Richard Hershey v. Dr. John Jasinski, President of Northwest Missouri State University

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1826
___________________________
Richard Hershey
Plaintiff - Appellee
v.
Dr. John Jasinski, President of Northwest Missouri State University, in his official
capacity
Defendant - Appellant
Dr. Jay Johnson, Interim Director of Northwest Missouri State University, Kansas
City Campus, in his official capacity
Defendant
Dr. Pat Harr, Member of the Board of Regents of Northwest Missouri State
University, in his official capacity; Dr. Marilou Joyner, Member of the Board of
Regents of Northwest Missouri State University, in her official capacity; Jason
Klindt, Member of the Board of Regents of Northwest Missouri State University,
in his official capacity; John Moore, Member of the Board of Regents of
Northwest Missouri State University, in his official capacity; Deborah Roach,
Member of the Board of Regents of Northwest Missouri State University, in her
official capacity; Richard Smith, Member of the Board of Regents of Northwest
Missouri State University, in his official capacity; George Speckman, Member of
the Board of Regents of Northwest Missouri State University, in his official
capacity; Roxanna Swaney, Member of the Board of Regents of Northwest
Missouri State University, in her official capacity; Melissa Evans, Member of the
Board of Regents of Northwest Missouri State University, in her official capacity;

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Lt. Anthony Williams, Police Officer for Northwest Missouri State University, in
his individual and official capacity
Defendants - Appellants
___________________________
No. 22-1941
___________________________
Richard Hershey
Plaintiff - Appellant
v.
Dr. John Jasinski, President of Northwest Missouri State University, in his official
capacity
Defendant - Appellee
Dr. Jay Johnson, Interim Director of Northwest Missouri State University, Kansas
City Campus, in his official capacity
Defendant
Dr. Pat Harr, Member of the Board of Regents of Northwest Missouri State
University, in his official capacity; Dr. Marilou Joyner, Member of the Board of
Regents of Northwest Missouri State University, in her official capacity; Jason
Klindt, Member of the Board of Regents of Northwest Missouri State University,
in his official capacity; John Moore, Member of the Board of Regents of
Northwest Missouri State University, in his official capacity; Deborah Roach,
Member of the Board of Regents of Northwest Missouri State University, in her
official capacity; Richard Smith, Member of the Board of Regents of Northwest
Missouri State University, in his official capacity; George Speckman, Member of
the Board of Regents of Northwest Missouri State University, in his official
capacity; Roxanna Swaney, Member of the Board of Regents of Northwest
Missouri State University, in her official capacity; Melissa Evans, Member of the
Board of Regents of Northwest Missouri State University, in her official capacity;

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Lt. Anthony Williams, Police Officer for Northwest Missouri State University, in
his individual and official capacity
Defendants - Appellees
___________________________
No. 22-2236
___________________________
Richard Hershey
Plaintiff - Appellee
v.
Dr. John Jasinski, President of Northwest Missouri State University, in his official
capacity
Defendant - Appellant
Dr. Jay Johnson, Interim Director of Northwest Missouri State University, Kansas
City Campus, in his official capacity
Defendant
Dr. Pat Harr, Member of the Board of Regents of Northwest Missouri State
University, in his official capacity; Dr. Marilou Joyner, Member of the Board of
Regents of Northwest Missouri State University, in her official capacity; Jason
Klindt, Member of the Board of Regents of Northwest Missouri State University,
in his official capacity; John Moore, Member of the Board of Regents of
Northwest Missouri State University, in his official capacity; Deborah Roach,
Member of the Board of Regents of Northwest Missouri State University, in her
official capacity; Richard Smith, Member of the Board of Regents of Northwest
Missouri State University, in his official capacity; George Speckman, Member of
the Board of Regents of Northwest Missouri State University, in his official
capacity; Roxanna Swaney, Member of the Board of Regents of Northwest
Missouri State University, in her official capacity; Melissa Evans, Member of the
Board of Regents of Northwest Missouri State University, in her official capacity;

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Lt. Anthony Williams, Police Officer for Northwest Missouri State University, in
his individual and official capacity
Defendants - Appellants
____________
Appeals from United States District Court
for the Western District of Missouri - St. Joseph
____________
Submitted: February 14, 2023
Filed: November 21, 2023
____________
Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
____________
STRAS, Circuit Judge.
A familiar sight while strolling through a college campus is people handing
out pamphlets, leaflets, and other materials. At Northwest Missouri State
University, they must notify an administrator before distributing “non-University
publications.” The question for us is whether the college’s advance-notice policy
violates the First Amendment. We conclude that the answer is no, so we vacate the
district court’s judgment to the contrary and remand for the entry of judgment in the
defendants’ favor.
I.
Richard Hershey earns money promoting a vegan lifestyle on college
campuses. In September 2015, he visited Northwest Missouri State with a stack of
written materials. The only problem is that he did not review campus policies first.

