United States v. John Briasco

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2296
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Victory Through Jesus Sports Ministry *
Foundation, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Lee's Summit R-7 School District, et al., *
*
Defendants - Appellees. *
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Submitted: January 11, 2011
Filed: May 20, 2011
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Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
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LOKEN, Circuit Judge.
Victory Through Jesus Sports Ministry Foundation (“Victory”) commenced this
§ 1983 action seeking injunctive and declaratory relief and damages against Lee’s
Summit R-7 School District (“the District”) and its Superintendent. The complaint
alleged that defendants violated Victory’s rights under the First Amendment and the
Equal Protection Clause of the Fourteenth Amendment by refusing Victory equal
access to the District’s “Backpack Flyers for Students” program. Victory filed a
motion for preliminary injunction, and the parties consolidated the evidentiary hearing
on that motion with trial on the merits. See Fed. R. Civ. P. 65(a)(2). Following the

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1The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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hearing, the district court 1 entered an Order and Opinion denying Victory’s claims for
injunctive relief and damages on the merits. Victory appeals the denial of First
Amendment relief. Reviewing the Order under the standards that apply after a bench
trial, we affirm.
I.
The District serves nearly 100,000 residents in Lee’s Summit and surrounding
communities in a suburban area east and southeast of Kansas City. For many years,
the District routinely granted non-profit organization requests that their informational
flyers be sent home in the backpacks of the District’s elementary school students. By
2005, the District had grown to over 9,000 elementary students, and the volume of
flyer requests had reached burdensome proportions and triggered parental complaints
that children were bringing home too many non-school-related papers. In response,
the District published new “Procedures for Flyer Distribution to Students” that
provided as relevant here:
Due to the overwhelming number of requests the district receives to send
information home with elementary students in their backpacks, the
district limits distribution to not-for-profit organizations and approved
events sponsored by civic groups that directly benefit R-7. . . .
*Exception for district wide backpack distribution: Community youth
organizations will be provided a one-time opportunity to distribute
program flyers at the beginning of school on either the first or second
backpack distribution date.
Victory is a non-profit organization formed to “use sports as evangelism” to
“nurture the spiritual development” of children and to aid in their development as

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2The District had previously adopted a broad “KI” adapted from model policies
circulated by the Missouri School Board Association. The KI began by stating, “It is
the intent of the district to operate a nonpublic forum.” It provided that advertising
on District property or at District events may not include information that is obscene,
libelous, insulting, indecent, vulgar, advertises products not permitted to minors, or
will cause substantial disruption of the school or school activities or the commission
of unlawful acts. The addition of a KI-AP in 2008 was adopted by the District with
advice of counsel.
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leaders and people of character. Victory hosts five-day summer soccer camps, open
to children of all faiths, at which young participants develop soccer skills and are
taught biblical principles focusing on character, integrity, and leadership. In the
spring of 2008, Victory requested for the first time that the District distribute to
elementary students a flyer promoting a “Victory Soccer Camp” that summer. The
District responded that the request was contrary to its once-in-the-fall Procedures,
enclosed a copy of the Procedures, and offered to post Victory’s flyer on the District’s
website if Victory submitted its “not-for-profit status.” Victory did so, and its flyer
was then posted. Victory held its summer soccer camp in June 2008 and “had a
wonderful response from the community.”
In July 2008, the District published a more comprehensive document entitled
“Public Solicitations/Advertising in District Facilities” and identified as a 2008-2009
“KI-AP.”2 The KI-AP included modified Procedures for Informational Flyers:
Flyers that have been approved will be sent home with students and/or
posted on the district’s website.
Only flyers from the following groups/organizations will be approved for
distribution: Lee’s Summit Educational Foundation, PTA, Lee’s Summit
Chamber of Commerce, Lee’s Summit Symphony Orchestra, Lee’s
Summit Parks and Recreation, Greenwood Sports Association, Lee’s
Summit Cares, Longview College for Kids, D.A.R.E., Jackson County,
LS Girls’ Softball Association, LS Baseball Association, LS Football

