*1 not positive and did generally were problem attendance mention his —does evaluations inference. The
support this s absentee- on Schierhoff merely
are silent clearly
ism, published policy and GSK’s “[ejxcessive or tar- absences
indicated that call for “may matters that
diness” were App. discharge.” (Appellant’s
immediate 96-97). court is judgment district
affirmed.
Gary BOWMAN, Appellant, Plaintiff - capacity WHITE, in his official
John A. Ar
as Chancellor of the Pederson,
kansas; in his Donald O. capacity as Vice Chancellor
official Administration for the
for Finance Arkansas; Larry L.
Slammons, capacity as in his official of Arkansas
Director of -Ap Department,
Police Defendant s
pellees.
No. 04-2299. Appeals,
United States Court of
Eighth Circuit. Jan. 2005.
Submitted: April
Filed: *5 presented argument on be-
Counsel who Kel- appellant Nathan W. half of the was lum, TN. Memphis, presented argument on be- who Counsel Kin- Reid half of the was William appellee Arkansas, caid, Fayetteville, University of AR. BYE, MELLOY, and
Before COLLOTON, Judges. Circuit MELLOY, Judge. Circuit Bowman filed Plaintiff-Appellant Gary rights pursuant lawsuit this civil Defendants-Appel- against § 1983 U.S.C. Pederson, White, O.- A. Donald lees John repre- officials Larry L. Slammons as senting University Fay- of Arkansas at number of students that can be found (collectively etteville hereinafter known as outdoor areas. “University”). Bowman alleges that University flagship The is the campus of University’s regarding policy the use System. of Arkansas It of its space, facilities and which contains 16,000 has an enrollment of more than restrictions on non-University use enti- students. In an attempt regulate an ties, unconstitutionally abridges right his ever-increasing demand on the use of its speech. Following plenary free hear- facilities, Fayette- enacted
ing on the merits of request Bowman’s 708.0, ville Policies and Procedures entitled injunctive relief, the district court dis- of University “Use Facilities and Outdoor missed his complaint prejudice. The (the Space” “Policy”). Policy The compre- district court found that University’s hensively governs the use of a nonpublic was forum and that all outdoor space.1 It contains guidelines and challenged restrictions on were procedures allocation and reser- reasonable. Bowman brings now this vations. Policy applies to all areas timely appeal. University’s control, within the direct in- cluding streets, sidewalks, its parks. I. Policy distinguishes between Uni- n Gary professing Bowman is a Christian versity Non-University Entities and Enti- engages who preaching street about his ties. Under Policy, Bowman is classi- religious beliefs and convictions as a tenet fied as a Non-University Entity.2 The of his faith. message typically His con- Policy places five-day cap per semester sin, repentance cerns and a final judg- per entity on the use of facilities and out- ment. He states that he shares his mes- door space by Non-University Entities. *6 sage in hope securing the of salvation for In five-day addition to the cap, Policy the his employs audience. He various means requires Non-University Entities to make communication, of including the use of in reservations advance of their use of a signs, public speaking, literature distribu- space. A reservation allows a Non-Uni- tion, symbolic speech, and one-on-one con- versity Entity to use the space outdoor for versation. eight-hour day. one A reservation is re- particularly Bowman wants to quired share his regardless of the use that will be religious message with college students made of space, whether that use be others found at universities speaking, be- carrying signs, handing out liter- cause of what he ature, deems be a moral or sitting silently. Policy does tfo end, obligation. not, however, To this preaches he regulate one-on-one conver- many college campuses, including the Uni- Policy sations. The imposes also a three- versity of Fayetteville. Arkansas at business-day Bow- advance requirement notice man University considers the a uniquely for space by the use of Non-University place suitable to message communicate his Policy Entities. The prohibits a Non-Uni- because of proximity its close versity to his resi- Entity’s space use of from interfer- in dence Oklahoma and significant ing with the educational mission of the 1. space governed noted, however, Use of indoor individu- It should be that on one policies al use spon- which are not occasion Bowman at issue in this was able to obtain sorship organization from a case. student which allowed him University to reserve as a Entity. University large to Bowman sometimes drew crowds as University and allows in people. as 200 modify reservation cancel or does interfere. Poli- event that a use In the spring semester the Uni- space by cy prohibits the use further