United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 23-3115

___________________________ 

Bob Cajune; Cynthia Cajune; Kalynn Kay Aaker; LION 194; John Doe, #1; Mary 

Roe, #1-7; S.W., minor, by Kalynn Kay Aaker; C.W., minor, by Kalynn Kay 

Aaker; O.W., minor, by Kalynn Kay Aaker; H.W., minor, by Kalynn Kay Aaker

 Plaintiffs - Appellants

v.

Independent School District 194; Doug Van Zyl, or any successor, in his official 

capacity as Superintendent of Independent School District 194

 Defendants - Appellees

____________

Appeal from United States District Court 

for the District of Minnesota

____________ 

Submitted: March 12, 2024

Filed: June 26, 2024

____________ 

Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges. 

____________

GRUENDER, Circuit Judge.

This appeal concerns a civil rights action under 42 U.S.C. § 1983. The 

plaintiffs claim that the defendants discriminated against their political viewpoints 

in violation of the First Amendment. Certain unnamed plaintiffs also filed a motion 

to proceed under pseudonyms. The district court dismissed the plaintiffs’ First 
-2- 

Amendment claims and denied the unnamed plaintiffs’ motion. For the reasons set 

forth below, we affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion. 

I. Background

Following the death of George Floyd in May 2020, teachers at the 

Independent School District 194 (“District”) requested permission to display Black 

Lives Matter (“BLM”) posters in classrooms. On September 22, 2020, the District’s 

superintendent, Michael Baumann, explained in an email that approving the 

teachers’ request would violate District Policy 535, which prohibits employees from 

engaging in “conduct that is intended to be or reasonably could be perceived as 

endorsing or opposing specific political issues or political candidates.” At a school 

board meeting that same day, members of the community expressed their opposition 

to the District’s stance. Superintendent Baumann responded that the District’s 

position in the email was consistent with Policy 535. 

At a school board “work session” on October 6, 2020, Superintendent 

Baumann told attendees once again that BLM posters would not be permitted in the 

District’s schools. Superintendent Baumann presented a slideshow, which included 

one slide entitled “Interpretation of Policy 535.” The slide included the statement 

that “Black Lives Matter posters are not permitted.” Superintendent Baumann stated

that BLM posters would not be permitted in the District’s schools due to their

“political dimension.” 

By December 2020, four school board meetings and work sessions had been 

substantially devoted to discussions of race. At these meetings, vocal members of 

the community urged District administrators to ignore Policy 535. Although 

Superintendent Baumann discussed the need for “policy review,” the District did not 

alter Policy 535. In addition, neither the school board nor the superintendent 

expressly authorized the creation of BLM posters at these meetings. Following these 
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meetings, however, members of the community continued to urge District 

administrators to ignore Policy 535.

The District first evinced an intent to grant the teachers’ request to display 

BLM posters in classrooms at a school board work session on March 17, 2021. At 

the work session, the school board reviewed a draft version of a poster series. The 

poster series had been designed by private activists, and two of the posters included 

the phrase “Black Lives Matter.” The Executive Director of Communications and 

Public Relations, Stephanie Kass, told the school board that the purpose of the poster 

series was “to meet the requests of several . . . staff members looking to put up 

posters affirming our students and our classrooms.” Superintendent Baumann 

acknowledged that there existed “more than one group of stakeholders” involved in 

the review of the posters, which prompted one of the board members to state that 

she would tell the public that the posters were “going through our equity 

group, . . . students, . . . staff, [and] advisory committees.” The Director of Equity 

Services, Lydia Lindsoe, told the school board that a Native American student and 

an Asian student were going to be added to one of the posters after such 

“stakeholders” had expressed concern regarding a lack of diversity in the posters. 

Nevertheless, Superintendent Baumann told the school board, “I don’t know if I 

would say our goal is to have them up in the schools. Our goal is to let the teachers 

have the opportunity and to use [the posters] if they feel it has instructional value or 

value in their classrooms.” He elaborated that the District was not going to “hang 

every single one of these up all over the place. . . . [O]ur intentions aren’t necessarily 

to go around and make sure we hang them up everywhere. It’s really about what the 

classrooms and the teachers want to do.”

