Powell v. Ryan, et al., No. 16-1190 (8th Cir.) (May 2, 2017)

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Plaintiff Powell assumed a spot on the sidewalk near the entrance to the Iowa State Fairgrounds, a major event that more than a million people visit each year.  Powell held a sign on a stick that portrayed a religious message, and engaged in conversation with passersby.

Police told Powell to move across the street.  He complied briefly, then left, returning the next day to the spot by the entrance.  Powell received an ejection notice, the violation of which would subject him to arrest if he returned to the fairgrounds that year.

Powell sought and obtained a preliminary injunction that would permit him to be present at the fairgrounds in a space where he would not impede traffic.

In response to Powell’s suit for First Amendment and due process violations, defending state officials said Powell had violated the fairground’s “unwritten rules.”  Those rules forbade impeding traffic and forbade carrying signs on poles.

In an initial appeal, the Eighth Circuit opined that Powell would not likely prevail on his First Amendment claims.  No constitutional infirmity could be found, as he was required only to observe content neutral reasonable restrictions in a limited public forum.

On remand, the trial court found no support for enjoining any activity on due process grounds.  No chilling effect on Powell’s rights could be found.  Powell complained that the district court overlooked his First Amendment vagueness challenge because of the Eighth Circuit’s earlier observations.

Those Difficult-to-Follow “Unwritten Rules”

Powell argued that the “unwritten rules” failed to provide fair notice of what was prohibited and failed to avoid arbitrary and discriminatory enforcement.

Given that the Eighth Circuit had earlier perceived no “chilling” effect was precipitated by reasonable and neutral time and place restrictions, the court inferred that Powell must be asserting that the allegedly vague rules rendered unknowable the proper boundaries between permissible and impermissible activity.

The vagueness doctrine ordinarily applies where speech is chilled by the threat of criminal punishment.  Where criminal consequences would attach only if Powell disregarded the ejectment order and trespassed, the gravity of vagueness claims was attenuated.   “Unwritten rules” do not necessarily violate the First Amendment.  The rules in Powell’s case have some standards, and Powell, aware of them now, and need not guess at how to comply.

Vagueness challenges cannot be succeed where absolute precision cannot be obtained. Most would understand what it means to impede traffic, and some latitude is permitted law enforcement in its work.

Powell could not obtain prospective injunctive relief on due process grounds. Powell may not have been aware of the rules in the past, but is aware now, making future injunctive relief unnecessary.

A Very Critical “Concurrence”

Writing separately, one judge concurred only in the determination that injunctive relief could not be granted, but otherwise criticizing sharply the majority’s thinking.

Criminal consequences need not be inextricable to offend speech freedoms.  Where disregarding the ejectment notice would mean Powell would be arrested, it is difficult to find criminal consequences remote.

Distinguishing vagueness principles in First Amendment and due process claims, as the majority had done, made no sense to the concurring justice, as each such vagueness concepts are deeply entrenched in both.  Where an individual can only guess at what the law requires, fundamental due process protections are violated.

While established practice may save an unwritten rule from First Amendment challenge, it does not follow that the same requirement would save a due process challenge.  The “unwritten rules” in issue here seem to have materialized to justify the state’s conduct. No solid history of practices was presented.

Due Process Deprivations Do Not Automatically Compel Findings of Irreparable Harm

As Powell had no notice of the unwritten polices, his due process interests were implicated.  Nonetheless, while even brief deprivations of First Amendment freedoms automatically compel findings of irreparable harm, the same is not true in the context of due process.  As in the absence of irreparable harm injunctive relief could not issue, the concurrence joined in the majority’s ultimate resolution of the appeal.

Powell v. Ryan (8th Cir., 2017)