versity permission denied Bowman blanket Non-University during so called Entities result, speak. to Bowman As submitted one quiet days,” consist “dead requests permits speak individual for to on semester, final all exam study day per letter, University days. By selected activ- periods, and dates commencement only advised Bowman that would consid- ities. up separate space to er three reservation any forms at one time. The further In the fall of Bowman obtained letter campus campus speech policies on indicated that the permits appear to twice likely currently Bowman returned to “are under review and are speaking purposes. in in future.” the fall of which to be revised That semes- ter, to complained permission to officials Bowman was denied time he University’s days. on permit requirement imposing speak was dead that the speech. Ac- restraint on his significant fall, For the planned next Bowman Bowman, it more difficult cording to was presentations series entitled “Ten Com- plan days for him to he wished to mandments,” part which was to of a could speak in advance because he “Forty Every larger Things series entitled any certainty his future determine Know.” each During Student Needs to noteworthy work or whether a schedule visit, campus anticipated covering he one speak prompt him to want event would Every and one “Thing Commandment Stu- day. on a certain applied dent Needs to Know.” Bowman concerns, permits these individual to cover each of the first To alleviate Univer- sity permission Bowman six Commandments. granted blanket appear on and communicate his meantime, In the formal- during the message fall semester. With ly Policy to its form. revised the current permission place, the blanket Bowman 21, 2001, the By August letter dated Uni- twenty spoke approximately times versity informed Bowman the revisions Despite having fall blanket per- of 2000. approved, part, request his for use campus, on Bowman dis- speak mission *7 days grounds by granting him three any for permit covered he needed other message. in his Bow- present which to expression. per- form of Bowman was man, outlining in his concerns a letter literature, signs, to hand out use mitted re- Policy, subsequently regarding the symbolic in without first engage protests days. The quested an additional seven obtaining permit. University, citing five-day cap, its new de- inflammatory permit Bowman a for the additional often used lan- nied
Bowman days. per- resubmitted his seven Bowman presentations, and tactics his guage requesting an additional highly application, mit nature of which were considered days, days. many During three for a total six by students. offensive two 2000, permission him granted fall students and semester several the third days, permission but of Bowman’s denied faculty complained members cap. pro- citing five-day Bowman campus. Campus police, day, presence on he was days on the occasionally speech these ceeded with his complaints, response five covering the first speak, allowed curb violent outbursts erect had to five-day cap, Due to the crowd control as Commandments. barricades to maintain precluded Bowman was sharing from his view de novo the district court’s conclu message for the rest the fall semester of sions County of law. Doe v. Pulaski Spe Dist., 616, cial Sch. 306 F.3d Cir.2002). There are no material facts 2002, During spring semester of dispute. again Bowman once per- utilized his five days. applied mitted for a Bowman sixth II. request
visit. His was denied under the five-day cap. colleges “[S]tate and universities
Later spring, that with the sponsorship are not enclaves immune sweep from the organization, of a student Bowman at- of the First Healy Amendment.” tempted again James, to speak day. on a sixth 408 U.S. (1972). approved appearance, However, L.Ed.2d 266 “the First required
but representative of the stu- guarantee Amendment does not access to organization dent to be with Bowman at all property simply because it is owned times while Bowman campus. remained on government.” controlled Perry Bowman was expres- forced to cease his Educ. Perry Ass’n v. Local Educators’ sion representative Ass’n, whenever the was not
present.
(1983) (internal
L.Ed.2d 794
quotations
omitted).
“The
right
existence of a
Unable to resolve his differences with
public property
access to
and the standard
University,
present
Bowman filed the
by which
upon
right
limitations
such a
alleging
permit
lawsuit
that
require-
must be evaluated
depending
differ
on the
ment, five-day cap, three-day advance no-
character of the property at issue.” Id. at
requirement,
tice
day
and dead
ban are
44, 103
end;
S.Ct. 948. To this
Supreme
unconstitutionally
overbroad,
vague,
analysis
Court uses a forum
for evaluating
discriminatory
him,
applied
in viola-
restrictions of
on government prop
tion of the First and Fourteenth Amend-
erty.
