Filed: Dec. 16, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1892 ROCK FOR LIFE-UMBC, an unincorporated student association, for itself and its individual members; OLIVIA RICKER, individually and as an officer of Rock for Life-UMBC; MIGUEL MENDEZ, individually and as an officer of Rock for Life-UMBC, Plaintiffs - Appellants, v. FREEMAN A. HRABOWSKI, individually and in his capacity as President of University of Maryland, Baltimore County; CHARLES J. FEY, in his individual capacity as
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1892 ROCK FOR LIFE-UMBC, an unincorporated student association, for itself and its individual members; OLIVIA RICKER, individually and as an officer of Rock for Life-UMBC; MIGUEL MENDEZ, individually and as an officer of Rock for Life-UMBC, Plaintiffs - Appellants, v. FREEMAN A. HRABOWSKI, individually and in his capacity as President of University of Maryland, Baltimore County; CHARLES J. FEY, in his individual capacity as ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1892
ROCK FOR LIFE-UMBC, an unincorporated student association,
for itself and its individual members; OLIVIA RICKER,
individually and as an officer of Rock for Life-UMBC;
MIGUEL MENDEZ, individually and as an officer of Rock for
Life-UMBC,
Plaintiffs - Appellants,
v.
FREEMAN A. HRABOWSKI, individually and in his capacity as
President of University of Maryland, Baltimore County;
CHARLES J. FEY, in his individual capacity as former Vice
President of Student Affairs at University of Maryland,
Baltimore County; NANCY L. YOUNG, individually and in her
official capacity as Interim Vice President of Student
Affairs at the University of Maryland, Baltimore County; LEE
A. CALIZO, individually and in her official capacity as
Acting Director of Student Life at University of Maryland,
Baltimore County; JOSEPH REIGER, individually and in his
official capacity as Executive Director of the Commons at
University of Maryland, Baltimore County; ERIC ENGLER,
individually and in his official capacity as Acting Director
of the Commons at University of Maryland, Baltimore County;
LYNNE SCHAEFER, individually and in her official capacity as
Vice President of Administration and Finance at the
University of Maryland, Baltimore County; ANTONIO WILLIAMS,
individually and in his official capacity as Chief of Police
for the University of Maryland, Baltimore County Police
Department,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cv-00811-JFM)
Argued: September 21, 2010 Decided: December 16, 2010
Before NIEMEYER and KING, Circuit Judges, and Robert J. CONRAD,
Jr., Chief United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Conrad wrote the
opinion, in which Judge Niemeyer joined. Judge King wrote a
separate opinion concurring in part, dissenting in part, and
concurring in the judgment.
ARGUED: David Austin French, ALLIANCE DEFENSE FUND, Columbia,
Tennessee, for Appellants. Sally Lotz Swann, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: Joseph J. Martins, Travis C. Barham,
ALLIANCE DEFENSE FUND, Columbia, Tennessee; Steven L. Tiedemann,
JPB ENTERPRISES, INC., Columbia, Maryland, for Appellants.
Douglas F. Gansler, Attorney General, Anne L. Donahue, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
CONRAD, Chief District Judge:
Rock for Life-UMBC, a registered student organization at
the University of Maryland, Baltimore County (“UMBC”) and two of
its former student-members appeal an award of summary judgment
and judgment on the pleadings to the defendants, UMBC officials,
on several First Amendment claims brought under 42 U.S.C. §
1983. For the reasons that follow, we affirm.
I.
UMBC is a public honors university located in Baltimore,
Maryland, with an enrollment of approximately 13,000
undergraduate and graduate students. Rock for Life is a
registered student organization at UMBC with a stated mission
“to defend the right of the unborn and to awake consciousness
and awareness in the UMBC community about the catastrophic
effects of abortion for all persons involved and our moral duty
to stop its practice.” Joint Appendix (“JA”) 17. 1 In April 2007,
Rock for Life submitted a request to UMBC to reserve non-
1
At oral argument, counsel for the defendants informed the
Court that Rock for Life is as of recently no longer a
registered student organization at UMBC. Because the evidence
supporting this factual development was not made clear, nor is
Rock for Life’s current status at UMBC material to a number of
its claims, we assume for purposes of this decision that Rock
for Life continues to operate as a registered student
organization.
3
academic campus space in order to display a series of posters
known as the Genocide Awareness Project (the “GAP display”). The
display is described by its sponsor, the Center for Bio-Ethical
Reform, as
a traveling photo-mural exhibit which compares the
contemporary genocide of abortion to historically
recognized forms of genocide. It visits university
campuses around the country to show as many students
as possible what abortion actually does to unborn
children and get them to think about abortion in a
broader historical context.
Id. at 253, 254-55. There are twenty-four different GAP posters,
and each comes in a six-foot by thirteen-foot “standard” or
four-foot by eight-foot “mini-GAP” display size.
At the time of Rock for Life’s initial request, UMBC
operated under a facilities use policy designed to provide
recognized student organizations with access to academic and
non-academic university property. UMBC evaluated requests based
on “room appropriateness,” and it reserved the right to deny any
request “dependent upon circumstances.” Id. at 234. The policy
also stated that “[s]cheduling may move an event to a different
location without notice. UMBC is not responsible for any costs
incurred by a user resulting from a change in location.”
Id. at
235.
Rock for Life initially sought permission to present the
GAP display at the University Center Plaza, a facility located
4
at the center of several academic buildings on the western side
of campus. The request was first sent to Lee Calizo, director of
student life, for approval. On April 24th, Calizo emailed then-
acting Rock for Life president Alex Vernet to inform him that
she had viewed a website associated with GAP and was concerned
that placing “7 ft tall by 22 ft wide” signs in front of the
Plaza entrance would restrict access to the building. Id. at
824. In fact, Rock for Life only planned to display four-foot by
eight-foot “mini-GAP” signs. However, it does not appear that
Rock for Life brought this discrepancy to Calizo’s or any other
UMBC official’s attention during their subsequent negotiations.
As word spread of Rock for Life’s request to show the GAP
display, UMBC officials discussed how best to handle the
controversial nature of the event. The plaintiffs allege Chris
Tkacik, UMBC’s in-house counsel, stated that students might feel
“emotionally harassed” by the display, and UMBC had a right to
prevent such harassment. The plaintiffs contend this alleged
comment implicated two additional UMBC speech policies then in
place. The first is former Article V, Paragraph B(2)(f) of the
Code of Student Conduct, which prohibited “physical or emotional
harassment,” although this term was not further defined. Id. at
62. The second is UMBC’s prohibition against sexual harassment,
defined as
5
unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual
nature when:
(1) Such conduct has the purpose or effect of
unreasonably interfering with an individual’s academic
or work performance, or of creating an intimidating,
hostile, or offensive educational or working
environment; or
(2) Submission to such conduct is made either
explicitly or implicitly a term or condition of
employment or for participation in a UMBC-sponsored
educational program or activity; or
(3) Submission to or rejection of such conduct by
an individual is used as the basis for academic or
employment decisions.
