*4 KING, Circuit Judges.
OPINION NIEMEYER, Judge: Circuit During the gubernatorial election campaign in Virginia, Wilder, L. Douglas radio talk show host with radio station WRVA and governor former Virginia, organized debate between the Republican and Democratic candidates for governor at Virginia Commonwealth Uni- (“VCU”). versity debate, dubbed Virginia,” “Debate was broadcast on radio station WRVA and television station WNVT, as well as on other stations. Be- cause she was not invited to participate, DeBauche, Sue Harris Virginia Re- ARGUED: Jeffrey James Knicely, Party form candidate for governor, filed Knicely Cotorceanu, P.C., & Williamsburg, this action under 42 alleg- U.S.C. Appellant. for Virginia, Paige Alison Lan- ing that the defendants violated her consti- dry, General, Assistant Attorney Office of rights tutional speech to free and equal General, Attorney Richmond, Virginia; protection. Martin, John Samuel Williams, Hunton & The district court dismissed DeBauche’s Richmond, Virginia; Mauck, Gray Andrew action under Federal Rules of Civil Proce- Valentine, L.L.P., Mays Richmond, & Vir- 12(b)(1) 12(b)(6) dure and on various ginia; Wilder, Jr., Lawrence Douglas Wil- grounds as applicable to the several defen- der Gregory, Richmond, & Virginia, for dants, including sovereign immunity, quali- Appellees. ON BRIEF: Thomas Stephen fied immunity, and the absence of “state Neuberger, P.A., Thomas S. Neuberger, action.” The court portion also assessed a Delaware; Wilmington, John W. White- attorneys defendants’ fees and costs head, Stephen Aden, H. The Rutherford against both DeBauche and attorneys Institute, Charlottesville, Virginia, Ap- for based on the lack action’s of merit. pellant. Mark L. Earley, Attorney Gener- al Virginia, Jr., Ashley Taylor, L. Depu- For follow, the reasons that we affirm ty General, Attorney Forehand, Ronald C. the district court’s dismissal order but va- General, Senior Assistant Attorney Wil- cate the order shifting fees and costs for Thro, liam E. General, Attorney Assistant reconsideration in light of opinion. this all the other defen- Virginia,” and
I bate promoted, “co-sponsored, planned, dants 15,1997, weeks before a few On October executed, paid” for it. The managed, and in Virginia, election gubernatorial the 1997 6,1997. place took on October debate case filed the DeBauche that she alleging had arrangements After debate excluded from had been before completed been and three weeks First, rights under of her violation “duly quali- DeBauche became Ninth, Amendments to Fourteenth of Elections as fied” with the State Board named as Constitution. She United States Party governor, Reform candidate for VCU, the debate had where defendants: meeting at a having been selected Trani, occurred; Eugene president, its Party Com- Virginia Reform State Central capaci- individually his official both 14, 1997. Between September mittee on initiated the who Douglas ty; 6, DeBauche September 15 and October by inviting Party and other Reform alleged that she radio debate. candidates to a Democratic placed telephone calls to Wilder members declaratory judg- requested DeBauche De- telephone numbers and to at various violated, had been rights that her ment for the Virginia at its toll-free number bate relief, compensatory and injunctive *5 in DeBauche included purpose having of unspecified in an damages punitive e-mails to DeBauche also sent the debate. Trani filed a After VCU and amount. for the same Virginia’s Debate website dismiss, filed an DeBauche motion to that she re- alleged DeBauche purpose. modify some of the complaint to amended and responses inquiries ceived no to add’ as defendants allegations and unsuc- participate all efforts to were that the televi- radio station and owners of the debate, De- Shortly after cessful. sponsored which the debate: sion station to the “made a written demand Bauche Radio, Inc., the owner Channel Clear they Trani that and defendants VCU (“WRVA”), and Cen- radio station WRVA including a gubernatorial schedule Telecommunica- Virginia tral Educational November before the all three candidates tions, Inc., station owner of television election,” Trani re- but VCU and (“WNVT”). WNVT 24, 1997. demand on October jected this DeBauche complaint, In her amended Virginia that Debate alleged DeBauche invited April in Wilder alleged public forum designated constituted nominee, gubernatorial James First under the she was entitled nominee, Gilmore, III, Democratic and S. express her appear and to Amendment Jr., to