In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-1115

HARLAN L. JACOBSEN,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF

TRANSPORTATION, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 C 3099—Jeanne E. Scott, Judge.

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ARGUED NOVEMBER 1, 2004—DECIDED AUGUST 17, 2005

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Before CUDAHY, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Single Scene, Solo RFD, and

Country Singles are a few of the magazines Harlan L.

Jacobsen distributes through coin-operated newsracks at

highway rest areas across the country. Although he has

been flouting them for nearly a decade, Jacobsen considers

the Illinois Department of Transportation’s (IDOT) newsrack regulations overbearing and unconstitutional. Indeed,

he is convinced that the regulations, which require him to

place his newsracks in a particular part of the rest areas,
2 No. 04-1115

pay five cents per newspaper sold, keep the racks in decent

condition, and label them with a phone number, transform

Illinois’s highway rest areas into “First Amendment Free

Zones.” Seeking a remedy to this perceived injustice,

Jacobsen filed a claim under 42 U.S.C. § 1983 against

various state officials and asked the district court permanently to enjoin the state from enforcing its regulations

against him. After a bench trial, the district court granted

the state officials’ motion for judgment as a matter of law

and denied Jacobsen’s request for an injunction with respect to everything except the five-cent fee requirement. We

agree with these conclusions and therefore affirm the

court’s judgment.

I

Jacobsen is no stranger to the federal courts. With varying degrees of success, he has sued all across the country to

protect his right to distribute his magazines without being

fettered by petty regulations. See Jacobsen v. U.S. Postal

Service, 993 F.2d 649 (9th Cir. 1992) (post offices); Jacobsen

v. U.S. Postal Service, 812 F.2d 1151 (9th Cir. 1987) (same);

Jacobsen v. City of Rapid City, 128 F.3d 660 (8th Cir. 1997)

(airport terminal); Jacobsen v. Harris, 869 F.2d 1172 (8th

Cir. 1989) (city sidewalks); Jacobsen v. Crivaro, 851 F.2d

1067 (8th Cir. 1988) (same); Jacobsen v. Bonine, 123 F.3d

1272 (9th Cir. 1997) (highway rest areas); Jacobsen v.

Howard, 109 F.3d 1268 (8th Cir. 1997) (same). Despite this

experience (he normally proceeds pro se), Jacobsen has not

learned the importance of following certain rules of appellate procedure. He did not submit a statement of facts to

this court, in violation of Federal Rule of Appellate Procedure 28(a)(7), nor did he order a transcript of the proceedings below, as permitted by Federal Rule of Appellate

Procedure 10(b). As we will explain shortly, these oversights

prevent us from questioning the heart of the district court’s

conclusion.
No. 04-1115 3

Although we do not have an adequate record before us, we

can glean the gist of the underlying facts from the district

court’s opinion. In late December 1995, Jacobsen and thenSecretary of IDOT, Kirk Brown, signed a document titled,

Rest Area Distribution Agreement (Agreement). The

Agreement granted Jacobsen a nonexclusive right to place

newspaper racks in public rest areas along Illinois’s

interstate highways, provided that he maintain the racks,

place a decal on each rack identifying the person to call in

the event of operating difficulties, pay IDOT a five-cent fee

for each newspaper sold, and give IDOT ten days’ notice

before installing a rack at a particular rest area. IDOT

retained the authority to remove or relocate the racks for

any reason so long as it gave Jacobsen ten days’ notice, an

explanation, and an opportunity for Jacobsen to respond.

The Agreement also gave IDOT an unqualified right to determine where within the rest area Jacobsen could place the

racks. Jacobsen signed the Agreement grudgingly, writing

beneath his signature, “Signed under protest that requiring

a contract is a prior restraint on a protected activity and a

fee requirement is a violation of a constitutionally protected

right of the free press to distribute printed material on a

public sidewalk or activity compatible public area.”

Soon after signing the agreement, Jacobsen’s magazines

began gracing Illinois’s rest areas. Although IDOT had designated particular locations within the rest areas for all

newsracks, Jacobsen thought that these locations were undesirable. Instead, he preferred to place his rack beside the

front doors of the rest areas’ main buildings, and he did so.