45-46,
See id. at
Bowman filed a timely 726-27, notice of 3115, U.S. 110 S.Ct. 111 appeal pursuant (1990). 4(a), to Fed. R.App. Thus, P. L.Ed.2d 571 the extent to thereby invoking jurisdiction to, our over the which access and the character of appeal § under 28 U.S.C. 1291. speech upon, We re- government property may be
975 ample the nature of and leaves alternative channels depends upon limited place. communication. Id. speech in which the takes (8th Ianni, 668, v. 119 F.3d 675 Burnham Designated B. Public Forum Cir.1997).
A designated public forum is a
nonpublic
government
forum the
intention
Forum
A. Traditional Public
activity
ally opens
expressive
for a limit
ability
The
to re
government’s
purpose
by
ed
such
use
certain groups
circumscribed
a
speech is most
strict
subjects.
of certain
use
discussion
460
public
Perry,
forum.
U.S.
traditional
46,
Perry, 460
at
“The
U.S.
(“In
45,
places
by
certain Travis v. Perry, Owe interest. 460 U.S. at Dist., 688, go-Apalachin Sch. 927 contrast, 692 In 948. in a designated limited (2d Cir.1991))); Chiu, forum, see also 260 F.3d at public on speech “[r]estrictions 346 n. 12. A designated public forum can within type expression of in a allowed be classified as either “of a limited or public limited forum only must be reason- unlimited character.” Bergen Van Turner, viewpoint able and neutral.” 378 Minnesota, (8th 1541, 59 F.3d n. 8 F.3d at 143.
Cir.1995). Nonpublic C. Forum analysis,
Under this
a “limited
government
can most
public forum is a subset of
designated
‘
freely
speech
restrict
in a nonpublic forum.
public forum
gov
arises “where
[that]
A nonpublic
government
property
is
opens non-public
ernment
forum but lim
which is not
public
classified
traditional
expressive
its the
activity to certain kinds
designated public
forum or
forum.
War
speakers or to the discussion of certain
’ ”
ren,
nated for speech by university- supported musicians. An “unlimited” des Accordingly, analyzing when how ignated public forum is a forum designated classify a forum we must ques ask two government conduct First, tions. is the a traditional but not particular limited to a type of public forum, designated forum, speaker. nonpublic Second, forum? if The distinction between a lim forum, a designated public is the forum designated ited public forum and an unlim limited or unlimited in its character? designated public ited significant forum is because controls scrutiny the level of III. given to speech. restrictions on Like the The district court found that government’s ability to restrict speech in a of the of Arkansas at Fayette- public forum, traditional government’s ville is not a forum. disagree. We ability to restrict speech in an unlimited The facts of this case show that the Uni- designated public sharply forum is circum versity’s grounds only cannot be labeled as Perry, scribed. 460 U.S. at type one of forum and that the areas In an designated unlimited question in this case desig- are unlimited forum, government may enforce a con nated fora. time, tent-neutral place, and manner re only striction if the necessary restriction is A modern university contains a a significant government serve variety interest of fora. Its may facilities include and is narrowly offices, drawn to achieve private classrooms, that laboratories, *10 concedes, centers, halls, As Bowman these aneas are non- concert medical academic arenas, locations, and campus stadiums and large sports public fora. Other such Arkansas The of spaces. open as auditoriums stadiums allow for cer- of institution. Fayetteville type is this speech topics. tain on certain These loca- major at most like those open spaces, Its may designated pub- tions be described as universities, come in a number of different Further, fora. the streets and lic quadrangles are enclosed types. Some campus sidewalks which surround the but university build by all sides bordered on campus likely are not on the constitute sidewalks, by while oth ings and traversed Grace, traditional fora. 461 U.S. at edge on the plazas areas or grassy ers are Accordingly, rather University’s grounds campus where the of attempt campus than to label the entire Thus, labeling the city property. abut the forum, only type one of we will discuss of forum is an campus single type as one specific areas at issue in this case. All futile task. See Justice impossible, (5th Faulkner, speak Bowman at vari Cir. desires 2005) Supreme that Court’s in (stating throughout campus “the ous locations not re analysis jurisprudence streets, sidewalks, does cluding open and polar ex quire us to choose between adjacent directly areas located inside and university treating of an entire tremes campus. Specifically to the at issue in this types for all designated as a forum campus case, speak Bowman desires to at the out or, by speakers, alternatively, all speech of clearly door areas within boundaries any limited forum where reasonable as a Mall,3 campus known as Union upheld”); on must be restriction Commons,5 Brough Peace Fountain4 and Party v. Student see also Ala. Student high of the concentra presumably because Ass’n, 1354 n. 6 Gov’t in locations. tion of students these Cir.1989) J., (Tjoflat, dissenting) (stating objective evidence University campus of a is a that not all particular shows these areas com record forum, campus rather that a but streets, physical characteristics