a radio debate Beyer, Donald S. Party. of the Reform and the views views of the address the issues which each could end, bring purported she To that record. Several months campaign and his but also only on her own behalf action not later, Wilder confirmed July members of “the individual on behalf were concluded negotiations “that writing on behalf Party] Reform and Virginia [the and that Virginia” relative to alleged Alternatively, she WRVA, Party.” of the sponsored” by “jointly would be nonpublic was a if the debate that even WNVT, The amended and VCU. forum, Party mem- offered, the Reform she and Trani and that VCU and alleges “without against were discriminated place to hold bers accepted, VCU as Wilder Specifically, she basis.” reasonable and Trani con- and that VCU the debate of the the actions for “[b]ut claimed staff and other personnel, tributed “VCU her in Debate including in not manage and defendants” plan, promote, resources to “at least received would have Virginia, char- she As DeBauche the debate.” execute acterized the roles Wilder parties, 15% of the statewide vote in the [1997] election.” of De- as convener and moderator “served In attempt satisfy require- an to the claims Trani his individual capacity, ments of 42 DeBauche al- U.S.C. court found that DeBauche leged allege that VCU and Trani were failed to sufficient state “state action and Wilder, WRVA, that Trani was actors” and that and entitled to immu- nity. finally, respect And “may fairly pri- be said to WNVT be state defendants, Wilder, WRVA, vate they jointly on actors because worked De- WNVT, the they court found that were not bate with the defendants VCU state actors and they were not suffi- and Trani.” She that because Wil- der, ciently intertwined WRVA, with state actors to and WNVT “have en- jointly make their conduct state action. gaged challenged with state officials in the actions, they acting ... [were] color order, subsequent In a the district court law.” Wilder, WRVA, also awarded defendants attorneys and WNVT fees and (1) costs under requested
DeBauche including: relief 1988(b), $48,- 42 U.S.C. in the amount of declaratory judgment the defen- 477, concluding that DeBauche’s DeBauche, claims deprived dants’ actions them were “without foundation” Party, Party’s and the members of consti- (2) and “baseless and unreasonable.” The rights, injunction tutional barring court also ordered that DeBauche’s coun- excluding defendants from DeBauche jointly severally sel be liable under 28 “any Party other future candidate” $37,859, (3) the amount of from compensatory future the awards made to WRVA and punitive damages, attorneys WNVT. The court inferred addition, bad faith on fees. DeBauche asked the part attorneys because court to “review and consider” the results “it was evident that DeBauche tying gubernatorial of the 1997 election to deter- *6 broadcasting defendants with a mine whether other equitable relief was tenuous warranted, string Virginia Commonwealth including “declaring that [De- University in they order to show were would have Bauche] received 15% of the exhibiting state action.” The court ob- statewide vote” and directing that liability served that for DeBauehe’s State joined Board Elections be “to attorneys particularly appropriate was “in certify [Virginia Reform Party] candidates light of [impecunious] financial placed ... to be on the ballot in next situation and the Court’s question as to Virginia gubernatorial election.” how her lawsuit has been funded.” granted The district court the defen- appeal This followed. dants’ motions to dismiss the amended 13, 1998, April on various II outset, grounds. At rejected the court defendants’ contention that De- The district court dismissed the Bauche’s claims were moot because is against against “[i]t claims VCU and Trani in more than conceivable that capacity De-Bauche as his official president of VCU on Party a Reform candidate for a they the basis that were by barred office will be excluded from a de- [future] Eleventh Amendment. DeBauche does bate including only challenge Democratic and Re- not the district court’s decision publican VCU, candidates and involving a state as to but she does contend that concluded, university.” The court howev- Trani does not have Eleventh Amendment er, that DeBauche lacked standing immunity injunctive to as- from her claims for sert Party. claims on behalf of the declaratory Reform relief because “official-ca respect With pacity prospective claims actions for relief are not actors, Trani, VCU