No.

20-3052 & 20-3053

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

CISSY THUNDERHAWK; WAŠTÉ WIN YOUNG; REVEREND JOHN

FLOBERG; and JOSÉ ZHAGÑAY,

PLAINTIFFS-APPELLEES,

v.

SHERIFF KYLE KIRCHMEIER; GOVERNOR DOUG BURGUM; FORMER

GOVERNOR JACK DALRYMPLE; DIRECTOR GRANT LEVI; and
SUPERINTENDENT MICHAEL GERHART JR,

DEFENDANTS–APPELLANTS.

On Appeal from the United States District Court

for the District of North Dakota
Honorable Judge Daniel M. Traynor, District Judge

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION AND

AMERICAN CIVIL LIBERTIES UNION OF NORTH DAKOTA IN
SUPPORT OF PLAINTIFFS–APPELLEES AND AFFIRMANCE

Vera Eidelman Andrew Malone

American Civil Liberties Union American Civil Liberties Union of North
Foundation Dakota, South Dakota, and Wyoming*
125 Broad Street PO Box 1170
New York, NY 10004 Sioux Falls, SD 57101
Tel.: (212) 549-2500 Tel.: (678) 416-8970
veidelman@aclu.org amalone@aclu.org

*Admitted only in South Dakota

Counsel for Amici Curiae

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 CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, amicus curiae American Civil Liberties

Union and American Civil Liberties Union of North Dakota state that they do not

have a parent corporation and that no publicly held corporation owns 10% or more

of their stock.

Dated: January 29, 2021 By: /s/ Vera Eidelman

Vera Eidelman

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 TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF CONTENTS ......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF INTEREST ................................................................................ 1
INTRODUCTION .................................................................................................... 2
ARGUMENT............................................................................................................ 3
I. STREETS, INCLUDING ROADS, ARE QUINTESSENTIAL
TRADITIONAL PUBLIC FORUMS. ............................................................. 3
A. Streets hold a special significance as this nation’s archetypical space for
public speech and association. ..................................................................... 3
B. Courts have applied the rule that streets are traditional public forums
categorically. ................................................................................................ 6
C. The traditional public forum status of streets is so clear that courts
compare other spaces to streets to determine their forum status. ............... 10
II. THE GENERAL RULE THAT STREETS ARE TRADITIONAL PUBLIC
FORUMS HOLDS FOR RURAL ROADS, HIGH-SPEED ROADS, AND
MULTI-LANE ROADS. ................................................................................ 12
A. Rural roads, high-speed roads, and multi-lane roads have served as
sites of protest throughout our nation’s history. ......................................... 12
B. Courts have specifically applied the categorical rule to rural roads. ........... 18
C. Holding that rural roads, absent limited exceptions, are traditional
public forums would not hinder the government’s ability to keep roads
safe, and it would promote free speech and judicial efficiency. ................ 20
III. EVEN WITHOUT A CATEGORICAL RULE, THE DISTRICT COURT’S
DECISION TO DENY DEFENDANTS’ MOTION TO DISMISS WAS
CORRECT. .................................................................................................. 23
CONCLUSION ...................................................................................................... 24
CERTIFICATE OF COMPLIANCE...................................................................... 26
CERTIFICATE OF SERVICE ............................................................................... 27

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 TABLE OF AUTHORITIES

Cases
Ass’n of Cmty. Orgs. for Reform Now v. St. Louis Cty.,
930 F.2d 591 (8th Cir. 1991) ................................................................................ 8
Ater v. Armstrong,
961 F.2d 1224 (6th Cir. 1992) .............................................................................. 9
Ball v. City of Lincoln,
870 F.3d 722 (8th Cir. 2017) .................................................................... 8, 11, 12
Boos v. Barry,
485 U.S. 312, 318 (1988) ..................................................................................... 7
Bowman v. White,
444 F.3d 967 (8th Cir. 2006) .................................................................... 8, 11, 18
Brindley v. City of Memphis,
934 F.3d 461 (6th Cir. 2019) ........................................................................ 10, 19
Brown v. California Dep't of Transp.,
321 F.3d 1217 (9th Cir. 2003) ............................................................................ 20
City of Ladue v. Gilleo,
512 U.S. 43 (1994) ............................................................................................... 5
Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288 (1984) ........................................................................................... 21
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936 (9th Cir. 2011) .............................................................................. 10
Cox v. New Hampshire,
312 U.S. 569 (1941) ............................................................................................. 5
Dean v. Byerley,
354 F.3d 540 (6th Cir. 2004) ................................................................................ 9
First Unitarian Church of Salt Lake City v. Salt Lake City Corp.,
308 F.3d 1114 (10th Cir. 2002) .................................................................... 22, 23
Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992) ....................................................................................... 7, 18