of bine the fora). variety places contains a Some sidewalks, and are parks, and University’s campus, such as the on the not include uni public passage. They do president’s of- building, administration stadiums, they are versity buildings or but fice, opened are not as fora or classrooms of the cam- within the boundaries body anyone else. located by for use the student A cemented area with of water at the base. Mall is located in the center of 3. The Union plants the foun- library potted trees and surrounds campus and Union Mall between through parallel composed run tain. Sidewalks facility. It is an outdoor area and small stone the Peace Fountain. A statue grassy sidewalks and mounds surrounded benches, appear pictures the area. potted wall walkways, trees and rack, hoop, plants. basketball fountain A bike building Brough an on- Commons 5.The pictures depicting lamps appear in and street ques- eating facility, the area in but variety Union Mall hosts the area. The building at the intersection tion is outside the gatherings organized political events such as Street. Dickson Street and Ozark of Dickson the Union events. Students use and musical Fayetteville and runs from downtown Street grass lay on its on its benches and Mall to sit campus. part The area in of the dead-ends read, study, and talk to one another. large sidewalk with question consists of a plants. featuring landscaping trees some is located in the center 4. The Peace Fountain a historical marker organized area also contains variety of campus and hosts a memorializing acquisition of the farmland Peace Fountain unorganized events. The University sits. which the with a fountain on tower structure is metallic *11 978
pus. The Union Mall and Peace Fountain
forums such as streets or parks or even
completely
are
surrounded
Vincent,
municipal theaters.” Widmar v.
buildings.
physical
The
characteristics of
263,
5,
269,
454 U.S.
268 n.
102 S.Ct.
70
spaces,
more,”
these
might
“without
make
(1981).
L.Ed.2d 440
A university’s pur
Grace,
them traditional
fora.
461
use,
pose, its traditional
and
govern
177,
1702;
U.S. at
Hague
103 S.Ct.
v. ment’s intent with respect
property
to the
496, 515,
Org.,
Comm.
Indus.
307 U.S.
quite
is
different
university’s
because a
(1939)
954,
(“Wher
59 S.Ct.
In the University, case of the although expressly states it applies that to “facilities “possesses many of the characteristics of a or outdoor ... for by University use forum,” sidewalks, such entities and Non-University “[it] entities.” in significant differs respects from public Fayetteville Procedures, Policies and “Use It must be noted that none of dispositive. these factors are height of the Vietnam War or the University Facilities Outdoor debate 708.0(A). Policy governs the Iraq, college campuses over the war in Space” *12 only here. The use at issue specific areas serve as a stage societal debate. Often is activi prohibited any is of the that speaking college campuses those on are for-profit businesses. ty by private, students, not enrolled rather people but 708.0(A). Further, Policy the indicates Bowman, campus like from who travel to University opened up has the that the spread Thus, to campus message. their merely not “to campus either generally, public university campuses historically speakers or for discussion specific group of places specifically contain where is topic.” Bourgault v. very1 on a narrow designated by society and universities (N.D.Tex. 411, 420 Yudof, F.Supp.2d 316 themselves for speech. 2004). evi Policy provides strong The This expression tradition of free within like University, many public dence that the universities, specific parts of Universi colleges, portions select of its opened has ty’s practice speech of at permitting discussion on issues these campus “to facilitate such, locations, Policy Id. As University’s prac of concern.” past University desig that the itself indicates permitting University tice of both Entities as question nated in locations for the areas Non-University speak Entities to at expression. free these locations on demonstrate deliberately that the University fosters an traditionally College and his- campuses “subject permits speech environment that torically specifically desig- places serve as necessary preserve to the limits to exchange of Hea- nated for the free ideas. (stating ly, 408 S.Ct. academic mission and to maintain order.” represent “marketplace that universities Hays County Supple, v. Guardian ideas”). Supreme of Court has ad- (5th Cir.1992) (finding cer- that universities have tra- vanced the idea university to tain outdoor areas of a be a of their parts campuses ditionally opened forum, designated public designated for speech. to students). Accordingly, speech of we chilling speech] espe- is danger