JA 51. A violation of either provision subjects a student to a
range of possible disciplinary measures, including suspension
and expulsion from the university.
During a meeting between UMBC, Rock for Life, and the
Leadership Institute, 2 Rock for Life presented UMBC with a letter
requesting a uniformed police presence during the GAP display
due to “numerous unprovoked physical attacks from pro-abortion
students” during previous exhibitions. Id. at 270. Further, it
was Rock for Life’s position that the First Amendment required
UMBC to pay the cost of this security measure. The parties,
however, never reached a definite agreement on whether police
should be assigned to the event, and if so, who should pay for
the costs.
2
The Leadership Institute is a non-profit organization that
assisted Rock for Life in bringing the GAP display to UMBC.
6
On April 25th, 2007, Calizo informed Rock for Life that the
GAP display would not be allowed at the University Center Plaza,
but could be held at the Commons Terrace instead. The Commons
Terrace is a patio area adjacent to the Commons, described as
the “hub of student life on campus,” and its positioning within
the campus makes it a “congestion point” between residence halls
and other campus buildings. Id. at 835, 1356. Rock for Life
found the Terrace to be a desirable location and agreed to this
compromise. However, Joseph Reiger, Executive Director of the
Commons, soon expressed concern that the Terrace was also an
inappropriate place for the GAP display. He described steps on
the Terrace as hazardous because they are not in a “known sight
line.” (JA 1356). He further stated that like Calizo, he
understood the GAP display to include about twelve five-foot by
thirteen-foot signs. Based on these circumstances, Reiger
thought the Terrace was an unsuitable venue for three reasons:
(1) the GAP signs were too much of a “visual barrier” for that
location; (2) the GAP display would not leave adequate space for
pedestrians wishing to access the Commons through the Terrace
entrance; and (3) the area would become too congested if
students had to “flee” from a violent altercation resulting from
the display.
Id. at 1363. Reiger further stated that his concern
about violence arose because of Rock for Life’s letter
7
requesting security, not his past experience with the group or
UMBC’s student body.
Based largely on Reiger’s recommendation, Charles Fey, Vice
President of Student Affairs, decided to move the GAP display
once more from the Commons Terrace to the North Lawn, an open
space between the Commons, residence halls and main library.
Rock for Life members were informed of this decision by Eric
Engler, acting director of the Commons, on the morning of April
30th as they attempted to set up the GAP display on the Commons
Terrace. Rock for Life then moved the display to the North Lawn,
where it was held without a police presence and without
incident. The plaintiffs contend that surveillance footage from
that day indicates the North Lawn saw less foot traffic than the
Terrace, and thus fewer students were able to view the GAP
display and its message.
In November 2007, Rock for Life made a second attempt to
reserve the Commons Terrace for an exhibition of the GAP
display. UMBC responded that as before, the GAP display would be
permitted only on the North Lawn. Rock for Life decided not to
hold the event.
The plaintiffs later filed suit under 42 U.S.C. § 1983 in
the District of Maryland, alleging that UMBC had violated their
right to free expression through the enforcement of its sexual
harassment policy, its policy prohibiting emotional harassment
8
and, most directly, its facilities use policy. Calizo, Reiger,
Engler and Fey were named in both their individual and official
capacities, as were Freeman Hrabowski, President of UMBC, Nancy
Young, successor to Fey as Vice President of Student Affairs,
Lynne Schaeffer, Vice President of Administration and Finance
and Antonio Williams, University Chief of Police. 3 The complaint
sought permanent injunctive relief against enforcement of all
three policies as well as nominal and punitive damages. UMBC
later agreed, however, to partially address the plaintiffs’
claims by striking “emotional harassment” from the list of
prohibitions in its code of conduct and replacing it with
“failure to cease repetitive unwanted behavior directed toward a
particular individual or individuals.” JA 81. UMBC also revised
its facilities use policy by adding specific criteria for
denying or moving an event, but the sexual harassment policy
remained unchanged. After the facilities use policy was revised,
Rock for Life made a third request in October 2008 to reserve
the Commons Terrace for an exhibition of the GAP display. UMBC
3
The district court held that Hrabowski, Young, Schaeffer,
and Williams were immune from liability because the plaintiffs
failed to present any evidence of their personal or supervisory
involvement in the state action giving rise to this lawsuit. See
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (only a
supervisor who exhibits “deliberate indifference to or tacit
authorization of” a subordinate’s constitutional violations may
be held responsible under § 1983). The plaintiffs do not
challenge this finding on appeal.
9
granted this request, and the GAP display was held on the
Commons Terrace without incident.
In light of these developments, the plaintiffs filed an
amended complaint withdrawing their claims for injunctive relief
against enforcement of UMBC’s code of conduct and facilities use
policy. The amended complaint alleged five causes of action
under § 1983, better expressed in terms of the speech policies
they challenged: (1) First Amendment and Due Process claims
against UMBC’s sexual harassment policy, seeking injunctive
relief as well as monetary damages; and (2) First Amendment, Due
Process and Equal Protection claims against UMBC’s code of
conduct and facilities use policy, seeking monetary damages
only.
Finding that the plaintiffs lacked standing to assert
claims for injunctive relief against the code of conduct and
sexual harassment policy, the district court granted judgment on
the pleadings to the defendants on those claims under Federal
Rule of Civil Procedure 12(c). Rock for Life-UMBC v. Hrabowski,
594 F. Supp. 2d 598 (D. Md. 2009) (hereafter “Rock for Life I”).
After discovery, the parties filed cross-motions for summary
judgment on the plaintiffs’ remaining claims. The district court
awarded judgment to the defendants, finding that the plaintiffs’
facial challenge to the former facilities use policy was moot,
and the policy had been applied without regard to content as a
10
reasonable time, place, and manner regulation of their speech.
Rock for Life-UMBC v. Hrabowski, 643 F. Supp. 2d 729 (D. Md.
2009) (hereafter “Rock for Life II”).
The plaintiffs timely appealed the district court’s orders
granting judgment on the pleadings and summary judgment to their
First Amendment claims only. We have jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We review a district court’s decision to grant judgment on
the pleadings under Rule 12(c) de novo. Independence News, Inc.
v. City of Charlotte, 568 F.3d 148, 154 (4th Cir. 2009). “In
reviewing an award of judgment on the pleadings, we assume the
facts alleged in the relevant pleadings to be true, and we draw
all reasonable inferences therefrom.” Volvo Const. Equip. N.