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Frisby v. Schultz,
487 U.S. 474 (1988) .................................................................................... passim
Greer v. Spock,
424 U.S. 828 (1976) ........................................................................................... 12
Hague v. Committee for Industrial Organization,
307 U.S. 496 (1939) ......................................................................................... 1, 4
Houston Chronicle Pub. Co. v. City of League City,
488 F.3d 613 (5th Cir. 2007) ................................................................................ 9
Int’l Soc. for Krishna Consciousness, Inc. v. Lee (“ISKCON”),
505 U.S. 672 (1992) ........................................................................................... 22
Jacobsen v. Bonine,
123 F.3d 1272 (9th Cir. 1997) ............................................................................ 20
Jacobson v. United States Dep’t of Homeland Sec.,
882 F.3d 878 (9th Cir. 2018) .............................................................................. 18
McCraw v. City of Oklahoma City,
973 F.3d 1057 (10th Cir. 2020) .................................................................... 10, 21
McCullen v. Coakley,
573 U.S. 464 (2014) ......................................................................................... 5, 7
Missouri Broadcasters Ass’n v. Schmitt,
946 F.3d 453 (8th Cir. 2020) ................................................................................ 1
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ......................................................................................... 4
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983) ............................................................................................... 4
Pineros Y Campesinos Unidos del Noroeste v. Goldschmidt,
790 F. Supp. 216 (D. Or. 1990) .......................................................................... 19
Pursley v. City of Fayetteville, Ark.,
820 F.2d 951 (8th Cir. 1987) ................................................................................ 7
Reynolds v. Middleton,
779 F.3d 222 (4th Cir. 2015) .......................................................................... 9, 19

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Snyder v. Phelps,
562 U.S. 443 (2011) ............................................................................................. 5
Stahl v. City of St. Louis,
687 F.3d 1038 (8th Cir. 2012) .............................................................................. 1
Texas v. Knights of Ku Klux Klan,
58 F.3d 1075 (5th Cir. 1995) .............................................................................. 20
Tolan v. Cotton,
572 U.S. 650 (2014) ........................................................................................... 23
Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge,
775 F.3d 969 (8th Cir. 2014) ................................................................................ 8
United States v. Grace,
461 U.S. 171 (1983) ................................................................................... 4, 7, 22
United States v. Kokinda,
497 U.S. 720 (1990) ........................................................................................... 12
Vandevender v. Sass,
970 F.3d 972 (8th Cir. 2020) .............................................................................. 24
Ward v. Rock Against Racism,
491 U.S. 781 (1989) ........................................................................................... 21
Warren v. Fairfax Cty,
196 F.3d 186 (4th Cir. 1999) ....................................................................... passim
Widmar v. Vincent,
454 U.S. 263 (1981) ........................................................................................... 11
Williams v. Wallace,
240 F. Supp. 100 (M.D. Ala. 1965) .................................................................... 13
Other Authorities
Amanda Miller, Vietnam-Era Antiwar Protests - Timeline and Maps 1963–1975,
Univ. of Wash ...................................................................................................... 15
Bob Fitch Photography Archive, Meredith March Against Fear, June 1966,
Stanford Libraries ................................................................................................ 14
Bob Susnjara, March for Life Draws Hundreds Along Northwest Highway in
Palatine, Daily Herald (Oct. 19, 2019) ............................................................... 17

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Christian Jennings, March for Life Draws Hundreds in Mobile, NBC 15 News
(Jan. 27, 2017) ..................................................................................................... 17
Congressional Gold Medal Ceremony for 1965 Voting Rights Marches Foot
Soldiers, C-SPAN (Feb. 24, 2016) ...................................................................... 14
Greg Lucas, The “Perigrinacion” Begins, California State Library ...................... 15
Jesse Coburn, Supporters March to Shine Light on Work of Police Officers,
Newsday (July 6, 2020) ....................................................................................... 18
John Flavell, Black Lives Matter March in Morehead, Daily Independent (June 6,
2020) .................................................................................................................... 17
Kayla Guo, Over 1,000 Attend ‘Back the Blue’ March in Wantagh: PHOTOS,
Patch (July 6, 2020) ............................................................................................. 18
March for Life – Mobile, AL, Facebook ................................................................ 17
Nick de la Canal, Anti-Abortion Group Intensifies Protests with March Outside
Charlotte Clinic, WFAE 90.7 (Dec. 2, 2017)...................................................... 16
Nick Oliver, Hundreds Come Together for Morehead Peaceful Protest, WKYT
(June 6, 2020) ...................................................................................................... 17
Paul Richards, Farm Workers on Strike 1959–1966, Harvey Richards Media
Archive (March 1966) ......................................................................................... 14
Stephen Lee, Pro-Life Youth on Cross-Country Crossroads Pilgrimage,
Crossroads Pro-Life (June 23, 2015) ................................................................... 16
Townsend Davis, Weary Feet, Rested Souls: A Guided History of the Civil Rights
Movement (1998). ................................................................................................ 13
Will Huntsberry, As More Rural Hospitals Close, Advocates Walk to Washington,
NPR (June 14, 2015) ........................................................................................... 16
William Greider, Fires Hit Campuses; Rallies Calm, ProQuest Hist. Newspapers:
Wash. Post, May 10, 1970 ................................................................................... 15
Zac Taylor, About 90 Come Out for Annual Right to Life March Saturday, Cody
Enterprise (Jan. 22, 2018) .................................................................................... 17

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 STATEMENT OF INTEREST1

The American Civil Liberties Union (“ACLU”) is a nationwide, non-partisan,

non-profit organization with approximately two million members and supporters

dedicated to the principles of liberty and equality embodied in the Constitution and

our nation’s civil rights laws. The ACLU of North Dakota is a state chapter of the

ACLU. The ACLU and its chapters and affiliates have appeared in numerous cases

to defend the First Amendment right of people to protest in the streets, including on

rural roads specifically. This includes appearing as counsel in Hague v. Committee

for Industrial Organization, 307 U.S. 496 (1939) and Stahl v. City of St. Louis, 687

F.3d 1038 (8th Cir. 2012), and as amici in Missouri Broadcasters Ass’n v. Schmitt,

946 F.3d 453 (8th Cir. 2020). As organizations committed to protecting the right to

freedom of speech and assembly, amici have a strong interest in the proper resolution

of this case.