Around April 2021, the District funded the poster series. The final version of 

the poster series was called the “Inclusive Poster Series” and included eight posters. 

In one final poster, the District revised a draft version to replace a blonde girl with a 

blonde boy. Two of the eight posters bore the phrase “Black Lives Matter” and a 

statement that “[a]t Lakeville Area Schools we believe Black Lives Matter and stand 

with the social justice movement this statement represents. This poster is aligned to 
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School Board policy and an unwavering commitment to our Black students, staff 

and community members.”

Bob Cajune, who resides within the District’s boundaries, asked Director 

Lindsoe in an email to permit posters and shirts bearing the phrases “All Lives 

Matter” and “Blue Lives Matter” in the District’s schools. Director Lindsoe

responded by email that the District did “not approve of All Lives Matter or Blue 

Lives Matter posters in the classrooms or other areas of the school, and 

teachers/school staff are not allowed to wear shirts with these sayings to school.” 

Director Lindsoe stated that “All Lives Matter and Blue Lives Matter mottos were 

created specifically in opposition to Black Lives Matter” and that those messages 

“effectively discount the struggle the Black students have faced in our school 

buildings and that Black individuals face in our society as a whole.” She told Cajune 

that the Inclusive Poster Series was “requested by many staff and families in our 

school communities.”

Several named and unnamed plaintiffs filed a 42 U.S.C. § 1983 lawsuit 

against the District and its superintendent. They alleged that the District violated the 

First Amendment’s Free Speech Clause by rejecting the All Lives Matter and Blue 

Lives Matter posters and shirts while permitting the BLM posters to be posted in the 

schools. The unnamed plaintiffs also filed a motion to proceed under pseudonyms

for fear of reprisal from political activists in the “southern suburban Minneapolis 

metropolitan community.” The defendants filed a motion to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon 

which relief could be granted. 

The district court denied the unnamed plaintiffs’ motion to proceed under 

pseudonyms and granted the defendants’ motion to dismiss. The district court held 

that the unnamed plaintiffs had not sufficiently established a threat of a hostile public 

reaction to their lawsuit that would warrant anonymity. In addition, the district court 

concluded that the BLM posters constituted government speech that is not subject to 

scrutiny under the First Amendment’s Free Speech Clause. 
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II. Discussion

The plaintiffs appeal both orders. With respect to the motion to proceed under 

pseudonyms, the unnamed plaintiffs contend that the district court failed to properly 

consider their specific examples of “cancel culture” in southern Minneapolis.1

 As 

to the motion to dismiss, the plaintiffs assert that the content and meaning of the

BLM posters were shaped by private persons and that the District merely stamped 

its seal of approval on the posters. The plaintiffs further assert that the District 

created a limited public forum when it allowed private persons to post the BLM 

posters on the schools’ walls. Having done so, the plaintiffs contend that the District 

could not discriminate against their speech by rejecting the All Lives Matter and 

Blue Lives Matter posters and shirts.

A. Motion to Proceed under Pseudonyms

Federal courts disfavor the use of fictitious names in legal proceedings. See, 

e.g., Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997); 

Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992). The use of fictitious names runs 

afoul of the public’s First Amendment interest in public proceedings and their 

common law right of access thereto. Proceedings are only truly public when the 

public knows the identities of the litigants. See Richmond Newspapers, Inc. v. 

Virginia, 448 U.S. 555, 580 & n.17 (1980); Does I thru XXIII v. Advanced Textile 

Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). In addition, there is nothing in the 

Federal Rules of Civil Procedure that allows plaintiffs to proceed under pseudonyms. 

Rather, the Federal Rules explicitly provide otherwise. Rule 10(a) provides that 

“[t]he title of the complaint must name all the parties.” Rule 17(a) requires that “[a]n 

action . . . be prosecuted in the name of the real party in interest.”