Am., Inc., v. CLM Equip. Co., Inc.,
386 F.3d 581, 591 (4th Cir.
2004).
We also review an award of summary judgment de novo under
the same standard applied by the district court. See Canal Ins.
Co. v. Distrib. Servs., Inc., 320 F.3d 488, 491 (4th Cir. 2003).
Summary judgment shall be granted “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
11
Fed. R. Civ. P. 56(c). When ruling on a summary judgment motion,
a court must view the evidence and any inferences from the
evidence in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
“‘Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no
genuine issue for trial.’” Ricci v. DeStefano,
129 S. Ct. 2658,
2677 (2009) (quoting Matsushita v. Zenith Radio Corp.,
475 U.S.
574, 587 (1986)).
Because the plaintiffs’ § 1983 claims seek to recover
damages, they must establish not only that the defendants
deprived them of a constitutional right, but also that the
defendants, state actors sued in their individual capacities,
are undeserving of qualified immunity. See Harlow v. Fitzgerald,
457 U.S. 800, 808-09 (1982). Whether a government official is
deserving of qualified immunity from personal liability is a
two-pronged inquiry that requires us to determine: (1) whether
the official violated a constitutional right; and if so (2)
whether the right was “clearly established” at the time of its
violation. Saucier v. Katz,
533 U.S. 194, 201 (2001). Recently
the Supreme Court overruled Saucier in part to hold that the
traditional two-step inquiry into qualified immunity is not
mandatory; “the district courts and the courts of appeals should
be permitted to exercise their sound discretion in deciding
12
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 129 S. Ct. 808,
813, 818 (2009). In this case, the district court addressed step
one of the inquiry and, after concluding that the plaintiffs
failed to present sufficient evidence of a constitutional
violation, found it unnecessary to address step two.
III.
We begin with the district court’s conclusion that the
plaintiffs lack standing to challenge UMBC’s sexual harassment
policy and code of conduct. “[S]tanding jurisprudence contains
two strands: Article III standing, which enforces the
Constitution’s case-or-controversy requirement . . . and
prudential standing, which embodies judicially self-imposed
limits on the exercise of federal jurisdiction.” Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Article III
standing requires a plaintiff to show: (1) injury-in-fact; (2) a
causal connection or traceability; and (3) redressability. Lujan
v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). The
injury-in-fact criteria contemplates that the alleged injury-in-
fact is both “concrete and particularized and actual or
imminent.”
Id. at 560. The term “particularized” means that
“the injury must affect the plaintiff in a personal and
13
individual way.” Id. at 560 n.1. In addition, “there must be a
causal connection between the injury and the conduct complained
of . . . .”
Id. at 560. Stated differently, the injury must be
“fairly traceable” to action by the defendant.
Id. Finally, “it
must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.”
Id. at 561
(internal quotation marks omitted).
A regulation that burdens speech creates a justiciable
injury if on its face it restricts expressive activity by the
class to which the plaintiff belongs, or if its presence
otherwise tends to chill the plaintiff’s exercise of First
Amendment rights. N.C. Right to Life, Inc. v. Bartlett, 168 F.3d
705, 710 (4th Cir. 1999). However, fears of enforcement that are
“imaginary” or “wholly speculative” are insufficient to confer
standing. Babbitt v. United Farm Workers Nat’l Union,
442 U.S.
289, 302 (1979). To establish a plaintiff’s standing under
Article III, the challenged regulation must present a credible
threat of enforcement against the party bringing suit. N.C.
Right to Life, Inc. v. Bartlett,
168 F.3d 705, 710 (4th Cir.
1999). A plaintiff must establish such a threat with respect to
each of the provisions it seeks to challenge, as standing
regarding one aspect of a policy cannot be bootstrapped into
standing as to the rest. See Covenant Media of S.C., LLC v.
City of N. Charleston,
493 F.3d 421, 429-30 (4th Cir. 2007).
14
A.
The plaintiffs argue that their standing to challenge
UMBC’s sexual harassment policy is rooted in its
unconstitutional overbreadth. However, while the overbreadth
doctrine permits a plaintiff to “challenge a statute on its face
because it also threatens others not before the court[,]” Bd. of
Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574
(1987); accord Broadrick v. Oklahoma,
413 U.S. 601, 612 (1973),
it does not circumvent the requirement that a plaintiff suffer
an individual injury from the existence of the contested
provision to begin with. Burke v. City of Charlestown,
139 F.3d
401, 405 n.2 (4th Cir. 1998); Gilles v. Torgersen,
71 F.3d 497,
501 (4th Cir. 1995) (citing Sec’y of Md. v. Joseph H. Munson
Co., Inc.,
467 U.S. 947, 958 (1984)). To demonstrate a credible
threat that a sexual harassment policy is likely to be enforced
in the future, a history of threatened or actual enforcement of
the policy against the plaintiff or other similarly-situated
parties will often suffice. See Lopez v. Candaele, --- F.3d ----
,
2010 WL 3607033, at *6 (9th Cir. Sept. 17, 2010); Booher v.
Bd. of Regents, No. 2:96cv135,
1998 U.S. Dist. LEXIS 11404, at
*19-20 (E.D. Ky. July 21, 1998); Doe v. Univ. of Michigan,
721
F. Supp. 852, 859-60 (E.D. Mich. 1989).
The plaintiffs cite the recent Third Circuit decision
McCauley v. University of the Virgin Islands, --- F.3d ----,
15
2010 WL 3239471 (3d Cir. Aug. 18, 2010), for the proposition
that Broadrick and its progeny confer standing to challenge
speech regulations absent evidence of a chilling effect to the
particular speaker before the court. See
id. at *3 (holding that
a plaintiff had standing to challenge a university’s sexual
harassment policy despite the fact that he failed to assert that
“his speech . . . was chilled by the Code.”). Broadrick,
however, cannot be read so broadly. While the overbreadth
doctrine relaxes prudential limitations on standing that would
normally prevent a plaintiff from vindicating the constitutional
rights of other speakers, it does not dispense with the
“obligat[ion] as an initial matter to allege a distinct and
palpable injury as required by Article III.”
Burke, 139 F.3d at
405 n.2; accord Canatella v. State of California,
304 F.3d 843,
854 & n.14 (9th Cir. 2002) (Broadrick relaxes prudential, but
not Article III, standing requirements).