1
Pursuant to Fed. R. App. P. 29(c), amici certify that no person or entity, other
than amici curiae, their members, or their counsel, made a monetary contribution to
the preparation or submission of this brief or authored this brief in whole or in part.
The parties have consented to the filing of this brief.

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 INTRODUCTION

Public streets are quintessential traditional public forums. Roads of every

kind—including rural roads, multi-lane roads, and high-speed roads—have served

as sites of protest throughout our nation’s history, from the civil rights marches and

anti-war demonstrations of the 1960s and 70s to more recent protests, including

marches in opposition to abortion, in support of rural healthcare, and against police

brutality. The environmental and indigenous justice protests at issue in this case are

no different. As one of the few communal spaces in rural areas, roads are uniquely

positioned to offer rural communities, and those wishing to address them, a public

space in which to associate, communicate thoughts, and discuss public issues.

Courts, including the Supreme Court and this Court, have consistently

recognized that public streets are the archetypical traditional public forum, and

have applied the categorical rule to hold that specific public roads—including

specific rural, multi-lane, and high-speed roads—are traditional public forums,

without further analysis. This Court should do the same here.

Defendants’ arguments to the contrary are incorrect. Subjecting every rural

road to a particularized inquiry is not necessary to ensure that the travel-related

purposes of roads are safely served, as recognizing the traditional public forum

status of roads does not prohibit the government from regulating conduct on streets

and highways. Meanwhile, engaging in a particularized inquiry for every road or

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sidewalk would likely chill protest in places that have not previously been

analyzed by courts and, relatedly, burden judicial resources unnecessarily. While,

under existing law, there are limited, discrete circumstances in which courts

properly engage in particularized inquiries—for example, when sidewalks or

streets are on a military base, within a self-contained postal service complex, on a

university campus, or in the arena of a commercial plaza—none of those are

relevant here.

Finally, Defendants are incorrect in arguing that this Court must dismiss this

lawsuit if it is not clearly established, as a matter of law, that every rural road is a

traditional public forum. While rural roads are ordinarily traditional public forums

and the District Court’s opinion should be affirmed on that basis, Plaintiffs need

only establish at this stage that roads with the qualities alleged in their complaint

constitute traditional public forums.

This Court should affirm the court below and hold that, absent limited

circumstances, rural roads are traditional public forums.

ARGUMENT

I. STREETS, INCLUDING ROADS, ARE QUINTESSENTIAL

TRADITIONAL PUBLIC FORUMS.

A. Streets hold a special significance as this nation’s archetypical space

for public speech and association.

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 More than 80 years ago, the Supreme Court held that “[w]herever the title of

streets . . . may rest, they have immemorially been held in trust for the use of the

public.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939). In striking

down a law that restricted the distribution of leaflets in the streets of Jersey City,

the Court rejected the government’s argument that its “ownership of streets . . . is

as absolute as one’s ownership of his home,” and refused to grant it the power “to

exclude citizens from the use thereof.” Id. at 514. Instead, in seminal language, the

Supreme Court recognized that, “time out of mind, [streets] have been used for . . .

assembly, communicating thoughts between citizens, and discussing public

questions”—uses that “from ancient times, [have] been a part of the privileges,

immunities, rights, and liberties of citizens.” Id. at 515.

The Court has since repeatedly recognized that it is “a basic rule . . . that a

street . . . is a quintessential forum for the exercise of First Amendment rights.”

Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). Indeed, “public

streets a[re] the archetype of a traditional public forum.” Frisby v. Schultz, 487

U.S. 474, 480 (1988); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37, 45 (1983) (recognizing that “streets” are “quintessential public

forums”); United States v. Grace, 461 U.S. 171, 177 (1983) (“[S]treets . . . are

considered, without more, to be ‘public forums.’”).

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 It is therefore “no accident that public streets . . . have developed as venues

for the exchange of ideas.” McCullen v. Coakley, 573 U.S. 464, 476 (2014). “Even

today, they remain one of the few places where . . . speaker[s] can be confident that

[they are] not simply preaching to the choir.” Id. While “individual[s] confronted

with an uncomfortable message can always turn the page [in a book or magazine],

change the channel [on TV], or leave [a] Web site, . . . on public streets and

sidewalks . . . listener[s] often encounter[] speech [they] might otherwise tune out.”

Id. “In light of the First Amendment’s purpose to preserve an uninhibited

marketplace of ideas in which truth will ultimately prevail, this aspect of traditional

public fora is a virtue, not a vice.” Id. (marks and citation omitted).

Equally, traditional public forums hold a “special significance” because the

fact that speech is uttered on a public street suggests that “what is at issue is an

effort to communicate to the public . . . on matters of public concern.” Snyder v.

Phelps, 562 U.S. 443, 456 n.4 (2011). “[R]esort to [such] public places” has been

“immemorially associated with” “opportunities for the communication of thought

and the discussion of public questions.” Cox v. New Hampshire, 312 U.S. 569, 574

(1941). And this venerable tradition has a very practical side to it as well: streets

provide a free forum for those who cannot afford to take out an advertisement or

spend the time to write an op-ed. See City of Ladue v. Gilleo, 512 U.S. 43, 57

(1994) (“Even for the affluent, the added costs in money or time [for certain types

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of expression] . . . may make the difference between participating and not

participating in some public debate.”).

