WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the parties' cross-motions for summary judgment. (Docs. 97, 100). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 98-99, 101-04, 106-08, 110-11), and the motions are ripe for resolution. After careful consideration, the Court concludes that both motions are due to be granted in part and denied in part.
According to the amended complaint, (Doc. 29), the plaintiff is a student organization at the University of South Alabama ("the University"), located in Mobile, Alabama. The plaintiff seeks to promote its pro-life message through flyers, signs, peaceful demonstrations and other means. In October 2013 and again in February 2014, the plaintiff sought permission to place a "cemetery of innocents" at various campus locations, including an area between an academic building ("Shelby Hall") and two intersecting public roads ("Old Shell Road" and "University Boulevard"). Permission to use such locations
The amended complaint names as defendants, in their individual and official capacities: (1) the University's president, Tony Waldrop; (2) its vice-president for student affairs, John Smith; (3) its assistant vice-president for student affairs and dean of students, Michael Mitchell; and (4) the dean of its college of engineering, John Steadman. (Doc. 29 at 1).
Count One of the amended complaint alleges that the First and Second Policies violate the plaintiff's First Amendment rights of free speech. Count Two alleges that the First and Second Policies violate the plaintiff's due process rights, while Count Three alleges the policies violate the plaintiff's equal protection rights. The amended complaint seeks as relief: (1) a declaration that the Policies violate the plaintiff's constitutional rights; (2) an injunction against enforcement of the Policies and associated practices; (3) an award of nominal damages against the defendants individually; and (4) attorney's fees and costs. (Doc. 29 at 26-38).
The Court granted the defendants' motion to dismiss the amended complaint's requests for declaratory and injunctive relief with respect to the First Policy, on the grounds of mootness. (Doc. 49 at 3-10, 29). The Court also granted, on the grounds of qualified immunity, the motion to dismiss the amended complaint's demand for nominal damages against the individual defendants, except to the extent the demand is based on alleged viewpoint discrimination in violation of the First Amendment by Mitchell and Steadman in denying permission (under the First Policy) to use what is now the Perimeter for a cemetery of innocents. (Id. at 13-27, 29). The parties' cross-motions seek summary judgment in their favor as to all claims remaining after these rulings.
Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark,
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the non-moving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993).
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion....").
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003).
There is no burden on the Court to identify unreferenced evidence supporting a party's position.
The Second Policy provides in pertinent part as follows:
(Doc. 29-10 at 3-4). This closing of the Perimeter to expressive activity is the plaintiff's sole challenge to the Second Policy. (Doc. 29 at 27-30, 33, 36). As noted, the amended complaint alleges that the Second Policy violates the plaintiff's free speech, due process and equal protection rights. (Id. at 26-37).
"[T]he Supreme Court has broadly discerned three distinct (although not airtight) categories of government property for First Amendment purposes: traditional public fora, designated public fora, and limited public fora." Bloedorn v. Grube, 631 F.3d 1218, 1230 (11th Cir.2011). Identifying which is at issue is important, because "the degree of scrutiny we place on a government's restraint of speech is largely governed by the kind of forum the government is attempting to regulate." Id. For both traditional and designated public fora, "a time, place, and manner restriction can be placed ... only if it is content neutral, narrowly tailored to achieve a significant government interest, and leaves open ample alternative channels of communication." Id. at 1231 (internal quotes omitted). In contrast, "[a]ny restrictions made on expressive activity in a limited public forum only must be reasonable and viewpoint neutral." Id.
In support of its motion for preliminary injunction, the plaintiff argued that the Perimeter constitutes a traditional public forum, that is, one of the "public areas such as streets and parks that, since time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Bloedorn, 631 F.3d at 1231 (internal quotes omitted). For a number of reasons — including the Bloedorn Court's pronouncement that "a state-funded university is not a traditional public forum," Id. at 1232 — the Court concluded that the plaintiff had not shown a substantial likelihood of prevailing on its argument that the Perimeter is a traditional public forum. (Doc. 55 at 3-11). The plaintiff does not on the present motions argue that the Perimeter is or could be a traditional public forum. To the uncertain extent the plaintiff has not abandoned such an argument, the Court holds, for reasons expressed in its order denying preliminary injunctive relief, that the Perimeter is not a traditional public forum.
The plaintiff asserts that the Perimeter is a designated public forum. "We have held that a government entity may create a `designated public forum' if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose." Pleasant Grove City v. Summum, 555 U.S. 460, 470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). "Designated public fora ... are created by purposeful governmental action." Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). "The government does not create [i.e., designate] a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). "Public discourse" in this context means "`indiscriminate use.'" Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)) ("Perry"). The government must make the property at issue "generally available'" or "generally open." Forbes, 523 U.S. at 678-79, 118 S.Ct. 1633. "A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers." Id. at 679, 118 S.Ct. 1633. Thus, "the government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, obtain permission." Id. (internal quotes omitted).
It is thus the intent of the government to designate a forum as generally open for public discourse that matters, and the question becomes whether the plaintiff has sufficient evidence of such an intent to at least raise a genuine issue of material fact. "[T]he [Supreme] Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. "The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government's intent." Id; accord Walker v. Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S.Ct. 2239, 2250, 192 L.Ed.2d 274 (2015).
The Second Policy explicitly limits expressive activity by non-University sponsored
As it did in opposing the defendants' motion to dismiss, the plaintiff relies on Bloedorn for the proposition that the same location can be simultaneously a designated public forum as to some and a limited public forum as to others. While admitting that Bloedorn does not contain any such statement,
As noted, the Second Policy expressly closes the Perimeter to expressive activity by students (as well as by employees and outsiders). A clearer expression of intent not to make the Perimeter generally open for student discourse is difficult to imagine. Rather than confront this formidable obstacle, the plaintiff repairs to the student handbook, which states that the University "is a community of scholars in which the ideals of freedom of inquiry, freedom of thought, freedom of expression and freedom of the individual are sustained" and (under the heading of "security policies and procedures") that access to University facilities is generally limited to University "affiliates" such as student groups. (Doc. 103-22 at 53, 78-79; Doc. 101 at 25). The plaintiff also selectively quotes from the Second Policy to show that its purpose "is to promote the free exchange of ideas" and accommodate "the rights of students ... to speak on campus." (Doc. 29-10 at 1; Doc. 101 at 25). But the very most these glittering generalities could establish is a University policy to permit student expressive activity except where it is prohibited; they do not remotely undermine the clarity and efficacy of the Second Policy's ban on expressive activity in the Perimeter.
Reliance on the Second Policy as reflecting an intent not to create a designated public forum is not, as the plaintiff contends, an exercise in "circular reasoning." What the Fifth Circuit described as circular reasoning was the proposition that a government unit with a "general policy of open access" could cause its property to "cease to be a designated public forum" by the simple expedient of "adopt[ing] a[n]... exceptional regulation" imposing a "specific restriction on speech" without "depart[ing] from [its] consistent practice" of allowing open access, such that "[t]he restriction would disprove any intent to create a designated public forum, and the failure to create a public forum would justify the restriction of speech." Hays County Guardian v. Supple, 969 F.2d 111, 117 (5th Cir.1992).
