1231. Indeed, the restrictions need not even be the “most reasonable” ones

available. See id.

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Another aspect of prior restraint analysis incongruent to examination of a

limited public forum is its focus on content-neutrality. See Burk, 365 F.3d at 1255

(suggesting that the constitutionality of a prior restraint often depends on whether

the restraint is determined to be content-based and thus subject to strict scrutiny);

Solantic, 410 F.3d at 1270 (emphasizing the importance of content-neutrality in

determining whether a prior restraint is constitutional). As noted, restrictions on

speech in a limited public forum need only be viewpoint-neutral to be

constitutional, not content-neutral. See Bloedorn, 631 F.3d at 1231. The panel

opinion thus recognizes, and the case law clearly establishes, that content-based

discrimination is permissible in a limited public forum as long as viewpoint

neutrality is maintained. See AJC, 322 F.3d at 1306 (“On government property

that has not been made a public forum, not all speech is equally situated, and the

state may draw distinctions which relate to the special purpose for which the

property is used.” (internal quotation marks omitted)); Good News Club, 533 U.S.

at 106 (noting that a limited public forum may be reserved “for the discussion of

certain topics”). In fact, the government’s ability to discriminate between

content—or in other words, to designate the specific topics that can be discussed in

the forum it has created—is a defining feature of a limited public forum. See

Bloedorn, 631 F.3d at 1231 (explaining that the government’s right to make such

distinctions is “implicit in the concept of a government forum that has not been

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opened widely to the general public” (alteration accepted and internal quotation

marks omitted)).

Yet, under the panel opinion’s prior restraint analysis, the constitutionality

of the Board’s public comment policy purportedly hinges on whether the policy is

content-based or content-neutral. Citing Granite State Outdoor Advertising, Inc. v.

City of St. Petersburg, 348 F.3d 1278 (11th Cir. 2003), the opinion notes that the

lack of a time limit necessarily renders a content-based prior restraint

unconstitutional. The panel then conducts a searching inquiry into whether the

policy is content-based and, concluding that it is, holds that the policy is thus

invalid because it does not contain any time constraints for the Superintendent to

schedule the required initial meeting. Again, I agree that the policy is invalid in

this respect, because by giving the Superintendent carte blanche to deny a speaker

an opportunity to speak— simply by delaying the preliminary meeting that is a

prerequisite for that opportunity—the policy allows the Superintendent to

discriminate based on the viewpoint of the intended speaker. But to repeat, I find

the panel opinion’s focus on the absence of content-neutrality in the policy to be

misplaced in what is clearly a limited public forum context.

For these reasons, I respectfully decline to join in the panel opinion’s prior

restraint discussion or in its inquiry concerning whether the Board’s public

comment policy is content-based. Nevertheless, and based on AJC and other

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guiding precedents, I concur in the panel’s holding that the policy is

unconstitutional because it violates the unbridled discretion doctrine. Specifically,

the policy creates a forum for public speech, conditions access to the forum on

having an initial meeting with a government official, and vests in that official the

sole and unfettered discretion to determine when to schedule the meeting. That

amounts to a “grant of unrestrained discretion to an official responsible for

monitoring and regulating First Amendment activities,” which is not permitted by

our governing precedent. AJC, 322 F.3d at 1310. See also Rosenberger v. Rector

and Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995) (“Once it has opened a

limited forum . . . the State must respect the lawful boundaries it has itself set.”).

50