B. Courts have applied the rule that streets are traditional public
forums categorically.

The presumption that streets are traditional public forums is so strong that,

ordinarily, “a determination of the nature of the forum . . . follow[s]

automatically.” Frisby, 487 U.S. at 480. In Frisby, the Supreme Court applied this

categorical rule to hold that streets in a town’s residential area constituted a

traditional public forum. The Court emphasized that its prior “decisions identifying

public streets . . . as traditional public fora are not accidental invocations of a

‘cliché,’” and held that “[n]o particularized inquiry into the precise nature of a

specific street is necessary” because “all public streets are held in the public trust

and are properly considered traditional public fora.” Id. at 480–81.

The Supreme Court explicitly rejected the government’s argument that the

particulars of the streets at issue—including “the[ir] physical narrowness . . . as well

as [] their residential character”—undercut their traditional public forum status by

showing that the streets “have not by tradition or designation been held open for

public communication.” Id. at 480. As discussed in further detail below, the same is

true here for Defendants’ arguments regarding the speed and density of traffic on

multi-lane rural roads.

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 The Supreme Court has frequently applied this rule categorically, holding

that streets and roads are traditional public forums by definition. For example, in

Forsyth County v. Nationalist Movement, the Supreme Court held, without

engaging in any particularized inquiry, that an ordinance governing public

assemblies on “public . . . roads” in a “primarily rural . . . county” regulated speech

in “the archetype of a traditional public forum.” 505 U.S. 123, 124, 126, 130

(1992) (marks omitted) (quoting Frisby, 487 U.S. at 480). Similarly, in McCullen

v. Coakley, the Court held that a state law regulating access to “public way[s]” and

“sidewalk[s]” regulated speech in a traditional public forum, without considering

the specific roads and sidewalks where the law could be applied. 573 U.S. at 476

(alterations in original). And, in Boos v. Barry, the Court held that a law regulating

the display of signs within 500 feet of a foreign embassy regulated speech in

“traditional public fora” simply because it “bar[red] . . . speech on public streets

and sidewalks.” 485 U.S. 312, 318 (1988).

This Circuit has also clearly accepted and reiterated the presumed traditional

public forum status of roads. “‘[P]ublic places’ historically associated with the free

exercise of expressive activities, such as streets, sidewalks, and parks, are

considered, without more, to be ‘public forums.’” Pursley v. City of Fayetteville,

Ark., 820 F.2d 951, 954 (8th Cir. 1987) (alteration in original) (citing Grace, 461

U.S. at 177). Under Eighth Circuit law, “[a] traditional public forum is a type of

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property that ‘has the physical characteristics of a public thoroughfare, . . . [that

has] the objective use and purpose of open public access or some other objective

use and purpose inherently compatible with expressive conduct, [and that has]

historical[ly] and traditional[ly] . . . been used for expressive conduct.’” Bowman v.

White, 444 F.3d 967, 975 (8th Cir. 2006) (fourth and fifth alterations in original)

(quoting Warren v. Fairfax Cty, 196 F.3d 186, 191 (4th Cir. 1999)). The vast

majority of rural roads satisfy each of these factors by definition. Indeed, as this

Court has recognized, the “quintessential” examples of such traditional public

forums are streets, sidewalks, and public parks. Ball v. City of Lincoln, 870 F.3d

722, 730 (8th Cir. 2017).

Like the Supreme Court, the Eighth Circuit has applied this rule to hold that

roads are traditional public forums without any further analysis. See Ass’n of Cmty.

Orgs. for Reform Now v. St. Louis Cty., 930 F.2d 591, 594 (8th Cir. 1991) (holding

that regulation of speech in “roadways” regulated speech in a traditional public

forum); Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, 775

F.3d 969, 974 (8th Cir. 2014) (accepting parties’ agreement that ordinance

regulating “speech in the public streets of Desloge” regulated “a traditional public

forum”) (citing Frisby, 487 U.S. at 480).

The same is true of other courts of appeal. In considering a law regulating

speech on highways, the Fourth Circuit has held that “[t]here is . . . no question

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that public streets,” including the highways at issue, “qualify as traditional public

forums.” Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir. 2015) (cleaned up);

see also Warren, 196 F.3d at 191–92 (“Since it is so likely that any given street,

sidewalk, or park meets all three characteristics of a traditional public forum a

court can generally treat a street, sidewalk, or park as a traditional public forum

without making a ‘particularized inquiry.’”) (quoting Frisby, 487 U.S. at 481). The

Sixth Circuit has similarly held that “[t]here can be no doubt that [a county’s]

streets . . . are traditional public fora.” Ater v. Armstrong, 961 F.2d 1224, 1227 (6th

Cir. 1992); see also Dean v. Byerley, 354 F.3d 540, 549–50 (6th Cir. 2004)

(recognizing that “the Supreme Court considers streets . . . to be public fora for

purposes of First Amendment scrutiny” and assuming that the street at issue was a

traditional public forum without further analysis).

Reflecting the same categorical approach, the Fifth Circuit has applied time,

place, and manner scrutiny—that is, the scrutiny that applies in a traditional public

forum—to a law regulating solicitations in roadways because “the applicable law

[states that] streets are traditional public forums.” Houston Chronicle Pub. Co. v.

City of League City, 488 F.3d 613, 621–22 (5th Cir. 2007) (citing Grace, 461 U.S.

at 177). The Ninth Circuit has applied time, place, and manner scrutiny to speech

restrictions in roads for the same reason. Comite de Jornaleros de Redondo Beach

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v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir. 2011) (applying time, place,

and manner scrutiny to law regulating solicitation in roadways).

C. The traditional public forum status of streets is so clear that courts

compare other spaces to streets to determine their forum status.