1

The appeal of the district court’s denial of the motion to proceed under 

pseudonyms concerns only the unnamed adult plaintiffs. The district court allowed 

the minor plaintiffs to proceed using their initials.
-6- 

Despite this “constitutionally-embedded presumption of openness in judicial 

proceedings,” federal courts have allowed parties to proceed under pseudonyms in 

certain limited circumstances. In re Chiquita Brands Int’l, Inc., 965 F.3d 1238, 1247 

(11th Cir. 2020). The consensus among our sister circuits is that party anonymity is 

only warranted when the need for anonymity outweighs countervailing interests in 

full disclosure. See, e.g., id.; Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 

189 (2d Cir. 2008). Thus, courts have allowed plaintiffs to use fictitious names to 

protect the privacy of vulnerable parties, such as children and rape victims. See Blue 

Cross, 112 F.3d at 872. In contrast, courts have declined to allow plaintiffs to 

proceed pseudonymously where plaintiffs feared they would face disapproval by 

many in their community if they prosecuted the case under their real name. See, e.g.,

Frank, 951 F.2d at 324.

This circuit has not directly addressed the standard by which a litigant may 

proceed under a pseudonym. See, e.g., Doe v. Poelker, 497 F.2d 1063 (8th Cir. 

1974); Doe v. Sauer, 186 F.3d 903, 904 n.2 (8th Cir. 1999). In related cases 

involving the sealing of judicial records, we have held that “the court must consider 

the degree to which sealing a judicial record would interfere with the interests served 

by the common-law right of access and balance that interference against the salutary 

interests served by maintaining confidentiality of the information.” IDT Corp. v. 

eBay, 709 F.3d 1220, 1223 (8th Cir. 2013). Absent our direct guidance on the 

applicable standard for litigating under a pseudonym, the district courts of this circuit 

have for decades applied the standard set forth by our sister circuits. See, e.g.,

Heather K. by Anita K. v. City of Mallard, Iowa, 887 F. Supp. 1249, 1255-56 (N.D. 

Iowa 1995); Luckett v. Beaudet, 21 F. Supp. 2d 1029 (D. Minn. 1998); Doe v. 

Washington Univ., 652 F. Supp. 3d 1043, 1045-46 (E.D. Mo. 2023). We see no 

reason to depart from a standard that aligns with our precedent involving the 

common law right of access to judicial proceedings. Therefore, we join our sister 

circuits and hold that a party may proceed under a fictitious name only in those 

limited circumstances where the party’s need for anonymity outweighs 

countervailing interests in full disclosure.
-7- 

The factors that are relevant to this balancing inquiry will depend on the facts 

of the case in question. Our sister circuits have identified several factors that may 

be relevant in weighing the competing interests. In Doe v. Stegall, 653 F.2d 180, 

185 (5th Cir. 1981), the Fifth Circuit identified three factors common to those 

“exceptional” cases in which party anonymity was held to be justified: (1) the party 

seeking anonymity was challenging government activity; (2) identification 

threatened to reveal information of a sensitive and highly personal nature; and (3) a 

party would be required, absent anonymity, to admit an intention to engage in illegal 

conduct, thereby risking criminal prosecution. The Seventh Circuit has stated that 

the danger of retaliation is “often a compelling ground” in favor of anonymity. Doe 

v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004). Factors that weigh against 

party anonymity include “whether the party’s requested anonymity poses a unique 

threat of fundamental unfairness to the defendant,” Chiquita, 965 F.3d at 1247, 

whether the public’s interest in the case is furthered by requiring that the litigants 

disclose their identities, see Advanced Textile Corp., 214 F.3d at 1068, and whether 

there exist alternative mechanisms that could protect the confidentiality of the 

litigants, see Sealed Plaintiff, 537 F.3d at 190. We emphasize that the 

aforementioned factors are non-exhaustive and that other factors, or a combination 

thereof, may be relevant. 

Having decided the standard under which persons may proceed anonymously, 

we now turn to the standard of review to be applied to the grant or denial of a motion 

to proceed anonymously.

2

 Our sister circuits have applied an abuse of discretion 

standard of review. See, e.g., id.; Roe v. Aware Woman Ctr. for Choice, Inc., 253 

F.3d 678, 684 (11th Cir. 2001). Because a district court must exercise discretion in 

the course of weighing competing interests, we agree with our sister circuits that an 

abuse of discretion standard of review is appropriate. Under this deferential standard 

of review, we must affirm the district court’s ruling unless the district court failed to 

2

This circuit has yet to issue a published decision addressing the standard of 

review. In an unpublished decision, we reviewed a district court’s pre-service denial 

of a motion to file suit under a pseudonym for an abuse of discretion. Doe v. Univ. 

of Ark., 713 F. App’x 525, 526 (8th Cir. 2018). 
-8- 

consider a factor that should have been given significant weight, considered an 

improper factor, or committed a clear error of judgment in the course of weighing 

proper factors. Qwest Commc’ns Corp. v. Free Conferencing Corp., 920 F.3d 1203, 

1205 (8th Cir. 2019).

