Albert Burnham v. Lawrence Ianni

ARNOLD, Before RICHARD S. Chief McMILLIAN, GIBSON, Judge, R. JOHN FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, and MORRIS ARNOLD, Judges, Circuit en SHEPPARD banc.

BEAM, Judge. Circuit action, In this section 1983 appeals Lawrence Ianni from the district summary court’s1 denial of his motion for qualified immunity. A judgment based on panel court reversed. decision to of this Our grant en banc review vacated that decision. Ianni, Burnham v. See 98 F.3d 1007 Cir.1996). affirm. We now

1. BACKGROUND discovery Because has not been conducted the facts are derived from the plaintiffs’ pleadings and the affidavits sub- by parties. Plaintiff Albert Burn- mitted part-time professor ham has been a department history University (UMD) Minnesota-Duluth since 1986. Plain- professor tiff Ronald Márchese is tenured University system. He Minnesota humanities, professor is a classics and history professor at UMD and a of ancient history archaeology in the Center for Ancient Studies at the of Minne- Club, sota-Minneapolis. History The active years campus, operates for a number of auspices history under the of the UMD de- times, partment. At all relevant Professor faculty Burnham was the advisor to the Club. During quarter fall stu- two Club, History plaintiffs members of the dent Kohn,2 Louise an Michael and conceived idea project publicize for a that was intended to expertise some of the areas of and interest of department’s faculty, history while at the portraying same time the instructors informal, way. humorous somewhat approached Kohns Professors Burnham and MN, Rotenberg, Minneapolis, ar- Mark R. as well as other members of the Márchese brief). (Julie Sweitzer, gued A. on the department, agreed partici- all of whom Johnson, MN, Minneapolis, pate. They pose picture agreed ar- Scott W. brief). (John Hinderaker, “prop” to their of inter- gued H. that related areas Davis, graduated J. 2. The Kohns have now from UMD. The Honorable Michael United States Judge District Court for the District of Minneso- ta. supplied department, about They also information March 1992. The est. expertise, academic back- their fields of by case and its contents are seen students heroes, as well as a ground, and historical nearby, members, taking classes along with the above quotation to be used general public. members photographs. and their information case history is reserved for the use of the contained, department. Professor Burnham It has photograph, his for a number For military pistol, wear- posed with a .45 caliber years, siege an exhibit on Roman warfare special cap. His interest ing a coonskin equipment that was assembled Professor military history in American includes Márchese. The device has been used Davy Adams and particular. He listed John History members Club as well as among his historical heroes. Con- Crockett history department faculty. The case is interests, professional Profes- sistent with his only to used communicate matters that are an ancient sor Márchese elected to hold Ro- general considered to be of interest. It is wearing man sword while a cardboard short communications, private not used for like a specialties wreath. He listed his as laurel message system. or a mailbox Rome, Homeric Litera- “Ancient Greece and ture” and identified Homer and Alexander was, fact, by The exhibit hun- observed as his historical heroes. the Great dreds, thousands, people. if not of Members department many compli- received posed professors

A total of eleven for or presentation, ments supplied pictures. Kohns assembled an on the as did the stu- The incorporated photographs weeks, these exhibit that dents who assembled it. For two no along with the written comments submitted expressed any one criticism about the exhib- photographs by each member. The contrary, display appeared it. To the to accompanying written material were and the good contribute morale and relations with- public thought communicate matters of department. The exhibit was intended to be interest.3 10, 1992, Karon, April On Judith who was students, by prospective viewed students and officer, then UMD’s affirmative action public any as members of the who as well Captain Harry UMD Police Miehalieek came might premises. designed It was professors history department impart information about the to the and viewed the history and their attitudes toward re- response complaint exhibit. This was to a —as flected, example, in their choices of his- Macleod, professor by Charlotte an assistant torical heroes. who was the head of the UMD Commission departmental Karon went to the Women. put up history

The exhibit was secretary, Kwapiek, Elizabeth and demanded department’s display pub- located in the pictures of Professors Burnham and lic corridor next to the classrooms used quite present history guidebook emerged a 3. The over how to in our it too caused debate Martinez, topic Way a nation's schools has been con- A New stir. See Elizabeth Indeed, it Origin Myth, cern for some time. has been Looking WL At Our U.S. books, subject (1996). of numerous law reviews and Regardless of the current sta- See, newspaper e.g., Stephen however, articles. E. Gott- proposed guidebook, a national tus of lieb, In the Name Patriotism: The Constitution- history over how to teach is alive and debate ality History Secondary ‘Bending’ in Public recently well. As one author stated: Schools, (June 1987) (com- N.Y.U.L.Rev. study history apprecia- One cannot without authorities). piling nationwide among both tion of the conflicts contains concern resulted in the release of a national past among actors in the historians widely guidebook curriculum which was criti- present. can be The idea that bowing political cized as correctness taught or that as set of names dates offering detriment of students an accurate ac- taught of formulas is as Cass, science can be as set history. count of United States See Connie to students as to those with distasteful History Politically Standards Too Criticized Yet, Correct, knowledge disciplines. if one is to WL most dates, get beyond the level of names and one widely aspect guidebook criticized was its heroes, disputed dwells in a realm of ideas. downplaying of historical to the exclu- Gottlieb, (footnote Edison, omit- persons 62 N.Y.U.L.Rev. at 573 such Thomas Paul sion ted). Although Revere and Robert E. Lee. Id. a revised department photographs, might Márchese be removed. de- but hinted that he support nevertheless their removal. nied this demand. explain why When asked to she wanted the Upon hearing attempt to remove removed, photographs Karon tried to connect pictures, Burnham Professor called against them to a written threat Professor lawyer in the of Minnesota’s Le- Judith Trolander which had been found gal Department, who told him that she could depart- March 1992.4 Members wrong nothing with the as de- find they thought ment Karon that told her at- history department agreed scribed. The tempt pictures link deranged to this department any at- should resist message was absurd. Karon also stated that tempt by the administration to censor the she considered the to constitute department photographs, and the declined to sexual harassment. She was unable to ex- remove them. plain what she meant this. She was also authority unable to state what she could April Karon On sent a memoran- departmental the removal of a order student College dum to the Dean of the of Liberal display. Arts, Horse, stating John Red that she ex- May On ordered pected pictures to be removed immedi- Plant Kirk UMD Services Director Johnson ately “totally she found them to be because pictures to remove the of Professors Burn- inappropriate.” apparently Dean Red Horse ham and Márchese. Because Johnson was request. April to act on Karon’s refused On pictures to obtain access unable to the at that 30, 1992, Karon sent Professor Burnham a time, police Ianni ordered the UMD to re- explaining memorandum her reasons for photos. day, the move The next UMD Police wanting photographs to remove the of Pro- Captain photographs Michalicek removed the fessors Burnham and Márchese. In her display. Only from photographs the the two memorandum, again Karon stated that she weapons with were removed. The other nine the exhibit taken down because she ordered photographs display. remained on Profes- photographs “insensitive” “in- found the sors Burnham and Márchese then removed appropriate.” the balance of their contributions to the ex- 29, 1992, morning April On the Louise hibit. Kohn, Kohn, Kwapick Michael Elizabeth Following photo- the removal of the Professor Burnham met with Chancellor Ian- graphs, explained Ianni that he removed explain display protest ni the Karon’s them because Karon had claimed she censorship pictures attempted and the anonymous complaints had received about During meeting, students’ work. Ianni display objected depiction personally nothing wrong said that he found weapons. with members Karon photographs. On the with afternoon of also claimed that Professor Trolander had day, history department the same held a display’s upsetting contacted her about the issue, meeting on this which was also attend- expressed effect on her. Ianni his belief Ianni, Karon, During ed and Red Horse. campus was enshrouded an at- meeting, again Ianni Chancellor stated mosphere anxiety due to the earlier personally nothing wrong against that he saw threats Trolander and others.5 He Apparently, Professor Trolander had not initial- or even death. In March Professor Trolan- ly fact, any way by pictures; been offended target der became the of similar threats. Both participated project by posing she Featherman and Trolander had been involved in photograph specifying specialties. a her On campus-wide promote diversity campaign a day display put up, was Trolander said community. response the UMD to these thought "very that she was nice.” campus Ianni distributed threats. memorandum 16, 1992, assuring dated March 5. The threats to others to which Ianni referred community being the UMD that the matter was previous year. during had occurred In June investigated by local and federal authorities appointed Sandra Featherman was UMD stating that the school was still committed to began receiving Vice Chancellor. She later anonymous improving the conditions for women and minori- warning stay away threats her to campus. ties on Duluth, possibility kidnapping or face the objective university chancellor would have removal of explained that his further Ianni, stop F.Supp. the dis- attempt an known. Burnham v. photographs (D.Minn.1995). pre- display and to appeals the denial ruption caused atmosphere of fear. summary judgment ground, con- aggravation vent any milieu of concern dispute that tending Plaintiffs First Amendment campus atmo- established, contend clearly thereby existed and rights were not been, was not have sphere, whatever rendering protected by qualified his actions photo- by the two aggravated or affected immunity. We review the district court’s graphs. qualified immunity issue conclusion de Holmes, novo.7 White post- photographs were later Copies of the (8th Cir.1994). group of stu- student center ed at the actions. protesting the administration’s dents sub- display advanced the The student center II. DISCUSSION “The Ad-