Th[e] [of specific property hold that the issue— University setting, cially in the real Fountain, Mall, Peace the Union against where acts the State back- Brough designated Commons—are thought ground and tradition of and ex- to apply any This holding fora. does periment that is at the center of our University campus, other areas on the philosophic intellectual and tradition---- express opinion. about which no we as began voluntary [U]niversities must whether We next decide assemblages or spontaneous concourses In limited or in its character. is unlimited to to speak to and write and students case, gives University although this quality power learn. and creative University Enti- preferential treatment day intellectual life this student Non-University Entities re- ties over of a remains a vital measure school’s University space, attainment. to use there is gard influence and evidence that the intended little Rector & Rosenberger Visitors University space to a limit the use of Va., 835-36, 115 Univ. Ac- type speech speaker. particular (1995) (cita- L.Ed.2d 700 spaces at cordingly, we that the issue omitted). Indeed, hold great times of tions fora. discussion, designated public unlimited are during national such five.”). Finally, significant IV. a third interest asserted fostering is the Having concluded that the outdoor areas diversity of uses of re- question designated public are unlimited sources. fora, Policy we must ascertain whether the impermissibly expression. restrains free regulation A narrowly tailored time, analyze University’s place,
We
a significant government
when
furthers
using
appro
and manner restrictions
interest that would be achieved less effec
standard,
scrutiny
priate
requires
tively without the regulation. Thorburn v.
restriction on
to be content-neutral
*13
Austin,
(8th Cir.2000).
1114,
narrowly
significant
tailored to serve a
not, however,
The statute does
need to be
government
Perry,
interest.
460 U.S. at
the
regulation
least restrictive means of
45,
grants the space by of a permit for the use revoke University’s permit requirement is only for Entity limited Non-University narrowly significant tailored to meet these reasons, edu- such as interference University’s requirement interests. The cational of the institution. activities Non-University notify that Entities significant has a University in advance of their intent to use permit safety requiring be- interest its facilities substantially does burden necessary cause of and resources the time necessary more than further the crowds that Bowman to accommodate University’s interests. These interests Chicago Park attracts. Thomas See safety, include ensuring public minimizing Dist., 534 disruption of the educational setting, (2002) (upholding require- L.Ed.2d 783 use of limited coordinating the permit ment that obtain be- individuals Further, by multiple entities. Univer- public parks in- conducting fore events sity’s requirement ample leaves alter- *14 volving people); more see also fifty or native channels for communication. Ac- Portland, City 33 F.3d Grossman v. of cordingly, although Policy admittedly the Cir.1994) (“Some type of by requir- does burden Bowman’s justified in permit may be the requirement plan him to in ing sufficiently advance to the large groups, case of where burden a permit, overly obtain it is not burden- possibility and the placed park on facilities permit require- some so as to the make park other is of interference with users ment unconstitutional. substantial.”). argues more Bowman that analyses the and Grossman are Thomas Five-Day Cap B. applicable him he is single not to because a require In permit addition to the speaker. argument fails re- This because ment, University regulates the the time in gardless Bowman is speaking of whether a speaker may speak by imposing a others, carrying or a sign, alone with five, days cap eight-hour per of semester. literature, handing he has out demonstrat- speaker day, If a a requests sixth the a capacity ed the to attract crowd and University will The Uni deny permit. the disrupt unique educational the environ- versity explains five-day cap al that Mote, F.Supp.2d ment. at 679. See basis, speaker, lows the on a semester fact, majority space In of Bowman’s expended as same number of access hours reservation listed an estimated requests typical a class. on three-semester-hour fifty and hun- attendance of between one five-day University argues that people, analogous to the in dred situation diversity usage, prevents a of cap fosters attendance Thomas. The actual at his monopolization preserves space as two high events has run as hundred property’s tax-exempt status. circumstances, people. these Under in fostering interest a University’s justified is to permit requirement “coordi- avoiding diversity viewpoints space,” limited “as- multiple nate uses of signifi- monopolization space serves preservation [campus],” “pre- of the sure However, five-day cap cant interest. to dangerous” vent uses that are students sufficiently narrowly drawn to is not or other and “to assure financial people, Policy as writ- achieve that interest. The accountability damage” by caused Bow- deny permits for-profit entities. Policy gives tion to to 8. The broad discre- Brownell, Douglas not itself more view- ten does foster (8th Cir.1996), five-day 1523-24 that a ad- points; merely speech. limits Bowman’s requirement for a permit vance notice was space If no one else wants to use the after noted, however, narrowly tailored. We permits, has used his Bowman five requirements that advance notice of three if space gowill unused even Bowman still days upheld by or fewer have been courts space. narrowly to use the A wants more sufficiently narrowly Id. at tailored. policy might grant tailored Bowman more distinguishable 1523. The case at bar is just days per speak than five semester First, Douglas ways. from at least two used, being give if the is not but requirement