Upon review of the facts alleged in the plaintiffs’ amended
complaint, nothing suggests that the plaintiffs face a credible
threat of disciplinary action under UMBC’s sexual harassment
policy. As the district court noted, no aspect of the GAP
display is readily applicable to the policy’s definition of
“sexual harassment,” which is limited to “unwelcome sexual
advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature . . . .” Although the GAP
16
display seeks to convey a message related to abortion, which
necessarily touches upon issues related to gender and
reproduction, this type of speech is simply not “conduct of a
sexual nature” covered by the policy. Moreover, the plaintiffs
do not allege facts suggesting that UMBC officials ever
threatened to punish their speech as sexual harassment. Even if
Tkacik expressed concern, as the amended complaint alleges, that
students would feel “emotionally harassed” by the GAP
demonstration, he did not express concern that students would
feel sexually harassed, nor is there any suggestion that
disciplinary enforcement of the sexual harassment policy was
discussed at any point. More to the point, Rock for Life has now
shown the GAP display on campus twice and has not faced
threatened or actual disciplinary action for sexual harassment.
Although the plaintiffs claim a chilling effect to their speech,
they were unable at oral argument to name any form of expressive
activity that Rock for Life or its members wish to engage in,
but refrain from in fear of violating UMBC’s sexual harassment
policy. We hold, therefore, that the plaintiffs have not
demonstrated a credible threat of enforcement under UMBC’s
sexual harassment policy and are without standing to challenge
its constitutionality.
17
B.
Tkacik’s alleged comment had more relevance to UMBC’s code
of conduct, which prohibited “emotional harassment” until that
phrase was excised from the code during the course of this
litigation. As a result, the plaintiffs concede that the code of
conduct is no longer unconstitutionally vague or overbroad.
Nevertheless, the plaintiffs assert standing to sue for monetary
damages on the theory that Tkacik’s mention of the phrase caused
them to chill their own speech.
We have recognized that an actual chilling of protected
speech is a discrete infringement of First Amendment rights that
gives rise to a claim under § 1983 for at least nominal damages.
See Reyes v. City of Lynchburg, 300 F.3d 449, 453 (4th Cir.
2002). However, the plaintiffs may not assert claims for damages
against a speech policy that was never actually applied to them.
In order to establish their standing to challenge UMBC’s code of
conduct, the plaintiffs must first demonstrate an injury-in-fact
through the application of that provision. Covenant Media of
S.C., LLC v. City of North Charleston,
493 F.3d 421, 429-30 (4th
Cir. 2007) (citing FW/PBS, Inc. v. City of Dallas,
493 U.S. 215,
230 (1990)). While the plaintiffs claim that the code of conduct
caused them to chill their own speech, “[a]llegations of a
subjective ‘chill’ are not an adequate substitute for a claim of
specific present objective harm . . . .” Laird v. Tatum, 408
18
U.S. 1, 13-14 (1972). “[F]or purposes of standing, subjective
chill requires some specific action on the part of the defendant
in order for the litigant to demonstrate an injury-in-fact.”
Morrison v. Board of Educ.,
521 F.3d 602, 609 (6th Cir. 2008).
In this case, UMBC never undertook a “concrete act” to
investigate or sanction the plaintiffs for violation of the code
of conduct. Id. at 610. Nor can the plaintiffs characterize the
defendants’ decision to move the GAP display to the North Lawn
as a non-disciplinary enforcement of the code. If the defendants
considered the display to be emotional harassment, then it was
equally so on either the North Lawn or the Commons Terrace. Any
subjective fear of disciplinary measures that the plaintiffs
might have felt never materialized into an actual, objective
harm. Nor is there a credible threat of enforcement in the
future, as the sexual harassment policy has been revised so that
it now prohibits specific conduct the plaintiffs have never
sought to engage in. The plaintiffs’ mere allegations of a
chilling effect, absent any substantiating action taken by UMBC,
cannot establish their standing to challenge the
constitutionality of a now-defunct speech regulation.
IV.
Unlike UMBC’s sexual harassment policy and its code of
conduct, UMBC actually applied its facilities use policy to
19
regulate the plaintiffs’ speech. As such, they have standing to
challenge its constitutionality. The plaintiffs assert a facial
challenge to the policy, alleging that its “dependent upon
circumstances” and “move without notice” provisions failed to
create “narrow, objective, and definite standards to guide the
licensing authority,” Green v. City of Raleigh, 523 F.3d 293,
300 (4th Cir. 2008) (quoting Forsyth Cnty. v. Nationalist
Movement,
505 U.S. 123, 131 (1992)), as well as an as-applied
challenge to the defendants’ decision to remove the GAP display
from the Commons Terrace.
A.
Citing our decision in Valero Terrestrial Corp. v. Paige,
211 F.3d 112 (4th Cir. 2000), the district court held that the
plaintiffs’ facial challenge to the facilities use policy was
moot in light of its permanent revisions, which the plaintiffs
concede are sufficient to render the policy facially
constitutional. Rock for Life
II, 643 F. Supp. 2d at 740-41. In
Valero, which addressed the mootness of a plaintiff’s claim for
injunctive relief against enforcement of several state
regulatory statutes, we held that “statutory changes that
discontinue a challenged practice are ‘usually enough to render
a case moot, even if the legislature possesses the power to
reenact the statute after the lawsuit is
dismissed.’” 211 F.3d
at 116 (quoting Native Village of Noatak v. Blatchford,
38 F.3d
20
1505, 1510 (9th Cir. 1994)). Valero, however, is inapposite to a
claim brought under § 1983 to recover damages—either
compensatory or nominal—resulting from a prior suppression of
speech. In this context, we have held that even permanent
remedial measures will not moot the claim. See Covenant
Media,
493 F.3d at 429 n.4 (citing Henson v. Honor Comm. of the Univ.
of Va.,
719 F.2d 69, 72 n.5 (4th Cir. 1983));
Reyes, 300 F.3d at
453. But while the plaintiffs’ cause of action for damages
remains live, their claim that the policy was facially
unconstitutional is moot.
We addressed a similar issue in Reyes, where a plaintiff
sought to recover nominal damages after being charged with
violating a subsequently repealed parade ordinance, arguing
among other things that the ordinance was facially overbroad.
300 F.3d at 452. We found the plaintiff’s overbreadth challenge
to the ordinance mooted by its repeal, observing that “the
repealed parade ordinance cannot now, if it ever did, reach any
amount of constitutionally protected conduct. The question of
overbreadth does not present a live case or controversy for this
court.”
Id. at 453 (footnote omitted). We reached this result
because a facial challenge premised on overbreadth is
necessarily forward-thinking: it petitions the court to
invalidate an overbroad speech regulation because it has the
potential to support “a substantial number of impermissible
21
applications . . . .” New York v. Ferber, 458 U.S. 747, 771
(1982). When a facially overbroad regulation is subsequently
narrowed within constitutional boundaries, the inherent threat
of content-based discrimination becomes null.