The status of streets as traditional public forums is so well established that

courts around the country often use public roads as a benchmark against which to

determine the forum status of other public spaces. The Sixth Circuit has held that a

paved, privately owned two-lane roadway “looks and functions like a public street,

and that is enough to classify it as a traditional public forum.” Brindley v. City of

Memphis, 934 F.3d 461, 469 (6th Cir. 2019). Similarly, the Fourth Circuit has

determined that a pedestrian plaza “is a traditional public forum because it is

merely a combination of the three prototypical examples of traditional public

fora—streets, sidewalks, and parks.” Warren, 196 F.3d at 190. And within the last

year, the Tenth Circuit held that medians on public roads are traditional public

forums because “medians share fundamental characteristics with public streets,

sidewalks, and parks, which are quintessential public fora.” McCraw v. City of

Oklahoma City, 973 F.3d 1057, 1067–68 (10th Cir. 2020).

This Court has similarly compared spaces to streets to determine their

traditional public forum status—including by distinguishing certain spaces from

streets in order to hold that they are not traditional public forums. For example, in

holding that a particular commercial plaza did not constitute a traditional public
10

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forum, this Court highlighted the ways in which the plaza differed from public

streets, noting that it is “not primarily used as [a] thoroughfare for the public to

travel” but instead “functions as a venue for commercial use by Arena Tenants, as

a means to facilitate safe and orderly access to the Arena for its patrons, as a

security screening area, and as a gathering place and entryway for Arena patrons.”

Ball, 870 F.3d at 734–35.

Similarly, this Court held that the public spaces of a specific university were

not a traditional public forum, but instead an unlimited designated public forum,

because they “differ[] in significant respects from public forums such as streets[.]”

Bowman, 444 F.3d at 978 (quoting Widmar v. Vincent, 454 U.S. 263, 268 n.5

(1981)). Specifically, this Court held that “[a] university’s purpose, its traditional

use, and the government’s intent with respect to the property is quite different

because a university’s function is not to provide a forum for all persons to talk

about all topics at all times.” Id. “Thus, streets, sidewalks, and other open areas

that might otherwise be traditional public fora may be treated differently when they

fall within the boundaries of the University’s vast campus.” Id. In reaching this

holding, this Court recognized that, as a general matter, streets are traditional

public forums.

In addition, while there are discrete and limited circumstances in which

courts have considered streets and sidewalks not to be traditional public forums—

11

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as reflected by Ball and Bowman—none apply here. See also United States v.

Kokinda, 497 U.S. 720, 727 (1990) (plurality) (postal service sidewalk was not

public thoroughfare and was “constructed solely to provide for the passage of

individuals engaged in postal business”); Greer v. Spock, 424 U.S. 828, 838 (1976)

(sidewalks in military reservation are not a public forum because they have not

“traditionally served as a place for free public assembly and communication of

thoughts by private citizens”). As alleged, the rural road at issue here is not part of

a commercial plaza, a university campus, a postal service complex, or a military

reservation.

II. THE GENERAL RULE THAT STREETS ARE TRADITIONAL

PUBLIC FORUMS HOLDS FOR RURAL ROADS, HIGH-SPEED
ROADS, AND MULTI-LANE ROADS.

A. Rural roads, high-speed roads, and multi-lane roads have served as

sites of protest throughout our nation’s history.

The Eighth Circuit test for forum status also considers whether there “any

special characteristics regarding the environment” that inform the inquiry. Ball,

870 F.3d at 731. If anything, the special characteristics of rural roads—as

exemplified by their historic uses—confirm their traditional public forum status.

From the civil rights marches across rural fields and state lines in the 1960s

to today’s protests against police brutality, rural roads and highways have served as

sites of protest. During the civil rights era, political leaders often relied on multi-

day protest marches—on routes that necessarily included rural roads, high-speed

12

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roads, multi-lane roads, and bridges—to capture a national audience and transport

their message across the United States.

The 1965 Voting Rights March is one of the most iconic examples. On

March 21, 1965, thousands of voting rights activists began a 54-mile-long journey

along U.S. Route 80 from Selma, Alabama to the state capitol in Montgomery. The

planned route covered bridges, sidewalks, and the highway between the two cities.

Williams v. Wallace, 240 F. Supp. 100, 104–05, 107 (M.D. Ala. 1965). For five

days, protesters marched through rural and urban areas, walking along everything

from a narrow dirt road to a high-speed highway.2 The highway was two lanes with

a three-foot shoulder in some places and four lanes with a six-foot shoulder in

others. Williams, 240 F. Supp. at 107.3

A year later, approximately 15,000 protesters, joined by major civil rights

organizations, engaged in a march across state lines from Memphis, Tennessee to

Jackson, Mississippi in the Meredith March Against Fear, crossing dirt roads,

densely packed Black neighborhoods, and interstate highways and, in the process,

2
Townsend Davis, Weary Feet, Rested Souls: A Guided History of the Civil Rights
Movement 117 (1998).
3 Notably, a district court considering the marchers’ challenge to the government’s
interference with their intended march held that they had a “constitutional right to
march along [the h]ighway” and that Governor Wallace’s efforts to “absolutely
ban[] any march by any manner—regardless of how conducted” violated the First
Amendment. Williams, 240 F. Supp. at 107.

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registering over 4,000 Black Americans to vote.4 Participants included elected

officials, clergymen, and civil rights leaders like Martin Luther King, Jr. and

Stokely Carmichael.