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Association, LS Soccer Association, LS Junior Basketball, Downtown
Lee’s Summit Main Street, each R-7 school, its Partners in Education*
and its Booster Clubs.
* * * * *
Exception for district wide backpack distribution: Community youth
organizations such as Boy Scouts and Girl Scouts will be provided a one-
time opportunity to distribute program flyers at the beginning of school
on either the first or second backpack distribution date.
Despite knowing of the District’s once-in-the-fall restriction, Victory did not
request distribution of a flyer promoting its planned 2009 summer soccer camp until
January 2009, after the authorized time for distribution of community youth
organization flyers. The District approved Victory’s flyer for website posting only
and declined a letter request from Victory’s counsel that the KI-AP policy be changed
“to allow athletic programs such as Victory Soccer Camp access to the District’s
literature distribution on the same terms and conditions as those organizations
currently permitted to distribute ‘Backpack Flyers.’” Victory then retained a mass
mailing firm to send letters to homes in the District at increased expense to Victory.
Victory commenced this action in October 2009. In December 2009, the
District adopted a 2009-2010 KI-AP allowing community youth organizations such
as Victory to distribute program flyers in September, January, and April. In April
2010, the District approved a flyer promoting Victory’s 2010 summer soccer camp for
backpack distribution. Victory did not request that its flyers be distributed more than
once for its 2010 summer soccer camp in Lee’s Summit.
In dismissing Victory’s claims, the district court found that the District did not
have a policy or practice of permitting the general public to distribute flyers at its
schools; that the District’s sole purpose in adopting the KI-AP was to limit the volume
of promotional materials sent home with students; that in limiting this service the

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District “allocate[d] most of its flyer distribution efforts” to community-based groups
with which it had reciprocal agreements or that had provided longstanding support to
the District; that the District’s decisions limiting distribution of Victory’s flyers were
not based upon Victory’s religious orientation; and that Victory had no present intent
or financial ability to distribute flyers at any time other than in April. On appeal,
Victory does not argue that these findings are clearly erroneous.
II.
The parties agree that Victory’s promotional flyers are speech entitled to First
Amendment protection. But it is well-established that “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). Therefore, Victory
does not have a constitutional right to free distribution of its flyers into the backpacks
of public school children. Rather, Victory has a right not to be denied this service for
constitutionally impermissible reasons if the District chooses to provide the service
to selected speakers.
In defining the parameters of a speaker’s First Amendment right of access to
public property, the Supreme Court looks first to the nature of the forum the public
entity is providing. “The existence of a right of access to public property and the
standard by which limitations upon such a right must be evaluated differ depending
on the character of the property at issue.” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 44 (1983). The greatest protection is provided for
traditional public fora -- public areas such as streets and parks that, since “time out of
mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” Id. at 45 (quotations omitted). Content-
based exclusions from such a forum must be narrowly drawn and necessary to serve
a compelling state interest. Content-neutral regulations must be “narrowly tailored to
serve a significant government interest, and leave open ample alternative channels

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channels of communication.” Id. The same protection is provided to speakers in a
“designated public forum,” defined as “public property which the State has opened for
use by the public as a place for expressive activity.” Id. “The government does not
create a public forum by inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public discourse.” Cornelius v.
NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985).
Victory argues that the District’s “Backpack Flyer” distribution service was a
designated public forum because it was provided to “dozens of private groups.” This
contention is without merit. “That [expressive] activity occurs in the context of the
forum created does not imply that the forum thereby becomes a public forum for First
Amendment purposes.” Cornelius, 473 U.S.C. at 805. Only if the public entity
provides “general access” does the public property become a designated public forum;
if access is “selective,” it is a nonpublic forum. Ark. Educ. Television Comm’n v.
Forbes, 523 U.S. 666, 680 (1998), citing and quoting Cornelius, 473 U.S. at 803, 805.
Here, as in Cornelius, the District intended to restrict access to student backpacks,
particularly when the demand for this service became intolerably great.
When public property is not by tradition or designation a public forum, the
controlling public entity “may reserve the forum for its intended purposes,
communicative or otherwise, as long as the regulation on speech is reasonable and not
an effort to suppress expression merely because public officials oppose the speaker’s
view.” Perry, 460 U.S. at 46. The Supreme Court initially referred to this type of
property as a “nonpublic forum.” See Forbes, 523 U.S. at 679; Cornelius, 473 U.S.
at 805. Some later cases have referred to the opening of government facilities for
limited purposes as creating a “limited public forum.” See Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 106 (2001). But this change in nomenclature has not
changed the governing standard. A limited public forum, like a nonpublic forum, may
be “limited to use by certain groups or dedicated solely to the discussion of certain
subjects,” and the public entity “may impose restrictions on speech that are reasonable