Here, the plaintiffs allege the former facilities use
policy was facially unconstitutional because it delegated
“unbridled discretion” to UMBC to grant or deny requests. App.
Br. at 55. This, too, is a facial challenge premised on
overbreadth. See Forsyth, 505 U.S. at 129 (“[T]he Court has
permitted a party to challenge an ordinance under the
overbreadth doctrine in cases where every application creates an
impermissible risk of suppression of ideas, such as an ordinance
that delegates overly broad discretion to the
decisionmaker[.]”). The injury alleged by the plaintiffs is not
that Rock for Life’s request was actually denied based on the
content of its speech, for “[f]acial attacks on the discretion
granted a decisionmaker are not dependent on the facts
surrounding any particular permit decision.”
Id. at 133 n.10
(citing Lakewood v. Plain Dealer Publishing Co.,
486 U.S. 750,
770 (1988)). Rather, it is an assertion by the plaintiffs that
the facilities use policy granted UMBC such broad discretion
that it created a potential chilling effect on all protected
expression on campus, including their own.
Id. at 129. If the
policy was indeed facially overbroad, UMBC’s permanent revisions
22
cured this defect and removed any threat of content-based
enforcement in the future. The justiciable issue that remains
before us is not whether Rock for Life’s permit was denied
pursuant to a facilities use policy that gave UMBC unduly broad
discretion, i.e., a policy that could have been applied
unconstitutionally, but whether impermissible content-based
discrimination did in fact occur. Because the facilities use
policy no longer poses an inherent threat of content-based
discrimination, the plaintiffs’ facial challenge to the policy
is moot notwithstanding the fact that it seeks the recovery of
damages rather than injunctive relief.
B.
Turning to the plaintiffs’ as-applied challenge, the
district court correctly determined that the facilities use
policy regulated access to a limited public forum, and an
“internal standard” applied because the policy was designed to
provide access to recognized student organizations such as Rock
for Life. Rock for Life II, 643 F. Supp. 2d at 744-45. Under
this standard, content-neutral regulations of speech are
permissible if they are “limited to ‘reasonable restrictions on
time, place, or manner . . . [,] provided the restrictions . . .
are narrowly tailored to serve a significant government
interest, and . . . leave open ample alternative channels for
communication of the information.’” Warren v. Fairfax Cnty., 196
23
F.3d 186, 193 (4th Cir. 1999) (en banc) (quoting Ward v. Rock
Against Racism,
491 U.S. 781, 791 (1989)). A narrowly tailored
regulation of speech “need not be the least restrictive or least
intrusive means of” effectuating the government’s interests,
Ward, 491 U.S. at 798, but it may not “burden substantially more
speech than is necessary to further [those] . . . interests.”
Id. at 799. To be sure, “the First Amendment does not guarantee
the right to communicate one’s views at all times and places or
in any manner that may be desired.” Heffron v. Int’l Society for
Krishna Consciousness, Inc.,
452 U.S. 640, 647 (1981). However,
the plaintiffs contend that whether the facilities use policy
was applied in a content-neutral manner is a question of fact
for the jury. We agree, although the question is a much narrower
one than the plaintiffs suggest.
The defendants’ stated reasons for moving the GAP display
because of its size and shape are content-neutral criteria for
time, place and manner restrictions, see Am. Legion v. City of
Durham, 239 F.3d 601, 608 (4th Cir. 2001) (“Size . . . is not a
content criterion.”), and the plaintiffs fail to demonstrate
sufficient evidence that these stated reasons were pretext. The
defendants believed the size and shape of the signs would have
created a visual barrier obscuring steps and slopes on the
Commons Terrace, which Calizo characterized as an “oddly shaped
area.” JA 715. They developed this concern after their own
24
internet research about the GAP project led them to believe that
Rock for Life planned to display a row of approximately twelve
six-foot by thirteen-foot GAP signs. In fact, Rock for Life’s
display only included eight four-foot by eight-foot “mini-GAP”
signs, which could be arranged in any shape to accommodate floor
space limitations. However, whether the defendants’ decision was
motivated by the content of the GAP display depends on the
circumstances as the defendants believed them to be, not as they
actually were. The emails exchanged between the parties should
have alerted the plaintiffs to this mistake and the defendants’
resulting concerns for visibility and safety. The plaintiffs
never attempted to correct this misunderstanding during the
challenged enforcement of the facilities use policy, nor have
the plaintiffs otherwise shown that the defendants arrived at
their conclusions about the GAP signs in bad faith. Although the
plaintiffs have presented sufficient evidence that the
defendants were mistaken about the size of the GAP signs, this
is not evidence relevant to the issue before us: whether their
decision was motivated by the content of the plaintiffs’ speech
rather than its manner of presentation.
The plaintiffs also suggest that the defendants’ above-
stated logistical concerns are pretext for content-based
discrimination because numerous other events that posed similar
concerns were permitted on the Commons Terrace. We note that
25
“[o]nce a limited or designated public forum is established the
government can not exclude entities of a similar character to
those generally allowed.” ACLU v. Mote, 423 F.3d 438, 443 (4th
Cir. 2005). From 2003 to 2008, a number of events with varying
attendance have been held on the Terrace during normal school
hours. 4 But of these events, none were shown to include large
signs similar to those UMBC believed it was dealing with. Thus,
there is a content-neutral basis to distinguish these other
events from the GAP display.
A different matter is presented by the defendants’ stated
reason that they moved the GAP display to provide adequate space
for students to flee in the event of a violent altercation. This
concern was raised by UMBC in response to a request from Rock
for Life to provide a police presence at the GAP display, due to
“numerous unprovoked physical attacks” during prior exhibitions
at other campuses. The district court determined that the
4
These events include a free concert held from 1:00 p.m. to
2:00 p.m., attended by 50 people; an outdoor prayer service held
from 1:00 p.m. to 1:45 p.m., attended by 75 people; a student
involvement festival held from 11:00 a.m. to 2:00 p.m., attended
by 1,500 people; a study abroad fair held from 10:00 a.m. to
3:00 p.m., attended by 200 people; a “Bealtaine Barbeque” (a
Gaelic pagan festival) held from 12:00 p.m. to 2:00 p.m.,
attended by 25 people; a display erected by the sailing club
from 10:00 a.m. to 3:00 p.m.; a “Teeter Totter-a-thon”
fundraising event held for 24 hours, attended by 60
participants; and an environmental fair held from 2:00 p.m. to
10:00 p.m., attended by 50 people and featuring an electric car
placed at the South entrance of the Terrace. JA 1673-90.
26
defendants had not acquiesced to a “heckler’s veto” by moving
the GAP display because their concerns about crowd violence were
first raised by the plaintiffs. Rock for Life II, 643 F. Supp.