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Had he done so, he would have learned that the school has rules covering the
distribution of literature on campus. The policy, located in the 2015-2016 Student
Handbook, explained that:
[d]istribution of non-University publications will be unrestricted on the
Northwest campus if:
. . .
• The Vice President of Student Affairs or that person’s designee
is notified prior to the distribution of the materials.
• Distribution is limited to areas deemed appropriate by the Vice
President of Student Affairs or that person’s designee. . . .
• The publication may not contain anything that is defamatory,
obscene, likely to inflict injury or tend to incite immediate
violence (fighting words) or directed to inciting or producing
imminent lawless action.
Hershey’s visit began quietly until one student called campus police to report
a “suspicious male” who was “attempting to pass something out to . . . students.”
The responding officer asked Hershey if he “ha[d] permission” to be there under
“the policy of notifying Student Affairs.” Although Hershey denied needing
anyone’s permission, the officer decided to “show [him] where” he could “ask.”
The next stop was the Office of Student Affairs, but no one was available to
see Hershey. The officer then gave him a choice: either “remain on campus without
distributing leaflets or distribute leaflets off campus, but [he] could not do both.”
Hershey went with a third option: a trespass warning stating that “from this day forth
you are no longer allowed to be in or upon the property of Northwest Missouri State
University . . . . This notice will remain in effect until the Chief of University Police
or his/her designee notifies you of a revocation in writing.” Any violation would
“subject [him] to arrest and prosecution” under state law. With his trespass warning
in hand, Hershey left.
About a year later, Northwest Missouri State updated its policy. Although it
resembles the policy in effect at the time of Hershey’s visit, there is one notable

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exception: it adds anything that is “illegal” or “violate[s] any other University
policy” to the prohibited-publications list.
The story was still far from over. Nearly five years after he visited, Hershey
sued multiple Northwest Missouri State officials under 42 U.S.C. § 1983 to declare
the old and new policies unconstitutionally overbroad and to enjoin their
enforcement. The district court, for its part, treated the two policies as materially
indistinguishable from one another. The main problem, at least in the district court’s
eyes, was that neither required “a decision on the proposed speech within a
reasonable period of time,” which could have the effect of silencing speakers
indefinitely. So it awarded Hershey most of the relief he requested:
1. The Trespass Warning Plaintiff received in September 2015 is
declared null and void;
2. The Student Handbook Policy (and its successor, the Distribution of
Non-University Publications Policy) are declared unconstitutionally
overbroad; and
3. Defendants are required to amend these Policies to conform to First
Amendment principles. They may do so by (1) enforcing the
Policies as a permitting scheme, as they have done in the past, but
ensuring that a University administrator is available to promptly
review and grant or deny permission each time speech is challenged,
or (2) enforcing the Policies as a true notice requirement, without
requiring advance permission before speech occurs.
No one is happy with the outcome. The defendants oppose the injunction, and
Hershey thinks it does not go far enough.1
1 The defendants want us to strike Hershey’s cross-appeal, which they suggest
is just an effort “to sustain the same judgment on a different basis.” Spirtas Co. v.
Nautilus Ins. Co., 715 F.3d 667, 671 (8th Cir. 2013). We disagree, mainly because
he is trying “to enlarge [his] rights” beyond the relief already awarded. Selective
Way Ins. Co. v. CSC Gen. Contractors, Inc., 994 F.3d 952, 955 (8th Cir. 2021)
(citation omitted).