The Court agrees with the plaintiff, (Doc. 106 at 27), that "[a] policy purporting to keep a forum closed (or open to expression only on certain subjects) is no policy at all for purposes of public forum analysis if, in practice, it is not enforced or if exceptions are haphazardly permitted." Hopper v. City of Pasco, 241 F.3d 1067, 1076 (9th Cir.2001). The plaintiff identifies a number of instances over the past five years which, it says, reflect a widespread practice of allowing open-ended student expressive activity within the Perimeter. The Court considers these in turn.
In February 2014, the College of Engineering held a cookout in the Perimeter, complete with flag football, tug-of-war and a jousting ring. (Doc. 103-8 at 2). It is uncontroverted that these were "College of Engineering events," (Doc. 108-5 at 2; Doc. 108-6 at 66), and the plaintiff admits it was the University itself that used the Perimeter for the cookout. (Doc. 101 at 13).
In September 2011, the Department of Air Force Studies, the Department of Military Science, and Student Affairs hosted a commemorative ceremony at the flagpole in front of the administration building. (Doc. 103-11 at 2). It is uncontroverted that the hosts are all part of the University, and the plaintiff admits that the event constituted the University's own use of the Perimeter. (Doc. 101 at 13). As with the College of Engineering cookout, the flagpole ceremony constituted the University's speech and so contributes nothing to the plaintiff's argument that the University has by practice opened the Perimeter to general student discourse.
The plaintiff states that banners advertising intramural sports have appeared from time to time at a particular intersection within the Perimeter. (Doc. 101 at 14). It is uncontroverted that intramural sports are sponsored by the University and that the signs advertising them were placed by the University. (Doc. 99-6 at 4). Since the signs constitute the University's own speech, they do not bolster the plaintiff's case.
The plaintiff submits pictures of yard signs within the Perimeter notifying readers that the University "is going tobacco free August 1, 2015" and encouraging them to "be Jag healthy!" (Doc. 103-18). It is uncontroverted that these signs were placed by the University to promote the University's no-tobacco policy. (Doc. 99-1 at 16; Doc. 99-6 at 4). Again, this is speech by the University itself and so cannot indicate the University has generally opened the Perimeter to student discourse.
The plaintiff has submitted photographs of what it says are "ROTC cadets conduct[ing] military exercises" in the Perimeter. (Doc. 101 at 14; Doc. 103-15). The photographs confirm that the group was engaged in a training exercise, pure and simple.
"We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Even when the American flag — the "very purpose [of which] is to serve as a symbol of our country" — is involved, the Supreme Court does not "automatically conclud[e]" that the conduct is expressive. Texas v. Johnson, 491 U.S. 397, 405, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). "Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred." Id. And when "[t]he expressive component of ... actions is not created by the conduct itself but by the speech that
The plaintiff offers no evidence that the cadets intended by their conduct to "express an idea" to begin with. Even had it done so, practicing military maneuvers is simply part of what ROTC cadets do, and in that context it carries no more inherent expressive content for purposes of First Amendment analysis than does a surgeon's wielding of a scalpel or a student's walking to class. Any expressive content would have to conveyed, as in Rumsfeld, by explanatory speech, and the plaintiff identifies none.
In short, the cadets' military exercise does not constitute expressive activity for First Amendment purposes and so is irrelevant to the plaintiff's effort to establish the Perimeter as a designated public forum for such purposes.
The plaintiff has evidence that, in October 2015, a "sheet sign" seeking support for a homecoming queen candidate hung for three days within the Perimeter before the candidate removed it. (Doc. 106-1 at 4-5, 7-8). It is uncontroverted that the candidate did not seek or obtain permission to hang the sign, and it is uncontroverted that defendant Mitchell, who is responsible for implementing and enforcing the Second Policy, did not see the sign or know it was there. (Doc. 111-1 at 3-4).
As noted, a designated public forum arises only when the government "intentionally open[s] a nontraditional forum for public discourse." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. The plaintiff has not explained, and the Court cannot fathom, how a brief, unknown, unauthorized episode of expressive activity in violation of explicit policy could suggest in the slightest that a government has intentionally opened its property for public discourse.
The plaintiff has evidence that the Society of Women Engineers ("SWE"), a student organization, along with the College of Engineering, hosted a "welcome back cookout" in August 2013 and again in August 2015. (Docs. 103-12, -13).
The plaintiff contends that, because SWE and GRITS co-sponsored these cookouts, their expressive content constitutes student speech. Though unsupported by citation to authority, the assertion is plausible, and the defendants have done nothing to undermine it. Instead, the defendants deny there was any expressive activity in connection with the cookouts, (Doc. 107 at 14, 21), but they cite nothing that would compel such a conclusion. The plaintiff identifies the message conveyed
The plaintiff has evidence that, in September 2010, the Student Government Association ("SGA"), along with the Dean of Students' office and the Army/Air Force ROTC, "invite[d] the campus community to commemorate the events of September 11, 2001 by joining us for a brief ceremony" at the flagpole outside the administration building. (Doc. 103-16). Without any citation to the record, the defendants insist that this event was "University-sponsored [and] not student organization expressive activit[y]." (Doc. 107 at 8). In light of the plaintiff's evidence, the Court cannot indulge the defendants' ipse dixit.
Finally, the plaintiff has evidence that, in March 2015, Colleges Against Cancer ("CAC"), a student organization, placed three yard signs within the Perimeter advertising its Relay for Life event, which signs remained in place until sometime in June 2015. (Doc. 103-20; Doc. 103-25 at 4; Doc. 106-1 at 2). The signs provide visual directions to the event and some sponsor (Walmart) information. The most visible portions of the signs say, "Join us in the Fight Against Cancer," "RELAY FOR LIFE," "American Cancer Society," and "Celebrate. Remember. Fight Back." (Doc. 103-20).
It is uncontroverted that CAC sought permission to place small directional signs to the event when there was a late change in its on-campus venue; that Rachael Bolden in the Office of Student Activities granted permission but under the assumption they would not be placed in the Perimeter; that she later saw one of the signs in the Perimeter but did not seek to have it removed because it was a short time before the event and because its purpose was to direct participants to the event; that she did not realize the signs remained in place long after the March 20 event; that the ordinary practice is for event-related signs anywhere on campus to be removed by event organizers upon the conclusion of the event, failing which the University grounds department is to remove them; and that no one was ever warned or sanctioned for placing the signs in the Perimeter. (Doc. 104-24 at 2; Doc. 106-2 at 3; Doc. 108-10 at 3; Doc. 111-2 at 3).
Contrary to the defendants' suggestion, this evidence does not prove that the signs "went undetected by University officials." (Doc. 111 at 11). That Bolden did not notice the signs' continued presence cannot demonstrate that Mitchell and other University officials did not notice; indeed, the long time the signs remained in place (between two and three months), with at least two of them on a major artery into campus, of itself supports an inference that the University knew the signs were there.
The plaintiff has evidence of the following relevant student speech or expressive activity in the Perimeter: (1) co-sponsorship by the SGA of a 9-11 commemorative ceremony in 2010; (2) co-sponsorship by two engineering organizations of three welcome-back cookouts, one each in 2013, 2014 and 2015; and (3) placement of several yard signs advertising an anti-cancer event in March-June 2015. The question becomes whether these episodes indicate
As noted, "[t]he government does not create a public forum ... by permitting limited discourse," Cornelius, 473 U.S. at 802, 105 S.Ct. 3439, and "[a] designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers." Forbes, 523 U.S. at 679, 118 S.Ct. 1633. At best, the plaintiff can identify only five occurrences of student speech in the Perimeter in as many years, an infrequency that does not suggest the University has purposefully opened that area to "indiscriminate use" as a public forum.