The unnamed plaintiffs wish to remain anonymous in this litigation because 

they fear reprisal from political activists in southern Minneapolis. The unnamed 

plaintiffs contend that these political activists are part of the greater “cancel culture”

movement, which seeks to punish any dissenting political viewpoints. In support of 

their contention, the unnamed plaintiffs reference three examples of cancel culture: 

(1) political activists’ intentional interference with Bittersweet Bakery’s business in 

Eagan, Minnesota; (2) HomeTown Bank’s firing of Tara McNeally due to

McNeally’s criticism of the Shakopee School District’s superintendent on Facebook; 

and (3) the plaintiffs in this case allegedly being assaulted and physically blocked 

from entering school board meetings by political activists.

We conclude that the district court did not abuse its discretion in denying the 

unnamed plaintiffs’ motion. We acknowledge that the danger of retaliation is “often 

a compelling ground” in favor of anonymity. City of Chicago, 360 F.3d at 669. 

However, aside from a general reference to cancel culture, the unnamed plaintiffs 

do not claim any nexus between the incidents involving Bittersweet Bakery or 

McNeally to their case. A general reference to cancel culture alone is insufficient to 

establish a compelling fear of retaliation. Cf. Chiquita, 965 F.3d at 1247 (holding 

that the pseudonymous appellants’ general evidence regarding harm suffered by 

other individuals did “not compel the conclusion that the [appellants] face[d] those 

risks”). 

With respect to the unnamed plaintiffs’ allegations regarding physical assault 

at school board meetings, the unnamed plaintiffs do not suggest that the political 

activists involved in these incidents would seek to retaliate against them due to the 

prosecution of this lawsuit. According to the plaintiffs, the political activists blocked 

them from attending school board meetings so as to obtain better seats and more 
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influence over the school board. This behavior ceased after the plaintiffs 

complained. We cannot say that the district court abused its discretion in finding 

that this past harm did not precipitate a finding of future harm. In addition, “the 

district court was free to consider the named plaintiffs as comparators when 

weighing the pseudonymous appellants’ risk of harm against the presumption of 

judicial openness.” See id. at 1248. The district court noted that this lawsuit already 

contains three named plaintiffs who have litigated two federal lawsuits asserting 

their viewpoints for years without apparent incident. Therefore, we affirm the 

district court’s denial of the motion to proceed under pseudonyms.

B. Motion to Dismiss

Dismissal under Rule 12(b)(6) is not appropriate when a complaint contains 

sufficient factual matter, which, when accepted as true and viewed in the light most 

favorable to the nonmoving party, states “a claim to relief that is plausible on its 

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face 

“when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id. The 

plausibility standard is not a “probability requirement”; rather, it requires a plaintiff 

to show that success on the merits is more than a “sheer possibility.” Id. Thus, a 

complaint “may proceed even if it strikes a savvy judge that actual proof of the facts 

alleged is improbable, and that a recovery is very remote and unlikely.” Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 556 (2007). 

To avoid dismissal in this case, the plaintiffs must plead facts allowing a court 

to draw the reasonable inference that (1) the government-speech doctrine does not 

bar their claim and (2) the defendants unconstitutionally discriminated against their 

speech on the basis of its viewpoint. The district court dismissed the complaint after 

concluding that the government-speech doctrine barred the plaintiffs’ claims. We 

review de novo the district court’s decision to dismiss the complaint under Rule 

12(b)(6). See Sorenson v. Sorenson, 64 F.4th 969, 975 (8th Cir. 2023). 
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1. Government-Speech Doctrine

The First Amendment’s Free Speech Clause provides that “Congress shall 

make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. “The Free 

Speech Clause restricts government regulation of private speech; it does not regulate 

government speech.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 

(2009). “When the government wishes to state an opinion, to speak for the 

community, to formulate policies, or to implement programs, it naturally chooses 

what to say and what not to say.” Shurtleff v. City of Boston, Massachusetts, 596 

U.S. 243, 251 (2022). The Constitution “relies first and foremost on the ballot box, 

not on rules against viewpoint discrimination, to check the government when it 

speaks.” Id. at 252.

