CERTIFICATE OF SERVICE

sought access to perimeter sidewalks running along two city streets, not

interior sidewalks within a university’s campus. It is undisputed that a

university police officer and Mr. Keister believed the sidewalks were

“not part of the University’ s campus.” Keister, 2022 WL 881771, at *2. III. The panel opinion created a split with the Fifth and Sixth

Circuits.

This Court is not the first to confront a dispute about free

expression on public sidewalks along city streets that abut university

property. But it is the first to exalt university control, rather than free

speech, as the preeminent value in those cases. Keister, 2022 WL

881771, at *8–*11. And by doing so, the panel created a split with the

Fifth and Sixth Circuits in the process, despite its claims to the

contrary. 4 Id. at *11.

Take Brister v. Faulkner, which involved public sidewalks along

university property “surrounded . . . by public streets.” 214 F.3d 675,

678 (5th Cir. 2000). Although the sidewalks there were university

owned and the city merely held an easement, id., the Fifth Circuit

followed the Supreme Court’s decision in Grace and ruled they were

traditional public fora for two reasons. First, if there was a government

4 Even though the panel opinion asserts that the Fifth and Sixth Circuits’ decisions involved “clearly municipal sidewalks,” Keister, 2022 WL 881771, at *11, both decisions (as described above) involved public sidewalks that were located on university property.

enclave, “members of the public” could not “be certain when they ha[d]

entered” it, thus “chilling otherwise constitutionally-protected speech.”

Id. at 682. Second, the university retained the ability to “remove anyone

who [actually] interferes with the flow of traffic” or similar neutral and

genuine “university[ ] interests.” Id. at 683.

If Mr. Keister’s case is distinguishable from Brister, it is only

because the traditional public forum here is even more clear. In Brister,

the city held only an easement, but in this case the sidewalks are city

owned and even more distinct from the university’s campus. Keister,

2022 WL 881771, at *3. By classifying them as limited public fora

generally closed to public expression, the panel opinion puts this Court

in conflict with Brister. Id. at *11.

The panel’s holding is equally impossible to reconcile with

McGlone v. Bell, 681 F.3d 718, 726 (6th Cir. 2012). In McGlone, similar

to Brister, the Sixth Circuit considered a sidewalk “on university

property” but adjacent to public streets. It too applied Grace and held

that “perimeter sidewalks along [a university’s] campus are traditional

public fora.” Id. at 732. Placing the burden on the university, the Sixth

Circuit explained that government officials must show sidewalks are

“overwhelmingly specialized” so as “to negate [their] traditional forum

status.” Id. Because the sidewalks in McGlone were “physically

indistinguishable from public sidewalks, they constitute[d] traditional

public fora.” Id. at 733.

Again, the only difference between Mr. Keister’s case and McGlone

cuts in his favor. The sidewalks are not just “indistinguishable from

public sidewalks,” id., they are public sidewalks, and they are owned by

the city. Keister, 2022 WL 881771, at *3. Yet the panel opinion closed

municipal sidewalks to public speech unless individuals comply with

the university’s prior restraints. Id. at *12–*16, That presumptively

violates the First Amendment. McGlone, 681 F.3d at 733 (relying on

New York Times v. United States, 403 U.S. 713, 714 (1971)).

This Court’s precedents on matters of central importance to First

Amendment expression at public universities have previously created

circuit splits that required the Supreme Court to intervene.

Uzuegbunam v. Preczewski, 781 F. App’x 824 (11th Cir. 2019) (relying

on Flanigan’s Enters., Inc. v. City of Sandy Springs, 868 F.3d 1248

(11th Cir. 2017) (en banc)), rev’d by Uzuegbunam v. Preczewski, 141 S.

Ct. 792 (2021). The Court should avoid a similar—and wholly

unnecessary—split of authority here by granting en banc review and

reversing the decision below.

CONCLUSION

The Court should grant en banc review.

Respectfully submitted this 21st day of April, 2022.

/s/ John J. Bursch John J. Bursch Counsel of Record Rory T. Gray Tyson C. Langhofer ALLIANCE DEFENDING FREEDOM 440 First Street NW, Suite 600 Washington, DC 20001 (616) 450-4235 jbursch@adflegal.org

Lincoln Davis Wilson DECHERT LLP Three Bryant Park 1095 Sixth Avenue New York, NY 10036 (212) 698-3500

Counsel for Amicus Curiae

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g), the undersigned certifies that

this brief complies with the type-volume limitations of Fed. R. App. P.

29(b)(4). Exclusive of the sections exempted by Fed. R. App. P. 32(f), the

brief contains 2,421 words, according to the word count feature of the

software (Microsoft Word 365) used to prepare the brief. The brief has

been prepared in proportionately spaced typeface using Century

Schoolbook 14 point.

/s/ John J. Bursch John J. Bursch Counsel for Amicus Curiae

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was filed electronically

with the Court’s CM-ECF system on April 21, 2022. Service will be

effectuated by the Court’s electronic notification system upon all parties

and counsel of record.

/s/ John J. Bursch John J. Bursch Counsel for Amicus Curiae