Nor does the subject matter of these isolated occurrences suggest the University has opened the Perimeter to general student discourse (designated public forum) as opposed to "the discussion of certain subjects" (limited public forum). Summum, 555 U.S. at 470, 129 S.Ct. 1125; accord Walker, 135 S.Ct. at 2250. Three of the five instances were mere social gatherings of engineering students seeking to bond with professors and other engineering students, and the other two addressed eminently non-controversial topics.
In United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), "individuals or groups ha[d] been permitted to leaflet, speak, and picket on postal premises, ... but a regulation prohibiting disruption ... and a practice of allowing some speech activities on postal property do not add up to the dedication of postal property to speech activities." Id. at 730, 110 S.Ct. 3115 (plurality opinion). This history reflected only "selective access," which "does not transform government property into a public forum." Id. (internal quotes omitted). Thus, the postal premises
Kokinda thus establishes that a practice of permitting some controversial speech (picketing almost by definition involves a controversial issue) is insufficient to reflect that the government has opened the forum to other controversial speech (solicitation, which would include solicitation for controversial causes). Here, the plaintiff has not even shown a practice of permitting some forms of controversial speech in the Perimeter, so its case is weaker than that ruled legally inadequate in Kokinda. Certainly the plaintiff has not attempted to explain how its position (that a few, infrequent instances of bland student speech on non-controversial matters demonstrates the University purposely opened the Perimeter to unlimited student speech on any and all matters) can be reconciled with Kokinda.
In short, while the University's practice may suggest an intent to permit the discussion of certain subjects, such an intent reflects only a limited public forum; the University's practice does not support a reasonable inference that the University intended to create a designated public forum by opening the Perimeter to general student discourse.
The plaintiff identifies three ways in which the nature of the Perimeter suggests it is a designated public forum: (1) it is part of a college campus; (2) it resembles a public park (a traditional public forum), with expansive lawns, sidewalks and picnic benches; and (3) its outer border is a public sidewalk — a traditional public forum — with no physical barrier between the two. (Doc. 101 at 26-27).
As the plaintiff acknowledges, "[t]he physical characteristics of the property alone cannot dictate forum analysis." Bloedorn, 631 F.3d at 1233. As the plaintiff does not acknowledge, the nature of the property is relevant only to the extent it helps "discern the government's intent" to create a designated public forum. Cornelius, 473 U.S. at 802, 105 S.Ct. 3439; accord Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1202 (11th Cir.1991) ("[T]he touchstone for determining whether property is a designated public forum is government intent in establishing and maintaining the property," with the nature of the property relevant "[i]n attempting to divine whether the government has intended to designate" a public forum).
The Supreme Court in Cornelius cited only two cases as reflecting its historical consideration of the nature of the property in its investigation of the government's intent. In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), the municipal auditorium and theater "were designed for and dedicated to expressive activities," 473 U.S. at 803, 105 S.Ct. 3439; the plaintiff has shown neither regarding the Perimeter. In Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the university's policy "evidenced a clear intent to create a public forum," with that clear intent merely corroborated by the observation that "a university campus, at least as to its students, possesses many of
Even disregarding the inherent futility of its effort, the plaintiff has not shown that the nature of the Perimeter indicates the University intended to designate it as a public forum. The plaintiff first proposes that "the free expression of diverse viewpoints is part and parcel of the higher learning for which" a university campus is created. (Doc. 101 at 26). No doubt, but this hardly suggests that every square inch of a campus is or ought to be a designated public forum for student speech. The plaintiff itself quotes Bloedorn for the proposition that "[a] university campus will surely contain a wide variety of fora on its grounds," 631 F.3d at 1232, so it is both unnecessary and unlikely that an entire campus will be a designated public forum.
As for the Perimeter's "park-like" feel, the plaintiff in Sentinel argued that interstate rest areas were designated public fora because their "topographical features... frequently resemble those found in city parks, e.g. grassy areas, restrooms, water fountains, parking areas, picnic benches." 936 F.2d at 1203-04. The Eleventh Circuit rejected the contention, noting that a property's physical characteristics cannot alone render it a designated public forum and further noting evidence that the government intended these features to promote traveler rest and thus traveler safety. Id. at 1204 & n.15. Here, it is uncontroverted that the University has expended substantial sums on the Perimeter for the purpose of making it aesthetically pleasing to the campus community, to the broader community, and to prospective
Finally, the plaintiff finds it "[a]bsur[d]" to imagine that students have full First Amendment protection while standing on the traditional public forum of the public sidewalk bordering campus "but lose it all" by taking a single step from that sidewalk into the Perimeter. (Doc. 106 at 28). It can hardly be an absurdity, however, that fora have geographical boundaries or that different kinds of fora may abut. Neither the Supreme Court nor the Eleventh Circuit shares the plaintiff's incredulity regarding the commonplace of adjoining government properties constituting different fora for First Amendment purposes. See Kokinda, 497 U.S. at 723, 730, 110 S.Ct. 3115 (public sidewalk was traditional public forum, but sidewalk on adjoining post office property was limited public forum); United States v. Gilbert, 130 F.3d 1458, 1460-61 (11th Cir. 1997) (courthouse plaza was a designated public forum on one side of a row of planters and a non-public forum on the other).
The plaintiff cites a Fifth Circuit case for the proposition that "a university campus is clearly an appropriate place for communication of views on issues of political and social significance." Justice for All v. Faulkner, 410 F.3d 760, 769 (5th Cir. 2005) (internal quotes omitted). The plaintiff also points to the speech discussed in Parts I.A.2.b.i-ix, as reflecting the compatibility of the Perimeter with expressive activity. (Doc. 101 at 19). The defendants argue this historical speech is irrelevant to the compatibility analysis because it "was only conducted by the University and its departments." (Doc. 107 at 18). As discussed in Part I.A.2.b, some of this speech was in fact student speech, but it would seem the compatibility of a forum with some student speech does not necessarily reflect its compatibility with all forms of student speech. Nevertheless, the Court will assume without deciding that the Perimeter may be compatible with student speech in general, including speech on controversial political and social issues.
The question is whether the plaintiff's evidence either establishes that the Perimeter is a designated public forum or at least creates a genuine issue of material fact in that regard. The Perimeter cannot be a designated public forum unless the University purposefully and intentionally opened the Perimeter to general student discourse. The University's intent is determined by evaluating its policy concerning student speech in the Perimeter, its practice concerning student speech in the Perimeter, the nature of the Perimeter, and the Perimeter's compatibility with general student discourse therein.
The Second Policy expressly closes the Perimeter to general student discourse. The University in practice has on rare occasions permitted limited student discourse within the Perimeter on certain academic subjects and non-controversial social subjects but has never authorized student expressive activity there on any divisive social or political issue. The Perimeter may be compatible with such speech, but its nature does not indicate
Where, as here, the uncontroverted facts reflect that the government's policy and practice are patently inconsistent with an intent to establish a designated public forum, the mere compatibility of the property with expressive activity, and its mere similitude with such fora, cannot demonstrate that the government intended to create such a forum. The Perimeter thus is not a designated public forum but is at best a limited public forum.