and the district treated as actions the State.” Graham, court Kentucky v. 159, found that the claims were barred 473 U.S. 167 n. 14, 3099, (1985) the Eleventh respect Amendment. With 105 S.Ct. 87 114 L.Ed.2d Ill Young, 209 U.S. parte Ex (citing (1908)). The Ex L.Ed. 714 al To the extent DeBauche however, applies exception, Young parte Trani, capacity, his individual leges violation of ongoing is an only when there rights, Trani is violated by prospec cured that can be federal law if qualified immunity his con entitled apply when the It does not tive relief. discretionary performance duct involved law occurred violation of federal alleged clearly estab duties and did “violate Mans Green v. entirely past. in the See rights of statutory lished or constitutional 64, 68, our, person 106 S.Ct. a reasonable would (1985) (observing Fitzgerald, that “com Harlow v. U.S. known.” L.Ed.2d 371 L.Ed.2d 396 in interests are or deterrence pensatory Harris, (1982); see also Buonocore the dictates of the to overcome sufficient Cir.1995). (4th F.3d Amendment”); Par Republic Eleventh (4th Allen, 622, 627 134 F.3d aguay alleged violation The constitutional Cir.1998) Young (noting parte that the Ex De-Bauehe’s conten- case arose from “(1) only when the viola exception applies excluded from Debate tion that she was ongoing sought relief is is tion for which or view- upon based the “content Virginia one, sought only pro the relief candidacy. by her As- point” expressed omitted)). (citations spective” solely purposes argu- of this suming Trani, by providing
ment that VCU and De- complaint, In her amended for the were fact the location conspired Trani partici- responsible Bauche for the selection of in 1997 the exclusion of DeBauche keep pants her out of Debate and that defendants, Trani, viewpoint-based, Trani would nonethe- including and that the immunity be- entitled to individually jointly sponsor, less be either “will have known at the time cause he could not hold statewide promote, manage or plan, constitutionally pro- conduct was that such which candi in the future from debates under these question raised hibited. Party will [Virginia Reform] dates of a candidate assumptions would be whether only Democratic and to which be excluded “public entity was held a state will be invited.” candidates viewpoint discrimination forum” such must, motion-to-dismiss at this While we *7 by the Constitution. would be restricted case, allega accept as true the stage of the Conley complaint, see tions of DeBauche’s the first time was decided for This issue 47-48, 99, Gibson, 41, 2 78 355 U.S. S.Ct. v. Com Educational Television in Arkansas (1957), that she allegations L.Ed.2d 80 666, Forbes, 118 523 U.S. S.Ct. mission candidates will be exclud Party or Reform (1998), 1633, L.Ed.2d 875 140 after not, as a matter Forbes, from future debates do ed place. taken Virginia had law, feder ongoing violation of allege exclude a that a decision to which held Instead, they ally-protected rights. spon from a debate party candidate minor conjecture regarding discrete amount to station was public a television sored conjecture is insuffi in future events. Mere review a subject First Amendment to a event into to transform a one-time noted nonpublic category, cient forum Court time, out, on practice or an a continuing governmental carving for the first that it was Accordingly, public De-Bauehe’s that exception to the rule” going violation. “narrow capacity generally programming Trani in his official is claim broadcasters’ public Young subject scrutiny under parte fall within the Ex not does not 675, S.Ct. 1633. Id. at 118 have no reason not forum doctrine. exception, and we Forbes, clearly no es there was of Eleventh Prior to principles traditional apply the prohibition tablished immunity to dismiss Amendment viewpoint-based or making content-based capacity. in official Trani his claims 506 stantial, publicly- extraordinary funding
decisions on whom include
and other
Indeed,
sponsored
aspects
debates.
even under
institutional resources to affect all
Forbes,
government-sponsored
Virginia.”
of Debate
As to the broadcast-
can
ex
long
ing companies,
exclude candidates
as the
she states
“WNVT and
“reasonable, viewpoint-neutral
is a
clusion
engaged
politi-
WRVA
in unconstitutional
journalistic
exercise
discretion.” Id. at
manipulation
viewpoint
cal
discrimina-
688,
Forbes,
prior
And
507
(1970)
present”
Bur
that a
facts
circumstances
1598,
(holding
[and]
142
26 L.Ed.2d
856,
ton,
726,
Supreme
81
the
id. at
S.Ct.