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II.
Before addressing the injunction, we start with jurisdiction. On appeal, the
defendants question Hershey’s standing to bring a facial challenge against Northwest
Missouri State’s literature-distribution policy. If he has no standing, he cannot sue
in federal court. See Dakotans for Health v. Noem, 52 F.4th 381, 385 (8th Cir. 2022)
(reviewing de novo).
Standing has three requirements: (1) an injury in fact; (2) a causal connection
between the injury and the challenged law; and (3) a likelihood of redressability.
See Telescope Media Grp. v. Lucero, 936 F.3d 740, 749 (8th Cir. 2019); see also
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (placing the burden on the party
invoking federal jurisdiction). The nature of Hershey’s claim requires us to address
all three. See Bernbeck v. Gale, 829 F.3d 643, 646–47 (8th Cir. 2016).
The details of the literature-distribution policy dictate why: it has multiple
subparts, and each can operate independently of others. There is an umbrella
clause—“[d]istribution of non-University publications will be unrestricted . . . if”—
followed by seven bullet points, each of which “is distinct and ends with a period.”
Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 344 (2005). The scope-of-subparts
canon instructs us to treat them separately. See id. (applying it when “each [subpart]
may be understood completely without reading any further”); see also Fluor Corp.
v. Zurich Am. Ins. Co., 65 F.4th 387, 389 (8th Cir. 2023) (using the canon).
Hershey challenges two of the seven bullet points. The first one is the
requirement that “[t]he Vice President of Student Affairs or that person’s designee
[be] notified prior to the distribution of the materials.” The second is the newer
policy’s ban on “publication[s]” that contain “anything that is . . . illegal” or
“violate[s] any other University policy.”
In situations like this one, when multiple requirements operate independently
from one another, standing must exist “as to each challenged provision.” CAMP

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Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1273 (11th Cir. 2006) (citing
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 233 (1990) (plurality opinion)).
“[E]stablish[ing] harm under one provision” does not allow a plaintiff to challenge
others. Id.; see Davis v. FEC, 554 U.S. 724, 733 (2008) (explaining that “[t]he fact
that [the plaintiff] ha[d] standing to challenge [one provision of a statute] d[id] not
necessarily mean that he also ha[d] standing to challenge” another).
A.
We start with the requirement of “notif[ying]” an administrator “prior to the
distribution of” non-University publications. Hershey must show that application of
this provision caused an “actual” injury that would be “redress[ed] by a favorable
ruling.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (citation omitted).
The first two standing elements do not pose a problem. After a Northwest
Missouri State police officer ordered him to stop what he was doing when he visited,
Hershey received a trespass warning that prevents him from returning in the future,
even if he provides advance notice. Any attempt to do so would, according to the
warning, result in his arrest. The harm Hershey has already suffered, along with the
chilling effect associated with the “credible threat . . . of present or future [arrest],”
are injuries-in-fact that are “fairly traceable” to the advance-notice requirement.2
Zanders v. Swanson, 573 F.3d 591, 593, 595 n.3 (8th Cir. 2009); see Susan B.
2 “Where the government voluntarily ceases its actions by enacting new
legislation or repealing the challenged legislation, th[e] change will presumptively
moot the case.” Speech First, Inc. v. Schlissel, 939 F.3d 756, 768 (6th Cir. 2019);
see Moore v. Thurston, 928 F.3d 753, 757 (8th Cir. 2019). Here, however, the 2016
advance-notice provision “‘is sufficiently similar to the [one in the 2015 policy] . . .
that [we can] say that the challenged conduct continues.’” Rosenstiel v. Rodriguez,
101 F.3d 1544, 1549 (8th Cir. 1996) (quoting Ne. Fla. Chapter of the Associated
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 n.3 (1993)). Any
prospective relief will necessarily target the 2016 version—the one still in effect—
so it becomes our focus for the remainder of the opinion.