"Control over access to a nonpublic [limited public] forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806, 105 S.Ct. 3439; accord Perry, 460 U.S. at 49, 103 S.Ct. 948. This proposition is "black-letter law." Davenport v. Washington Education Association, 551 U.S. 177, 189, 127 S.Ct. 2372, 168 L.Ed.2d 71
"The Government's decision to restrict access to a nonpublic [limited public] forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation. In contrast to a public forum, a finding of strict incompatibility between the nature of the speech ... and the functioning of the nonpublic [limited public] forum is not mandated." Cornelius, 473 U.S. at 808, 105 S.Ct. 3439 (emphasis in original). "The reasonableness of the Government's restriction of access to a non-public [limited public] forum must be assessed in the light of the purpose of the forum and all the surrounding circumstances." Id. at 809, 105 S.Ct. 3439.
The plaintiff's arguments against reasonableness take several forms: (1) the University has no legitimate interest at stake; (2) the University's interest is not at risk; (3) the University did not genuinely act for the purpose of avoiding such a risk; and (4) the University's response does not adequately correspond to the risk. The Court addresses these in turn.
The University advances several justifications for restricting student speech in the Perimeter: (1) maintaining a visually attractive campus periphery; (2) promoting traffic safety; (3) promoting its image as an educational institution in the community; and (4) maintaining an apolitical or neutral viewpoint and avoiding the appearance of favoring or endorsing a particular viewpoint. (Doc. 107 at 24; Doc. 111 at 12-13). Because it is dispositive, the Court focuses on the last of these.
Undeterred, the plaintiff says that, "on public university campuses throughout this country, ... free speech is of critical importance because it is the lifeblood of academic freedom." DeJohn v. Temple University, 537 F.3d 301, 314 (3rd Cir.2008). Therefore, the plaintiff concludes, the University can have no legitimate interest in restricting student speech in order to maintain a perception of neutrality in the public eye. (Doc. 106 at 31). The defendants, however, have presented evidence that the concept of university neutrality as a means of promoting the open discussion of ideas dates to Renaissance Europe and "has been strongly endorsed by American universities." (Doc. 99-8 at 30-31). The plaintiff has neither countered this evidence nor attempted to explain away the facial plausibility of its premise that the free exchange of ideas is enhanced when the government does not place its imprimatur on one set of ideas. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1318 (11th Cir.2000) (" CAMP") (even in the context of a traditional public forum, "[t]o demonstrate the significance of its interest, the [defendant] is not required to present detailed evidence but is entitled to advance its interests by arguments based on appeals to common sense and logic.") (internal quotes omitted).
In short, maintaining the appearance of neutrality on divisive political issues is a legitimate University interest. Since the plaintiff has not even suggested that what is true about avoiding the appearance of favoritism on political issues is any less true with respect to social issues (to the doubtful extent any significant social issue could fail in a democracy to be also a political issue), the University's interest extends there as well.
The plaintiff is probably correct that preventing speech on divisive issues in order to avoid the appearance of endorsement of, or partiality towards, a particular viewpoint may be unreasonable if there is no realistic danger of such an appearance. (Doc. 106 at 32). But the plaintiff has failed to explain how such a danger is absent here. The only free speech case on which it relies involved employee postings on "[t]he interior walls [and bulletin boards] of the offices" of a state agency, places the public
The Tucker Court acknowledged, 97 F.3d at 1215, that a risk of perceived endorsement existed in Monterey County Democratic Central Committee v. United States Postal Service, 812 F.2d 1194 (9th Cir.1987), where a partisan organization sought to register voters on a post office sidewalk — the facility's front yard. Id. at 1195, 1199. Just so here, the passing public could easily understand that student speech in the Perimeter on a controversial issue was endorsed or at least approved by the University, thereby stripping the University of its aura of neutrality.
After briefing on the instant motion was concluded, the Eleventh Circuit noted in a free speech case that "government property is often closely identified in the public mind with the government unit that owns the land." Mech v. School Board, 806 F.3d 1070, 1076 (11th Cir.2015) (internal quotes omitted). The Mech Court found such a potential association where the speech at issue was hung on school fences, and it used this association as part of its rationale for concluding that "observers reasonably believe the government has endorsed the message." Id. Mech further supports the proposition that the University could reasonably believe that authorizing student speech in the Perimeter concerning divisive issues risked public perception that it endorsed or approved of the viewpoints there expressed.
Its free speech jurisprudence exhausted, the plaintiff turns to the Establishment Clause. (Doc. 101 at 33; Doc. 110 at 20). "We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis." Board of Education v. Mergens ex rel. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion). The plaintiff assumes that this proposition can be imported wholesale into the free speech context and applied to the citizenry at large. The Court is not so sanguine.
First, the Establishment Clause prohibits the government from endorsing religion, and high school students exposed to civics classes can be expected to realize this; thus, they are unlikely to assume that the school has endorsed student religious speech, contrary to the Constitution. But, at least in general, nothing prevents the University from lawfully endorsing a viewpoint expressed on a subject of political or social significance, so students' expression of such views cannot so easily be assumed to lack the University's approval.
In Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the other Supreme Court Establishment Clause case cited by the plaintiff, the Court ruled that the defendant's concern that a speaker's religious orientation might be attributed to the defendant was "not plausible" where the defendant "has taken pains to disassociate itself from the private speech involved in this case." Id. at 841, 115 S.Ct. 2510. This focus on the defendant's efforts to distance itself from the speaker seems hardly to support the proposition that students or even adults can be assumed not to confuse private religious speech with government speech or endorsement.
The plaintiff offers no case employing Mergens or its rationale in the free speech context or to an audience consisting of the general public. For the reasons stated above, the Court concludes that it does not apply to the present case.
The plaintiff assumes rather than establishes that the government must have acted specifically for the purpose of protecting or advancing the legitimate interest it claims. Without adopting that assumption, the Court indulges it for present purposes. As noted in Part I.A.2.b.x, the defendants have presented evidence that the University's restriction on student speech in the Perimeter is based in part on its desire to avoid the appearance of endorsing or approving of any particular viewpoint on any controversial political or social issue.
The plaintiff unpersuasively suggests the University does not truly care about fostering a public perception of neutrality because "[p]ublic universities often take controversial positions" in litigation. (Doc. 101 at 33 & n.12). But universities, like every individual and like all other artificial entities, have interests — and thus opinions — with which others may disagree, and they can scarcely be expected to remain publicly neutral on issues affecting their interests. Under the plaintiff's reasoning, an umpire could not credibly claim to care about the appearance of impartiality in officiating if he publicly expressed opinions on zoning issues in his neighborhood.