ject censorship and was entitled court on a Since this matter is before the You to See Does Not Want ministration summary judgment based on motion used the incidents The students These.” immunity, “ordinarily the court removal of the surrounding the impermissible actions under look at the record in the most example an must no com- Apparently, party [plaintiffs/appellees] the First Amendment. favorable to the motion, center lodged about the student plaints opposing drawing were all inferences exhibit, any evidence of party.” nor was there favorable to that Harlow v. most upon showing of institutional breakdown n. Fitzgerald, 457 U.S. photographs. Qualified 73 L.Ed.2d 396 immunity government officials from shields Plaintiffs, alleging First Amendment clearly their conduct violates suit unless § violations, 1983 action this 42 U.S.C. filed statutory right established constitutional Ianni and the against Chancellor person of which a reasonable would for sum Defendants moved of Minnesota. 2738; 818, 102 Yowell known. Id. at S.Ct. court which the district mary judgment, (8th Cir.1996). Combs, 542, 544 v. 89 F.3d part. in part in and denied granted dismissed, plaintiffs’ prejudice, all court that he Ianni’s assertion Chancellor Minnesota, University of against the claims immunity triggers a protected by qualified is money damages plaintiffs’ all claims (1) plain three-pronged inquiry: whether the capacity as Chan against Ianni in his official a violation of a constitu tiffs have asserted UMD, against Kohns’ claims cellor of and the (2) so, statutory right; if whether tional or injunctive The district court Ianni for relief. clearly at the time right established remaining summary judgment on denied (3) whether, violation; given the and contentions, qualified including the issue of plaintiffs, there most favorable to the facts immunity for Ianni.6 The district of material fact as to genuine no issues are Ianni’s actions court found that Chancellor official would have a reasonable clearly established whether plaintiffs’ violated alleged action violated that an known that the rights, way in a First Amendment qualified immunity ty would complaint, plaintiffs sought nor the doctrine of 6. In their amended equitable injunctive protect actions were unconstitu- or other declaration Ianni's Ianni from tional, against See, injunctive in his offi- relief Ianni e.g., Minne Trelevenv. relief. capacity, monetary against Ianni Cir.1996) (state's relief sota, 816, (8th cial 819 73 F.3d capacity the amount of at in his individual in immunity not shield does Eleventh Amendment $50,000, Appellant’s App. plus interest. least relief); injunctive prospective from official (amended complaint). 4 289, Trickey, 295 Cir. v. 21 F.3d Grantham 1994) immunity (qualified offi does not shield appeal solely concerns the denial 7. Because this Nebraska, relief); equitable v. from Rose cials immunity, implicating only Ianni’s of liability course, (8th Cir.1984) (state’s Elev F.2d not, money damages, we do immunity does not shield offi enth Amendment injunctive plaintiffs’ address claims for relief). declaratory injunctive cials from or note, however, equitable or other relief. neither the Eleventh Amendment immuni- state’s Yowell, it, regardless 89 F.3d at 544.8 Ianni focuses derstood right. those who view analysis. prong second of this He actually partic- whether it is understood in a plaintiffs’ rights argues that were not way. Spence, ular instance such a of the removal clearly established at the time U.S. at at 2730-31. Burnham S.Ct. legally pro photographs. Whether Márchese, through photographs, their clearly turns on interest is established tected attempting, part, convey were at least in “objective legal of an offi reasonableness scholarly professorial and advocate their official could be ex acts. Where an cial’s military history military interests in certain conduct pected to know that would part weaponry’s in their vocation. Michael statutory rights, constitutional violate Kohn, well, attempting and Louise were Harlow, hesitate.” should be made to show their creativeness and interest 819, 102 U.S. at S.Ct. at scope teaching mission of the department. display was the Kohns’ proving Ianni bears burden of idea; they organized it. Be- and exhibited rights First Amendment messages sufficiently satisfy cause these See, clearly e.g., were not established. Sie test, Spence and the 226, 231, gert Gilley, 500 U.S. 111 S.Ct. And, qualify speech. Id. we do not under- 1789, 1792-93, (1991); 114 L.Ed.2d Wa disputes that Ianni stand this conclusion. Equip. tertown Co. v. Norwest Bank Water (8th Cir.1987). town, 1487, 1490 Although speech of free is not burden, attempt to shoulder this absolute, generally the First Amendment (1) argues that: some restrictions on prevents government proscribing from constitutionally nonpublie forums are ac simply disap kind because of and, thus, ceptable which restrictions are proval expressed. City the ideas R.A.V. v. acceptable given situation is never Paul, 377, 382, 112 St. 505 U.S. (2) established;” “clearly professors Indeed, 120 L.Ed.2d 305 public employees9 and their First were exceptions, with a few most receives subject rights were to the fact- protection. First Amendment Cohen v. Cali test, thus, balancing Pickering10 intensive 15, 24, fornia, 403 U.S. 1787- being “clearly precluding rights es see, (1971); e.g., 29 L.Ed.2d 284 New arguments will be tablished.” These ad Ferber, 747, 756, York v. in turn. dressed 3348, 3354, (1982) (child 73 L.Ed.2d 1113 however, First, pornography unprotected speech); we note that Miller here, i.e., California, expressive behavior at issue U.S. (1973) (obscene 2614, history