2d at 746-47. However, regardless of who raises the issue,
“[l]isteners’ reaction to speech is not a content-neutral basis
for regulation.”
Forsyth, 505 U.S. at 134. It is difficult if
not impossible to characterize UMBC’s heightened interest in
providing escape routes from the Commons Terrace as anything but
content-based. See Ovadal v. City of Madison,
416 F.3d 531, 537
(7th Cir. 2005) (a content-based restriction of speech is likely
when “every proffered justification” for the restriction is
“directly related to the reactions” of the audience). While an
interest in public safety is a content-neutral basis to regulate
speech, see Davenport v. City of Alexandria,
710 F.2d 148, 151
(4th Cir. 1983) (en banc), safety concerns arising from a
prediction of how listeners might react to speech cannot be
effectively de-coupled from speech content. Although, as the
district court noted, the defendants “should not be faulted for
taking seriously the concerns raised by [the plaintiffs],” Rock
for Life II,
643 F. Supp. 2d at 747, those concerns arose from
the content of the plaintiffs’ message.
Viewing the evidence in a light most favorable to the
plaintiffs, it appears the defendants were motivated by both
content-based and content-neutral reasons when they denied Rock
27
for Life access to the Commons Terrace. A content-based
restriction of speech withstands constitutional scrutiny only
when narrowly tailored and necessary to serve a compelling state
interest. Arkansas Educ. Television Comm’n v. Forbes, 523 U.S.
666, 677 (1998). Even were we to find UMBC’s interest in
protecting the safety of its students compelling, acquiescence
to a heckler’s veto would still fail under strict scrutiny, for
the defendants must employ the least restrictive means available
to further that interest. United States v. Playboy Entertainment
Group, Inc.,
529 U.S. 803, 813 (2000). Providing a security
presence at the Commons Terrace would have been a less
restrictive means of ensuring student safety. This is especially
true in light of the fact that the defendants decided to move
the event before the GAP display was even set up, permitting
them no opportunity to make an assessment of how students
actually reacted to the plaintiffs’ speech. The defendants could
not have been certain that any real threat of violence existed.
Given that Rock for Life has now held the GAP display twice on
campus without incident, it most likely did not.
Although Rock for Life was permitted to present the GAP
display on the North Lawn, where its message was heard by
students walking across campus, “[a] tax based on the content of
speech does not become more constitutional because it is a small
tax.” Forsyth, 505 U.S. at 136. The plaintiffs have therefore
28
demonstrated a violation of their First Amendment rights unless
the defendants could show, by a preponderance of evidence, that
absent any concerns of violence they would still have moved the
GAP display because of its size and shape. See Mt. Healthy City
School Dist. v. Doyle, 429 U.S. 274, 287 (1977) (a First
Amendment violation must be the “motivating factor” behind a
challenged state action; no constitutional violation occurs if
the government can show by a preponderance of the evidence that
it would have taken the same action for other, constitutionally
proper, reasons); see also Daker v. Ferrero,
506 F. Supp. 2d
1295, 1309 (N.D. Ga. 2007) (applying the Mt. Healthy “proximate
cause” framework to a prisoner’s First Amendment claim for
suppression of speech).
Because the plaintiffs have demonstrated a triable issue of
fact on their as-applied challenge to the facilities use policy,
we hold that the district court erred by awarding summary
judgment to the defendants at the first prong of the Saucier
test for qualified immunity.
V.
Although the district court erred in this regard, we may
nevertheless affirm summary judgment if we determine as a matter
of law that the plaintiffs fail to demonstrate a violation of a
constitutional right that was clearly established. This is a
29
“purely legal question . . . .” Siegert v. Gilley, 500 U.S. 226,
232 (1991). It requires the court to identify “the specific
right allegedly violated,” and then decide if “at the time of
the alleged violation the right was clearly established.”
Pritchett v. Alford,
973 F.2d 307, 312 (4th Cir. 1992). “The
relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.”
Saucier, 533 U.S. at 202. “To determine whether a
federal right was clearly established at the time of the
defendants’ alleged conduct, we focus not upon the right at its
most general or abstract level, but at the level of its
application to the specific conduct being challenged.” Jackson
v. Long,
102 F.3d 722, 728 (4th Cir. 1996) (internal quotation
marks omitted). We are advised to resolve the issue of qualified
immunity at the “earliest possible stage” of litigation.
Pearson, 129 S. Ct. at 815.
The plaintiffs argue that the we may not address the issue
of qualified immunity while material issues of fact remain
concerning the defendants’ conduct or their intent. Generally
speaking, “summary judgment on qualified immunity grounds is
improper as long as there remains any material factual dispute
regarding the actual conduct of the defendants.” Buonocore v.
Harris, 65 F.3d 347, 359-60 (4th Cir. 1995) (citing Pritchett,
30
973 F.2d at 313). In Jackson, however, we recognized that “[i]f
. . . resolution of the factual dispute is immaterial to whether
immunity is to be afforded,” we may address the question of
qualified immunity while fact issues remain
outstanding. 102
F.3d at 727.
Here, the only issue of fact relevant to the plaintiffs’
as-applied challenge that would survive summary judgment is
whether the defendants’ violence-related safety concerns were
the proximate cause of their decision to remove the GAP display
from the Commons Terrace. While this is a fact issue relevant to
whether the plaintiffs have suffered a deprivation of their
First Amendment rights, it is one that we may resolve in their
favor for purposes of determining whether the defendants are
entitled to qualified immunity. The defendants maintain that
they became concerned about the potential for violence after
Rock for Life presented UMBC with a letter asking for security
and describing violent encounters on other campuses. The
plaintiffs have not shown this concern was exaggerated or
otherwise not sincerely held. 5 Assuming, then, that the
5
In briefing submitted to the district court, the
plaintiffs suggested that the defendants’ concern of violence
was not “real.” Doc. No. 60-1 at 37. The plaintiffs supported
this contention by showing that UMBC refused to pay for a
security presence at the GAP display. Id. However, whether UMBC
agreed to pay for security is a separate question from whether
it had concerns for student safety.
31
defendants made an impermissible content-based restriction of
the plaintiffs’ speech because they anticipated a hostile
reaction from listeners, we exercise our discretion under
Pearson to examine whether this violated a constitutional right
of the plaintiffs’ that was, at the time, clearly established.