He also refused to pay the five-cent fee mentioned in the

Agreement. For seven years, Jacobsen and IDOT were in a

stand-off: Jacobsen did not pay the required fees and repeatedly put his racks in an unapproved location, and IDOT

employees just as regularly moved the racks back to the

designated areas. In February 2002, Jacobsen sent three

emails to IDOT complaining that his racks were being
4 No. 04-1115

moved in violation of his First Amendment rights. IDOT

responded by informing Jacobsen that it had the right to

determine where the newsracks should be placed. Following

the protocol set forth in the Agreement, however, IDOT told

Jacobsen his newsracks could remain where he had placed

them, pending a letter from IDOT giving him ten days’

notice of its intent to move the racks back to the designated

areas.

Jacobsen was not appeased. On February 27, 2002, he

wrote letters to the Illinois Governor, IDOT Secretary, and

IDOT Rest Area Administrator, informing them that “the

state of Illinois is repeatedly violating our First Amendment

constitutionally protected right to distribute newspapers on

public sidewalks at Illinois Interstate rest areas.” In

response, IDOT sent Jacobsen a letter informing him that

he was not in compliance with the Agreement because he

(1) failed to give ten days’ notice of his intention to place

newsracks at the rest areas; (2) did not position his newsracks in the locations IDOT had designated; (3) did not

place a decal on the newsracks listing the person to call if

problems occur; (4) did not maintain the newsracks in good

condition; and (5) had not paid IDOT the five-cent newspaper fee. The letter told Jacobsen to correct these deficiencies

and informed him that the letter served as notice that IDOT

intended to relocate his racks.

Instead of providing evidence to IDOT explaining why it

should leave his racks alone, Jacobsen sued, seeking a preliminary and permanent injunction to stop IDOT from enforcing its regulations. As Jacobsen told the district court,

“I do not negotiate over constitutional rights.” Jacobsen also

sought damages under 42 U.S.C. § 1983 from the Governor,

the Secretary of IDOT, and IDOT’s Roadside Maintenance

Manager.

The district court denied the preliminary injunction after

a hearing in May 2002 and denied in part and granted in

part the permanent injunction after a bench trial in Novem-
No. 04-1115 5

ber 2003. The court concluded that highway rest areas were

nonpublic fora designed to improve highway safety by

providing the traveling public with places to rest, use

restrooms, and secure travel information. It found that the

regulations were content-neutral and all but the five-cent

fee were reasonable in light of the purpose of the forum.

The court enjoined IDOT from collecting the five-cent fee,

finding it unreasonable because it did not bear any relation

to the administrative cost of allowing newsracks at rest

areas. Since Jacobsen barely was making a profit through

the newsracks, the court determined that the five-cent fee

would drive him out of business in Illinois. The state does

not appeal the court’s decision. The court granted the

individual defendants’ motion for judgment as a matter of

law on Jacobsen’s § 1983 claims against them, because he

presented no evidence showing that these individuals had

either knowingly caused a violation of his constitutional

rights or acted in deliberate disregard of those rights.

II

For First Amendment purposes, the strictness of our

review depends on the type of forum being regulated. If the

state is regulating expression at traditional public fora,

such as streets, sidewalks, or parks “that by long tradition

or government fiat have been devoted to assembly and

debate,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37, 45 (1983), we will uphold time, manner, or

place restrictions only if they “are content-neutral, are narrowly tailored to serve a significant government interest,

and leave open ample alternative channels of communication.” Id. at 45. Because a principal purpose of public fora

is the free exchange of ideas, more onerous regulations,

such as an absolute prohibition on a particular type of

expression, will be upheld only if it is necessary to serve a

compelling state interest and is narrowly drawn to achieve
6 No. 04-1115

that interest. See, e.g., Cornelius v. NAACP Leg. Def. and

Educ. Fund, Inc., 473 U.S. 788, 800 (1985). We apply the

same strict standards when the state has intentionally

designated an area a public forum. Id. On the other hand,

if the record reveals that the regulations concern only nonpublic fora, “[t]he challenged regulation need only be

reasonable, as long as the regulation is not an effort to

suppress the speaker’s activity due to disagreement with the

speaker’s views.” Int’l Soc’y for Krishna Consciousness, Inc.