in racial dis
engaged
that
private party
ha[d]
concluded that
State
so
“[t]he
Court
a state-enforced cus
part of
crimination as
position
of inter
far insinuated itself into
purposes of
a state actor for
tom
would
with the restaurant
that the
1983).
dependence”
Thus,
Supreme
the
42 U.S.C.
private
participation
public
joint
activity will
private
that
has held
Court
private party’s
the
conduct
actors made
action”
“state
not be deemed
generally
by the Fourteenth
state action restricted
dominated such
state has so
unless the
725,
Id. at
However
ject,
these facts are
but
allegation
there is no
that VCU
the arrangement described
delegated any
between the
governmental respon-
of its
state
private
actors and
actors does not
sibilities to him or to the broadcast sta-
private
transform the
actors’ conduct
Second,
into
tions.
there are
allegations
no
state action. As distinguished from Bur-
suggest
using
pri-
VCU was
ton, DeBauche’s
amended
parties
does vate
to evade a “clear constitution-
not describe facts that suggest interdepen-
Indeed,
duty.”
al
nothing that was done
dence such that
private
VCU relied on the
regarding
any
violated
defendants
its
viability.
continued
right
clearly
that was
estab-
actors,
Trani,
the state
While
VCU and
lished at the time the
orga-
debate was
worked with Wilder in
organization
III,
nized.
Part
supra.
See
promotion
of the
their conduct
The third Andrews circumstance —when
thought
cannot be
to have controlled his
delegated
“the state has
a traditionally and
conduct to such an extent that his conduct
exclusively public
private
function to a
ac
amounted
a surrogacy
for state action.
present
tor” —is
only when the
function
Moreover, they did not control the stations
issue is “traditionally the
prerog
exclusive
only agreed
to broadcast the debate.
ative of the State.” United Auto Workers
pertinently,
More
apply
when we
Andrews
Festivals, Inc.,
Gaston
43 F.3d
facts,
to these
we conclude that none of the
(4th Cir.1995) (internal quotation marks
four circumstances that we identified in
omitted)
(holding
citations
pri
Andrews
exists
this case.
entity
vate
which organized
public
festi
First, DeBauche has not alleged that
public
val held on
streets and sidewalks
any
VCU or
other arm of the
supported
part
public money
action).
coerced
into
engaged
defendants
was not
in state
This
committing an act that the state could not
category
very
narrow. See id. at 907.
constitutionally undertake.
example,
operation
For
a town has
unconstitutional act—the failure to invite been held to be a function that is tradition
DeBauche
participate
ally
the debate—
the exclusive prerogative
govern
resulted, according to
Alabama,
DeBauche’s amend- ment. See Marsh v.
complaint,
initial,
ed
(1946).
from the
independent
der In 2077; 1988. she maintains U.S. at 111 Hudgens S.Ct. NLRB, 507, improper 513, 1029, that the 1988 award was 424 be- U.S. 96 S.Ct. 47 (1976); Andrews, cause the court did not consider her inade- L.Ed.2d 196 F.2d (2) 216, quate financial pay means to such an the circumstances where provided private award. She party government the court with her and a are so income tax returns years private for the three intertwined that the conduct can be award, the preceding showing that in 1995 considered “state action” for constitutional adjusted $17,639; gross purposes income was are limited to a few defined cir- 1996, $15,146; 1997, $8,982. cumstances, Edmonson, and in As to see 500 U.S. at award, 620, 2077; Andrews, the argues DeBauehe that 111 S.Ct. 998 F.2d at statutory the requirements pro- that 217. The Supreme the Court has that stated ceedings multiplied unreasonably private party’s be for a decision to be consid- vexatiously action,” could not be met as a matter of ered “state there must be so much law upon because the conduct encouragement coercion or “the award was based was filing the mere of an choice must in law be deemed to be that of complaint. Blum, amended We 1004, address these State.” 457 U.S. at points (citations omitted). in order. amended that DeBauehe
A
filed makes it clear that the choice not to
1988(b)
Section
confers discre
include DeBauehe in
tion on courts to award attorneys
fees
VCU,
by
made
by
not
and it was
the prevailing party in an action brought
product
not the
any
by
coercion
alia,
under,
inter
Indeed,
1983. When
state.
the invitations to the Re-
defendant,
the prevailing party is the
publican and Democratic candidates were
attorneys fees should be awarded if the
extended before VCU was even involved.
