John McGlone v. Robert Bell
2012 U.S. App. LEXIS 11029
| 6th Cir. | 2012Background
- McGlone, an evangelical Christian, sought to speak on TTU campus to share his faith; TTU requires a written application 14 business days in advance for non-affiliated speakers.
- He attempted to speak on April 7, 2009; he was told only the north patio was available and was warned of arrest if he spoke elsewhere.
- On April 8, 2009, he learned he could speak if he complied with the policy, but he did not submit an application; he and Holes spoke on a south patio area without permission and were approached by TTU police.
- TTU policy allows unaffiliated speakers to use campus property for religious worship subject to registration; it requires 14-day advance notice and lists nine denial grounds, plus a discretionary waiver; policy lacks explicit limits on where/how long a speaker may speak.
- McGlone filed suit in 2010 alleging First Amendment chill and due process vagueness; district court dismissed for lack of standing and rejected the policy as narrowly tailored; on appeal, the Sixth Circuit held standing exists and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge TTU policy | McGlone has injury in fact via chilling effect and threat of arrest | Morrison requires actual denial of permit; no concrete injury | McGlone has standing |
| Facial/as-applied challenge to policy and narrowing of prior restraint | Policy not narrowly tailored; advance notice and disclosure burden speech | Policy is content-neutral time/place/manner regulation | Policy violated First Amendment; not narrowly tailored; prior restraint invalidated |
| Forum analysis of TTU areas | Perimeter sidewalks are traditional public fora; open areas are designated fora | Areas are designated fora or nonpublic | Perimeter sidewalks traditional public fora; other open areas designated public fora |
| Waiver/discretion and notice requirements | Discretion to waive 14-day requirement allows arbitrary enforcement | Waiver authority exists within policy | Waiver/Notice provisions subject to remand; not properly justified as narrowly tailored |
| Qualified immunity of TTU officials | Officials violated clearly established First Amendment rights | Qualified immunity available unless clearly established | Reversed district court; qualified immunity not warranted |
Key Cases Cited
- City of Lakewood v. Plain Dealer Publ'n Co., 486 F.3d 750 (6th Cir. 1988) (standing to challenge a license/permit scheme facially)
- Ward v. Rock Against Racism, 491 U.S. 781 (S. Ct. 1989) (content-based restrictions and reasonable alternatives)
- Morrison v. Bd. of Educ., 521 F.3d 602 (6th Cir. 2008) (standing requires more than a subjective chill when not tied to concrete enforcement)
- Steffel v. Thompson, 415 U.S. 452 (S. Ct. 1974) (injury in fact can exist without prior enforcement)
- Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (S. Ct. 1992) (prior restraints must be narrowly tailored and leave alternatives)
- Dearborns v. City of Dearborn, 418 F.3d 600 (6th Cir. 2005) (standing to challenge notice/permit provision)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (S. Ct. 1983) (forum designation and public fora doctrine)
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (S. Ct. 1985) (designated public forums analysis)
- Schenck v. Pro-Choice Network of W. New York, 519 U.S. 357 (S. Ct. 1997) (public fora and time/place/manner)