TARNOW, District Judge.
Appellant is an evangelical Christian who wishes to speak on the campus of Tennessee Technological University (TTU) about his religion. TTU requires non-affiliated individuals and groups to obtain permission before speaking on certain parts of the campus. TTU employs a fourteen business day advance notice period for all applications. Appellant attempted to speak on TTU's campus. When he was denied the opportunity to speak anywhere except the north patio and was removed from campus, Appellant brought an as-applied and facial challenge to TTU's policy in the district court.
Appellant filed a motion for preliminary injunction, and Appellees filed a motion to dismiss. The district court held that Appellant did not suffer an injury in fact and therefore, did not have standing to bring the suit. It held that the campus use policy is content-neutral and narrowly tailored. The district court further granted Appellees' motion to dismiss and denied Appellant's motion for preliminary injunction.
Because Appellant has suffered an injury in fact, has standing, and TTU's policy is not narrowly tailored, we
The following facts come from the district court's Memorandum and Order granting Defendants' Motion to Dismiss and denying Plaintiff's Motion for Preliminary Injunction. The district court accepted as true Plaintiff's version of the facts. R. 29, at 1-2; Appellant's Br., at 13.
R. 29, Mem., at 2-11.
The district court found that Plaintiff lacked standing to bring the claim and dismissed the Complaint with prejudice. Id. at 17. The district court reasoned that since Plaintiff's claim was nothing more than a subjective "chill" of his First Amendment rights, it was insufficient to confer standing. Id. at 14 (citing Morrison v. Bd. of Educ., 521 F.3d 602, 608 (6th Cir. 2008)). Consequently, the district court also denied the motion for preliminary injunction and dismissed all Defendants in their individual and official capacities. Id. at 18-20; R. 30, Order; R. 35, Order. The court also found that the campus use policy is content-neutral, narrowly tailored to serve significant government interests, and left ample alternative channels for communication. R. 29, Mem., at 15-17.
This consolidated appeal arises from the district court's orders granting Defendants' motion to dismiss and motion for judgment on the pleadings.
A dismissal for lack of standing is also reviewed de novo. Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007) (internal citation omitted).
In general we review a district court's denial of a motion for preliminary injunction for abuse of discretion. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). When reviewing a preliminary injunction with First Amendment implications, however, the review is de novo. Cnty. Sec. Agency v. Ohio Dep't of Commerce, 296 F.3d 477, 485 (6th Cir. 2002) (internal citation omitted). No deference is afforded to the district court. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984).
The district court held that McGlone did not have standing. In the alternative, it held that TTU's policy was a content-neutral, time, place, and manner regulation warranting dismissal of the complaint. Both prongs-standing and dismissal-will be discussed below.
The district court found that "plaintiff did not submit proof of any concrete and particularized harm that is actual and imminent, and he alleges nothing more than a subjective `chill' of his First Amendment rights." R. 29, Mem., at 14. Upon a de novo review of the record, we find that the district court erred in making such a determination. McGlone has satisfied the constitutional and prudential standing requirements to bring his First Amendment claims for the reasons stated below.
Standing to pursue a claim is a threshold question in every federal case. Warth v. Seldin, 422, U.S. 490, 498 (1975). "The burden of establishing standing is on the party seeking federal court action." Rosen v. Tenn. Comm'r of Fin. & Admin., 288 F.3d 918, 927 (6th Cir. 2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff must meet Article III and prudential standing requirements to proceed with his case. Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009).
To establish Article III, constitutional standing, a plaintiff must show:
Id. (quoting Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir. 2004)). To establish prudential standing requirements
Id. (quoting Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999)).
Most factors as to standing are clearly met by McGlone, as there are limited factual disputes in this case. The alleged injury is fairly traceable to Appellees, as TTU's policy was created and enforced by the school and its officials. His alleged injury will be redressed by a favorable decision. He is asserting his own legal rights and interests; he is the one who wants to speak on campus. Since it is personal to him, it is not a "generalized grievance" and it falls with the zone of interests regulated by the statute—his right to free speech. The only factor as to standing that is in dispute is whether McGlone has suffered an injury in fact, which is discussed in detail below.
Plaintiff is challenging four aspects of the TTU campus use policy:
"It is well-settled that a chilling effect on one's constitutional rights constitutes a present injury in fact." G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1076 (6th Cir. 1994) (internal citation omitted). To show the existence of an objective chill, a plaintiff must show that he has an "intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder . . ." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979); accord Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1394-96 (6th Cir. 1987). Plaintiffs may have standing even if they have never been prosecuted or threatened with prosecution. Doe v. Bolton, 410 U.S. 179, 188 (1973).