In a related vein, the plaintiff argues the University does not really value a public perception of its neutrality on divisive political and social issues because the Perimeter does not extend to the entirety of the campus's border with the community. (Doc. 101 at 33-34). The western reach of the Perimeter ends at Stadium Drive, (Doc. 29-10 at 3), which leaves students free to engage in expressive activity along Old Shell Road immediately west of Stadium Drive, in front of the student recreation center. Similarly, the northern reach of the Perimeter ends at USA North Drive, though the campus continues north of that point. The defendants acknowledge that student speech west of Stadium Drive and north of USA North Drive could be publicly perceived as endorsed or approved by the University, but they say the risk is lower in these locations. (Doc. 104-4 at 53, 55-56; Doc. 104-5 at 45). The Court
In a traditional or designated public forum, the restriction on speech must be "narrowly tailored" to serve a significant government interest, which requires a "reasonable fit" between means and ends. CAMP, 219 F.3d at 1316, 1318. The plaintiff proposes that this "reasonable fit" standard be applied in the context of a limited public forum, for the purpose of showing that the restriction on student speech in the Perimeter is unreasonably under-inclusive (since it excludes the border area west of Stadium Drive). (Doc. 101 at 32-33). But the very point of forum analysis is to ensure that more lenient standards prevail when considering limited public fora. As the Ninth Circuit has said, "[r]easonableness is not the legal equivalent of narrow tailoring...." Flint v. Dennison, 488 F.3d 816, 834-35 (9th Cir. 2007). At any rate, the purpose of the "reasonable fit" analysis is to ensure that speech restrictions do not sweep overbroadly, CAMP at 1318, not — as the plaintiff seeks to employ it — to show that a restriction does not extend far enough. Even if, as the plaintiff asserts, a speech restriction is unreasonable when "the fit between means and ends is loose or nonexistent," (Doc. 106 at 25), that is a far lower standard than "narrow tailoring," and it is one the Second Policy easily hurdles.
The plaintiff, (Doc. 106 at 35), acknowledges that "[t]he government need not choose the least restrictive alternative when regulating speech in a nonpublic forum." Tucker, 97 F.3d at 1216. But, it says, the government's "failure to select ... simple available alternatives suggests that the ban it has enacted is not reasonable." Id. (internal quotes omitted). The plaintiff believes the University could have protected its interest in the public perception of its neutrality by "an equal access policy," by "signs identifying the speaker," and/or by the Second Policy's statement that it (the policy) does not represent the University's endorsement or approval of any speech. (Doc. 106 at 35).
The plaintiff does not explain how its proposals would address the risk of a public perception of University partiality. Take the plaintiff's situation as an example. If the plaintiff held a cemetery-of-innocents event at the corner of Old Shell Road and University Boulevard, how would the average citizen passing by the display know (or remember) that the University would, if asked, allow a pro-choice student group to stage a similar event, and what is the likelihood he or she would reflect on that bit of fuzzy memory and extrapolate that the University thus does
Finally, the plaintiff characterizes the Second Policy as imposing a "complete ban on First Amendment activities" that is per se unconstitutional even in a limited public forum under Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). (Doc. 106 at 30; Doc. 110 at 19). The policy at issue in Jews for Jesus, however, extended to the entire "Central Terminal Area" of Los Angeles International Airport, Id. at 570-71, 107 S.Ct. 2568 — a vast area encompassing most locations where the non-employee public might be found. Here, in contrast, the Perimeter takes in only part of the southern and eastern borders of campus, leaving large amounts of the campus beyond its reach. The plaintiff cites no authority for the proposition that a government is powerless to preclude First Amendment expression in any sliver of its property.
At any rate, the plaintiff's own evidence proves there is in fact no "complete ban on First Amendment activities" on the perimeter of campus, since the perimeter west of Stadium Drive and north of USA North Drive remains fully open for that purpose. Even in the Perimeter itself, some student speech occurs. In addition to the student speech discussed in Part I.A.2.b, the plaintiff acknowledges that speech such as game-related signs at a pick-up football game in the Perimeter is permitted. (Doc. 101 at 23). The ban in Jews for Jesus, in contrast, was truly complete because it extended even to "talking and reading." 482 U.S. at 575, 107 S.Ct. 2568.
Having disposed of the plaintiff's arguments, the Court turns to a "surrounding circumstance" that reinforces the reasonableness of the University's decision to close the Perimeter to student speech. "[W]hen access barriers are viewpoint neutral, our decisions have counted it significant that other available avenues for the group to exercise its First Amendment rights lessen the burden created by those barriers." Christian Legal Society v. Martinez, 561 U.S. 661, 690, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010). Thus, "the reasonableness of the limitations on [the plaintiff's] access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place," resulting in "no showing here that [the plaintiff's] ability to communicate with teachers is seriously impinged by the restricted access to the internal mail system." Perry, 460 U.S. at 53, 103 S.Ct. 948.
Barring student speech in the Perimeter plainly leaves students and student groups "substantial alternative channels" for reaching their target audience. To the extent the target audience is the campus community, large portions of the interior of campus constitute designated public fora for students, including along the University's major roadways. To the extent the target audience is the outside community, the area along Old Shell Road west of Stadium Drive, and the area along University Boulevard north of USA North Drive, remain designated public fora as well.
In summary, the University's restriction of student speech in the Perimeter is reasonable in light of the purpose of the Perimeter and the surrounding circumstances.
"The existence of reasonable grounds for limiting access to a nonpublic [limited public] forum, however, will not save a regulation that is in reality a façade for viewpoint-based discrimination." Cornelius, 473 U.S. at 811, 105 S.Ct. 3439. "Although a speaker may be excluded from a nonpublic [limited public] forum if he wishes to address a topic not encompassed within the purpose of the forum, ... the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Id. at 806, 105 S.Ct. 3439. Thus, for example, when the subject matter of "child rearing and family values" had not been "placed off limits to any and all speakers," denial of permission to speak on these issues because "the presentation would have been from a religious perspective" constituted viewpoint discrimination. Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 393, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993).
As discussed in Part I.A.2.a, the University's formal policy excludes all student expressive activity from the Perimeter. It therefore eliminates the possibility of viewpoint discrimination, since all viewpoints are banned. See Bloedorn, 631 F.3d at 1235 ("There is no record evidence suggesting... that the ban on outside, non-sponsored speakers in these areas is viewpoint-based; it applies equally to all outside, non-sponsored speakers."). The plaintiff's arguments regarding viewpoint discrimination, however, extend beyond the written policy to the University's historical practice of allowing some student speech in the Perimeter.
As to its first argument, the plaintiff has not addressed how closely related the permitted speech and the prohibited speech must be before a case can be made for historical viewpoint discrimination. The Court therefore is unprepared to rule that, for example, allowing student speech opposing cancer while prohibiting student speech opposing abortion amounts to viewpoint discrimination under applicable law.
As to the plaintiff's second argument, regimes that leave the decision on who may speak to the "unbridled discretion of a government official" are "unconstitutional, because without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 763-64, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). "To avoid unbridled discretion, the permit requirements should contain narrowly drawn, reasonable and definite standards to guide the official's decision." Bloedorn, 631 F.3d at 1236. "The [unbridled discretion] doctrine requires that the limits the [defendant] claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice." City of Lakewood, 486 U.S. at 770, 108 S.Ct. 2138.
The plaintiff states that the defendants "have unlimited discretion to set aside the Perimeter speech ban by co-sponsoring an event or for speech related to events they deem `non-expressive,'" as well as by "simply declar[ing] that there are extenuating circumstances." (Doc. 101 at 30; Doc. 106 at 23; Doc. 110 at 13). The evidence of the defendants' historical departures from the no-speech policy tends to support the proposition that they have discretion to make such exceptions to the policy.