v. Lee, 505 U.S. 672, 679 (1992); see also Perry, 460 U.S. at

46. “The Government, ‘no less than a private owner of

property, has the power to preserve the property under its

control for the use to which it is lawfully dedicated.’ ”

United States v. Grace, 461 U.S. 171, 178 (1983) (quoting

Adderly v. Florida, 385 U.S. 39, 47 (1966)).

In this case, Jacobsen argued that since he was placing

his racks on the sidewalks within the rest areas, the court

should analyze the case as if the racks were placed within

a public forum. The district court disagreed. It found that

“rest area sidewalks are not typical sidewalks, in that they

are not accessible to general pedestrian traffic.” In coming

to this conclusion, the court relied on Ninth and Eleventh

Circuit decisions, which had characterized other states’ interstate highway rest areas as nonpublic fora. See Jacobsen,

123 F.3d at 1274; Sentinel Communications Co. v. Watts,

936 F.2d 1189, 1203 (11th Cir. 1991). As the Eleventh

Circuit said in Sentinel, “[a]s components of the Interstate

System, safety rest areas are hardly the kind of public

property that has by long tradition or by governmental

fiat . . . been devoted to assembly and debate. . . . [A]s

modern phenomena, rest areas have never existed independently of the Interstate System; they are optional

appendages that are intended, as part of the System, to

facilitate safe and efficient travel by motorists along the

System’s highways.” 936 F.2d at 1203 (quotation omitted).

For similar reasons, the district court here declined to de-
No. 04-1115 7

clare interstate rest areas intentionally designated public

fora; the “government . . . has provided rest areas as a

safety measure, not for public recourse.”

The district court’s conclusion, as well as the Ninth and

Eleventh Circuit opinions on which it draws so heavily, has

some appeal. It is consistent, for instance, with the characterization of airport terminals as nonpublic fora that the

Supreme Court adopted in Krishna Consciousness, 505 U.S.

at 683. But, in light of the skimpy record, we decline at this

juncture to endorse a conclusion that all interstate rest

areas are necessarily nonpublic fora. The Krishna Consciousness Court itself emphasized the need for case-by-case

examination of the question whether “the transportation

necessities are compatible with various kinds of expressive

activity.” Id. at 681. As we noted earlier, Jacobsen did not

order a transcript of the district court proceedings, failed to

provide a statement of facts within his brief before this

court, and, from what we can tell, proceeded on a record

devoid of detail, resting almost entirely on bare accusations.

As it is a novel issue before this court, we do not want

Jacobsen’s tactics to foreclose future litigants from developing a more thorough record that might convince us that a

particular highway rest area (or even all such areas) are

best characterized as public fora. According to the Federal

Highway Administration, the Interstate Highway System

contains over 46,000 miles of road, serving over 190 million

licensed drivers. See Federal Highway Administration,

Highway Statistics, 2003, available at http://

www.fhwa.dot.gov/policy/ohim/hs03/index.htm. With so

many drivers on the road, highway rest areas may be the

perfect place to distribute certain types of information,

express a particular opinion, or gather with like-minded

individuals. While rest areas may not have traditionally

been conceptualized as public fora, it is conceivable to us

that over time their role may have evolved to a status that

deserves greater protection. Tradition, after all, is an ever-
8 No. 04-1115

shifting variable. For present purposes, in light of

Jacobsen’s failure to develop an adequate record on the

issue, we assume without deciding that the interstate rest

areas about which he is complaining are nonpublic fora.

So long as the regulations are viewpoint-neutral, as

Jacbosen concedes they are here, the state may impose “reasonable” time, place, or manner restrictions at nonpublic

fora. Cornelius, 473 U.S. at 806. “The Government’s decision to restrict access to a nonpublic forum need only be

reasonable; it need not be the most reasonable or the only

reasonable limitation.” Id. at 808 (emphasis in original).