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Anthony List v. Driehaus, 573 U.S. 149, 164 (2014) (stating that “the threat of future
enforcement” is “substantial” when “there is a history of past enforcement”).
Hershey’s injuries are also redressable. The district court could—and actually
did—remedy his continued exclusion from campus by declaring the trespass
warning “null and void.” See Lujan, 504 U.S. at 562 (explaining that, when an action
causes the plaintiff’s injury, “a judgment preventing . . . the action will redress it”).
Not to mention that enjoining the advance-notice requirement altogether would give
him the unconditional option to return to campus and distribute his materials. The
point is that a “favorable decision” would “redress” most of his injuries. Sisney v.
Kaemingk, 15 F.4th 1181, 1194 (8th Cir. 2021).
B.
The prohibited-speech provision is more complicated. There are two
versions: the one in effect when Hershey visited in 2015 and the current one. The
parties and the district court treat them as “virtually” the “same,” but the addition of
two new prohibited categories makes the one in effect today different from its
predecessor. “[S]tanding is not dispensed in gross,” so we must examine them one
at a time. Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (explaining that the “right
to complain of one . . . deficiency” does not “automatically confer[] the right to
complain of all . . . deficiencies”).
The original version, which prohibited the distribution of material
“contain[ing] anything . . . defamatory, obscene, likely to inflict injury or tend[ing]
to incite immediate violence (fighting words) or directed to inciting or producing
imminent lawless action,” played no role in the denial of access during his visit or
the issuance of the trespass warning. In causal terms, neither injury was “directly
traceable” to application of the prohibited-speech provision. California v. Texas,
141 S. Ct. 2104, 2117 (2021).

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Nor was any injury he suffered directly traceable to the new prohibited-speech
provision, which was not even in effect until a year after he visited campus. A pre-
enforcement challenge might have been possible, but he does not suggest that he
“intend[s] to engage in a course of conduct” that includes distributing materials the
new policy prohibits. Susan B. Anthony List, 573 U.S. at 159 (citation omitted).
Without at least a “credible threat of enforcement” against him, Hershey has no
standing to challenge the current version either.3 Telescope, 936 F.3d at 750
(quoting Susan B. Anthony List, 573 U.S. at 159)).
III.
We now turn to the merits of the First Amendment challenge that Hershey can
bring, which is against Northwest Missouri State’s advance-notice requirement.
Hershey’s arguments against it are that it regulates speech based on its content and
serves as an impermissible prior restraint on speech.
Yet rather than focus on how Northwest Missouri State officials applied the
requirement to him, Hershey has decided to mount a facial challenge to prevent “all
enforcement of” it. Virginia v. Hicks, 539 U.S. 113, 118 (2003). Succeeding on a
facial overbreadth challenge like this one requires him to show that “a substantial
number of [the policy’s] applications are unconstitutional, judged in relation to [its]
3 There is a single sentence in Hershey’s reply brief arguing that he can
challenge the version in effect today on behalf of others whose speech it chills. We
are skeptical, see United States v. Hansen, 599 U.S. 762, 769 (2023) (“[L]itigants
typically lack standing to assert the constitutional rights of third parties.”), but
regardless, this argument comes too little, too late, see Ahlberg v. Chrysler Corp.,
481 F.3d 630, 634 (8th Cir. 2007) (“[P]oints not meaningfully argued in an opening
brief are waived.”); see also Am. Fam. Ins. v. City of Minneapolis, 836 F.3d 918,
925 (8th Cir. 2016) (Murphy, J., concurring) (“Our duty to consider unargued
obstacles to . . . jurisdiction does not affect our discretion to decline to consider
waived arguments that might have supported such jurisdiction.” (quoting United
States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 n.2 (10th
Cir. 1996)).

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plainly legitimate sweep.” Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449 n.6 (2008) (citation omitted); cf. United States v. Stevens, 559
U.S. 460, 472 (2010) (explaining that, outside this context, a facial attack requires a
showing that “no set of circumstances exist[] under which [the statute] would be
valid” (citation omitted)).
With facial challenges, “we do not look beyond the text,” Freedom Path, Inc.
v. IRS, 913 F.3d 503, 508 (5th Cir. 2019), meaning that Hershey’s claim must rise
or fall on what the advance-notice policy says, “not . . . its application to [his]
particular circumstances.” Id. (quoting Field Day, LLC v. County of Suffolk, 463
F.3d 167, 174 (2d Cir. 2006)). Our review is de novo. See Advantage Media, L.L.C.
v. City of Eden Prairie, 456 F.3d 793, 798 (8th Cir. 2006).
A.
The First Amendment, which applies to the states through the Fourteenth
Amendment, prohibits laws “abridging the freedom of speech.” U.S. Const.
amend I. Universities are “not enclaves immune from [its] sweep.” Healy v. James,
408 U.S. 169, 180 (1972). To the contrary, public institutions like Northwest
Missouri State, see Mo. Rev. Stat. §§ 174.020, 174.283, which operate as an arm of
the state, see NCAA v. Tarkanian, 488 U.S. 179, 183 (1988); Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000), are often at the center of First
Amendment controversies.
The location of the speech makes a difference. The general rule is that a
speaker’s level of access depends on the “character” of the government-owned
property. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44
(1983). Speech is most open in traditional public forums, which have a “long
tradition” of allowing “expressive activities.” Bowman v. White, 444 F.3d 967, 975
(8th Cir. 2006) (first quoting Perry, 460 U.S. at 45; and then quoting United States
v. Grace, 461 U.S. 171, 177 (1983)). They include “streets, sidewalks, and parks.”
Id. (quoting Grace, 461 U.S. at 177). Other locations, called limited public forums,