posting speech within the 37 L.Ed.2d 419 department display, qualifies unprotected speech); Chaplinsky as constitution is v. New See, 568, 572, 766, ally protected speech. e.g., Spence Hampshire, v. 315 U.S. 62 S.Ct. (1942) 405, 410, 2727, 769, Washington, (fighting 418 U.S. 94 S.Ct. 86 L.Ed. 1031 words are 2730, (1974); unprotected speech). v. 41 L.Ed.2d 842 Tinker Des The First Amend Dist., Indep. Community protection 393 ment’s even to Moines Sch. extends indecent 505-06, 733, 735-36, 503, speech. 89 S.Ct. Sable v. Federal U.S. Communications Caudell, (1969); Comm’n, 115, 126, L.Ed.2d 731 Tindle v. 56 Communications 492 U.S. Cir.1995). 966, 2829, 2836-37, con F.3d Nonverbal 109 S.Ct. 106 L.Ed.2d 93 (1989). speech speech unprotect if it is intended to It also duct constitutes extends message (e.g., obscenity) protect convey particularized and the like ed on one basis but great message (e.g., opposition un- ed on lihood is will be another content recently inquiry rights.” Forney, in a violate such Waddell v. F.3d 8.We have framed 889, different, similar, (8th Cir.1997). substantively way slightly but by saying specific that "we must consider what allegedly studenl/plaintiffs clearly rights 9. constitutional lated, the defendants vio- The two would not rights clearly by argument. whether the were established covered violation, alleged in law at the time of the Educ., 563, po- Pickering person whether a in the official’s v. Board 391 U.S. reasonable (1968). would S.Ct. 20 L.Ed.2d 811 sition would have known that his conduct acts). R.A.V., argues, Ianni and the district court at 384- 505 U.S. governmental found, history department display then, plain- 86,112 Clearly at 2543-45. nonpublic ease is a forum. Ianni further pro- worthy of constitutional speech is tiffs’ expression claims that because the occurred tection. forum, nonpublic in a restrictions suppres- case involves Ianni’s Because this or, least, permissible the extent of were speech, plaintiffs plaintiffs’ protected sion of any permissible restriction was unclear. (at summary adju- purposes of least for Thus, states, plaintiffs’ Ianni First Amend dication) sufficiently a violation of established rights extinguished, or at ment were limited right limitations in- a constitutional —unless minimum, clearly not There established. lawfully permit re- digenous to the forum fore, says, the district court’s denial of plaintiffs’ First Amendment strictions on qualified immunity disagree. error. was We inquiry. privileges. We turn to In ease the nature of the forum makes if little difference.12 Even case The A. Forum forum, nonpublie Ianni is not entitled qualified immunity. Supreme the character of Court Access to and may [a areas has declared that “the State reserve government-controlled nonpublic] purposes, upon type prop forum for its intended depending be limited otherwise, long or as as the recognize catego three communicative erty at issue. Courts government regulation on is reasonable and not property on which the ries of expression merely suppress restrict effort to because may, greatly varying degrees, (1) forums, oppose speaker’s places by public officials view.” speech: public 955; assembly Perry, 103 S.Ct. see have been devoted to tradition (2) forums,11 debate; proper Chapel Lamb’s v. Center Moriches Un- public also limited Dist., 384, 394, 508 U.S. opened has for use ion Free Sch. ties which the state (1993) 2141, 2147-48, activity; 124 L.Ed.2d 352 public places expressive for (3) forums, nonpublie places (stating control over access to fo- nonpublie which are subject matter rum can be based on designation tradition or forums speaker identity long so as the distinctions Perry Educ. public communication. Ass’n Ass’n, light purpose are reasonable in Perry 460 U.S. drawn Local Educators’ 954-56, viewpoint by the forum and are neu- 74 L.Ed.2d 794 served 103 S.Ct. Kokinda, (1983). forums, tral); 497 U.S. public right the state’s United States 3115, 3122-23, 720, 732, expression “sharply circumscribed.” limit (1990) constitutionality (stating public at 954. In limited L.Ed.2d 571 Id. at 103 S.Ct. forums, however, regulation must be considered nonpublic the state’s in- of the forum pervasive. the nature and function regulate speech is more L.Ed.2d 326 recognize "limited 11. that both terms noted, public in the hall "designated as earlier was located forum” and forum” category history department’s classrooms are used to describe this second outside the See, Soc'y property. e.g., public viewing. International Krish- UMD had des was intended for Consciousness, Lee, Inc. v. ignated na a forum for use 2711, 2711, (1992) turn, department 112 S.Ct. 120 L.Ed.2d 541 al department. the interchangeably); Perry (using see also terms faculty students access to the lowed its Ass’n, Perry 460 Educ. v. Local Educators' Ass'n about the his communicate information case—to 948, 955-56, 37, 46, students, 103 S.Ct. 74 L.Ed.2d U.S. prospective tory department stu to (1983); Advisory Capitol Square Review & 794 dents, ongoing faculty public basis. the on an Pinette, 753, 805-07, Bd. U.S. 115 S.Ct. v. 515 a limited display were considered If the case 2440, 2469, (1995). pur- L.Ed.2d 650 For 132 forum, suppression at public the content-based discussion, poses we term of our will use the compel a to served work here would have public “limited forum.” ling would have to have been interest and state narrowly order to drawn to serve that interest in 263, Vincent, note, however, upheld. 454 U.S. Widmar display be 12. We case do 274-75, 70 L.Ed.2d 440 Perry, could well be a limited forum. See However, (1981). 956-57; sup we find that the because S.Ct. at Forbes v. 460 U.S. at Comm'n, lenient forum pression here fails even the most Educ. Television Arkansas Cir.1996), - -, test, granted, we need not address this issue. U.S. rt. ce volved). Here, 394, 113 suppression (quoting we find that the Id. at S.Ct. at 2147 Corneli Fund, Legal purpose of the us v. NAACP & Educ. was unreasonable both Defense Inc., 788, 806, 3439, 3451, 473 U.S. 105 S.Ct. because of its view- served the forum and (1985)). 87 L.Ed.2d point-based discrimination. suppression particular The display designated pre- for The case was speech viewpoint-based was also discrimina cisely type activity for which noted, Supreme tion. As the Court has Kohns Professors Burnham and Márch- may determining government whether using It ese were it. was intended to inform legitimately pre exclude a class of to students, faculty community members of forum, a serve the limits of history depart- events in and interests of the between, we have observed a distinction on obligated was to ment. not hand, discrimination, the one content display create the nor did it have to may permissible preserves if be it open by history department the case use forum, and, purposes of that limited However, it and students. once chose hand, discrimination, viewpoint the other ease, open prevented it was presumed impermissible which is when di unreasonably types distinguishing among the against speech rected otherwise within the it allow within forum. would forum’s limitations. See, e.g., Chapel, Lamb’s 508 U.S. at Visitors, Rosenberger v. Rector and 515 U.S. 2146-47; Vincent, 113 S.Ct. at Widmar 819, 829, 2510, 2517, 132 L.Ed.2d 269, 273, (1995) Perry, (citing 460 U.S. at purpose L.Ed.2d 440 Since the 955-56). illustrates, Rosenberger S.Ct. at As case was the dissemination of information impermissible. what occurred here was history department, suppres- about the photographs of Professors Burnham and exactly type sion of of information was expressed plaintiffs’ Márchese view that simply not reasonable. study history necessarily involves a recognize “may legally pre- that UMD study military history, including the use of property serve the under its control for the military weapons. persons Because other Chap- use to which it is dedicated.” Lamb’s objected campus viewpoint, the UMD to this el, How- 2146. or, least, allowing viewpoint to be ever, Supreme as the Court has stated: expressed particular way, sup- in this “[AJlthough speaker may be excluded pressed placate complain- nonpublic from a forum if he wishes to put simply, ants.13 To topic encompassed address a not within were removed because handful individu- purpose of the forum ... or if he is not apparently objected als speakers member of the class of possession views on the and the use of mili- especial whose benefit the forum was cre- tary-type weapons especially to their ..., government ated violates the First campus even in an exhibition on historical Amendment when it to a expression, denies access context. Freedom of even in a speaker solely suppress point forum, of nonpublic may regulated only for a espouses reason; view constitutionally on an otherwise includ- valid there was no subject.” ible such in this case.14 reason record, Although speech privileges difficult to tell from the Marchese’s free in this case. Karon, objections professors' history-based Macleod and Ianni The fact that the mes- substantially have been toward the dis- sage happened parochial directed to fall victim to Ianni's and, play weapons campus perhaps, point exhibiting weapons of view on makes the simply history department toward curricu- censorship pernicious no less and no more ac- teaching lum or Burnham's and Marchese’s pur- ceptable, especially given the fact that the methodology. Suppression on these more limit- pose carefully explained however, grounds, ed would be unconstitutional Ianni in advance of his action. purposes by in case, the of served the government that 14. We no means hold has no Additionally, as discussed above. we do workplace generalized control over or the not discern how display weapons concerns over many any way instances when of advance Ianni's schoolhouse. envision rights suppression speech, proposed speech, beyond of or attenuate Burnham and or is