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3These decisions have cleared up circuit court confusion regarding the standard
to apply to limited public fora that we discussed in Bowman v. White, 444 F.3d 967,
975-76 (8th Cir. 2006). The standard is now clear. Controversy remains over the
concept of viewpoint neutrality, particularly when government has restricted access
because of a speaker’s religious orientation, as in Milford, 533 U.S. at 107-12 & n.4.
See Martinez, 130 S. Ct. at 3009 (Alito, J., dissenting).
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and viewpoint-neutral.” Christian Legal Soc’y Chapter of the Univ. of Cal., Hasting
College of Law v. Martinez, 130 S. Ct. 2971, 2984 n. 11 (2010), quoting Pleasant
Grove City v. Summum, 129 S. Ct. 1125, 1127 (2009). 3 The district court properly
applied this standard in analyzing Victory’s claims.
III.
Alternatively, Victory argues that, even if the flyer distribution service was a
nonpublic or limited public forum, Victory is entitled to injunctive relief and damages
because its continued exclusion “from the preferred user ‘backpack flyer’ forum” in
which flyers could be distributed up to once a week throughout the school year was
neither reasonably related to the purposes of the forum nor viewpoint neutral. Like
the district court, we disagree.
A. Reasonableness. Control over access to a nonpublic forum may be based
on the subject matter of the speech, on the identity or status of the speaker, or on the
practical need to restrict access for reasons of manageability or the lack of resources
to meet total demand. See Cornelius, 473 U.S. at 806-09. The restriction on access
must be “reasonable in light of the purpose which the forum at issue serves.” Perry,
460 U.S. at 49. But a restriction “need not be the most reasonable or the only
reasonable limitation.” Cornelius, 473 U.S. at 808. The reasonableness of a
restriction on access is supported when “substantial alternative channels” remain open
for the restricted communication. Perry, 460 U.S. at 53.

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In this case, Victory defines the nonpublic forum as the “Backpack Flyers”
segment of the District’s KI-AP Procedures. But the definition is flawed. As the
district court noted, a principal purpose of the forum was to “educate and inform
students and their parents of local activities or issues involving the community.” That
purpose was served by the District’s website, as well as its physical distribution of
flyers, working in tandem. For example, Dr. Mary Alice Neal, the District’s Assistant
Superintendent for Elementary Instruction, testified that the website potentially
reached a wider audience. Flyers were only sent home in elementary students’
backpacks because the District knew older students would not take them home.
Limitations on backpack flyer distribution were first adopted in 2005 to reduce
the volume to manageable levels and to respond to parent complaints. Those reasons
were reasonably related to the nonpublic forum’s purpose. The District amended the
limitations by adopting KI-AP procedures in July 2008 and December 2009 before
eliminating backpack distribution altogether in July 2010. This evolution is neither
surprising nor sinister, even if prompted in part by Victory’s lawsuit. “[S]chool
officials must remain free to experiment in good faith with new policies to
accommodate the tensions between educational objectives,” the interests of private
parties, and their First Amendment rights. Roark v. S. Iron R-1 Sch. Dist., 573 F.3d
556, 564 (8th Cir. 2009).
Victory contends that it was unreasonably excluded from the Backpack Flyer
program. The evidence at trial established that Victory was not excluded from the
forum, properly defined. Its access was restricted. Victory’s first request for flyer
distribution in the spring of 2008 was denied as untimely. But it was immediately
granted access to the District’s website, which it used to promote a successful soccer
camp that summer. That alternative avenue of communication, without more, made
the limited restriction constitutionally reasonable. See Martinez, 130 S. Ct. at 2991,
and cases cited.

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4In those cases, where restrictions were based upon Establishment Clause
concerns, proof of religious discrimination violating the Free Speech Clause did not
require proof that school authorities disapproved of the private group’s religious
views. In more typical nonpublic forum cases, however, “viewpoint neutral” means
that a restriction may not be “impermissibly motivated by a desire to suppress a
particular point of view.” Cornelius, 473 U.S. at 812-13; see Martinez, 130 S. Ct. at
2993-94; Forbes, 523 U.S. at 682-83; Lee, 505 U.S. at 679; Perry, 460 U.S. at 46.
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Victory’s second request for flyer distribution was made in January 2009. The
request was untimely under the July 2008 KI-AP. The District again posted Victory’s
flyer on its website, and the following school year it amended the KI-AP to permit
distribution of three flyers per year if requested by a non-profit community youth
organization such as Victory. In April 2010, the District distributed a flyer promoting
Victory’s 2010 summer soccer camp, the only distribution Victory requested that year.
Although Victory’s President testified that a policy permitting flyer distribution only
at three specific times was insufficient, “[t]he First Amendment does not demand
unrestricted access to a nonpublic forum merely because use of that forum may be the
most efficient means of delivering the speaker’s message.” Cornelius, 473 U.S. at
809. Victory proved no ongoing or future harm from the District’s decision to classify
Victory under the KI-APs as a community youth organization.
B. Viewpoint Neutrality. Victory argues that its exclusion from the KI-AP
preferred backpack distribution system was not viewpoint neutral because Victory met
or exceeded the District’s articulated viewpoint neutral reasons for granting some
organizations preferred access; therefore, “the only plausible explanation for Victory’s
exclusion from the preferred distribution forum is that it was based upon Victory’s
religious viewpoint.” Victory relies upon Supreme Court decisions holding “that
speech discussing otherwise permissible subjects cannot be excluded from a limited
public forum on the ground that the subject is discussed from a religious viewpoint.”
Milford, 533 U.S. at 112. 4