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are “reserved . . . for certain groups or for the discussion of certain topics.” Walker
v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 215 (2015)
(brackets omitted) (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515
U.S. 819, 829 (1995)). One example is a meeting room on campus open only to
student organizations. See Rosenberger, 515 U.S. at 829–30. Finally, some
government-owned property is not open to public speech at all. See Perry, 460 U.S.
at 46–47 (describing nonpublic forums).
Unsurprisingly, Northwest Missouri State’s campus “contains a variety of
fora.” Bowman, 444 F.3d at 976. The advance-notice requirement applies
everywhere “on the Northwest campus,” from public sidewalks to classrooms and
faculty offices. Given that the First Amendment allows greater restrictions on public
speech the less an area resembles a traditional public forum, Hershey arguably loses
his facial challenge because the plainly legitimate sweep of the policy predominates
over the potentially unconstitutional applications. See Wash. State Grange, 552 U.S.
at 449. There is, for example, little question that Northwest Missouri State could
require advance notice if Hershey wanted to hand out literature in a limited public
forum like a classroom or a nonpublic forum like a faculty office.
The converse is also true. If Northwest Missouri State’s advance-notice
requirement is consistent with the First Amendment in a traditional public forum
like a sidewalk, then it follows that the school can constitutionally apply it in areas
less receptive to public speech, like classrooms and faculty offices. The point is that,
if Hershey cannot establish that it is unconstitutional in the context of a campus
sidewalk, which Missouri law designates as a public forum, see Mo. Rev. Stat.
§ 173.1550.2, then it will be impossible for Hershey to show that it violates the First
Amendment at all, much less in “a substantial number” of applications, Wash. State
Grange, 552 U.S. at 449 n.6 (citation omitted). He will, in other words, lose his
facial challenge.

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B.
In a traditional public forum, the level of scrutiny depends on how a regulation
operates. If it “target[s] speech based on its communicative content”—a so-called
content-based regulation—it must pass strict scrutiny. City of Austin v. Reagan Nat’l
Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) (quoting Reed v. Town of Gilbert,
576 U.S. 155, 163 (2015)). Only “regulation[s] [that] serve a compelling state
interest and [are] narrowly drawn to achieve that end” will survive. Perry, 460 U.S.
at 45.
Other regulations apply without regard to the “communicative content” of the
speech. City of Austin, 596 U.S. at 69. In traditional public forums, the government
can “enforce . . . time, place, and manner” restrictions if they are content neutral,
“narrowly tailored to serve a significant government interest, and leave open ample
alternative channels of communication.” Perry, 460 U.S. at 45. This test, a form of
intermediate scrutiny, does not require the government to use the “least restrictive
or least intrusive means” of regulation. Ward v. Rock Against Racism, 491 U.S. 781,
798 (1989); see id. at 800 (explaining that “the regulation will not be invalid simply
because a court concludes that the government’s interest could be adequately served
by some less-speech-restrictive alternative”).
The advance-notice requirement is content neutral. It requires all speakers to
“notif[y]” an administrator before distributing any non-University publications on
campus. As the district court explained, this blanket policy furthers Northwest
Missouri State’s “interest in maintaining order . . . and preventing disruptive or
destructive conduct.” See Ross v. Early, 746 F.3d 546, 555 (4th Cir. 2014) (holding
that similar interests were substantial). Hershey does not argue otherwise. Nor does
he dispute that his visit might have gone differently if he had informed an
administrator in advance. The point is that the requirement imposes only a slight
burden on speakers—a narrowly tailored one that serves important government
interests. See Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 864
F.3d 905, 915 (8th Cir. 2017) (upholding a regulation because it “promote[d] a