677 Judge Heaney, writing panel for a of Public Official B. Reasonable court, recently controlling noted that once a that at the time Ianni further claims decided, opinion has been a constitutional suppressed, a reason photographs were right clearly has been established.16 See large public objective chancellor of a ably (8th 889, Forney, v. Waddell 108 F.3d 893 university not have known would Cir.1997). And, admittedly, contours “[t]he constitutional conduct violated sufficiently must be clear that a disagree.15 again rights. We reasonable official would understand matter, Supreme Court As a basic doing right.” what he is violates hardly argued can be in 1969 “[i]t stated 635, 640, 107 Creighton, Anderson v. 483 U.S. their consti or teachers shed either students (1987). 3039, 3034, But, 97 523 S.Ct. L.Ed.2d speech or ex rights to freedom of tutional by Judge opinion as McMillian in noted his Tinker, gate.” at the schoolhouse pression 70, Hayes Long, 72 for the court F.3d 73 Indeed, 506, at 89 S.Ct. at 736. 393 U.S. (8th Cir.1995), court “[t]his has taken a broad earlier, year that a member the idea ‘clearly view of what constitutes established compelled relinquish First could be purposes immunity lawf for the of a rights in connection with em stated, inquiry.” particularly, More he with “unequivo school was ployment at a law, regard “clearly established” that: rejected” by Supreme Court. Pick cally “In a right order to determine whether of Educ., 391 ering v. Board U.S. established, clearly necessary it is not 1731, 1734-035,20 L.Ed.2d directly Supreme has addressed Court long established tenets to Applying these issue, precise nor does the action or ease, quotation that our earlier we note question omission in need to have been 829, at Rosenberger, 515 U.S. from binding held unlawful. In the absence of 2517, viewpoint at links its observations precedent, a court should look to all avail- nonpublic within a forum discrimination including able decisional law decisions 955-56, 46, at Perry, 460 U.S. at 103 S.Ct. courts, circuits and district state other Supreme decided teacher case courts----” pro- Similarly, language Court 1983. (quoting 73-74 v. Arkansas Id. at Norfleet scribing viewpoint discrimination found Servs., Dep’t Human Chapel, at 113 S.Ct. at Lamb’s 508 U.S. (8th Cir.1993)). Cornelius, 2147-48, directly quotes course, established, Here, long we have at a 1985 deci- U.S. at addition, precedent totally supportive plain- holding prohib- binding sion. Widmar’s Supreme Court and this among tiffs’ claims. iting unreasonable discrimination forum, clearly directly spoken specific court have both “types expression” within a subject analysis on numerous occasions and clearly made in the context of an forum, censorship particular years long prior to the 1992 purpose Widmar, Accordingly, Ianni’s “not early Ianni. available as as 1981. 265-67, 277, rejected.17 clearly established” claim must be 102 S.Ct. at 278. U.S. adjust “speaker identity” designation have some time to "[S]tate or "content" officials must judge-made law and learn about and in such instances the the forum and other circuits [the Sixth] evolves.... This regulated. Chapel, See Lamb's 2147-48; struggled long a deci- to decide how after Rosenberger, have U.S. S.Ct. at with have to become familiar sion state officials at 2517. is not such a at case, This ” law.’ Id. at 306. then cited 'the Lintz however. days allowing from twelve extensive list of cases regard, In this we note that Chancellor Ianni months. to five stated, meeting at a himself faculty, establishes, noted, his- 17.The record brought plaintiffs that if the a lawsuit department tory department contacted the law alleging a violation of their First Amendment opinion propriety for an rights, “they might good case.” may only presume display. that Chan- One equal superior resources at slightly chari cellor Ianni had 16. Some circuits have been more disposal questions con- Skipski, about the timing his if had table on this issue. In Lintz 1994), rights. of these well-defined constitutional Cir. the Sixth Circuit stated: tours F.3d 304 678 Pickering Balancing Argument ployee in engaging speech.

C. for v. Waters Churchill, 661, 668, 1878, 114 U.S. Finally, upon Ianni seizes 1884, (1994); 128 L.Ed.2d 686 Rankin v. involving threats to Ms. the two incidents McPherson, 378, 384, 483 U.S. 107 S.Ct. in and Ms. Trolander an at Featherman 2891, 2896-97, (1987); 97 L.Ed.2d 315 Kin tempt interject prece First 389, City Springs, cade Blue dispute. applicable to this We re dent not (8th Cir.1995), denied, -, cert. U.S. ject this endeavor. — 1565, 116 S.Ct. 134 L.Ed.2d 665 In plaintiffs’ rights Ianni contends that the case, argued it is that there is no adverse speech express particular must addition- (unless employment censorship action it ally against sup- be balanced UMD’s purpose), against self serves that which the press efficiency in workplace the name of speech rights might free be bala harmony. urges He this court to invoke Indeed, nced.18 the district court found: employee discipline line and termination gravamen complaint The is not summarily dispose any cases to violation of photographs whether the were the basis See, rights. e.g., Pickering, constitutional action; rather, employment for adverse (teacher 563, 88 S.Ct. 1731 dis- U.S. gravamen complaint is whether charged writing newspaper for letter criti- conveyed in ideas fall cizing superinten- school board and school exceptions general within dent); Myers, Connick v. 461 U.S. Constitution, pub- rule “that under our (1983) (assistant 75 L.Ed.2d 708 expression prohibit- lic of ideas not be attorney discharged distributing district merely ed because the ideas are them- morale, concerning poli- questionnaire office selves offensive to some of the hearers.” cy supervisors). in and confidence We de- cline to so here. do Burnham, F.Supp. (quoting at 400 Street York, v. New 89 S.Ct. Court, Supreme Pickering, in held (1969)). 1366,22 L.Ed.2d 572 employee discipline an a court employee’s must whether determine We need not decide whether an adverse concern, onwas matter of employment action can be fashioned from the so, employee’s if whether the interest in that evidence, however, because Ianni has factual- outweighed by governmental ly put Pickering balancing failed to test employer’s promoting interest the efficien See, Kincade, play. e.g., 64 F.3d at 398. cy per and effectiveness of the services it observed, recently As this court “it is critical Pickering, forms. 391 U.S. at to determine whether the defendants [em- conjunction at argu 1734-35. with his ployers] put Pickering balancing balancing requirement, ment favor of this at producing test issue evidence that the theory govern also advances the speech activity had an adverse effect on the employers always granted ment must efficiency employer’s operations.” ... qualified immunity under such circum Trickey, Grantham F.3d only Pickering stances. We not find that the Cir.1994). found, As the district court “[t]his facts, balancing inapposite test is under these employment is not an case where there is a but disagree analysis we also with Ianni’s disruption delivery threatened to the efficient qualified immunity law. Burnham, 400; F.Supp. of services.” Pickering applies Pickering, standard see also determi- public employer (noting support nations of whether a at 1736 that “no has evidence to properly discharged disciplined [professional or damage em- to the school board and Pickering campus, they 18. The issue and Connick threats on nor were shown to have directly efficiency opera- morale, critical of the palpable workplace been threat to effi- employers’ tions of the speech essentially supported University opera- businesses. Here the Tindle, ciency harmony. Compare 56 F.3d at (police suspended attending officer Fra- capabilities tions and extolled the and interests of party wearing ternal Order of Police blackened Moreover, photo- certain members. face, overalls, curly wig carrying bib black graphs pre- of Burnham and Márchese were not watermelon). divisive, sumptively even in the ambiance of the