only days. the notice three preference speakers to other who have not Second, university city is less able than a already obtained permits. five Further- entity police powers other to deal more, policy speakers that allows to ob- significant disruption with a on short no- permits tain for a limited number of events Mote, (“a F.Supp.2d tice. at 681 Uni- at any might permissible one time versity’s resources are limited significant keeping further the interest University has an in reserving interest spaces open array groups for an and a those resources for community diversity type policy of uses. This members”); Cole, see also Glover v. University’s would further the interest (4th Cir.1985) (“[a] college preventing single entity monopoliz- from right preserve has a for its ing specific space by reserving that purpose intended protect college and to single permit for an entire semester with a pressures students from the of solicita- request. *15 tion”). light In of the modest nature of Although five-day cap in- might requirement and what the district crease the odds that will be court described as the University’s re- use, available for informal this rationale is capacity duced exigencies address “the justification not a in light sufficient of the what, if determining any, security, disfavor with which speech restrictions on control, etc., insurance, crowd additional University’s are viewed. The limitation is event,” will required particular for a we narrowly not tailored to achieve its inter- conclude that require- the advance notice in fostering diversity est a of viewpoints tailored, sufficiently narrowly ment is and avoiding monopolization and space. Ac- permissible. thus cordingly, we that five-day conclude cap unnecessary an abridgment is of Bow- Day D. Dead Ban speech rights, man’s uncon- therefore University The bans Non-Univer stitutional. sity using Entities from space during its days.” University so-called “dead The ex Three-Day C. Requirement Notice plains days” that “dead are the official University The requires three- final periods, examination which allow stu days’ argues advance notice. Bowman study dents to for and take final in exams that requirement the advance notice effec peaceful, quiet environment, a and the tively him engaging bars from in constitu University dates of official commencement tionally protected spontaneous speech. Protecting activities. the educational ex that asserts the notice re perience by preserving of the students lim quirement necessary plan to allow it to quiet study ited exam-taking time is exigencies such as crowd control significant government interest. The Uni requirements. insurance versity This court stated that has shown Bowman’s activities literature, (such preaching, passing such as out versity-related activities as athletic carrying sign very easily could inter- contests and work on the physical plant) experi- fere with student’s educational that potential have a to hinder in students by causing ence noise disturbance. For preparation their (Ap- examinations. 290-91). example, carrying sign, though pellant’s silent as App. at We think it was action, might provoke noisy, an disruptive reasonable for the administration to con- confrontations. clude that Entities who do re- serve designated forums on argues day Bowman that the dead ban is these dates are likely more to be attuned underinclusive because it leaves a substan special university needs of the com- seemingly tial amount of intrusive conduct munity during examination and commence- unregulated, that speech by allows (see periods 341), ment id. at and thus less Entities, just which could be likely to disrupt during these speech by intrusive as Non-University En effect, sensitive times. In university Gilleo, City tities. See Ladue v. has elected to designated limit the forums 43, 52-53, 2038, 129 L.Ed.2d to certain speakers classes of during these (1994) (stating that exceptions reg to a narrow windows in the year, academic speech may ulation of govern diminish it is well established that government credibility in justifying ment’s its regula required is not indefinitely “to retain the tion). however, underinclusivity, This does unlimited open character of’ a designated necessarily credibility undermine the Perry, forum. 460 U.S. at university’s of the limiting rationale for Accordingly, S.Ct. 948. we conclude that during access examination and commence- day passes the dead ban constitutional periods. ment regula- underinclusive muster. tion of Ladue was a flag” “red that rendered “implausible govern- V. ment’s claim that regulation ... [wa]s foregoing reasons, For the we tailored,” conclude narrowly National Federation of University’s permit that the requirement, Commision, the Blind v. Federal Trade *16 requirement, notice (4th day and dead ban 331, are Cir.2005), 420 F.3d 345-46 but a constitutional, but that five-day cap the limitation on that is not all-encom- insufficiently narrowly tailored to survive. passing may narrowly still be tailored Accordingly, part we affirm in and reverse where the underinclusivity does not favor a in part. particular viewpoint or undermine the ra- given Id.; tionale for regulation. Chil- BYE, Judge, concurring. Circuit Rosary Phoenix, dren City v. of of 972, Cir.1998); ISKCON I agree While with the Court as to the of
Potomac,
949,
Kennedy,
Inc. v.
