Reported / Citable
Background
University of Mississippi professor John Rash sought to hold PROJECT(ion), a free nighttime exhibition involving art projected onto screens and other surfaces, on the grounds of the Lafayette County Courthouse in Oxford. The county denied his 2020 permit application under a facility-use policy that prohibited use of the grounds at night.
After a bench trial, the district court permanently enjoined the county from enforcing the nighttime curfew against Rash, finding it an unreasonable time, place, and manner restriction as applied to his proposed event. The court dismissed without prejudice his facial challenges to the curfew and five other provisions—covering groups of five or more, advance notice, security fees, insurance and indemnification, and permit denial—because it concluded that he lacked standing. The parties cross-appealed.
The Court’s Holding
The Fifth Circuit held that the county’s 2024 amendments did not moot the dispute because the revised policy continued to disadvantage Rash in the same fundamental ways. It affirmed the as-applied permanent injunction: even assuming intermediate scrutiny governed, the county offered no evidence that safety problems around Oxford’s town square extended to the courthouse grounds, and its nightly, weeklong ban with no exceptions burdened substantially more speech than necessary.
The court also held that Rash had standing to pursue a facial First Amendment overbreadth challenge to the curfew and pre-enforcement facial challenges to the other five provisions. His stated plans to seek future permits, together with the provisions’ regulatory and chilling effects, established injury and traceability. But the court agreed that Rash lacked standing to bring a vagueness challenge to the curfew because his proposed nighttime event was clearly prohibited. It affirmed in part, reversed in part, and remanded without deciding the merits of the revived facial challenges.
Key Takeaways
- Minor revisions to a challenged policy do not moot a case when the new policy burdens the plaintiff in the same fundamental way.
- A government invoking public safety to restrict speech must demonstrate real harms and show that its restriction materially addresses them; conjecture is insufficient.
- Rash may pursue facial First Amendment challenges on remand, but he must show that the policy’s unconstitutional applications substantially outweigh its constitutional ones.
Why It Matters
The decision underscores that blanket restrictions on speech in public spaces require evidence and careful tailoring, even when officials characterize them as neutral safety measures. A government cannot justify a comprehensive nighttime ban merely by pointing to generalized concerns elsewhere in the surrounding area.
It also distinguishes standing for vagueness and overbreadth claims: a plaintiff whose own conduct is clearly prohibited may be unable to assert vagueness based on others’ speech while still having standing to challenge the same rule as facially overbroad.