“Historically, one of the most persistent and insidious
threats to first amendment rights has been that posed by the
‘heckler’s veto,’ imposed by the successful importuning of
government to curtail ‘offensive’ speech at peril of suffering
disruptions of public order.” Berger v. Battaglia, 779 F.2d 992,
1001 (4th Cir. 1985). Courts have recognized a heckler’s veto as
an impermissible form of content-based speech regulation for
over sixty years. See Terminiello v. City of Chicago,
337 U.S. 1
(1949). Repeatedly, courts have emphasized the state’s
responsibility to permit unpopular or controversial speech in
the midst of a hostile crowd reaction. See, e.g.,
Ovadal, 416
F.3d at 537; Smith v. Ross,
482 F.2d 33, 37 (6th Cir. 1973);
Grider v. Abramson,
994 F. Supp. 840, 845-46 (W.D. Ky. 1998),
cited in Cheryl A. Leanza, Heckler’s Veto Case Law as a Resource
for Democratic Discourse, 35 Hofstra L. Rev. 1305, 1311 n.49
(2007). In the abstract, at least, the impermissibility of a
heckler’s veto is clearly established by First Amendment
jurisprudence.
32
Our inquiry, however, is not meant to be performed in the
abstract. “Put simply, context matters.” Henry v. Purnell, ---
F.3d ---, 2010 WL 3720411, at *11 (4th Cir. Sept. 24, 2010). As
the United States Supreme Court has stated,
if the test of “clearly established law” were to be
applied at this level of generality, it would bear no
relationship to the “objective legal reasonableness”
that is the touchstone of Harlow. Plaintiffs would be
able to convert the rule of qualified immunity that
our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of
extremely abstract rights. Harlow would be transformed
from a guarantee of immunity into a rule of pleading.
Such an approach, in sum, would destroy “the balance
that our cases strike between the interests in
vindication of citizens’ constitutional rights and in
public officials’ effective performance of their
duties,” by making it impossible for officials
“reasonably [to] anticipate when their conduct may
give rise to liability for damages.”
Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Davis
v. Scherer,
468 U.S. 183, 195 (1984)). Our inquiry into whether
the defendants violated a clearly established right of the
plaintiffs’ not to be silenced by a heckler’s veto must account
for the fact that it was the plaintiffs who issued a warning of
crowd violence to the defendants in the first place. Although it
does not render the defendants’ conduct permissible under the
First Amendment, the letter bears upon context and the
circumstances as the defendants perceived them.
The plaintiffs’ letter warned that the GAP display had
encountered “numerous unprovoked physical attacks from pro-
33
abortion students on the first few campuses it visited . . . .”
JA 270. Public universities are taxed with a dual responsibility
to permit the free expression of ideas on campus while providing
for the safety and security of their students, see S.U.N.Y. v.
Fox, 492 U.S. 469, 475 (1989), and the plaintiffs’ security
concerns put these interests at odds. The proposed location for
the GAP display, the Commons Terrace, posed in the defendants’
minds an additional safety hazard in the event of crowd
violence. The plaintiffs’ apparent expectation that such
violence would occur must have left the defendants uniquely on
edge.
In hindsight, we think the defendants were required by the
First Amendment to address these additional safety concerns by
providing a security presence at the GAP display, or watching
the event closely to determine whether security was truly
necessary. However, “[t]he concern of the immunity inquiry is to
acknowledge that reasonable mistakes can be made as to the legal
constraints on particular [government] conduct.” Saucier, 533
U.S. at 205. Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v.
Briggs,
475 U.S. 335, 341 (1986). If the defendants secured
campus safety at too high a cost to the plaintiffs’ right to
free expression, we do not believe they should be made to pay
for this mistake from their own pockets.
34
VI.
In summary, we conclude that all claims except the
plaintiffs’ as-applied challenge to UMBC’s facilities use policy
were properly dismissed on standing or mootness grounds.
Although the district court erred by holding that the plaintiffs
failed to demonstrate a triable issue of fact whether the
defendants regulated their speech based on its content, the
defendants are nevertheless entitled to qualified immunity from
42 U.S.C. § 1983 claims brought against them in their individual
capacities.
AFFIRMED
35
KING, Circuit Judge, concurring in part, dissenting in part, and
concurring in the judgment:
I write separately to confirm my concurrence in — and
admiration for — most of Judge Conrad’s well-crafted majority
opinion, with the exceptions of Parts IV.B and V. Although I
fully agree with the majority that the defendants are entitled
to qualified immunity on the plaintiffs’ as-applied challenge to
UMBC’s policy on facilities use, I would resolve that issue
solely on the first prong of the Saucier test. More
specifically, I would rule that the defendants are entitled to
qualified immunity because no constitutional violation has been
shown. I therefore dissent as to Part IV.B of the majority
opinion, which addresses the first prong of Saucier (the
constitutional violation prong), and have no reason to reach the
second prong of Saucier (the clearly established prong)
addressed in Part V of the majority opinion.
I.
The test formulated by the Supreme Court in Saucier v. Katz
required a two-pronged “order of battle” assessment of a
qualified immunity claim. See 533 U.S. 194, 201 (2001). After
Saucier was rendered in 2001, a reviewing court was obliged to
assess the two prongs in sequence, asking first whether the
plaintiff had sufficiently established a constitutional
36
violation. If the court’s answer on the first prong was “no,”
then it could not proceed to or address the second prong. But
if the answer was “yes,” then the court was obliged to decide
whether the violation was of a clearly established
constitutional right. In 2009, however, in Pearson v. Callahan,
the Supreme Court unanimously receded from Saucier’s mandatory
“order of battle,” deciding that a reviewing court was no longer
required to address the two prongs of the Saucier analysis in
sequence, but could exercise its “sound discretion” to decide
the proper order of assessment. See 129 S. Ct. 808, 813, 818
(2009).
The Pearson rule was in large measure predicated on the
Court’s recognition that “[a]dherence to Saucier’s two-step
protocol departs from the general rule of constitutional
avoidance.” 129 S. Ct. at 821 (citing, inter alia, Ashwander v.
TVA,
297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The
Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some
other ground upon which the case may be disposed of.”)). The
Pearson rule, however, also responded to another substantial and
valid concern that arose from Saucier’s mandatory sequence
protocol — that a defendant could suffer an adverse decision on
the constitutional violation prong, prevail on the clearly
established prong (and thus secure a favorable judgment), but
37
yet be unable to seek and secure appellate review on the adverse
constitutional violation ruling. Id. at 820.
A.