“
plaintiffs
court finds
‘that the
action was DeBauehe
allege
did
significant
involve-
frivolous, unreasonable, or without founda
ment
making
state in
a facility
tion,
though
even
brought
subjective
available and
helping
promote
”
Rowe,
Hughes
bad faith.’
U.S.
but this assistance
private par-
(1980)
101 S.Ct.
DeBauche’s text unambiguous § 28 U.S.C. account taken into be circumstances should who mul- only attorneys § 1927 aims of frivo deterring policy “The merit. has distinguish It “does not proceedings. tiply by forcing served suits is not lous losers, or between winners and between into financial plaintiff 1983] misguided [§ is The statute and defendants. plaintiffs a prosecuted he simply ruin because and dispute of a equities indifferent King Burger Arnold case.” groundless by the substantive to the values advanced Cir.1983). (4th Corp., 719 F.2d Piper, Inc. v. Roadway Express, law.” combined that DeBauche’s shows record her preceding years three for the income (1980). Rather, provision this L.Ed.2d $42,000. Without was less than lawsuit abuse limiting the only with “is concerned her resources more information about Thus, attorney an Id. processes.” of court lawsuit, ap it would this backing for her a claim and wins who files meritorious $48,000 fee award pear that assessed may still be verdict substantial “financial ruin.” Be into force her would case, if, during under sanctions appear to does not district court cause the ... unrea- “multiplies proceedings he financial re taken into account have Likewise, an and sonably vexatiously.” DeBauche, must we available sources may claim files a meritless attorney who part of the district and remand vacate if he does not be sanctioned under judgment. court’s Section in such conduct. engage not litigation and on the conduct focuses argue that The defendants its merits. not on financial DeBauche’s court took district case, attorneys In this made her at into account when means documents, complaint only two for a filed severally liable jointly and torneys and, as to however, complaint, WRVA This, amended an portion of sanction. (for they and costs fees whose in which to take WNVT way appropriate they filed responsible), made have been means financial into account DeBauche’s document, complaint amended liability, only one because, joint and several first were and WNVT WRVA full liable for the still remain would she a matter of We parties. made conclude intend If the court of the award. amount single filing law that paying fees responsibility for split ed to pro multiplied the held at cannot be and her DeBauche costs between vexatiously unreasonably and ceedings remand. may do so on torneys, it therefore that 1927 cannot employed Trani and pursuant Wilder impose sanctions. § 1983. By October it had been clearly established for at least twelve however, say, This is not to years that the First Amendment forbids authority impose district court lacks government to exclude from its forums filing for the of a sanctions frivolous com- speakers those disagrees, whom it plaint. Federal Rule Civil Procedure 11 solely by disagreement. reason of that against attorneys par- allows sanctions ties pleadings who file contain Accordingly, I only concur in Part II *13 legal “claims[or] other contentions [that] opinion, the majority’s which affirms the are by existing [not] warranted law or district court’s dismissal of DeBauche’s extension, argument nonfrivolous for the claims against Trani in capacity. his official modification, or reversal of existing law or (1) I dissent from majority’s in holding law,” the establishment of new or factual Part III that Trani was entitled to quali- allegations evidentiary have neither immunity fied with regard to the claims support nor the likelihood of forthcoming (2) against him in his individual capacity; evidentiary support. Fed.R.Civ.P. majority’s affirmance in Part IV of the (c). 11(b)(2),(b)(3), district court’s dismissal of the claims
Accordingly, Wilder; (3) we also against vacate the and majority’s con- imposed sanctions under 1927 and re Wilder, WRVA, clusion in Part V that and permit mand to the district to con may court WNVT be attorneys’ entitled to fees sider sanctions under Rule 11. Whether and court costs.1 impose sanctions, however, to Rule 11 committed discretion of the district I.
court.
judgment
The
of the district court is
A.