For their part, the defendants fail to identify any evidence showing that their discretion to allow exceptions to the no-speech policy is subject to the limitations required by law as a guard against viewpoint discrimination. Instead, they say that their historical exceptions were based only on the identity of the speaker, not the speaker's viewpoint, and that the plaintiff has "no evidence that the Second Policy's application would vary based on a student group's viewpoint." (Doc. 111 at 12). As a threshold matter, the defendants cite no evidence to show that they relied on speaker identity to the exclusion of speaker viewpoint. The thrust of the unbridled discretion doctrine, moreover, is that such discretion of itself raises an unacceptable risk of viewpoint discrimination; there is no burden on the plaintiff to prove that the government has exercised, or will exercise, its unbridled discretion in a viewpoint-biased manner.
The plaintiff also invokes the unbridled-discretion doctrine with respect to
"Even if a particular restriction or condition is an otherwise permissible content-neutral regulation of the time, place, or manner of speech, it is unconstitutional if a government official has unbridled discretion to apply it." Bourgeois v. Peters, 387 F.3d 1303, 1317 (11th Cir.2004); accord Bloedorn, 631 F.3d at 1236; Burk v. Augusta-Richmond County, 365 F.3d 1247, 1256 (11th Cir.2004). Thus, for example, "University officials may not exercise unbridled discretion in determining the location of an outside, non-sponsored speaker's expressive activity." Bloedorn, 631 F.3d at 1237. The Second Policy's identification of the Perimeter's inner boundary is a regulation of the place where student speech may permissibly occur, since speech is forbidden inside that boundary and permitted outside it. Except as addressed in Part I.A.3.b.i, supra, the defendants do not deny that the unbridled-discretion doctrine applies to the boundary issue, (Doc. 107 at 21-23; Doc. 111 at 12),
As the plaintiffs acknowledge by silence, what constitutes a "building" is clear enough; what constitutes a "facility," however, is murky. At one point along University Boulevard, the closest structure to the public sidewalk is a replica of the Tholos of Delphi, an open-air Greek ruin. Is it a "facility" for purposes of the Second Policy and thus beyond the Perimeter? Waldrop and Smith say it is, while Mitchell says it is not. (Doc. 103-23 at 2; Doc. 104-2 at 35-37; Doc. 104-4 at 75-76). And what of parking lots? In as many as nine places, the man-made object closest to the public sidewalk is a parking lot. (Doc. 106-2). Are these lots "facilities," outside the no-speech zone of the Perimeter? Waldrop and Smith say they are, but Mitchell says (with considerable internal inconsistency) that they are within the Perimeter even though he considers them to be facilities; moreover, the University's campus map, which identifies "facilities," does not identify parking lots as facilities. (Doc. 102-6; Doc. 104-1 at 186-87; Doc. 104-2 at 23; Doc. 104-4 at 68-69). In yet another area, the nearest man-made object to the public sidewalk is the Baptist Student Center ("BSC"), which is not University property. Does the Perimeter stop at the BSC (because it is a "building") or continue past it into the interior of campus (because it is not a "University building")? Mitchell has no idea. (Doc. 104-1 at 161).
As one might expect, there are gaps between buildings and facilities fronting Old Shell Road and University Boulevard (which are wider if parking lots are not facilities). Where is the inner boundary of the Perimeter in these gaps? Does it extend as far into the interior of campus as
The problem here is not just that the University officials charged with understanding and enforcing the Second Policy don't know what it means; the more serious concern is that, by the uncontroverted evidence, there is no authoritative source to which they can turn to resolve such questions — they have only the ambiguous language of the Second Policy and however they choose to interpret it. (Doc. 104-1 at 129, 155, 165, 169). What that means is that the officials' discretion as to where to mark the boundary of the Perimeter — and thus the boundary of where student speech may and may not occur — is not subject to narrowly drawn, reasonable and definite standards.
The defendants, (Doc. 107 at 21), counter that "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). No doubt, but this case involves not the unavoidable, irreducible minimum of imprecision inherent in language itself but yawning caverns of confusion left by careless employment of this most exquisite means of human communication. Rules with similarly loose language have been held to leave officials with unconstitutionally broad discretion.
The defendants correctly note that the Second Policy is unambiguous as to the inner boundary of the Perimeter at the corner of Old Shell and University: it is the façade of Shelby Hall. (Doc. 107 at 22). The plaintiff does not disagree. (Doc. 110 at 13-14). But the plaintiff does dispute the defendants' assertion, (Doc. 107 at 22), that this is the only area relevant to its' viewpoint discrimination challenge. "Recognizing the explicit protection accorded speech and the press in the text of the First Amendment, our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." City of Lakewood, 486 U.S. at 755, 108 S.Ct. 2138. Because the plaintiff challenges the defendants' unbridled discretion to define the inner boundary of the Perimeter — a boundary to which the plaintiff is subject — it is immaterial that the plaintiff has never sought permission to engage in expressive activity in the Perimeter's grey areas.
Although the Second Policy improperly invests the defendants with unbridled discretion to define the inner boundary of the Perimeter, it does not do so throughout the entire length of the Perimeter. As noted, the Second Policy is perfectly clear that the Perimeter ends when it reaches the façade of a campus building, and the plaintiff asserts no ambiguity in the meaning of "building." Likewise, the Second Policy clearly terminates the Perimeter when it reaches the edge of a "facility," and while it is unclear whether a parking lot or the Tholos of Delphi is a facility, it is uncontroverted under the plaintiff's own evidence that athletic fields and the marching band's practice field are facilities for purposes of the Second Policy. (Doc. 102-6; Doc. 104-1 at 165; Doc. 104-2 at 23; Doc. 104-3 at 78). The plaintiff makes no argument to the contrary. Accordingly, the plaintiff is entitled to summary judgment only with respect to certain areas. The Court identifies the following as the areas as to which the Second Policy does not delegate unbridled discretion and as to which the plaintiff is not entitled to summary judgment.
From the public sidewalk paralleling Old Shell Road, north to:
From the public sidewalk paralleling University Boulevard, west to:
The plaintiff's only surviving due process challenge is that the Second Policy is impermissibly vague with respect to the inner boundary of the Perimeter. (Doc. 29 at 33; Doc. 49 at 26-27, 29; Doc. 55 at 11 n.4).