Thirty years after the Voting Rights March, Congress designated Route 80 a

National Historic Trail. Half a century later, it awarded the “foot soldiers” and civil

rights leaders of the Selma Marches, including the late Congressman John Lewis,

Congressional Gold Medals.5

(Bob Fitch Photography (Paul Richards, Farm Workers on Strike

Archive, Meredith March 1959–1966, Harvey Richards Media
Against Fear, June 1966, Archive (March 1966),
Stanford Libraries,

4
Aram Goudsouzian, Down to the Crossroads: Civil Rights, Black Power, and the
Meredith March Against Fear 246 (2015).
5
Congressional Gold Medal Ceremony for 1965 Voting Rights Marches Foot
Soldiers, C-SPAN (Feb. 24, 2016), https://www.c-span.org/video/?405070-
1/congressional-gold-medal-ceremony-1965-voting-rights-marches-foot-soldiers.

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 https://exhibits. https://estuarypress.com/hrma-photo-
stanford.edu/fitch/browse/ post/farm-workers-strike/.)
meredith-march-against-
fear-june-1966.)

Concurrently, labor activists and anti-war dissidents used rural roads and

highways to elevate their own political demands. From 1963 through 1975,

protesters in hundreds of antiwar demonstrations walked across the roads of rural

towns and major cities.6 In Minneapolis, Minnesota, 30,000 to 40,000 people

marched ten miles to the state’s capitol in protest of the war, setting the record for

the largest of any such demonstration in the state’s history.7 And on the West

Coast, Cesar Chavez, along with leaders of the National Farm Workers association,

engaged in a 340-mile pilgrimage from Delano to Sacramento, California. For

twenty-five days, approximately 1,500 farmworkers and their supporters walked

north on Highway 99 to bring attention to dangerous working conditions at grape

farms across the state.8

6
Amanda Miller, Vietnam-Era Antiwar Protests - Timeline and Maps 1963–1975,
Univ. of Wash., https://depts.washington.edu/moves/antiwar_map_protests.shtml.
7
William Greider, Fires Hit Campuses; Rallies Calm, ProQuest Hist. Newspapers:
Wash. Post, May 10, 1970, at A1.
8
Greg Lucas, The “Perigrinacion” Begins, California State Library,
https://cal170.library.ca.gov/march-17-1966-the-perigrinacion-begins/.

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 Today, activists continue the long tradition of utilizing rural roads as sites of

protest. In 2015, supporters with the National Rural Health Association took to

backroads to protest the closure of rural hospitals and walked 283 miles from

North Carolina to Washington, D.C.9 Rural roads and highways also feature

prominently in demonstrations against abortion. In 2017, thousands of pro-life

protesters participated in a prayer march along the shoulder of a narrow East

Charlotte, North Carolina road outside a local abortion clinic.10 Catholic youth

engage in an annual continental pro-life pilgrimage, inspired by Pope John Paul

II’s 1995 challenge to “create a culture of life,” walking in shifts for dozens of

miles starting in Stanley County, South Dakota, with the aim of reaching Fort

Pierre by nightfall.11 Finally, each year in Mobile, Alabama, pro-life leaders,

clergy, and local organizations participate in the March for Mobile, created so

9
Will Huntsberry, As More Rural Hospitals Close, Advocates Walk to Washington,
NPR (June 14, 2015), https://www.npr.org/2015/06/14/414466952/as-more-rural-
hospitals-close-advocates-walk-to-washington.
10
Nick de la Canal, Anti-Abortion Group Intensifies Protests with March Outside
Charlotte Clinic, WFAE 90.7 (Dec. 2, 2017), https://www.wfae.org/local-
news/2017-12-02/anti-abortion-group-intensifies-protests-with-march-outside-
charlotte-clinic.
11
Stephen Lee, Pro-Life Youth on Cross-Country Crossroads Pilgrimage,
Crossroads Pro-Life (June 23, 2015),
https://www.crossroadswalk.org/2015/06/23/pro-life-youth-on-cross-country-
crossroads-pilgrimage/.

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“Mobilians [who] cannot make the national March for Life in DC,” can still join in

nationwide commemorative protest against Roe v. Wade. 12

Most recently, in the summer of 2020, protests gripped rural parts of the

country following the police killing of George Floyd. On June 4, more than 1,000

protesters in Catskill, NY marched down Main Street, across the Catskill Creek

bridge, finally taking a knee at the police station. Days later, in Morehead,

Kentucky, a county with a population of less than 8,000 people, 400 protesters

marched down Main Street, using the street to transport their message from a

library to a local Veteran memorial.13 The national outcry also inspired extensive

12
March for Life – Mobile, AL, Facebook,
https://www.facebook.com/marchforlifemobile/. See also Christian Jennings,
March for Life Draws Hundreds in Mobile, NBC 15 News (Jan. 27, 2017),
https://mynbc15.com/news/local/march-for-life-draws-hundreds-in-mobile. Similar
marches are held annually across hundreds of rural towns, from Palatine, Illinois to
Cody, Wyoming. See Bob Susnjara, March for Life Draws Hundreds Along
Northwest Highway in Palatine, Daily Herald (Oct. 19, 2019),
https://www.dailyherald.com/news/20191019/march-for-life-draws-hundreds-
along-northwest-highway-in-palatine; Zac Taylor, About 90 Come Out for Annual
Right to Life March Saturday, Cody Enterprise (Jan. 22, 2018),
https://www.codyenterprise.com/news/local/article_32261b62-ffb9-11e7-99a8-
5bbd2199bcba.html.
13
John Flavell, Black Lives Matter March in Morehead, Daily Independent (June
6, 2020), https://www.dailyindependent.com/black-lives-matter-march-in-
morehead/image_30585228-a836-11ea-aded-7ba0ce4ce7a3.html; Nick Oliver,
Hundreds Come Together for Morehead Peaceful Protest, WKYT (June 6, 2020),
https://www.wkyt.com/content/news/Hundreds-come-together-for-Morehead-
peaceful-protest-571075201.html.