In some situations, difficulties can arise in distinguishing between

government speech and government regulation of private expression. Id. To 

determine whether the government intends to speak for itself or to regulate private 

expression, we conduct a “holistic inquiry,” looking to (1) “the history of the 

expression at issue,” (2) “the public’s likely perception as to who (the government 

or a private person) is speaking,” and (3) “the extent to which the government has 

actively shaped or controlled the expression.” Id. 

First, we look to the history of the expression at issue. We consider both the 

general history of posting messages on school walls as well as the specific history 

of the District in allowing similar messages to be posted on its walls. See id. at 253-

55. As to general history, the parties do not dispute that schools have traditionally

controlled and communicated messages on posters placed on their walls. The 

District’s specific history, however, tells another story. The District had not 

previously allowed private individuals to display a poster series like the Inclusive 

Poster Series on school walls. Indeed, Superintendent Baumann attempted on 

multiple occasions to exclude the BLM posters from the District, but the District 

acquiesced to the wishes of private persons after facing backlash from members of 

the community.
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The District contends our inquiry into specific history is too “narrow” and that 

such a narrow inquiry would require courts to find a “mirror image historical 

analogy” to the conduct at issue. According to the District, we should look only to 

whether “school districts historically have and will continue to communicate 

messages of support for [their] students through posters on building walls.” We 

agree with the District that a mirror image historical analogy is not required. But the 

analysis the District would have us adopt is indistinguishable from the analysis we 

have already conducted with respect to general history. Moreover, our inquiry into 

specific history aligns with that of the Supreme Court in Shurtleff. In Shurtleff, 

several plaintiffs raised a First Amendment challenge to the City of Boston’s refusal 

to raise what the plaintiffs described as a “Christian flag.” Id. at 248. In evaluating 

the first factor, the Court considered the general history of flag flying as well as the 

specific details of Boston’s flag-flying program. Id. at 253-55. The Court concluded 

that evidence supported the plaintiffs’ characterization of Boston’s flag-flying 

program as private expression because Boston had strayed from its prior practice 

regarding flag-flying by rejecting the plaintiffs’ flag. Id. Similarly, here, the District 

strayed from its prior practice by allowing its employees to display the Inclusive 

Poster Series on school walls. 

The district court found that the first factor favored the District’s claim of 

government speech because the District “reviewed, authorized, and provided the 

posters to support staff [and students].” In drawing this conclusion, the district court 

improperly weighed the facts and construed them in the light most favorable to the 

defendants. The district court did not consider the involvement of private actors in 

the design and adoption of the posters. For instance, Superintendent Baumann told 

the school board that the District’s goal was to allow “teachers” to use the BLM 

posters if those teachers felt that the posters had instructional value.

3

 In addition, 

Director Kass told Cajune that the posters were “requested by many staff and 

3

We do not attribute the statements and actions of the individual teachers to 

the District. See Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 

2000) (distinguishing between a “teacher” and the “Los Angeles Unified School 

District”).
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families” in the District. When viewing the facts in the light most favorable to the 

plaintiffs, these statements (and others) support a finding of private speech. Thus, 

while general history weighs in the District’s favor, specific history weighs in favor 

of the plaintiffs.

Second, we consider the public’s likely perception as to who—the government 

or a private person—is speaking. The District left to the discretion of individual 

teachers the decision of whether to post the BLM posters in their classrooms. The 

teachers were not required to display the posters in their classrooms. The location 

of BLM posters in the teachers’ classrooms, as well as the discretion provided to 

teachers in choosing whether to display the posters at all, support a finding of private 

speech. See Summum, 555 U.S. at 467 (noting that the location where a message is 

displayed can affect the public’s perception of who is speaking).

The District contends that “[a]ny reasonable member of the public would look 

at the [Inclusive] Poster Series and undoubtedly understand” the District to be 

communicating a message in support of its students and their academic achievement. 