679 specialties at the hear- the and superintendent] history was introduced views de disruption partment faculty. such, rejecting workplace the and its As ing” and board.) speech involved more than a mere internal argument of the See, Cox, grievance. e.g., office 790 F.2d at decision, find that As in our Kincade we (stating prac 673 “educational theories and carry burden on this Ianni has failed to his employed by tices school administrators is Pickering rationale. Ianni has prong of the clearly question public concern ... [h]ow showing suppressed no factual that the made them, young, we teach-the what we teach “substantially” interfered with the conduct environment which we teach them are workplace efficiency of the or UMD’s edu- every of the most central concern to commu Kincade, mission. 64 F.3d at 398. cational nation”). nity in the See also Lewis v. Har ap- system, “In fear or our undifferentiated 310, rison Sch. Dist. No. 805 F.2d 1, prehension enough of disturbance is Cir.1986) (holding speech involving proposed expres- overcome the freedom transfer of teacher public was on matter of 508, Tinker, at sion.” 393 U.S. at 89 S.Ct. large meeting concern due to turnout at re unreasonable, simply 737. It is as a matter garding transfer and teacher interest law, photograph of a to assert that a subject); Schs., Roberts v. Van Buren Pub. cardboard laurel-wreath bedecked (8th Cir.1985) (holding 773 F.2d sword, holding member a Roman short speech involving governing- content of rules eleven-person faculty display, part of an grade trip public fifth field was matter of somehow exacerbated an unestablished ambi- parental concern due to dissatisfaction with campus. ance of fear on the UMD subject). and interest in the And, Pickering if the bal even Admittedly, speech at issue here is not ancing applicable, test were somehow public compared of the utmost concern when not, fail. As stat it is Ianni’s defense would an attempt against assassination earlier, balancing Pickering ed test re President, as in Rankin. 483 U.S. at quires a court to determine whether the em However, balancing at 2895. when ployee’s public speech involves a matter of employee’s against employer’s interest an and, so, employee’s if rights concern how the interest, the constitutional standard takes speech against balance the occurrence proportionality into account. “[T]he closer workplace disruption. ques Both of these employee’s speech reflects on matters tions are issues of law for the court to decide. concern, public greater must be the em Kincade, 64 F.3d at 395. ployer’s showing likely disruptive punished.” before it be To at determine whether the (2d Harleston, Cir.), 52 F.3d public issue here involves a matter of con Jeffries — U.S. -, 173, 133 denied, cert. “content, cern, we examine the form and L.Ed.2d The converse is also speech, given context” of the as a record weighed against meager true. When Connick, 147-48, whole. workplace disruption, plain evidence of at 1690. To be considered on a speech clearly tiffs’ matters of addresses concern, public matter of the discourse must public meaning concern within social, political, relate to “matter Pickering supra n. test. See community.” other concern to the Id. at 1690; Kincade, 103 S.Ct. at see also 64 F.3d whether Our next consideration is many types at 396. That definition includes speech, suppressing UMD’s interest in speech, excluding mainly speech relating disruption, purportedly workplace control merely grievances. to internal office Con outweighs First Amendment nick, at 1690- See, display. e.g., Barnard v. rights 91; see also Cox Dardanelle Pub. Sch. Missouri, County, 43 F.3d Jackson (8th Cir.1986). Dist., (8th Cir.) (stating pertinent consider exhibit, Pickering balancing are displayed ations for test least, intended, employee’s speech has a detri viewing, was to inform the “whether the impact working relationships surrounding community of mental capricious grounds. holding is nec Such a personal loyalty or confidence where permit suppression speech impedes presumably the would essary, whether the advocacy enti operation governmental gender Ms. Featherman’s efficient - denied, -, function”), diversity U.S. if Ianni that ty’s cert. cultural at UMD felt (1995). speech L.Ed.2d to an inefficient 116 S.Ct. such contributed employer must make a substan government negative working learning environment is, fact, speech dis showing campus tial that because of unlawful or vehe punished. speech ruptive opposition before the ment to Featherman’s views.19 Waters, 673, 114 at 1886-87. necessary public “Vigilance U.S. to ensure that government, as recognize employers authority do not use over em powers suppressing discourse, employer, has broader ployees to silence not because it as a sover speech government than the hampers public simply free functions but because Indeed, eign. given we have some deference superiors disagree with the content of em Rankin, predictions workplace employer’s to an ployees’ speech.” However, we have never disruption. Id. at 2897. su

granted any government to a deference harm on pervisor’s assertions of based bald Finally, we hold that Ianni’s failure speculation. As eonelusory hearsay and rank least, or, workplace disruption establish above, procedural posture of this stated plaintiffs’ a connection to make between the the facts in the requires case us to view workplace atmosphere, speech and the is fa i.e., nonmoving party, most favorable qualified immunity a tal to his claim under plaintiffs. doing, we note that both In so analysis. directly Pickering Kincade is both affidavit, Márchese, by Burnham ex point directly contradictory on to Ianni’s pressly dispute a “climate of fear and position. discharged Kincade was Blue campus, stating that violence” existed on the Springs exercising speech rights. his free normal, campus no classes life continued here, speech, Because Kincade’s touched altered and not suspended were or schedules concern, Pickering on a matter of violence occurred on UMD single act of balancing employed test was to review the premises. district court’s denial of a motion for sum mary judgment qualified immunity attempt if were to to balance the Even we grounds. noting only After evidence speech rights against pur- free workplace disruption eonelusory state ported disruption pedagogical tasks of mayor ments to effect and other UMD, impact is clear officials, city Judge Hansen stated: totally unproven mission is on UMD’s except in the most conclu- and unaddressed Appellants [city merely officials] simply sory fashion. There is no evidence speech adversely asserted that Kincade’s between the two that establishes a nexus efficiency City’s opera- affected the photographs and an exacerbated climate of substantially disrupted tions and the work or, importantly, campus more fear on the any spe- presenting environment without relationship between the establishes a support cific evidence to this assertion. efficiency and decrease They put Pickering therefore have educational mis- and effectiveness of UMD’s issue, balancing accordingly, test at we sion. reject they their claim that are entitled to sum, then, immunity upholding approach qualified Ianni’s because free permit public employees, questions to the First would as a matter law, “clearly suppression arbitrary much cannot be established.” of too " today, stifling play Underlying holding in some re- have a effect on the 'free our spirit ought especially spect, recognition professors’ aca- which all teachers to culti- is the " practice.' Keyishian special Re- demic concern of the First vate and Board freedom—"a 589, 601, 675, 683, Regents gents, 385 U.S. 87 S.Ct. Amendment.” Bakke, California Bullitt, (1967) (quoting Baggett v. 2759- L.Ed.2d 629 438 U.S. 1316, 1324, 57 L.Ed.2d 750 The content-based (1964)). censorship easily L.Ed.2d 377 which occurred here could Kincade, precise putting down their rifles. Overwhelmed This is 64 F.3d at 398-99. kill, we have in their desire legal situation ly the factual and this case. (sic) stay away, no Duluth Federman we

III. CONCLUSION kidnap you, protect will the FBI can’t correctly that lan- court found The district you. immunity ni is not entitled The deer hunters. seeking money damages for the violation suit At the same time that Featherman was rights. plaintiffs’ First Amendment Ac- threatened, being forged memoranda bear- affirm. cordingly, we name, ing the defendant’s were circulated in campus. and about the The memoranda McMILLIAN, Judge, Circuit with whom alleged plot kidnap referred to an GIBSON, Judge, joins, R. Circuit JOHN Featherman and used the terms “Prince dissenting. forged Death” and “Deer Hunters.” The through document was circulated the mail original respectfully dissent. In our We departments hallways in to various and left panel opinion, Burnham v. campus Cir.), vacated, (1996), buildings. of various 98 F.3d 1028 analysis fully our of this case. we set forth in Beginning March Pro- original panel upon rest our We therefore target fessor Trolander became the Judith why opinion providing the reasons we caption flyers of threats. The left should be afforded believe lanni hallways in the of various build- immunity present following in case. The ings Imperial of Deer was: “The Council response majority opinion. is a to the Open Judy Hunters Proclaim Season Feminist Bitch.” The