Plaintiff is not required to "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also Planned Parenthood, 822 F.2d at 1395-96. With regard to a plaintiff's First Amendment rights, the Supreme Court has held that:
City of Lakewood v. Plain Dealer Publ'n Co., 486 U.S. 750, 755-56 (1988); see also East Brooks Books, Inc.v. Shelby Cnty. Tenn., 588 F.3d 369 (6th Cir. 2009) (finding that plaintiff had standing based on the suppression of his future protected speech even where his license was not actually revoked).
The district court accepted Appellees' argument that because McGlone did not apply for a permit, he did not suffer an injury in fact. Appellees rely heavily on the Sixth Circuit case of Morrison v. Board of Education and claim that McGlone has only shown a subjective chill of his First Amendment rights. See Morrison v. Bd. of Educ., 521 F.3d 602 (6th Cir. 2008).
In Morrison, we held that subjective chill alone is insufficient to establish standing. Morrison, 521 F.3d at 608. Morrison was a high school student and Christian who believed that his religion required him to tell homosexual students that their sexual orientation was a sin. Id. at 605. His high school had a written policy prohibiting students from making potentially harassing or derogating statements to students based on their sexual orientation. Morrison alleged that the written policy chilled his speech because he was scared of being punished. Id. After filing his lawsuit, the school board changed the policy to permit anti-homosexual speech unless it was "sufficiently severe or pervasive that it adversely affects a student's education or creates a climate of hostility or intimidation for that student, both from the perspective of an objective educator and from the perspective of the student at whom the harassment is directed." Id. at 607.
The Court held that Morrison did not have standing. Id. at 608. The Court reasoned that "the record [was] silent as to whether the school district threatened to punish or would have punished Morrison for protected speech in violation of its policy." Id. The Court declined to find standing where Morrison's claim was based solely on apprehension and without any specific action by the Board that supported his fear that punishment would result. Morrison's reliance on the written policy by itself was held to be insufficient. Id.
Here, the district court imposes the requirement that McGlone apply for and be denied a permit to speak before he is afforded standing. The law does not support such a result. Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also Planned Parenthood, 822 F.2d at 1395-96.
McGlone's intention to engage in expression regulated by TTU's policy is sufficient to support his assertion that the policy objectively chills his desired speech. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979); accord Planned Parenthood, 822 F.2d at 1394-96. McGlone has a desire to speak spontaneously on TTU's campus in areas that are subject to the policy. The fact that McGlone can speak freely on the north patio does not affect his standing to bring the instant claim. See Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 607 (6th Cir. 2005) (allowing plaintiff to challenge notice/permit provision even though the city of Dearborn has provided ample alternative means of communication such as the city hall and public parks).
This case is distinguishable from Morrison. Here, the record is not "silent" as to a threat of punishment. McGlone is alleging more than the apprehension based on a written policy. McGlone attempted to seek a waiver of the fourteen-day notice requirement by speaking in the south patio/plaza area of the campus. He was denied the waiver and was told that he could only speak on the north patio. Furthermore, he was approached by a campus police officer who threatened to arrest him for trespass if he did not stop speaking and leave the campus. Appellees also sent a letter to McGlone notifying him that he would not be allowed on campus if he did not first obtain permission. We hold that McGlone has suffered an injury in fact that is concrete and particular. He was not allowed to speak on campus and was not afforded a waiver. His First Amendment rights have also been objectively chilled by the threat of arrest. The injury is actual, as it already occurred and will imminently occur again if he violates the policy.
We hold that McGlone has standing to challenge the policy on its face and as-applied to him. The district court erred in holding otherwise.
At the district court, Appellees filed a motion to dismiss for failure to state a claim and Appellees also moved to dismiss defendants in their individual capacities based on immunity. R. 13, Defs.' Mot. to Dismiss; R. 14, Defs.' Mem. in Supp. of Mot. to Dismiss. The district court ruled that TTU's policy was a permissible, content-neutral, time, place, and manner restriction warranting dismissal. The district court also dismissed the TTU officials in their individual capacities based on qualified immunity. These decisions were erroneous.
This Court reviews a grant of a motion to dismiss for failure to state a claim de novo. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). "In determining whether a party has failed to state a claim, we construe the complaint in the light most favorable to the non-moving party and accept all factual allegations as true. Id. The complaint "need contain only `enough facts to state a claim to relief that is plausible on its face.'" Paige v. Coyner, 614 F.3d 273, 277 (6th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Forum analysis is required to determine whether a restriction on speech violates the First Amendment. Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 1985); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797 (1995). We use a three-step process to determine: 1) whether the expressive activity deserves protection; 2) the nature of the forum, and 3) whether the justifications for exclusion from the relevant forum satisfy the requisite standard. Saieg v. City of Dearborn, 641 F.3d 727, 734-35 (6th Cir. 2011) (internal quotations and citations omitted); Cornelius, 473 U.S. at 797.