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substantial government interest that would be achieved less effectively absent the
regulation” (quoting Ward, 491 U.S. at 799)).
It is true, as Hershey argues, that only individuals who wish to distribute
“non‑University publications” must provide advance notice. But there is a
difference between a content-based restriction, which focuses on what a publication
says, and one that turns on where it was printed. See Bloedorn v. Grube, 631 F.3d
1218, 1236 (11th Cir. 2011) (deeming a university’s speech policy content neutral
because “[a]ll outside, non-sponsored speakers must comply in the same way with
the policy” regardless of “who the speaker may be or . . . the nature of the topic”
addressed). It is the “what” that matters in distinguishing content-based restrictions
from content-neutral ones. And here, individuals must provide advance notice
regardless of “topic or subject matter.”4 City of Austin, 596 U.S. at 71.
C.
Hershey’s other argument is less about content and more about timing. He
views the advance-notice requirement as a form of censorship, a so-called prior
restraint on speech. See Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002)
(describing prior restraints); Alexander v. United States, 509 U.S. 544, 550 (1993)
(same); see also 4 William Blackstone, Commentaries *151 (distinguishing between
“previous restraints upon publications” and “censure for criminal matter when
published”). Prior restraints come “bearing a heavy presumption against [their]
constitutional validity.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975)
(citation omitted).
4 It also would not matter if, as the district court thought, administrators could
“deny permission to some speakers who wish to engage in protected activity on
campus.” Discretion does not destroy content neutrality, unless “the topic
discussed[,] or the idea or message expressed” drives the decision. City of Austin,
596 U.S. at 69 (quoting Reed, 576 U.S. at 163)).

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To overcome the presumption, the Supreme Court has laid out a series of
procedural requirements. Id. at 559. Among others, there must be “judicial
superintendence” and “an almost immediate judicial determination of the validity of
the restraint.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see Freedman
v. Maryland, 380 U.S. 51, 58–59 (1965) (laying out three specific requirements). In
Hershey’s view, Northwest Missouri State’s advance-notice requirement is facially
unconstitutional because no safeguards are present.
They do not have to be, however, because the policy does not impose a prior
restraint. It says that “[t]he distribution of non-University publications will be
unrestricted on the Northwest campus if . . . [t]he Vice President of Student Affairs,
or designee, is notified prior to the distribution of the publication materials.”
(Emphasis added). The policy makes clear what speakers must do: “notif[y]” an
administrator in advance. See The American Heritage Dictionary of the English
Language 1206 (5th ed. 2016) (defining “notify” as “[t]o give notice to; inform”);
Webster’s Third International Dictionary 1545 (2002) (defining it as “to give notice
of; make known”). That’s it. It does not allow an administrator to deny permission,
meaning it does not “make[] the peaceful enjoyment of freedoms which the
Constitution guarantees contingent upon the uncontrolled will of an official” who
can deny “a permit or license.” Shuttlesworth v. City of Birmingham, 394 U.S. 147,
151 (1969) (citation omitted); see Powe v. Miles, 407 F.2d 73, 84 (2d Cir. 1968)
(Friendly, J.).
There are other textual clues that “noti[ce]” is the only requirement. The
policy does not require advance submission of publications, much less call for an
administrator to approve them. Nor is there any mention of a permit or license, see,
e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 126 (1992) (discussing
an ordinance that, among other things, explicitly “provide[d] for the issuance of
permits for parades, assemblies, [and] demonstrations”), let alone instructions on
how to get one, see, e.g., Douglas v. Brownell, 88 F.3d 1511, 1514 & n.3 (8th Cir.
1996) (explaining the information that a parade-permit application required under a
city ordinance). The only obligation, in other words, is “that notice be given [in