PART,
AFFIRMED IN
REVERSED
are,
course,
We
compelled to view the
PART,
IN
AND REMANDED.
alleged by
facts
DeBauche in the light
KING, Circuit Judge,
in
dissenting
part:
most
her. See Ostrzenski v.
favorable
DeBauche,
Sue Harris
the Reform Par-
Seigel,
(4th
Cir.1999)
177 F.3d
ty’s 1997 candidate for
Virgi-
Governor of
(citation omitted). The district court’s dis
nia, alleged that
highly
two
influential missal of
complaint pursuant
DeBauche’s
employees
Virginia
Commonwealth
12(b)(6)
to Fed.R.Civ.P.
can therefore be
University conspired with
others
ex-
“only
sustained
if it is clear that no relief
clude her from a broadcast
featur-
could
granted
set of facts
ing the Democratic
gu-
proved
that could be
consistent with the
bernatorial
According
candidates.
to the
allegations.” Hishon King
& Spalding,
Amended Complaint,
presi-
First
VCU
467 U.S.
104 S.Ct.
81 L.Ed.2d
dent Eugene Trani
Distinguished
(1984)
Gibson,
(citing Conleyv.
Professor L. Douglas Wilder were moti- 41, 45-46,
Amended
¶
dis-
... have
defendants
“[T]he
sought
right
majority identifies
without
Ms. DeBauehe
criminated
the First
case as
to be vindicated
unlawfully
basis
a reasonable
*14
of “content-
prohibition
Amendment’s
on her
against
based
discriminated
to ex-
viewpoint-based decisions
or
based
¶
de-
“[T]he
at 64.
FAC
viewpoint....”
sponsored
publicly
candidates from
clude
prac-
customs
policies,
fendants’
and/or
According to the
at 506.
Ante
debates.”
of
of candidates
speech
favor the
tices
in
ruling
circuit’s
majority, our sister
of
speech
parties over
major political
the
Telecomm.
Georgia Pub.
v.
Chandler
parties
minority political
from
candidates
(11th Cir.1990),
Comm’n,
486
917 F.2d
First
thereby
invert
cherished
Ar-
holding in
recent
Supreme
Court’s
dissent, an
promoting
Amendment values
v.
Television Comm’n
kansas Educ.
and un-
and free
process,
open electoral
1633,
666,
140
Forbes,
118 S.Ct.
523 U.S.
ques-
of political
public
inhibited
(1998),
arguments
rejecting
L.Ed.2d 875
¶ 71.
FAC at
tions.”
be includ-
candidates must
third-party
Trani
specifically alleged
DeBauehe
by public
sponsored
in
debates
ed
implementing VCU’s
responsible
was
stations,
possibility
preclude the
television
of those
the enforcement
and that
policies,
included in
to
right
be
that DeBauche’s
with
was achieved
case
policies
clearly established.
Virginia was
Debate
ac-
knowledge
participation,
“active
and/or
right
contrary,
To the
other defen-
Trani
of
quiescence”
than five
clear more
inclusion became
¶¶
8,
partic-
68.
FAC at
dants.
Chandler,
Supreme
with the
prior
years
subjective
a
ular,
to have “had
was alleged
NAACP
in Cornelius
decision
Court’s
deprive
acts would
[his]
appreciation
Fund,
Inc., 473
& Educ.
Legal Defense
of her
DeBauehe
Ms.
3439,
L.Ed.2d 567
788,
87
105 S.Ct.
U.S.
¶at 84.
rights_”
FAC
analytical
(1985).
employed
Cornelius
earlier
years
two
developed
framework
B.
Edu-
Perry Local
Perry Educ. Ass’n
a
clearly state
allegations
preceding
948,
37,103
cators’Ass’n,
460 U.S.
and Wilder.