61 F.3d
case,
ultimate
sepa-
outcome of this
I write
(D.C.Cir.1995).
957-58
rately
Mall,
because the Union
Peace
Fountain,
Brough
and
Commons should be
Here,
university reasonably justified
recognized
public
as traditional
fora.
a modification of its unlimited designated
forum during discrete times of the aca-
important analysis
The most
we under-
year
demic
when an
speak-
abundance of
take in a First Amendment case is the
likely
ers
be
would
to interfere with
analysis.
forum
As
recognizes,
the Court
During
educational mission.
peri-
analysis
these
the forum
dictates the level of
ods,
university
only
restricts not
scrutiny
apply
out-
in
we
First Amendment
Bowman,
speakers
side
like
but
uni-
also
cases. See Ark. Educ. Television Comm’n
streets, sidewalks,
Forbes,
666, 677-83,
parks,
and
are consid-
v.
523 U.S.
(1998).
ered,*
more,
1633,
public
without
to be
forums.”
I
acknowledges
The Court
the areas
Mall,
Fountain,
dispute-the Union
Peace
employs
The Court
the now-standard
Brough
“physical
Commons-have the
of a
definition
traditional
forum:
streets, sidewalks,
characteristics of
property
gov-
owned or controlled
parks,
open
public passage.”
and are
(1)
physical
ernment which
has the
charac-
goes
Ante at 978.
even
far
The Court
so
(2)
of a public thoroughfare,
teristics
was
physical
as to note
“[t]he
characteristics
purpose
created with the
more,’
spaces,
might
these
‘without
make
purpose inherently compati-
access or for a
them
traditional
fora.”
Id. Of
(3)
conduct,9
expressive
ble with
has
course,
physical
characteristics of a
traditionally
been used for
con-
space
only
are not the
factors to consider
County,
duct. Warren v.
196 F.3d
Fairfax
in a
analysis.
traditional
(4th Cir.1999).
Streets,
sidewalks
purpose
for which the
was created
and parks
quintessential
are the
tradition
and the traditional use of the
must
al
fora.
(citing
See ante at 978
Warren,
also
considered. See
196 F.3d
Grace,
171, 177,
United States
461 U.S.
factors,
at 191. In analyzing the other
(1983);
985 Lee, campus, universi- Krishna Consciousness v. 505 Maryland public claims for 672, 693, 2701, a forum for 112 ty’s provide is “not to U.S. S.Ct. 120 L.Ed.2d mission (1992) J., (“If topics (Kennedy, to talk all at all 541 persons concurring) all about times,” public jurisprudence as an but rather to enclave our forum is to retain serve vitality, recognize education. at 978. The higher for Ante we must that certain objective next ascribes this mission to the of Court characteristics Government analyzing of Arkansas without property customary by and its use they control.”) relate to its varied missions how public may (quoting United of a determining Kokinda, traditional existence v. U.S. 110 States 497 Nevada, (1990) (Kenne See 333 3115, forum.10 ACLU 111 571 L.Ed.2d of (noting government 11 F.3d at 1104 & n. J., dy, concurring)). not
intent is
relevant to a traditional
analysis gives
The Court’s
rather short
analysis). Despite
forum
its contention no
to
significant
shrift
another
factor in the
6,
n.