Trolander Lesbian purported to reveal Profes- memorandum I. address, sor Trolander’s home addressed conspicuous ab begin by noting the questions concerning appropriate majority opinion of certain from the sence po- weapons provided the reader with undisputed concerning the cir material facts carry tential locations from which to out an controversy cumstances in which this arose— proclaimed: Finally, flyer attack. majority ignored facts which the has all but crazy cracking you kill buckaroos. “Get by reducing them to a few obtuse sentences her, Imperial Its to kill Coun- [sic] OK supra at 673 & n. 5. and a footnote. See UMD, cil rules the Commission on Women contrast, By appropriately the district court flyer specifically is dissolved.” The ad- paragraphs full at the outset of devoted four Trolander, its threat dressed Professor but aptly opinion its to these crucial facts de targeted to all members who was as the “milieu” scribed the district court Ianni’s cooperated with Vice Chancellor Ianni, F.Supp. Burnham v. of the case. develop diversity program: efforts to explained: at 397. As the district court faculty would be sentenced to death “[a]ll In June Sandra Featherman was spous- along pets, their children and post appointed to the of vice chancellor for es.” [UMD], Shortly appointment after her calm the con- Defendant undertook to announced, began receiving Featherman faculty regarding these inci- cerns of the bizarre, graphic The threats were threats. Despite his distribution of dents. frightening: in memorandum which he addressed taking which he was dogs howling, they are want seriousness with The blood. reiterated his footsteps crunching on threats and which he There are diversity program, the commitment to the forest floor—it’s the deer hunters com- blood, many campus They’re fears of were ing. after too. It’s the investigation origin alleviated. The same dream over and over. deer and the threats stalking getting closer of the threats continued hunters — closer, hunt, campus. hang over the It is giving up never never continued to added). (emphasis Presumably, against which the sub- Id. at 680 background litigation majority’s assumptions arose. that no milieu of con- stance of photographs at the cern existed time Id. removed, campus contin- were life necessary supply find it only Not do we normal, ued as have formed the basis for the facts, caution that there we also these critical majority’s virtually ignore decision to as true facts to assume legal is no basis However, according facts forth above. set pleadings” mere “derived from the record, undisputed than evidence less “[bjecause discovery has not been conduct ly two months before the were ruling Supra at 670. on a this case.” ed removed, anonymously-written flyers were summary judgment, question motion hallways buildings of various left UMD court, this court on the district before campus, flyers the follow- record, and those stated appeal, whether the when viewed ing: non-moving most favorable genuine is no issue as party, shows that there good Trolander] She will be [Professor moving material fact and target shooting long range. judgment as a matter of party is entitled to large house has windows and the terrain is see, 56(c); e.g., law. Fed.R.Civ.P. Celotex clear of obstacles in all directions. Shoot- Catrett, 317, 322-23, Corp. 477 U.S. ing or from a boat in from the beach even (1986); 2548, 2552-53, 91 L.Ed.2d bay Superior or lake is feasible. A 30- Inc., Liberty Lobby, Anderson v. scope 60 rifle with 20X2 Bushnell would be 2505, 2510-11, 242, 249-50, weapon a suitable with dum-dum bullets Club, (1986); Away Inc. v. L.Ed.2d 202 Get dipped poison. forget put Don’t to in a Coleman, Cir.1992); 969 F.2d couple of clicks the crosshairs for wind- FDIC, Fire & Marine Ins. Co. v. St. Paul usually age strong as the wind is there. It (8th Cir.1992). 695, 699 Where that shoot is recommended the hunter conducted, discovery not the record has been from behind the Surf and Sand Health pursuant by parties to Fed. created Center, if there is return fire from the might pano the usual R.Civ.P. 56 include only people. kill house it will a few old deposition ply of documents and discovered house, only occupant it She is the so transcripts, any affidavits or but will include is OK to shoot silhouettes drawn properly in ac other documents submitted shades. 56(e). If, upon cordance with Fed.R.Civ.P. you crazy kill cracking buckaroos. Its Get reviewing light the record in the most favor her, Imperial kill rules OK to Counsel non-moving party, some material able to UMD, is dis- the commission on women party’s non-moving facts in the asserted solved. disputed, pleadings genuinely remain there is legal basis to assume such facts as true no Also, faculty par- to all members ordered discovery merely because has not been con ticipate in Featherman’s administrative de- case, present example, In the ducted. velopment project will be sentenced majority opinion “[pjlaintijfs states dis children, pets, along death with their pute that milieu concern existed and comply spouses they if with these orders. campus atmosphere, contend that the what cooperates Any one who with Featherman been, may aggravated it ever was not or target publish- information will have their by photographs.” Supra the two at affected ed. added). (emphasis majority supple target information The deer hunters need ments the above-underscored statement Featherman, just mention where she noting Burnham Márch later “both everything will lives in the club and ese, affidavit, expressly dispute that a be care of. taken fear violence’ ‘climate of existed certainly Appellant’s Appendix at 38. We campus, stating campus continued life description normal, majority’s suspended agree with the no classes were “deranged.” above-quoted death threat single schedules altered and not a act of However, viewing the record premises.” Supra violence occurred on the at 672. UMD plaintiffs generality favorable to light specificity most versus with which the standard, applying legal the Rule 56 we would also relevant rule pur- is to be defined for plaintiffs’ description campus poses life as determining find whether the law was patently “clearly “normal” to inaccurate. Even be established” at the time the rele- stated, that, vant Id. explained the district court consistent with the events. The Court standard, that, concept order despite “clearly Ianni’s efforts for the of a Rule estab- campus, comport lished” law assuage “objective concerns on “the fears of with the campus community legal many in the were not reasonableness” standard forth in set Fitzgerald, Harlow v. investigation origin alleviated. The 457 U.S. at threats continued contin- S.Ct. “the threats contours sufficiently must hang campus.” F.Supp. clear that a ued over reasonable concluded, official would understand that what at 397. As the district court he “[i]t [or background against doing right.” is she] is this which the sub- violates Anderson Creighton, litigation stance of this arose.” Id. 483 U.S. at 107 S.Ct. at say 3039. “This is not to that an official II. protected by qualified action is immunity un- very less legal presented question previous- turn to the action in We now issues has case, ly been say held unlawful ... but it beginning with a reminder of light principles pre-existing law the unlawful- that underlie the doctrine of (citations apparent.” ness must be qualified immunity. Creigh- Id. omit- Anderson v. ted). (cita- ton, 638, 107 omitted), Supreme explained:

tions Court believe, present government When officials abuse their of- apparent could not have been to Ianni that fices, damages offer the “action[s] actions took were unlawful in only realistic avenue for vindication of con- Indeed, pre-existing parame law. “the guarantees.” stitutional On the other protection ters of the university afforded to a hand, permitting damages against suits professor’s clearly academic were not government officials can entail substantial May in clearly defined 1992 and not are costs, including social the risk that fear Rosenblum, today.” defined Scallet v. No. personal monetary liability harassing and 1997 WL at *2 Cir. Jan. unduly litigation will inhibit in officials 29,1997) curiam) (Scallet) (unpublished) (per discharge of their duties. Our cases have (disposition reported in table at 106 F.3d conflicting accommodated these concerns - 391), denied, -, cert. U.S. by generally providing government offi- 2482, 138 L.Ed.2d 990 performing discretionary cials functions explained panel in original opin- As we our qualified immunity, shielding with a them ion, the issue of whether the removal of the damages liability long from civil their photographs two violated Burnham’s and reasonably actions could have been Marchese’s First Amendment to en- thought rights they consistent with the are in gage expressive gov- nonverbal behavior is alleged to have violated. Pickering-Connick-Waters erned line explain: then went on to Court Supreme dealing Court cases with the concretely, Somewhat more whether an rights public employees. First protected by qualified immunity official fact that The mere the circumstances of this personally be alleg- held liable for an (at unique case are in least terms of the edly generally unlawful official action turns actually litigat- controversies that have been “objective legal reasonableness” of court) ed federal makes this no less an action, legal assessed Thus, employment-related perti- ease. “clearly rules that were established” at the nent case law in existence at the time Ianni time it was taken. photographs display removed the from the (citations Supreme Id. 107 S.Ct. at 3038 omit- case included Court’s decisions ted). Creighton, Pickering, body In Anderson v. the Su- Connick and as well as a preme degree Court also addressed the lower federal court decisions which had Pickering ment for said applied and the threats. Others it was Connick —-none factually present Judy similar Trolander’s fault. Professor Trolan- were case. expressed that der her concern no one upsetting photos knew how were to assertion, majority’s Kin- Contrary to the her. “directly point directly cade is and not position.” Supra at contradictory to Ianni’s (Affidavit Appellant’s Appendix at 12 of Ju- because, distinguishable 680. Kincade is ¶ 13). Karon, dith case, Pickering held that the that court Ianni, say think put it fair to that as the not been at issue. balancing test had defendants, unlucky employment- city in this This that decisionmaker court reasoned officials, merely asserted Kin- controversy, related was between rock “ha[d] and adversely affected place. Regardless cade’s the efficien- a hard of whether he substantially cy City’s operations and photographs decided have the removed disrupted pre- environment alone, the work without left for him was reasonable to as- senting support any specific evidence faculty members sume some would be Kincade, (empha- F.3d at assertion.” quite upset. explaining his decision to 680). added) (cited contrast, supra By sis the photographs, remove Ianni stated in his presented present specific in the Ianni with which affidavit the situation he was photographs were showing evidence experience, dealing unique was his he disruptive already having effect on the history department suggesting tried that their work continued environment faculty that an act of eollegiality “it would be history department display in the photos” they to remove the “should all disrupt to further potential case had the sympathetic agitation to the effects Before Ianni work environment. ever made campus,” that, after the de- the photographs to have re- decision suggestion, partment accept his refused to moved, held, Karon, involving meetings were ordered the removed with the Ianni, Kohns, Burnham, Márchese, and positive try intent “to to maintain a history depart- other members working learning efficient environment ment, photo- the fate of the two at which conducive to the mission of an academic insti- graphs specifically addressed. It (Affidavit Id. tution.” at 7-8 Lawrence feelings clear récord were from the ¶¶ Ianni, 8-11). per- himself was strong some felt on both sides: individuals opposed sonally photographs. to the See photographs professors that the of display of Appellees Supplemental Appendix of at 37 holding inappropriate weapons light in of was ¶4 (Affidavit (“Ianni Burnham, of Albert against the threats Tro- campus-wide death personally nothing wrong that stated he saw others; op- adamantly lander others felt pictures”)). them with the He had removed photographs posed removing to the for that antagonistic because of effect. their (in- Appendix Appellant’s reason. See at disputed the Plaintiffs have not truthful- history department ternal memorandum: removing ness of Ianni’s stated reason “[sjomehow, ugly History gover- trend of photographs, plaintiffs alleged have the nor nance administrators and bu- external anything sug- in the record account; or identified into if reaucrats must be called the sand, any that Ianni motive other photo gest had than display is line the so be our it”). in his meetings, those he described affidavit. respect to one With Instead, plaintiffs it was maintain that utter- Karon stated: that ly removing irrational for Ianni to think Larry Ianni and I [Karon] Chancellor photographs goal. the would serve his stated history department faculty met the with Looking upon actions with the Ianni’s benefit days during one the first occasion few hindsight, majority agrees with plain- May. Department members a vari- offered that ac- tiffs and further concludes Ianni’s ety wanting for not reasons to take clearly tions also violated established First photos was request down. Some said May Amendment law as it existed depart- undue interference ment, disagree. attempt depart- We or an to blame the noted, today parame just large

As we have even at in the efficiency. name of But protection govern- Amendment af where the ters the First professors’ ment is university employing very academic someone forded to purpose effectively achieving goals, clearly is not defined —much less so its may controversy appropriate. such restrictions well be arose. at the time this See Scal let, Moreover, viewing *2. 1997 WL point emphasized We also a reiterate light most record favorable original panel our In opinion. considering that, dispel plaintiffs the fact does not no weight given perceptions Ianni’s action Ianni fol matter what course of had predictions disruption, pro- the law respect photographs, the two lowed with disruption vides that the need not have been have been the end result would dissatis actual, may merely potential. but have been members, faction of some and most Id. at (holding, S.Ct. at 1890-91 as likely disruption work environment— law, potential matter of disrup- already who at least insofar as those had enough tiveness of the was to out- taken sides were concerned. Faced with this weigh whatever First Amendment it value predicament, highly unusual and unenviable Tindle, might had); 56 F.3d at 972 Ianni chose to have the re (“[a] showing disruption of actual is not al- moved, hopes maintaining positive in the ways required balancing process un- working learning and efficient environ ”); Pickering Jeffries, der accord 52 F.3d at opinion, appropriate, ment. In our it is not (noting that Waters stresses that actual given the facts of this for this court to disruption Notably, required). is not on this immunity now decide the issue on particular point, Kincade does not even think the basis of whether we Ianni should Waters, rely mention let alone on that Su- expressed by have dismissed concerns preme Waters, precedent. Court Trolander, Karon, others as irrational or progeny, understanding its and our of Ian- unjustified; matter with which ease, predicament ni’s in this we conclude Ianni, responsible school administra violate did not Burnham’s or tor, grapple was forced to at that time. The Marchese’s Amendment First to en- him only permitted circumstances to accom gage in expressive nonverbal conduct when other’s, modate one side’s interests he photo- ordered the removal of the two Supreme but not both. We believe case; event, graphs indicated, a matter Court has of substan certainly clearly did not violate their es- law, tive First Amendment not be rights. tablished First “In view appropriate second-guess court for this difficulty federal courts them- employment-related handling Ianni’s of this grappling selves have had in with the con- Supreme matter. As the Court stated in cepts of academic freedom both as to the Waters, 675, 114 1887-88 institution, teacher and the [Vice educational added): (emphasis Ianni, not trained in is] who analysis hardly expected recognize law to key to First Amendment of could be government ... the employment decisions is contours of [Burnham’s Marchese’s] Scallet, rights.” WL at *2. government’s this: The interest in achiev- effectively ing goals efficiently its as as would therefore hold that is entitled to respect possible relatively qualified immunity from a with to is elevated sub- the sovereign brought by it acts as claims Burnham and Márchese ordinate interest when alleged significant upon expres- to a when it acts based nonverbal employ- one their government er. cannot sive conduct.20 restrict the chance,' complexities 20. ‘would or words to that In of the of the law with not stand a including Supplemental Appendix Appellees dealing, balancing of which we are the effect." at ¶ (Affidavit Burnham, 8); process required by the First Amendment and of Albert see also id. (Affidavit “clearly imposed by (stating, the standard at 40 Morris for established" of Richard doctrine, immunity qualified example, I the we are that do not recall the exact "[w]hile not Ianni, swayed by allegations words used I that Ianni him- understood him, import speculated [plaintiffs] self that we the of his remarks to be that he believed “if sued ‘clearly purposes the ered established’ our is position that Finally, we believe for of qualified immunity Harlow standard.”21 jurispru- Eighth in Circuit well-grounded Trickey, added) v. 21 F.3d at in Grantham Id. (emphasis (quoted In at dence. Hansen, 293). writing panel We, a of Trickey, v. Judge Grantham F.3d at court, comprehensive and set a too, this forth agree general with of the this statement analysis of Eighth Circuit historical balanced present think the is not an law and that case applica- with dealing specifically the case law exception.22 agree if we were to with Even immunity em- bility qualified the majority of banc court that Ianni this en v. Grantham In ployee context. plaintiffs’ clearly has violated established 295, this court affirmed the Trickey, id. rights, we favor ac- First Amendment would judgment grant summary district court’s law, knowledging above-quoted rule of qualified on the basis of for the defendants which takes into account tensions upon determining ap- that immunity that lie this area of First subtleties of that propriate under the circumstances particularly when jurisprudence, Amendment v. Bartlett analysis of to follow the case superimposed qualified doctrine of (8th Cir.1992) (revers- Fisher, F.2d immunity. summary ing district court’s denial of basis of judgment defendants III. Fisher, Bartlett qualified immunity). In argu- We now turn to forum-related 914, 916-17, Judge id. also took Loken Kohns, Plaintiffs, including the as- ments. recognize policy- the historical and care to a violation of their First Amendment sert qualified immuni- underpinnings of the based display case a means “to right to use the ty of First this area doctrine expertise publicize some of the areas reasoning that law. In defendants Department’s faculty, History interest of the qualified immunity, were entitled case portraying while at the same time least circuits Judge “[a]t Loken noted five informal, way.” Pickering’s because that, in an somewhat humorous have concluded claim, upon analyzing agree we with the rule turns constitutional fact-inten- test, balancing rarely it can be consid- court’s sive district conclusion that censorship protection application of the violated of constitutional turns on that the involved.”)). lest, persons balancing right rarely legal rights "the can be of the established,’ 'clearly considered at least expressed by closely corresponding very been our factual and le similar view has absence A precedent.” gal ex other contexts. For court in constitutional Dep’t ample, v. South Dakota Manzano Servs., 1995), suggesting 22. We are no means 509-11 Cir. Social every immunity protect public constitutionally protected will officials in we observed applicable liberty parents interest have in familial instance where the constitutional absolute, balancing plaintiffs parent As integrity and when a standard involves a test. out, pointed infringed upon court has at least two alleges that conduct official challenge qualified immunity to school right, merits that constitutional occasions denied balancing by a We then officials who violated teachers' First Amendment are determined test. continually subject rights Pickering. under See Southside Pub. Schs. need "[t]he observed Hill, (8th Cir.1987) pro 272-75 due F.2d the assertion this abstract substantive defendants, immunity (denying qualified right balancing weighs the test which cess officials, constructively parent against the school who had terminat interests interest elementary qualified immunity ed teachers in retaliation for and the makes the school child state having department written overcome.” at 510. a letter to state defense difficult Id. "Moreover, requirement complaining about education violations requirement handicapped alleged statutory clearly the time federal that established at of provided (citing appropriate particularly children be education); a free violation is formidable." Id. 1, Morris, 1437, cases). Myers v. Harrison Sch. Dist. No. In 810 F.2d Lewis 310, 1986) Cir.1987), (8th (8th (qualified Cir. im involving 805 F.2d also a case the constitu superintendent integrity, munity applied the denied to school of we tional familial princi qualified immunity noting who fired school after our school board members doctrine of others, reason, among pal that he agreement for the stated with the Seventh Circuit’s observation publicly transfer their decision to Allphin, had criticized in Benson denied, Cir.), junior high high to the his wife from the school cert. that, level). (1986), L.Ed.2d 109 when determination school department display nonpublic case was a fo- potential disruptiveness address the of the F.Supp. (focusing rum. 899 at 403 on facts photographs, already which had been fore- display that case was con- under UMD’s by shadowed diametrically opposed views trol, that UMD allowed members of the his- expressed at history department meet- tory upon request, club to use it and that the ings. display ease was to dedicated use majority photo states that “[t]he history department disseminating UMD graphs of Professors Burnham and Márchese department).