To bolster its contention, the District points to several statements the District made 

during school board meetings indicating it approved of the BLM posters. The 

District also emphasizes that the posters contain the District’s logo, slogan, website 

link, and a statement that “[t]his poster is aligned to School Board policy and an 

unwavering commitment to our Black students, staff[,] and community members.” 

The District would have us look solely to these indications of its approval as decisive 

while ignoring statements made by it that are indicative of private speech. On a 

motion to dismiss, we must view the facts in the light most favorable to the plaintiffs. 

Furthermore, the District would have us do what the Supreme Court admonished 

against in Matal v. Tam, 582 U.S. 218, 235 (2017). In Matal, the Court warned 

courts to be wary of situations where the government has “dangerous[ly] misuse[d]” 

the government-speech doctrine by attempting to pass off certain speech as 

government speech by “simply affixing a government seal of approval.” Id. We 

cannot say that the posters are government speech solely on the basis that the District 

affixed its seal of approval on them. Thus, with the facts viewed in the light most 
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favorable to the plaintiffs, we find that the public would perceive private persons, 

and not the District, as having spoken through the BLM posters.

Third, we look to the extent to which the government has actively shaped or 

controlled the expression. The District contends it “retained complete control over 

the [BLM] posters.” However, Superintendent Baumann disclaimed District 

involvement with the posters when he told the school board, “I don’t know if I would 

say our goal is to have them up in the schools. Our goal is to let the teachers have 

the opportunity and to use [the posters] if they feel it has instructional value or value 

in their classrooms.”4

 District administrators confirmed on several occasions that 

the idea of the Inclusive Poster Series originated with private persons, including 

“staff and families” in the District. Moreover, the District did not prescribe the 

display of posters on specific walls or on any walls at all. Rather, it allowed

individual teachers to make that decision. The District’s statements and actions 

show that it relinquished control to private actors.

The district court concluded that, given the District’s review process and final 

approval authority over the BLM posters, the District “could have simply adopted 

the posters without alteration, and still the posters would be considered the District’s 

speech.” The district court’s conclusion runs afoul of the Supreme Court’s 

pronouncement in Matal; private speech cannot be passed off as government speech 

4

The District claims that only the school board can speak on behalf of the 

District and that the superintendent’s remarks cannot be imputed to it because 

District Policy 302 provides that the superintendent can only make “suggestions 

regarding policies, regulations, rules and procedures deemed necessary for the 

[District].” According to that same policy, however, the superintendent is the “chief 

executive officer of the school system,” “an ex-officio member of the [school 

board],” and is in “charge of the administration of the schools.” Even if we were to 

assume that only the school board as a collective body could speak on behalf of the 

District, we find that the school board maintained a passive stance with regard to the 

Inclusive Poster Series. The idea of the Inclusive Poster Series did not originate with 

the school board, nor did the school board direct the design and content of the 

posters. 
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“by simply affixing a government seal of approval.” Id. Without more, the mere 

existence of a review process with approval authority is insufficient by itself to 

transform private speech into government speech.

Government speech requires that a government shape and control the 

expression. In Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 

200 (2015), the Supreme Court evaluated whether the issuance of specialty license 

plates by Texas constituted government speech.5

 In issuing specialty license plates,

Texas had a review process and final approval authority over the content of the

plates. Id. at 213. However, the mere existence of these elements did not dissuade 

the Court from inquiring into whether Texas had “actively exercised” its “sole

control over the design, typeface, color, and alphanumeric pattern for all license 

plates.” Id. (emphasis added). Here, by contrast, the District stated that the Inclusive 

Poster Series was reviewed by an “equity group,” “students,” “staff,” and “other 

advisory committees.” The District’s sole involvement was to replace a blonde girl 

in one of the posters with a blonde boy. Thus, the District maintained a passive role 

in the design of the posters.

Applying the government-speech doctrine holistically, we conclude the 

plaintiffs have pleaded sufficient facts to allow a court to draw the plausible

inference that the BLM posters are expressions of private persons. See Ashcroft, 556 

U.S. at 678. The district court erred in finding otherwise. 