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advance], not that approval be obtained.” Powe, 407 F.2d at 84; see also FW/PBS,
Inc., 493 U.S. at 226 (explaining that one of the evils of a prior restraint is the
opportunity for censorship).
It is true that, by stating that distribution “will be unrestricted” with advance
notice, the policy arguably implies that it “will be” restricted without it. But there is
still no prior restraint unless a speaker must also get advance “permission from a
government official.” Citizens United v. Schneiderman, 882 F.3d 374, 387 (2d Cir.
2018); see id. at 386–87 (describing “the two traditional types of prior restraint” as
“preventing the printed publication of disfavored information” and “set[ting] up an
administrative apparatus with the power and discretion to weed out disfavored
expression before it occurs” (emphases added)). And here, none is required.
Every textual clue in Northwest Missouri State’s policy points to a
“constitutional . . . reading” of its advance-notice requirement. Spradlin v. City of
Fulton, 924 S.W.2d 259, 263 (Mo. banc 1996); see Sisney, 15 F.4th at 1198
(explaining that we interpret state statutes in accordance with state interpretive
principles). But even if a prior-restraint reading were “equally possible,” Spradlin,
924 S.W.2d at 263, the constitutional-avoidance canon would still require us to treat
it as a time, place, and manner restriction—the less constitutionally problematic of
the two possibilities. See United States v. Hansen, 599 U.S. 762, 781 (2023)
(applying the constitutional-avoidance canon in a similar way).
Hershey’s final argument is a reminder of what is not before us. He urges us
to treat the advance-notice requirement as a prior restraint, despite its clear language
to the contrary, because a campus police officer told him he needed permission from
an administrator before he could distribute anything. If this were an as-applied
challenge, Hershey might have a point. See Gerlich v. Leath, 861 F.3d 697, 704–07
(8th Cir. 2017) (holding that a policy was unconstitutional as applied, in part because
officials required the plaintiffs to get approval). But in a facial challenge, only the
text matters, see Wash. State Grange, 552 U.S. at 449–50, meaning that what the
officer thought or said at the time is irrelevant. See Porter v. City of Philadelphia,

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975 F.3d 374, 391 (3d Cir. 2020) (explaining that any discussion of how an official
implemented or applied a policy does not matter for a facial challenge).
* * *
The procedural safeguards that must accompany prior restraints do not apply
to content-neutral time, place, and manner restrictions. See H.D.V.-Greektown, LLC
v. City of Detroit, 568 F.3d 609, 621 (6th Cir. 2009). Indeed, the Supreme Court
“[h]as never required . . . a content-neutral permit scheme regulating speech in a
public forum” to have them, Thomas, 534 U.S. at 322 (emphasis added), much less
one with no permit requirement at all, see Boardley v. U.S. Dep’t of Interior, 615
F.3d 508, 518 (D.C. Cir. 2010) (describing Freedman as “appl[ying] only to content-
based censorship regimes” (citation omitted)); see also Thomas, 534 U.S. at 322
(recognizing Freedman as “inapposite” when an ordinance was “not subject-matter
censorship but [a] content-neutral time, place, and manner regulation of the use of a
public forum”).
No matter the First Amendment theory, Hershey has not shown that the
advance-notice requirement has “a substantial number” of unconstitutional
applications. Wash. State Grange, 552 U.S. at 449 n.6 (citation omitted). It is
neither content based nor an impermissible prior restraint on speech, meaning it can
remain in place.5
IV.
One last loose end. The district court awarded Hershey $68,572.48 in attorney
fees and costs, which was most of what he requested. Under 42 U.S.C. § 1988, “a
5 Hershey also believes the policy is “unconstitutionally vague” because it
lacks clarity and detail. The district court declined to consider this point because his
pleadings never mentioned it. We do too. See Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 603 (8th Cir. 2009) (“[O]rdinarily, we do not decide issues that the district
court did not adjudicate.” (Citation omitted)).

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district court may award [both] to a prevailing party in a lawsuit brought to enforce
a provision of § 1983.” Williams v. City of Carl Junction, 523 F.3d 841, 843 (8th
Cir. 2008). Now, however, Hershey is no longer a “prevailing party,” so he cannot
receive either. See Clark v. Kan. City Mo. Sch. Dist., 375 F.3d 698, 703 (8th Cir.
2004) (reaching the same conclusion when the party awarded attorney fees was “no
longer the prevailing party” after we reversed the district court’s judgment).
V.
We accordingly vacate the judgment of the district court and remand for the
entry of judgment in the defendants’ favor.
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