Trani
claim
(1983),
respect
L.Ed.2d
at
in the
Taking the averments
of when
issue
“recurring
troublesome
liable
value,
be
defendants would
both
face
an individual
gives
Amendment
the First
who,
any
of
stat-
“person
color
expressive
engage
right
group
or
custom,
ordinance,
or us-
ute,
regulation,
property.” Corne-
activity
government
subjects, or causes
...
any
State
age,
lius,
at
105 S.Ct.
citizen
United
subjected, any
be
(Blackmun, J., dissenting).
rights,
deprivation
...
States
Cornelius, it must first
Perry
Under
by
immunities secured
or
privileges,
property to
whether
be determined
Constitution....”
speaker
nia,
which the
desires access is a tradi
for whom the forum was created.
forum,
public
designated public
tional
There
dispute
is likewise no
that De-
forum,
a nonpublic
forum. Perry, 460
speak
Bauche wished to
topics
on the same
45-46,
948; Cornelius,
U.S. at
103 S.Ct.
as her
Democratic and
chal-
800, 802, 105
473 U.S. at
S.Ct. 3439. If the
lengers.
Cornelius,
Consequently, under
public,
forum is
either
tradition or oth
DeBauche stated a viable
1983 claim
erwise, speakers may only be excluded to
upon
prevail
which she must
if
can
she
compelling governmental
serve a
interest.
proof
adduce sufficient
that she was indeed
Cornelius,
however,
abundantly
clear that a
*15
apply, at least
regard
political
with
to
de-
speaker may not be
on
excluded
the basis
675,
(“Al-
bates.
Id. at
DeBauche alleged that acting on Viewpoint views. discrimination in this behalf of a state university, excluded her context present would not a calculated from Virginia prevent risk, to her from ... but an inevitability of skewing publicly expressing political views. the electoral dialogue.... The debate’s She indisputably was a member of the nonpublic status as a forum did not give i.e., speakers, class of ballot-qualified can- [the power defendant] unfettered to ex- for the didates office of of Virgi- Governor clude any candidate wished. 2. challenge Cornelius involved a by government certain reasonably could exclude contro- legal defense funds to their exclusion from the groups participation versial whose would dis- (CFC), Campaign Combined Federal al an annu- rupt workplace and cause the drive to charity targeted drive employees. federal at less successful. Court The nevertheless re- plaintiffs prohibition The maintained that the manded the case the lower courts to deter- participation their in the CFC violated plaintiffs’ mine whether the exclusion was their First Amendment right to solicit charita- government's motivated .sup- desire to ble contributions. The Court held that the press viewpoints. their forum, nonpublic CFC was a and that the actor (citation, considered a state cannot be figure, at
Id. in Debate to his involvement marks, regard and brackets quotation internal overlooks, howev- majority The Chandler, Virginia. F.2d at omitted); accord employ- er, also a contract Wilder was use that (“[W]e that the safely predict can materials submitted be- un- ee of VCU. suppress instrumentalities appointed low reveal Wilder marketplace of in the expressions wanted Pro- position Distinguished 1995 to the judicial intervention authorize would ideas Policy. Amendment.”). for Public fessor VCU’s Center the First to vindicate Opposition to to Plaintiffs Appendix See Trani is bottom, nor neither VCU At Dismiss, Motion Defendants’ State justification, There no is broadcaster. (J.A. 57). Indeed, record con- at 16 ei- then, majority’s assertion for the pertaining eight than letters tains no fewer pertaining ther Chandler Forbes — drafted that were to Debate standard broadcasters —announced on VCU’s letterhead. or his Wilder staff to mea- expected Trani was to be ongoing efforts During DeBauche’s set That standard was his conduct. sure and other she included in the earlier, Viewed in Cornelius. much Party Virginia Reform members context, Forbes Chandler proper their at his VCU attempted to Wilder telephone of Cornelius the rule merely extended ¶¶ 46, FAC offices. public realm of peculiar encompass the or- radio broadcasters television and Wil- court Although granted the district debates. political ganize consider- without motion dismiss der’s complaint, beyond ing materials say that Cornelius answer to It is no path. same to follow are not bound case, we therefore has a debate was not Trucks, Inc., 62 Lease Lend See McNair was a here. Cornelius application no fo (court (4th Cir.1995) ap- F.3d perhaps case, rum