The defendants note that a vagueness challenge is available only when the plaintiff "alleges a constitutional harm." Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294, 1301 (11th Cir.2013) (internal quotes omitted). The plaintiff must either have been prosecuted for violating the challenged rule or have been "chilled from engaging in constitutionally protected activity." Id. (internal quotes omitted). The plaintiff has not been prosecuted, and the defendants assert the plaintiff "has not been deprived of [its] constitutionally protected free speech interest." (Doc. 98 at 27). In light of the discussion in Part I.A.3.b.ii, that is a difficult proposition to defend, but it not the relevant proposition to begin with; the question is whether the plaintiff's exercise of its First Amendment rights has been "chilled" by the allegedly vague policy. Plainly it has. The plaintiff's co-president declares that the plaintiff has desired to engage in speech between University Boulevard and the Visual Arts Complex and the Instructional Lab Building but that, due to the Second Policy and its provision for sanctioning violators,
"If one of the two constitutional harms delineated above is implicated, the court looks to whether the ordinance forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Indigo Room, 710 F.3d at 1301 (internal quotes omitted). It would seem obvious from the discussion in Part I.A.3.b.ii that the Second Policy requires persons of common intelligence to guess at the location of the Perimeter's inner boundary at many points: Does a "facility" include a parking lot? Where must a building or facility be to be "on the
The defendants repeat their reminder that "perfect clarity" is not required, (Doc. 107 at 22), to which the Court repeats its observation: true but non-responsive. There is not merely some theoretical, epistemological uncertainty about the inner boundary of the Perimeter that linguistics experts might debate but not ordinary humans; there is instead a congeries of real-world ambiguities, with real-world consequences for guessing wrong. The defendants also ignore what the plaintiff, (Doc. 106 at 27), pointed out: "The degree of vagueness that the Constitution tolerates... depends in part on the nature of the enactment," and "perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). "If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply." Id. The defendants' proposal to apply a deferential standard in a free speech context runs contrary to this directive.
The defendants next suggest that "`the language of the ordinance itself must be vague.'" (Doc. 98 at 27 (quoting Diversified Numismatics, Inc. v. City of Orlando, 949 F.2d 382, 387 (11th Cir.1991)). To the uncertain extent the defendants mean to suggest the Court cannot look beyond the four corners of the Second Policy in assessing its vagueness or clarity, the Court rejects the suggestion. Language is neither used nor applied in a vacuum, so a court must certainly consider to some extent the context — here including at least the physical features of the campus, which the Second Policy attempts to carve into Perimeter and non-Perimeter by using terms labeling those features and their location.
Nor does Diversified Numismatics support the defendants' position. When the Eleventh Circuit stated that the language of the ordinance "itself" must be vague, it was not rejecting all consideration of context but only the plaintiff's suggestion that discriminatory enforcement of the ordinance necessarily reflected its vagueness. 949 F.2d at 387. The panel could hardly have meant that context must be ignored, since it cited Mid-Fla Coin Exchange, Inc. v. Griffin, 529 F.Supp. 1006 (M.D.Fla. 1981), as an example of a case "pointing to... specific aspects of the wording of [an] ordinance that are insufficiently definite." 949 F.2d at 387 & n. 24. The Mid-Fla Court, in turn, relied on information from other sources concerning the various real-world uses of gold, platinum and silver — that is, context — in finding vague a Florida statute regulating the secondhand precious metal industry. 529 F.Supp. at 1028-29.
The plaintiff attacks the Second Policy both facially and as applied. "A
"[F]acial vagueness occurs when a statute is utterly devoid of a standard of conduct so that it simply has no core and cannot be validly applied to any conduct." Indigo Room, 710 F.3d at 1302 (internal quotes omitted). "Conversely, if persons of reasonable intelligence can derive a core meaning from a statute, then the enactment may validly be applied to conduct within that meaning and the possibility of a valid application necessarily precludes facial invalidity." Id. (internal quotes omitted). As discussed in Part I.A.3.b.ii, the Second Policy unambiguously establishes the Perimeter's inner boundary in various places — including at the corner of University Boulevard and Old Shell Road (i.e., the eastern and southern façades of Shelby Hall).
The plaintiff is thus confined to an as-applied challenge. The defendants argue the plaintiff cannot pursue such a challenge because its "proposed conduct" — that is, "where it seeks to speak" — is within the unambiguous core of the Perimeter. (Doc. 98 at 28; Doc. 111 at 14). However, and as discussed in note 39, supra, the plaintiff has uncontroverted evidence that it wishes to speak in an area that is outside the Perimeter if parking lots are facilities and inside the Perimeter if they are not, as well as in an adjoining area that may be completely or partially outside the Perimeter depending on how gaps between buildings and facilities are treated.
In summary, the plaintiff is entitled to summary judgment on its due process claim to the extent it challenges the vagueness of the Perimeter's inner boundary, except in those areas listed in Part I.A.3.b.ii.
The plaintiff's only surviving equal protection challenge is that, under the Second Policy, the defendants permit similarly situated students and student organizations to speak in the Perimeter while denying the plaintiff permission to do so. (Doc. 29 at 34-37; Doc. 49 at 29).
The critical threshold question is the level of scrutiny to be applied to this claim. The plaintiff says the difference in treatment "is subject to strict scrutiny as [the Second Policy] infringes on fundamental First Amendment rights." (Doc. 106 at 37). The defendant says that rational-basis review applies. (Doc. 98 at 29).
In Perry, the Supreme Court ruled that an interschool mail system was a nonpublic (i.e., limited public) forum, that the differential access provided two unions ("PEA" and "PLEA") was reasonable, and that there was "no indication that the school board intended to discourage one viewpoint and advance another." 460 U.S. at 49-50, 103 S.Ct. 948. The Court then addressed the plaintiff's equal protection claim:
Perry, 460 U.S. at 54, 103 S.Ct. 948. As discussed in Part I.A.2, the Perimeter is a limited public forum. As discussed in Part I.A.3.a, the restriction on student speech in the Perimeter is reasonable, and as discussed in Part I.A.3.b.i, the plaintiff has failed to show that the differential access afforded the Society of Women Engineers to co-sponsor a cookout and Colleges Against Cancer to place yard signs
But this case differs from Perry in one potentially important respect. Unlike in Perry, here it remains open to the plaintiff to show that the defendants have unbridled discretion to allow exceptions to the no-speech policy, which discretion would introduce a constitutionally unacceptable risk (though no certainty) of future viewpoint discrimination. See Part I.A.3.b.i, supra. The parties have not addressed which standard of review obtains under such circumstances, and the Court declines to explore the issue unassisted.
The parties seek summary judgment as to the plaintiff's claim for nominal damages against defendants Steadman and Mitchell in their individual capacities, on the grounds they engaged in viewpoint discrimination in violation of the First Amendment when the plaintiff was denied permission to use what is now the Perimeter for a cemetery of innocents in February 2014.
In early 2014, the plaintiff submitted a request for approval of a cemetery of innocents at the corner of Old Shell Road and University Boulevard ("the Corner"). The plaintiff submitted the request to Steadman, as Dean of the College of Engineering. The defendants argue that Steadman cannot be liable for viewpoint discrimination because: (1) he did not deny the request; (2) he did not deny the request based on viewpoint discrimination; and (3) he did not have authority to deny the request. (Doc. 107 at 9-12).
There is evidence that Steadman denied the request. First, the request contains the handwritten notation, "
There is also evidence that Steadman denied the request based on viewpoint discrimination.
Finally, there is evidence that Steadman had authority to deny permission to hold a
While there is evidence that Steadman, with authority to do so, denied the plaintiff permission to use the Corner for a cemetery of innocents, and while there is evidence that he did so based on the plaintiff's anti-abortion viewpoint, there is also evidence that would support a contrary finding on each of these points. Thus, neither side is entitled to summary judgment as to Steadman.
The plaintiff does not assert that Mitchell engaged in independent viewpoint discrimination. Instead, the plaintiff argues that Mitchell is liable because he "affirmed" Steadman's allegedly viewpoint-biased decision. (Doc. 101 at 19). The plaintiff offers three theories of how liability attaches.