As to the first factor, McGlone's desire to share his religious message through public speaking, one-on-one conversation, distribution of literature, and display of signs is protected First Amendment activity. See, e.g., Boos v. Barry, 485 U.S. 312, 318 (1988) (holding that the display of signs as protected speech); Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 647 (1981) (holding that written and oral dissemination of religious viewpoint are protected speech); Murdock v. Com. of Pa., 319 U.S. 105, 108 (1943) (holding that the hand distribution of religious materials are protected speech).
The district court declined to make a decision on whether the areas on TTU's campus are traditional public fora or designated public fora. R. 29, at 14, n.2 ("[T]he court need not resolve this issue because the standard applicable to traditional public fora and designated public fora is the same."). We, however, hold that this issue is now ripe for review, as no facts are in dispute. The issue is purely a question of law.
McGlone argues that the open areas on TTU's campus are public fora. We agree. The perimeter sidewalks along TTU's campus are traditional public fora and all other open areas are designated public fora.
There are three types of property for the purposes of forum designation: traditional, designated, and nonpublic fora. Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 842 (6th Cir. 2000) (internal citations omitted). "Traditional public fora, such as streets, sidewalks, and parks, are `places which by long tradition or by government fiat have been devoted to assembly and debate.'" Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)). In a designated public forum, the government "intentionally open[s] a nontraditional public forum for public discourse." Id. (quoting Cornelius, 473 U.S. at 802).
Appellant would like to speak on the perimeter sidewalks along the side of the TTU campus. Appellant argues that the sidewalks should be characterized as traditional public fora. Sidewalks have long been considered "prototypical" examples of traditional public fora. Schenck v. Pro-Choice Network of W. New York, 519 U.S. 357, 377 (1997). The burden is on TTU to show that the sidewalk is overwhelmingly specialized to negate its traditional forum status. Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992).
Appellees have not attempted to dispute Plaintiff's characterization of the perimeter sidewalks as traditional public fora. McGlone argues that the sidewalks on TTU's campus "look like, lie adjacent to, and blend in with other city sidewalks." Appellant's Br., at 27. Where a private "[s]idewalk blends into the urban grid, borders the road, and looks just like any public sidewalk" the Court has characterized such a sidewalk as a traditional public forum. United Church of Christ v. Gateway Econ. Dev. of Greater Cleveland, Inc., 383 F.3d 449 (6th Cir. 2004); see also United States v. Grace, 461 U.S. 171, 180 (1983) (holding that the sidewalk serving as a perimeter to the Supreme Court's grounds is a traditional public forum where there is no separation, fence, or indication that it is "some special type of enclave."); see also Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000) (finding that a university sidewalk that was physically indistinguishable from nearby city sidewalks is a traditional public forum). Because the perimeter sidewalks at TTU blend into the urban grid and are physically indistinguishable from public sidewalks, they constitute traditional public fora.
The parties and the district court agree that the remaining open areas of the TTU campus are designated public fora. TTU's written policy states "[t]he campuses and facilities of" TTU to "non-affiliated groups, organizations or individuals" who have "been granted or approved pursuant to the provisions of this policy . . . ." R. 2-19, Ex. T, Policy, § 2(2)(a). The other open areas at issue are designated fora. See Putnam Pit, 221 F.3d at 842 (finding a designated public forum where the government "intentionally open[s] a nontraditional public forum for public discourse").
A prior restraint is any law "forbidding certain communications when issued in advance of the time that such communications are to occur." Alexander v. United States, 509 U.S. 544, 550 (1993). TTU's policy requires unaffiliated speakers to "submit a written application for registration of the proposed activity at least fourteen (14) days in advance (excluding weekends and holidays) . . ." R. 29, Ex. T. Because an unaffiliated speaker's exercise of a First Amendment right depends on the prior approval of a public official, the policy imposes a prior restraint. See Déjà Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001).
"Any system of prior restraints of expression [bears] a heavy presumption against its constitutional validity, and a party who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint." Cnty. Sec. Agency v. Ohio Dep't of Commerce, 296 F.3d at 477, 485 (6th Cir. 2002) (quoting New York Times Co. v. United States, 403 U.S. 713, 714 (1971)). A prior restraint must be content-neutral, narrowly tailored to serve a significant governmental interest, and leave open alternatives for communication. Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992). Furthermore, it must not delegate overly broad licensing discretion to official decision-makers. Id.
TTU's campus policy violates the First Amendment because the policy is not narrowly tailored to any legitimate interest.
