Background
University of Mississippi professor John Rash sought permission to hold PROJECT(ion), a free nighttime art exhibition, on the grounds of the Lafayette County Courthouse. County officials denied his 2020 permit application under a facility-use policy that barred use of the grounds at night. Rash sued, alleging that the policy imposed an unconstitutional prior restraint and unlawful restrictions on speech in a traditional public forum.
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. But the court dismissed without prejudice his challenges to five other permit provisions and his facial vagueness challenge to the curfew for lack of standing. Both sides appealed. While the case was pending, the County amended the policy, including by moving the curfew’s starting time from before dusk to one hour after sunset.
The Court’s Holding
The Fifth Circuit first held that the County’s 2024 amendments did not moot the case. The revised provisions continued to disadvantage Rash in the same fundamental ways: the policy retained a blanket nighttime closure, preserved the insurance-and-indemnification requirement, and continued to regulate advance notice, security fees, permit eligibility, and denials based on health or safety concerns.
The court affirmed the as-applied permanent injunction against the curfew. Even assuming intermediate scrutiny governed, the County produced no evidence that nighttime activity on the courthouse grounds created the asserted public-safety harms, and the across-the-board nightly ban burdened substantially more speech than necessary.
The court also held that Rash had standing to pursue facial First Amendment challenges to the curfew and five other provisions because he intended to organize future events, the provisions would regulate those events, and their threatened enforcement chilled his speech. It affirmed, however, that Rash lacked standing to bring a vagueness challenge to the curfew because his proposed nighttime event was clearly prohibited. The court remanded for consideration of the facial claims on the merits.
Key Takeaways
- Amending a challenged policy does not moot a case when the revised policy continues to disadvantage the plaintiff in the same fundamental way.
- A government cannot justify a blanket speech restriction with conjectural safety concerns; it must show real harms that the restriction directly and materially alleviates.
- Rash may litigate his facial First Amendment claims on remand, but he must show that the policy’s unconstitutional applications substantially outweigh its constitutional applications.
Why It Matters
The decision reinforces that governments regulating expressive activity in public spaces must support their asserted safety interests with evidence and tailor restrictions to those interests. A universal nighttime closure may fail even under intermediate scrutiny when the government cannot connect the prohibited activity to demonstrated harms.
The ruling 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 under the First Amendment.