First, the plaintiff argues that Mitchell "ratified" Steadman's viewpoint discrimination. (Doc. 101 at 19). According to the plaintiff's sole authority, ratification requires that the superior had an opportunity to review the subordinate's decision "and agreed with both the decision and the decision's basis." Salvato v. Miley, 790 F.3d 1286, 1296 (11th Cir.2015) (internal quotes omitted).
Steadman forwarded to Mitchell his explanation of why he denied the plaintiff permission to use the Corner. Mitchell responded, "[w]e have identified [the Speech Zone] as the appropriate location for any events or displays similar [to] the one mentioned here." (Doc. 102-16 at 1). Mitchell did not acknowledge the reasons given by Steadman, much less express approval
Second, the plaintiff argues that Mitchell is liable under a "subordinate bias" theory. (Doc. 101 at 20). Under this theory, Steadman did not make the decision to deny permission to use the Corner but made only a recommendation of denial (based on viewpoint discrimination), which recommendation Mitchell "adopted." (Id.). This theory, according to the plaintiff, spares it the burden of showing that Mitchell realized that Steadman was motivated by viewpoint bias and that Mitchell agreed with that bias. The problem is that, by the plaintiff's sole authority, "subordinate bias" is a means of making the entity (here, the University) liable, not the individual (here, Mitchell) that accepted the tainted recommendation.
After the defendants pointed out this flaw, (Doc. 107 at 13), the plaintiff in reply cited several trial court cases for the proposition that "subordinate bias" (or "cat's paw") theory also supports "individual subordinate liability" under Section 1983. (Doc. 110 at 10-11 (emphasis added, internal quotes omitted)). All this means, however, is that a cat's paw superior's acceptance of a subordinate's tainted recommendation does not break the causal chain and thereby preclude the subordinate's liability for his biased recommendation; it does not mean that the superior becomes liable for the subordinate's bias.
Finally, the plaintiff argues that "allegations of facts that demonstrate an immediate supervisor knew about the subordinate violating another's federal constitutional right to free speech, and acquiescence in that violation, suffice to state free speech violations under the First ... Amendmen[t]." OSU Student Alliance v. Ray, 699 F.3d 1053, 1075 (9th Cir.2012).
For the reasons set forth above, the plaintiff's motion for summary judgment as to viewpoint discrimination under the First Amendment and vagueness under the Due Process Clause is
For the reasons set forth above, the defendants' motion for summary judgment as to viewpoint discrimination under the First Amendment and vagueness under the Due Process Clause is
The parties are
DONE and ORDERED this 22nd day of February, 2016.
Even though the plaintiff's demand for nominal damages in connection with the Second Policy has already been dismissed, (Doc. 49 at 25-26, 29), the plaintiff's motion for summary judgment seeks such an award. (Doc. 100 at 2). The plaintiff has since "withdraw[n] its damages request." (Doc. 110 at 20).
The Supreme Court has at other times used different or overlapping terminology to describe the same sorts of fora. In Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), for example, the Court listed the types of fora as traditional public forum, designated public forum, nonpublic forum (what Walker and other cases call a limited public forum) and non-forum. Id. at 677, 118 S.Ct. 1633. The Supreme Court has sometimes used "limited public forum" to indicate a forum that is a designated public forum as to some and not a public forum as to others. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 811, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); see also International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677, 112 S.Ct. 2711, 120 L.Ed.2d 541 (1992) ("The second category of public property is the designated public forum, whether of a limited or unlimited character — property that the State has opened for expressive activity by part or all of the public."). The parties, and the Court, employ the Walker labels.
Equally puzzling — and unavailing — is the plaintiff's insistence that Bloedorn itself establishes that "the open, outdoor areas of campus represent ... a designated public forum for students." (Doc. 110 at 15). The plaintiff does not suggest the Eleventh Circuit made any such pronouncement, and it could scarcely have so held, given that the plaintiff in Bloedorn was not a student but a campus outsider. It is difficult to believe the panel even harbored a suspicion that outdoor campus areas automatically constitute designated public fora for student expression, given its recognition that "a school creates a designated public forum only when school authorities have by policy or practice opened those facilities for indiscriminate use by the general public." 631 F.3d at 1231 (internal quotes omitted, emphasis added). Ignoring these difficulties, the plaintiff argues that, by citing a Fourth Circuit case which may suggest that a college campus is a designated public forum for students, the Bloedorn Court adopted this proposition as Eleventh Circuit law. It is far from clear that American Civil Liberties Union v. Mote, 423 F.3d 438 (4th Cir.2005), supports the proposition the plaintiff attributes it to it. In any event, controlling precedent is not established so casually. The Bloedorn panel merely cited Mote without comment and only in support of its holding that various outdoor areas of Georgia Southern University were limited (not designated) public fora. 631 F.3d at 1232.
The plaintiff also argues that the asserted "lack of fit" between the University's desired end (a public perception of its neutrality) and its means (closing the Perimeter to student speech but leaving the campus border open to student speech west of Stadium Drive) supports an inference that the University is acting to suppress particular viewpoints. (Doc. 106 at 32-33). A "lack of fit" argument might make sense if the University were excluding certain kinds of speech while permitting other kinds of speech containing the same objectionable characteristic — which is what the plaintiff's cited authorities involved. But the asserted disconnect here concerns the location of speech, not the content of speech, so it cannot suggest a motive of squelching some viewpoints in favor of others.
Second, the plaintiff seeks an award of nominal damages against Steadman and Mitchell, for the same conduct, under the Fourteenth Amendment. (Doc. 100 at 2). That portion of the plaintiff's case, however, has been dismissed due to the plaintiff's failure adequately to respond to the defendants' qualified immunity argument. (Doc. 49 at 26-27, 29).
Finally, the plaintiff argues that this incident also reflects content discrimination. (Doc. 101 at 9, 14-16). That portion of the plaintiff's First Amendment claim has been eliminated due to the plaintiff's failure to show, in opposition to the defendants' qualified immunity argument, that it was clearly established at the relevant time that the perimeter of campus was a traditional or designated public forum. (Doc. 49 at 23-24, 29).
For its part, the defendants appear to believe this claim is narrower than it actually is. They suggest the Court eliminated the plaintiff's First Amendment claim for nominal damages in connection with the October 2013 cemetery of innocents by its ruling on their motion to dismiss. (Doc. 107 at 9 n.16). In fact, the Court granted dismissal of "all claims for nominal damages not based on alleged viewpoint discrimination ... in denying permission to use the Perimeter for a cemetery of innocents." (Doc. 49 at 29). There were two such incidents, including the one in October 2013. (Doc. 29 at 15). The defendants note the opinion's reference to clearly established law in February 2014, (Doc. 49 at 26), but the Court used that date only because the plaintiff's brief focused on that incident. (Doc. 41 at 33). The law regarding viewpoint discrimination was clearly established long before October 2013, so neither the plaintiff's focus on February 2014 nor the Court's mention of that date worked a dismissal as to the earlier incident. Since neither side has moved for summary judgment as to the October 2013 episode, the Court does not discuss it further, other than as it impacts the claim concerning the February 2014 incident.