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counterprotest in the streets, including in Wantagh, New York, home to a

population of both active and retired law enforcement agents. More than 1,000

local protesters marched down Wantagh Avenue in the pro-police rally, with

participants chanting “back the blue” and “Blue Lives Matter.”14

Thus, our nation’s rural roads, high-speed roads, and multi-lane roads have a

storied history of protest in accordance with the categorical definition of traditional

public forums under the law. They are public thoroughfares that are “inherently

compatible with expressive conduct, [and that have] historical[ly] and

traditional[ly] . . . been used for expressive conduct.” Bowman, 444 F.3d at 975.

B. Courts have specifically applied the categorical rule to rural roads.

Courts around the country have specifically held that rural roads, including

multi-lane and high-speed roads, constitute traditional public forums. See e.g.,

Forsyth Cty, 505 U.S. at 130 (holding that “public . . . roads” in a “primarily rural

. . . county” are “the archetype of a traditional public forum.”); Jacobson v. United

States Dep’t of Homeland Sec., 882 F.3d 878, 882–83 (9th Cir. 2018) (holding that

public rural roads are traditional public forums and the government bears the

burden of proving otherwise, by showing that they no longer function as public

14
Kayla Guo, Over 1,000 Attend ‘Back the Blue’ March in Wantagh: PHOTOS,
Patch (July 6, 2020), https://patch.com/new-york/wantagh/over-1-000-attend-back-
blue-march-wantagh-photos; Jesse Coburn, Supporters March to Shine Light on
Work of Police Officers, Newsday (July 6, 2020), https://www.newsday.com/long-
island/nassau/wantagh-blue-lives-matter-rally-police-1.46424236.
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rural roads); Reynolds, 779 F.3d at 225 (holding that “[t]here is . . . no question that

public streets,” including the highways at issue, “qualify as traditional public

forums”); Brindley, 934 F.3d at 469 (holding that two-lane roadway that directly

intersects with a busy public thoroughfare is a traditional public forum).

Indeed, rural roads are often a necessary site for communicating certain

messages or reaching certain audiences. As one district court explained in holding

that rural roads constitute a traditional public forum and rejecting the government’s

argument “that rural roads are not proper public forums because an average citizen

does not frequent such roadways, nor would the average citizen expect to find

vigorous public debate in such areas,” “picketing in a park or along a roadway in a

more urban area” may be a less effective means of communication as it may be

“more unlikely that the intended communication will reach its intended audience.”

Pineros Y Campesinos Unidos del Noroeste v. Goldschmidt, 790 F. Supp. 216, 220

(D. Or. 1990).

The traditional public forum status of streets, including rural roads that do

not fall within certain limited exceptions, is therefore well established, and the

District Court’s denial of Defendants’ motion to dismiss on qualified immunity

grounds should be affirmed on this basis alone.15

15
The cases Defendants cite for the proposition that “locations adjacent to or
related to modern high-speed highway systems . . . are nonpublic forums” do not
support it. See State Defs. Br. at 15; Sheriff Def. Br. at 29. They consider the
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 C. Holding that rural roads, absent limited exceptions, are traditional
public forums would not hinder the government’s ability to keep
roads safe, and it would promote free speech and judicial efficiency.

Notwithstanding this case law and clear history, Defendants argue that rural

roads cannot be traditional public forums because “[p]ermitting people to assemble

and discuss the environment amid cars, trucks and semis traveling at high speeds is

a recipe for personal injury and death.” State Defs. Br. at 18. Defendants’ concerns

are red herrings.

“The designation of an area as a traditional public forum does not prevent

localities from addressing such significant concerns as public safety and the

movement of traffic.” Warren, 196 F.3d at 190. The government’s concerns

regarding the “proximity, speed, and volume of passing cars” “may support [an]

argument that a time, place, and manner restriction is constitutional . . . [b]ut ample

precedent holds that these characteristics do not deprive public streets of their

forum status not of roads, but of rest areas, signage that is part of Adopt-a-
Highway Programs, and highway overpass fences. See Brown v. California Dep't
of Transp., 321 F.3d 1217, 1222 (9th Cir. 2003) (“Because [the plaintiffs] hung
their banners from highway overpass fences, the forum at issue is the highway
overpass fence.”); Jacobsen v. Bonine, 123 F.3d 1272, 1274 (9th Cir. 1997)
(“These [rest area] walkways are integral parts of the rest stop areas, which are
themselves oases from motor traffic.”); Texas v. Knights of Ku Klux Klan, 58 F.3d
1075, 1078 (5th Cir. 1995) (“[W]e define the forum in this case as the Program
rather than the public highways.”).

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status as public fora.” McCraw, 973 F.3d at 1068–69 (citing Frisby, 487 U.S. at

481).

While regulations of speech in a traditional public forum are subject to a

higher level of scrutiny than the reasonableness standard Defendants seek to apply

here, a road’s traditional public forum status does not deprive the government of

all power to regulate speech there. Rather, the government may impose

“reasonable restrictions on the time, place, or manner of protected speech,

provided the restrictions ‘are justified without reference to the content of the

regulated speech, that they are narrowly tailored to serve a significant

governmental interest, and that they leave open ample alternative channels for

communication of the information.’” Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293

(1984)).