Appellant argues that 1) the fourteen business day advance notice requirement, 2) the requirement that speakers obtain permission to engage in any form of expression, and 3) the requirement that the speakers must disclose their identity and content of speech "burden substantially more speech than is necessary to further the government's legitimate interests." Appellant's Br., at 30 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989)).
"Any notice period is a substantial inhibition on speech." Dearborn, 418 F.3d at 605. "The simple knowledge that one must inform the government of his desire to speak and must fill out appropriate forms and comply with the applicable regulations discourages citizens from speaking freely." N.A.A.C.P. v. City of Richmond, 743 F.3d 1346, 1355 (9th Cir. 1984).
TTU's fourteen business day notice period is much longer than other notice periods that have been upheld. See Bowman v. White, 444 F.3d 967 (8th Cir. 2006) (upholding a three day advance notice period)); see Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010) (upholding a seven day advance notice period)). Appellees have not provided any explanation for the need of a fourteen business day notice period. In fact, at oral argument, Appellees agreed that the period was unreasonable.
Appellees have not met their burden to show that the restriction is narrowly tailored to serve a significant government interest. See N.A.A.C.P., 743 F.2d at 1356-57 (finding it insufficient to "simply assert[], without citation to authority, that 20 days notice" is narrowly tailored). We hold that TTU's notice period is unreasonable. See, e.g., City of Dearborn, 418 F.3d at 606-07 (invalidating a thirty-day advance notice requirement for events in parks, on streets, and in other public areas); Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (invalidating a five-day advance notice requirement for processions of ten or more persons on streets, sidewalks, and public ways); Grossman v. City of Portland, 33 F.3d 1200, 1204-07 (9th Cir. 1994) (invalidating a seven-day advance notice requirement to demonstrate in a public park); Roberts v. Haragan, 346 F.Supp.2d 853, 868-69 (N.D. Tex. 2004) (invalidating a two-day advance notice requirement for students to speak in designated campus areas).
As a general matter, anonymous speech is protected by the First Amendment. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995); see also Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 199-200 (1999); Talley v. California, 362 U.S. 60, 64 (1960). Registration requirements dissuade potential speakers by prohibiting anonymous speech. See Watchtower Bible, 536 U.S. at 166; see also McIntyre, 514 U.S. at 341-42 ("[A speaker's] decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible."); see also Berger v. City of Seattle, 569 F.3d 1029, 1037-38 (9th Cir. 2009).
Appellant argues that TTU's permit, which requires individuals and small groups to submit information about their identity and about the program purpose is an unconstitutional restriction. Appellant's Br., at 38-40. TTU's form asks for the "Program Purpose." Id.; R. 2-20, Ex. U. The form asks for the name and topic of the speaker. Id. It also requires an applicant to indicate whether the speech is "political" or "religious." Id.
Appellant argues that the only reason TTU requires such information is to discriminate on the basis of content, specifically to deny applicants or raise security costs in anticipation of the concerns about a given message. Appellant's Br., at 39. Appellant argues that there is no reason for TTU to inquire as to whether a message is "religious" or "political." Id. Appellant claims that he is hesitant to disclose such information and would like to engage in anonymous speech. Id. at 40.
Appellees do not address this argument directly. Appellees' only response is that "[t]he campus use application form to be completed by the individual or group seeking to utilize campus property is also narrowly tailored to require only that amount of information necessary to serve the significant interests of TTU in maintaining order and preventing interruption of its educational mission." Appellees' Br., at 16.
Here, Appellees have failed to meet their burden in defending the policy. Appellees have not specified the "significant interests," nor have they elaborated on an "educational mission." They have not explained how the policy at issue maintains order or prevents interruption of an educational mission. Appellees have failed to show that the policy is narrowly tailored. We reverse the district court's decision to grant dismissal as to this issue and remand for further proceedings consistent with this opinion.
Appellant also argues that the campus use policy's discretionary waiver policy is unconstitutional. The policy identifies nine specific circumstances in which a permit may be denied. R. 2-19, Ex. T, § 2(4)(d). The policy, however, allows officials to waive the fourteen business day waiting period for any reason. In light of the invalidity of the notice period, as discussed supra, we reverse the dismissal of this claim and remand for further proceedings consistent with this opinion.
The district court erroneously dismissed the TTU officials in their individual capacities based on their qualified immunity. R. 29, Mem., at 20. Appellant has correctly and adequately addressed this issue in its brief. Appellant's Br., at 44-45, n.18. Appellant argues:
Id. We agree. We reverse the district court's decision to dismiss the TTU officials based on qualified immunity.
When evaluating a motion for preliminary injunction, we must consider four factors: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." Bonnell, 241 F.3d at 809 (quoting Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998)).
In light of the above, we vacate the district court's denial of McGlone's preliminary injunction motion and remand for further proceedings consistent with this opinion.
In summary, we