With the exception of the five-cent fee requirement, the

district court found IDOT’s regulatory scheme reasonable.

We agree. First, IDOT requires each vendor to enter into an

agreement, setting forth the applicable regulations. If IDOT

administrators retained the authority to reject a vendor

based on its content, this predistribution agreement could

constitute an unconstitutional prior restraint. See Thomas

v. Chicago Park Dist., 534 U.S. 316, 323 (2002) (“Where the

licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk

that he will favor or disfavor speech based on its content.”).

If, however, the pre-speech permit, license, or contract is

content-neutral and serves only to ease administrative

concerns, it will rarely be unconstitutional. See, e.g., Poulos

v. New Hampshire, 345 U.S. 395, 403 (1953) (“[T]he license

required is not the kind of prepublication license deemed a

denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so

that the opportunity for effective freedom of speech may be

preserved.”). IDOT’s requirement that vendors enter into a

predistribution agreement is a content-neutral, routinized

mechanism for IDOT to inform vendors of the state’s

applicable regulations. It enables IDOT to keep track of the

number of vendors operating at each rest area. As such, it

easily falls on the permissible side of the line.
No. 04-1115 9

Second, IDOT requires all newsrack operators to give

the state ten days’ notice of their intent to place a newsrack

at a particular rest area. Again, we find this regulation

reasonable so long as there is no evidence (as there is none

here) that it is anything but content-neutral. Ten days’

notice allows the state to keep track of the number of

newsracks at each location and ensures that IDOT has time

to accommodate a change in the number of racks at any

particular rest area.

Jacobsen’s most vehement disagreement concerns the

third regulation: IDOT’s retention of the authority to

determine where within each rest area the newsracks will

be located. Jacobsen wants to place his racks in high-traffic

areas (beside building doors, for example) and does not

want to mingle his racks with all the others. Jacobsen argues that if the garbage cans do not create a safety hazard

when they are placed beside the doors, neither would his

newsracks. The clear flaw in this reasoning is that if

Jacobsen wants to place his racks beside the doors so that

he can garner more sales, other vendors will want to be

beside the doors as well. While a single garbage can might

not be an encumbrance, a garbage can surrounded by newsracks could be. With no evidence that the racks of all the

vendors are tucked away so that rest area users cannot find

them, we cannot call this regulation unreasonable either.

Indeed, it bears a close resemblance to the size and ad

placement regulations on newsracks that we upheld over a

First Amendment challenge in Chicago Observer, Inc. v.

City of Chicago, 929 F.3d 325, 328-29 (7th Cir. 1991).

The remaining two regulations—that the vendor must

maintain the rack and label each rack with a telephone

number—are straightforward. It is reasonable for IDOT not

to want potentially hazardous, broken-down newsracks

ornamenting the state’s rest areas. Likewise, it is reasonable for IDOT to require vendors to label the racks with a

phone number. Customers may use the number to seek lost
10 No. 04-1115

change; IDOT may use the number to identify which

newsrack belongs to which vendor.

As for Jacobsen’s § 1983 claims against the individual

defendants, he must show that in their supervisory role,

they “knowingly, willfully, or at least recklessly” caused a

deprivation of his First Amendment rights. See Rascon v.

Hardiman, 803 F.2d 269, 274 (7th Cir. 1986). Here, the only

possible act supported by the record that could have

infringed Jacobsen’s First Amendment rights was IDOT’s

requirement that he pay five cents for every magazine he

sold at the rest areas. Independent of Jacobsen’s failure to

present any evidence establishing the individual defendants’

culpability, his argument is tenuous, as he has never paid

the five-cent fee. Perhaps a different person could show that

the mere threat of the fee stifled her expression, but

Jacobsen presents no evidence of this. In fact, all evidence

suggests the opposite. Since we have found that Jacobsen

failed to demonstrate constitutional problems with IDOT’s

remaining regulations, his § 1983 claims against the individual defendants were properly dismissed.

III.

For these reasons, we AFFIRM the judgment of the district

court.
No. 04-1115 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-17-05