In Sonnier v. Crain, (5th Cir., July 27, 2010), the 5th Circuit Court of Appeals , in a 2-1 decision, rejected a facial challenge to most parts of Louisiana State University's speaker policy, applying the test that a facial challenge will succeed only if there is no set of circumstances under which the policy would be valid. In a suit brought by an itinerant Christian preacher who wanted to deliver a religious message to students, the court upheld the denial of a preliminary injunction to prevent enforcement of (1) the school's seven-day advance notice requirement for a permit; (2) a two-hour, once-per week limitation for each speaker or organization; (3) the collection of personal information before issuing a permit; and (4) the limitation of speech to three specific campus locations. However it enjoined enforcement of the school's requirement that speakers pay a security fee at the discretion of the University.
Judge Dennis dissented arguing that at the preliminary injunction stage, the court should have considered the speech policy as applied as well as the facial challenge to it. He concluded that all portions of the policy were unconstitutional as applied to plaintiff. He also argued that the majority used the wrong test in determining facial validity. Finally he concluded that the University's restrictions are not narrowly tailored to serve a significant governmental interest.