Equally, Defendants’ argument that the road’s “primary dedicated purpose”

is to serve not as a site for expression, but rather as a route for “safe and efficient

transportation,” is inapposite. See State Defs. Br. at 16–18; Sheriff Def. Br. at 30.

As the Fourth Circuit has explained, “[o]ne cannot seriously argue with Justice

Kennedy’s observation that the traditional public fora of streets, sidewalks, and

parks are not primarily designed for expressive purposes.” Warren, 196 F.3d at 195

(citing Int’l Soc. for Krishna Consciousness, Inc. v. Lee (“ISKCON”), 505 U.S.

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672, 696–97 (1992) (Kennedy, J., concurring in the judgment)). And yet they are,

undeniably, traditional public forums. Even for spaces that are not categorically

traditional public forums, “[t]he test is not whether the property was designed for

expressive activity, but whether the objective uses and purposes of the property are

compatible with the wide measure of expressive conduct characterizing public

fora.” Id.; see also First Unitarian Church of Salt Lake City v. Salt Lake City

Corp., 308 F.3d 1114, 1125–26 (10th Cir. 2002) (citing ISKCON, 505 U.S. at 686

(O’Connor, J., concurring)). As discussed at length above, rural roads—which

have served as a site of protest throughout our nation’s history—are compatible

with expressive uses.

Moreover, requiring a particularized inquiry into the government’s intended

purpose for any piece of public property could, in practice, enable the government

to destroy the public forum status of any public land by deeming its purpose to be

anything other than serving as a site for expression. But the Supreme Court has

made clear that the government “may not by its own ipse dixit destroy the ‘public

forum’ status of streets and parks which have historically been public forums,”

including by listing them “within the statutory definition of what might be

considered a non-public forum[.]” Grace, 461 U.S. at 180. Courts “reject the

contention that the [government’s] express intention not to create a public forum

controls [their] analysis. The government cannot simply declare the First

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Amendment status of property regardless of its nature and its public use.” First

Unitarian Church, 308 F.3d at 1124.

Making particularized inquiries the norm for rural roads, as Defendants

propose, rather than the limited exception, as the caselaw requires, would chill

speech on any specific piece of land that a court had not previously considered and

deemed a traditional public forum. Relatedly, requiring courts to consider the facts

of every public street would unnecessarily burden judicial resources.

III. EVEN WITHOUT A CATEGORICAL RULE, THE DISTRICT

COURT’S DECISION TO DENY DEFENDANTS’ MOTION TO
DISMISS WAS CORRECT.

Finally, even if this Court declines to apply the rule that rural roads, outside

of certain limited categories, constitute traditional public forums, the court below

was correct in denying Defendants’ motion to dismiss on qualified immunity

grounds. State Defendants’ argument that the district court had to consider “the

purely legal question [of] whether the forum status of rural high-speed highways is

a point of law that is beyond debate” overstates the inquiry. State Defs. Br. at 10,

11, 14–15; Sheriff Def. Br at 28. Qualified immunity does not suspend the normal

rules of civil procedure. See Tolan v. Cotton, 572 U.S. 650, 656–57 (2014) (per

curiam) (summarily reversing appellate court’s failure to apply settled summary

judgment standards in qualified immunity context). And “[n]umerous Eighth

Circuit cases have held that defendants are entitled to dismissal under Rule

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12(b)(6) if they show they are entitled to qualified immunity on the face of the

complaint.” Vandevender v. Sass, 970 F.3d 972, 975 (8th Cir. 2020) (emphasis

added) (marks and citation omitted).

The question on which Defendants must prevail in order for the complaint to

properly be dismissed at this stage is not whether every rural road is a traditional

public forum—though, as discussed above, the answer to this question is “yes,”

absent certain limited exceptions not present here—but rather whether a road with

the characteristics of the road alleged here constitutes a traditional public forum.

That is the inquiry the district court properly engaged in.

CONCLUSION

For the foregoing reasons, amici respectfully urge this Court to apply the

rule set forth above—that, absent limited exceptions not present here, rural roads

are traditional public forums by definition—to affirm the district court’s opinion.

January 29, 2021 Respectfully submitted,

/s/ Vera Eidelman

Vera Eidelman
American Civil Liberties Union
Foundation
125 Broad Street
New York, NY 10004
Tel.: (212) 549-2500
veidelman@aclu.org

Andrew Malone
American Civil Liberties Union of North

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 Dakota, South Dakota, and Wyoming*
PO Box 1170
Sioux Falls, SD 57101
Tel.: (678) 416-8970
amalone@aclu.org

*Admitted only in South Dakota

Counsel for Amici Curiae**

** Shreya Tewari, Brennan Fellow at the ACLU’s Speech, Privacy & Technology
Project, contributed substantial legal research and drafting to this brief.

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 CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g), I certify as follows:

1. This Brief of Amici Curiae in Support of Plaintiffs–Appellees and

Affirmance complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 5,452 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(f); and

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface, 14-point

Times New Roman, using the word-processing system Microsoft Word

2010.

Dated: January 29, 2021 By: /s/ Vera Eidelman

Vera Eidelman

Counsel for Amici Curiae

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 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Eighth Circuit by using the

appellate CM/ECF system on January 29, 2021.

I certify that all participants in the case are registered CM/ECF users and that

service will be accomplished by the appellate CM/ECF system.

Dated: January 29, 2021 By: /s/ Vera Eidelman

Vera Eidelman

Counsel for Amici Curiae

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