In this case, the majority’s ruling on Saucier’s first
prong — the constitutional violation question addressed in Part
IV.B — is patently incorrect. Before elaborating, however, I
must emphasize and address a more fundamental flaw in the
majority’s resolution of this appeal. Put simply, the
majority’s ruling on Saucier’s first prong constitutes
unnecessary dicta on a constitutional question, contravening the
principles spelled out in Pearson. Indeed, the majority
recognizes in Part V of its opinion (under Saucier’s second
prong) that the constitutional right it identifies in Part IV.B
is not clearly established. Under the Pearson rule, therefore,
the majority should not have addressed the merits of the
constitutional violation issue (under Saucier’s first prong)
absent some good reason, such as a compelling need to “promote[]
the development of constitutional precedent.” 129 S. Ct. at
818. In my view, no such compelling need or other good reason
is present here. Thus, the proper course for the majority was
simply to assume that a constitutional violation had occurred,
and then proceed to address the “clearly established” prong of
Saucier, granting qualified immunity and summary judgment on the
basis of its Part V ruling. In proceeding as it does, however,
38
the majority has departed from the post-Pearson settled
practice. See Walker v. Prince George’s Cnty., 575 F.3d 426,
429 (4th Cir. 2009) (O’Connor, J.) (“Here, we think it is plain
that [the] constitutional right . . . is not clearly
established. We thus decline to invest a substantial
expenditure of scarce judicial resources by engaging in the
essentially academic exercise of determining whether that right
exists at all.”). 1
To make matters worse, the majority’s unwarranted
constitutional discussion in Part IV.B will deny UMBC any
meaningful opportunity to seek or secure appellate review of the
adverse constitutional violation ruling made by the majority.
As the Supreme Court explained in Pearson, the “procedural
tangle” created by the Saucier rule “ar[ises] from the Court’s
settled refusal to entertain an appeal by a party on an issue as
to which he prevailed below, a practice that insulates from
review adverse merits decisions that are locked inside favorable
qualified immunity rulings.” Pearson, 129 S. Ct. at 820 n.2.
As Justice Alito explained for the unanimous Pearson Court, “the
1
Cf. Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597
F.3d 163, 169-70 (4th Cir. 2010) (“Because we believe this case
will clarify and elaborate upon our prior jurisprudence in
important and necessary ways, we will first address
[plaintiffs’] constitutional rights . . . prior to addressing
whether any such rights were clearly established at the time of
the alleged wrongdoing.”).
39
‘prevailing’ defendant [here, UMBC] faces an unenviable choice:
comply with the lower court’s advisory dictum without an
opportunity to seek appellate or certiorari review, or defy the
views of the lower court, adhere to practices that have been
declared illegal, and thus invite new suits and potential
punitive damages.” Id. at 820 (emphasis added).
B.
The majority’s Part IV.B assessment of the constitutional
violation question is not only “advisory dictum,” see Pearson,
129 S. Ct. at 820, but also (as previously noted) patently
incorrect. Simply put, the relevant facts fail to show a
constitutional violation, and I would therefore resolve this
case on Saucier’s first prong only. Unlike the majority’s
approach, such a resolution would not result in the “procedural
tangle” created by Saucier, where the constitutional violation
ruling is “insulate[d] from review” by the determination that
the asserted constitutional right was not clearly established.
See Pearson, 129 S. Ct. at 820 n.2.
Turning to the merits of the majority’s ruling on the
constitutional violation issue, the six words on which these
plaintiffs rely are much too thin a supporting reed for their
as-applied First Amendment challenge. Indeed, that challenge
hinges on a single line in an electronic Google Desktop notice,
reminding Mr. Tkacik, UMBC’s in-house counsel, of a meeting
40
scheduled with Mr. Vernet, the student president of Rock for
Life, on April 27, 2007. That line contains only these six
words: “re: controversial exhibit; Rock for Life.” J.A. 1622.
I reject the view that these words provide sufficient support
for a First Amendment violation.
As the district court correctly recognized, “reference to
the exhibit as controversial arose from Plaintiffs’ letter
alerting Defendants to the controversial nature of the display
and the need for security.” Rock for Life-UMBC v. Hrabowski,
643 F. Supp. 2d 729, 746 (D. Md. 2009). The letter to which
Judge Motz referred was first delivered by the plaintiffs to the
UMBC police department on April 19, 2007, and was faxed to Mr.
Tkacik in advance of the April 27 meeting. 2 The plaintiffs’
letter asserted that, “because [the Center for Bio-Ethical
Reform, one of Rock for Life’s ‘supporting organizations’]
suffered numerous unprovoked physical attacks from pro-abortion
students on the first few campuses it visited, [it] now
transport[s] and employ[s] [its] own crowd-control barricades.”
2
In this regard, the majority recognizes only that the
letter was given to Mr. Tkacik at the April 27, 2007 meeting.
See ante at 6. There is, however, more to the story. Although
Tkacik may have been provided with an additional copy of the
letter at the April 27 meeting, the record reflects that he
received the letter beforehand. Specifically, the letter was
provided to the UMBC police department on April 19, see J.A.
821, 1148, and it was faxed to Tkacik by the police department
on either April 24 or April 26, see id. at 1454, 1457.
41
J.A. 821. Put simply, I wholeheartedly agree with Judge Motz
that the “Defendants should not be faulted for taking seriously
the concerns raised by Plaintiffs.” Rock for Life-UMBC, 643 F.
Supp. 2d at 746-47.
By dismissing as irrelevant the fact that it was the
plaintiffs who first raised the security issue, the majority has
also created something akin to a “reverse heckler’s veto.”
Under the Part V ruling, an educational institution has no
choice but to address a student group’s security concerns. 3 But
in addressing those concerns, under the Part IV.B ruling the
institution risks being seen as engaging in a content-based
speech restriction — inevitably creating a jury question when
the institution asserts an alternative content-neutral reason
for its conduct. The educational institution is thereby faced
with a Hobson’s choice: (1) violate the First Amendment by not
addressing a student group’s security concerns; or (2) lose any
chance of prevailing on summary judgment by addressing such
concerns. By preventing an educational institution from
prevailing on summary judgment, the majority’s rule tramples on
3
Pursuant to Part V of the majority opinion, an educational
institution in this Circuit is now “required by the First
Amendment to address th[e] additional safety concerns by
providing a security presence . . . or watching the event
closely to determine whether security [is] truly necessary.”
Ante at 34.
42
the settled principle that the issue of qualified immunity
should be resolved “at the earliest possible stage of
litigation.” Pearson, 129 S. Ct. at 815. This result also
inappropriately impinges on an educational institution’s
manifest interest in the security of its students. See Healy v.
James,
408 U.S. 169, 184 (1972) (“[A] college has a legitimate
interest in preventing disruption on the campus.”).
II.
Consistent with the foregoing, I agree with the majority
that we should award qualified immunity to the defendants on the
as-applied First Amendment challenge to UMBC’s policy on
facilities use, but I would get there by a different route —
namely, by concluding that a First Amendment violation has not
been shown. Because there was no constitutional violation, I
would rely solely on Saucier’s first prong and award qualified
immunity to the defendants on that basis.
43