a critical to note has the discretion peals re forum. law quintessential to, submitted in document fact contained immunity be denied quires court by, the district' but not considered transgress those officials who government *16 12(b)(6), a motion Rule ruling on person would a reasonable “of rights materials aware that parties are where City v. Golds Edwards have known.” of court), Cir.1999) are before pleadings (4th outside boro, 178 F.3d Lend v. adopted McNair reasoning Fitzgerald, (quoting Harlow (4th Trucks, n. 3 F.3d Lease L.Ed.2d 396 banc) Cir.1996) (en of (vacating remainder (1982)). person in Trani’s A reasonable decision). panel Cor aware that have been position would viewpoint dis type of nelius forbade impossible to as- it is discovery, Absent to have he is in which crimination acted to which the extent Wilder certain I must conclude Consequently, engaged.3 orga- regard with of VCU behalf im not entitled Trani is that Vir- of Debate and administration nization complaint. face of the munity on the at- indeed Insofar Wilder was ginia. of his the interests to further tempting 2. engag- plainly employer, he was university contemplation Wilder, action within ing in state his that majority asserts lia- potentially therefore and is of personality a radio role as Atlanta, (4th Cir. 998 F.2d Loan Bank WRVA immaterial It likewise of 1993)), in their cloak himself Trani cannot participated in alleged to have WNVT were happenstance invulnerability. mere Although to exclude DeBauche. the decision periphery present on are actors broadcasters private are not broadcasters these the rele lawsuit, of consideration not limit our ante does impervious to this are thus Forbes and precedents Chandler. Home vant (citing v. Federal Andrews at 507-09 cannot, question ble DeBauche.4 The in wealth of Virginia could governed. best be event, as a Unfortunately, resolved matter of law as the result majori- on a motion to ty’s dismiss. today, decision may we never know.
II. I
Because would reverse the district
court’s dismissal of DeBauche’s
claim against I follows that
would likewise reverse concomitant of
award fees and Though agree costs. I majority with the that WRVA and WNVT America, UNITED of STATES case, cannot be deemed state actors Plaintiff-Appellee, supra see note I do think riot DeBauche’s contrary assertions to the are “groundless so or without foundation” as FOODS, SMITHFIELD INCORPORAT 1988(b). justify a fee award under ED; Packing Company, Smithfield In standard).
Ante at 510 (noting Particular- corporated; Gwaltney Smithfield, of inly light of Wilder’s professional associa- Ltd., Defendants-Appellants. WRVA, tion with I would not discount the Michigan Commerce; Chamber possibility that DeBauche could have cred- Pennsylvania ibly alleged that Chamber Business coerced Wilder the radio Industry; adopt station to Colorado position his Association regard Industry; of Commerce and American exclusion from the Automobile thereby Manufacturers satisfying the first Associa Andrews sce- tion; nario, Institute; American Meat see ante at 507-08 (noting that a American Institute; Petroleum private party may Inde engage state action pendent Petroleum where “the state Association has coerced the America; Integrated actor to Waste commit Services act would be un- Association; state”).5 if National Association done
Manufacturers, Amici Curiae. III. No. 97-2709. important This is an case that has come United States Appeals, Court of premature
to a colleges conclusion. State Fourth Circuit. and universities are places which the *17 diversity infinite of human thought should Argued: Oct. 1998. be celebrated. Such ought institutions Decided: Sept. be the business of suppressing diver- gent viewpoints, concept antithetical to
the Constitution and cherished val- upon
ues which this nation was founded. that, can only hope case,
We in this Sue
Harris DeBauche was not silenced on ac-
count of her views as how the Common- 4. For the expressed reasons I supra Supreme Court's consistent condemnation of I.B.I., Section Wilder—like Trani —would not discrimination, viewpoint and the unusual immunity entitled on the facts here, present facts DeBauche could make a alleged by DeBauche. argument nonfrivolous for the modification or existing extension of law hold the broad- 5. Nor do I pursuant believe that sanctions casters liable as state actors. appropriate Rule 11 are in this case. Given conduct, the seriousness of the