information about the Because expressed plaintiffs’ view that study forum, display nonpublic ease awas history necessarily study involves a issue as to whether a First Amendment vio- military history, including military the use of lation resulted from the removal of the two weapons.” Supra at 676. There is absolute photographs turns on whether “the distinc- ly nothing in stating implying the record light tions drawn reasonable in [were] of the anyone opposed Ianni or else such a purpose served the forum and [were] study view about the history. majori Cornelius, viewpoint neutral.” ty further photo states Ianni had the 806, 105 long 3451. So as these graphs removed persons “[b]ecause other met, requirements are “[c]ontrol over access campus objected the UMD ... allowing to nonpublic to a subject forum can be based on viewpoint expressed to be particu in this matter.” Id. “The reasonableness of the way.” lar precisely Id. This is point Government’s restriction of access to a non- making we have been all along was —Ianni public forum light must be assessed attempting potential disrup address the purpose of the forum and all the sur- photographs, any tiveness of the view rounding circumstances.” Id. at point expressed by Moreover, them. his ac S.Ct. at 3453. We believe that Ianni’s deci- tions were light not unreasonable in of the photographs sion to remove the two was not Nothing circumstances. pre his actions subject an unreasonable matter restriction in plaintiffs expressing vented from the above- forum, purpose which was message through described other means— disseminate information about the which, fact, they clearly through could do department, and because his actions were descriptions the exhibit’s written pro narrowly open tailored and left other chan- fessors’ academic Supplemen interests. See through nels which Burnham’s and March- (Affidavit Appendix Appellees tal at 30 ese’s interests in classical and American mili- ¶ (“Professor Márchese, Ronald Burnham tary history publicized.23 still be could See Military History among princi listed U.S. his (“the Perry, 460 U.S. at interests”)). pal We also think the reason reasonableness of ... the limitations is also supported ableness of Ianni’s actions is supported by the substantial alternative that, the facts after school resumed the fol Moreover, open”). channels that remain Ian- fall, lowing photographs posted the two were ni beyond any dispute has demonstrated in the student center and Ianni took no ac photographs his removal of the nothing had tion at that atmosphere time because “[t]he viewpoint whatsoever do with substantially calmer after the summer photographs may expressed. Con- Appellant’s break of 1992.” Appendix at 8 trary conclusion, majority’s this was (Affidavit ¶ 12). Ianni, of Lawrence not “an suppress expression merely effort to oppose[d] speakers’] sum, because [Ianni] we would hold as a matter law view[s].” Id. at 103 S.Ct. at 955. Burn- Ianni did not violate First ham alleges himself that “Ianni stated that rights regulating Amendment the use of personally nothing wrong saw certainly with the case. We most believe pictures.” Supplemental Appendix Appel- any clearly that his actions did not violate (Affidavit ¶ Burnham, 4). lees at 37 and, of Albert First rights established solely by thus, was motivated his desire he should be afforded immuni- example, nothing prevented plaintiffs 23. For weapons, continuing publicize out while replacing through descriptions removed written their interests in pictures similar military history. of Burnham and Márchese with- American and classical respect plaintiffs’ forum-related ty with

claims.

IV. First not violate

Ianni did he ordered the re- rights when photographs from two the dis-

moval of the given importantly, More

play case. against which substance

“background arose,” F.Supp. at litigation clarity applicable law as

the lack May of Ianni should af-

existed immunity. He should be

forded having

spared to further defend himself from having pay litigation

in this history professors

money damages to UMD Burnham Ronald Márchese and

Albert

former Michael Kohn and UMD students

Louise Kohn. INTERNATIONAL, INC.,

TERRA Corporation,

A Delaware

Plaintiff-Appellant,

MISSISSIPPI CHEMICAL CORPORA-

TION, Corporation, Mississippi A

Defendant-Appellee.

No. 96-2140. Appeals,

United States Court

Eighth Circuit. Sept. 1996.

Submitted July 1997.

Decided

Rehearing Rehearing Suggestion Aug.

En Banc Denied

Case Details

Case Name: Albert Burnham v. Lawrence Ianni

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 11, 1997

Citation: 119 F.3d 668

Docket Number: 95-1962

Court Abbreviation: 8th Cir.