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Victory’s soccer camps have a religious orientation, and its complaint alleged
religious discrimination. However, unlike the record in Good News/Good Sports
Club v. Ladue School District, 28 F.3d 1501, 1507 (8th Cir. 1994), the undisputed
evidence established, and the district court found, that the District’s responses to
Victory’s requests for distribution of its flyers in student backpacks were in no way
based upon or influenced by Victory’s religious orientation, or by whether District
officials agreed or disagreed with Victory’s point of view. Rather, the district court
found that Victory was not included in the KI-AP preferred group of speakers because
of its status as an organization outside of the District’s community that had no special
relationship with the District. At oral argument, counsel for Victory conceded that its
appeal is not based upon a claim of religious discrimination.
On this record, we conclude that the District adopted reasonable restrictions on
the backpack distribution of flyers to elementary school students, that it applied those
restrictions in a viewpoint neutral manner, and that it imposed no substantial
restriction on Victory’s right to access this nonpublic forum. Therefore, Victory failed
to prove a violation of its First Amendment rights, and the district court properly
denied its claims for injunctive relief and damages.
C. A Facial Challenge. Victory further argues that, even if it was not injured,
it may facially challenge what it characterizes as the unreasonable access granted to
“preferred users” in the KI-APs and the “unbridled discretion” of Assistant
Superintendent Neal to grant preferred access to additional non-profit organizations.
Facial challenges to statutes that restrict speech are granted “sparingly and only as a
last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). To prevail, a plaintiff
must show that a statute is substantially overbroad by demonstrating “that application
of the provision will lead to the suppression of speech.” Nat’l Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998).

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5To the extent Child Evangelism Fellowship v. Anderson Sch. Dist., 470 F.3d
1062, 1068-69 (4th Cir. 2006), is to the contrary, we decline to follow that decision.
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The grant of unbridled discretion in a licensing statute is suspect because it
“constitutes a prior restraint and may result in censorship.” City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 757 (1988). But facial challenges are disfavored for
several reasons. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
450 (2008). Neither the Supreme Court nor this court has ever applied a stringent,
facial standard of judicial oversight to the discretionary decisions of school officials
administering a nonpublic educational forum. See Roark, 573 F.3d at 564. In our
view, Victory’s contrary contention cannot be squared with the Supreme Court’s
decision in Forbes, which upheld a public broadcaster’s ad hoc but reasonable
exclusion of a qualified candidate from a campaign debate over a dissent that objected
to the exercise of “nearly limitless discretion” in controlling a nonpublic forum for
political speech. 523 U.S. at 686 (Stevens, J., dissenting). 5
Moreover, the facts of this case demonstrate that Assistant Superintendent Neal
exercised far less than unbridled discretion. Trial testimony demonstrated that the
“preferred groups” listed in the KI-APs had longstanding ties to the Lee’s Summit
community or strong reciprocal relationships with the District, a rational basis for
granting selective access to a nonpublic forum. The list was compiled with input from
various sources, and of the six other groups granted comparable distribution rights by
Dr. Neal, five distributed materials only to a single school, and all had the same
characteristics as the organizations listed in the KI-APs. This kind of limited
discretion provides the flexibility needed to properly serve the District’s educational
and community-service missions. And non-profit community youth organizations that
were not granted relatively unlimited backpack distribution could post their flyers and
other information on the District’s website and no doubt had other ways of reaching
District families, such as the mass mailing by Victory in 2009. In these
circumstances, case-by-case adjudication of District decisions to deny a particular

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6We are advised that, one month after the district court’s ruling, the District
closed the backpack flyer forum by publishing a revised KI-AP providing that it will
only “post informational flyers from not-for-profit organizations on the district’s
website.” This illustrates the Supreme Court’s caution that facing public entities
operating nonpublic fora “with the prospect of cacophony, on the one hand, and First
Amendment liability, on the other . . . . does not promote speech but represses it.”
Forbes, 523 U.S. at 681-82 (1998).
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speaker’s request for additional distribution of its promotional flyers is more than
adequate to protect the First Amendment rights of all eligible speakers to access this
nonpublic forum. 6
The judgment of the district court is affirmed.
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