2. Viewpoint Discrimination

Having concluded that dismissal is not warranted under the governmentspeech doctrine, we turn to the question of whether the plaintiffs have alleged a 

plausible claim of unconstitutional viewpoint discrimination. A government 

engages in viewpoint discrimination when “the specific motivating ideology or the 

5

The Court has described Walker as “likely mark[ing] the outer bounds of the 

government-speech doctrine.” Matal, 582 U.S. at 238. 
-15- 

opinion or perspective of the speaker is the rationale for the restriction.” 

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). 

The extent to which a government can regulate speech on public property 

depends on the designation of the forum in which an individual may speak. 

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). A 

forum can be public or nonpublic in nature. Id. The mere fact that a government 

owns the property in question does not make the property a public forum. Id. at 799-

800. Rather, a government has the “power to preserve the property under its control 

for the use to which it is lawfully dedicated.” Id. at 800. To ascertain whether a 

government intends to designate a place not traditionally open to assembly and 

debate as a public forum, we consider “the policy and practice of the government” 

and “the nature of the property and its compatibility with expressive activity.” Id. at 

802. Specifically, in assessing the nature of various fora, this circuit has considered 

the physical characteristics of a venue, the typical use of the specific venue, the 

venue’s function and objective purpose, and the government’s intent for the venue. 

Sessler v. City of Davenport, 102 F.4th 876, 882 (8th Cir. 2024). A public forum is 

not created “in the face of clear evidence of a contrary intent” or “when the nature 

of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803.

One type of public forum—the limited public forum—exists when a 

government “reserve[s] a forum for certain groups or for the discussion of certain 

topics.” Walker, 576 U.S. at 215; see also Barrett v. Walker Cnty. Sch. Dist., 872 

F.3d 1209, 1225 (11th Cir. 2017) (explaining that the term “limited public forum” 

used to be synonymous with “nonpublic forum” but that recent Supreme Court cases 

had clarified the distinction). When a government creates a limited public forum, it 

“must respect the lawful boundaries it has itself set.” Rosenberger, 515 U.S. at 829. 

Thus, in a limited public forum, a government is prohibited from discriminating

against speech on the basis of its viewpoint. Id. at 829-30.

Here, the plaintiffs claim that the District created a limited public forum when 

it allowed private persons to display BLM posters on school walls. Because the 
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District permitted such actions, the plaintiffs contend that the District could not 

discriminate against their speech based on its viewpoint. Having considered the 

“policy and practice” of the District, we agree with the plaintiffs. Cornelius, 473 

U.S. at 802. When the District allowed private persons to display the Inclusive 

Poster Series on school walls, it deviated from its prior practice restricting the 

display of such posters. In doing so, the District created a limited public forum, 

thereby opening school walls to the discussion of similar topics.

The District contends it did not create a limited public forum because Policy 

535 specifically provides that “[a]ll school district property and facilities are 

nonpublic fora.” We agree with the Ninth Circuit’s statement in Hopper v. City of 

Pasco, 241 F.3d 1067, 1075 (9th Cir. 2001) that “an abstract policy statement 

purporting to restrict access to a forum is not” conclusive of the nature of the forum. 

Rather, “[w]hat matters is what the government actually does—specifically, whether 

it consistently enforces the restrictions on use of the forum that it adopted.” Id. Here, 

the District created a limited public forum by not consistently enforcing the 

restrictions it had placed on the display of posters on school walls.

Having created a limited public forum, the District could not discriminate 

against speech on the basis of its viewpoint. According to the District, however, it 

rejected Cajune’s request because the phrases “All Lives Matter” and “Blue Lives 

Matter” “were created specifically in opposition to Black Lives Matter.” That was 

impermissible viewpoint discrimination in that the rationale for the restriction was 

prompted by what the District viewed as the speaker’s “motivating ideology” or their 

“opinion or perspective.” Rosenberger, 515 U.S. at 829. Therefore, we conclude 

that the plaintiffs have shown that success on their First Amendment claim is more 

than a “sheer possibility.” Ashcroft, 556 U.S. at 678. We reverse the district court’s 

dismissal of the complaint under Rule 12(b)(6).
-17- 

III. Conclusion

For the foregoing reasons, we affirm the district court’s denial of the motion 

to proceed under pseudonyms, reverse the district court’s dismissal of the complaint, 

and remand for further proceedings consistent with this opinion. 

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