dispositive,
factor is
see ante
978
analysis:
traditional
whether
essentially
this
the Court
mis-
concludes
was
for a purpose
created
incom
to
all other fac-
outweigh
sion is sufficient
patible
expressive
with
conduct. The
tors.
suggest
expressive
Court does not
how
however,
analysis,
does not
The Court’s
conduct,
Mall,
occurring in the Union
precedent.
with
comport
Supreme Court
Fountain,
is
Brough
Peace
Commons
is not whether the mission of the
The issue
“basically
of
incompatible” with a mission
provide
full
as whole is
v.
promoting higher education. See Greer
everyone on all
but wheth-
topics,
access to
843,
828,
1211,
424
Spock,
U.S.
96 S.Ct.
47
spaces
er the
created
(1976). Indeed,
L.Ed.2d 505
courts have
purpose
incompati-
and a
not
public access
consistently
expressive
is
held
conduct
conduct and such
ble
compatible
of promoting
with a purpose
used
spaces
historically
have
been
for ex-
See, e.g., Keyishian
education.
v. Bd. of
University’s
conduct.
pressive
overall
589,
Regents
of N.Y.,
Univ.
of
proper
is
mission
irrelevant
to a
First
603,
(1967)
675,
L.Ed.2d 629
analysis.
Amendment forum
(noting
purpose
of
universities
of
expose
“marketplace
University’s
mission be rele
students to
Should
vant,
ideas”);
of
Bd.
dispositive
Regents
it would
be
whether
Univ. of
of
of
Southworth,
Sys.
is a traditional
forum. “The
v.
Wis.
(2000)
determining
factor
whether
edge”);
Sports
Exposition
N.J.
&
(“[TJhe
speech
in free
activi-
engage
assemble and
exchange of ideas
emphatically disagree with *20 988 a traditional protect any space are to as indefinitely the we required to retain
is not
a
expressive purposes,
fo
forum for
designated public
public
a
character of
street, sidewalk,
university
park
or
public
Metro. Pier &
rum); Chicago Acorn v.
Auth.,
space.
699-700
a
150 F.3d
must be such
Exposition
Cir.1998).
inconsis
concept
This is a
a
or sidewalk
public
Wherever
street
understandings of a
our basic
tent with
runs,
presumed
to be a traditional
is
university.
Rosenberger v. Rec
public
See
Schultz,
Frisby
forum.
v.
487 U.S.
public
of Va.,
tor & Visitors
Univ.
of
474, 480,
rectly support public university IV tax dollars. The non-student at- civic, theater, wholly acknowledge fails to sporting, tends and other Court university campuses. formally regulate In did not events on sense, thorough- public university belongs just conduct on its this Policy until it in 1993. community much to a as it does to the fares enacted the public university’s Nor edu- Because the now chooses students. however, regulate speech, may not be suf- cational mission limited to its students-a objective to overcome the indicia of university faculty publish and its books to ficient contrary purpose. County Paulsen v. public good benefit the and use tax See (2d Cir.1991). Nassau, If important dollars to conduct research. *21 cally traditionally from the record whether occurred on the cam- It is unclear puses. in case were at issue the instant spaces the University
designated when the
was
I am left
uncertainty
with
when the
in
or were created sometime
founded
1871
spaces
designated
why-factors
were
and
If
at
the time the
thereafter.
created
significant importance
in determining
prior
was founded or
to the
spaces
whether the
were created for pur-
Policy,
might sug-
enactment of the
this
poses inherently compatible with expres-
University designated
spaces
spite
sive conduct.
In
of the
gest the
Court’s
generalization
valiant effort to use
to es-
inherently compatible
a
with
purpose
tablish the historical and traditional use
expressive
Rosenberger,
conduct. See
Mall,
Fountain,
of the Union
Peace
and
(“[Ujniversi-
835-36,
at
the Court historical and tradi- for the Frisby While does stand public tional use of universities and col- sidewalk, every park proposition street leges non-students and students alike is public is a government property located on public significance issues of dur- forum, suggest heavy discuss burden to does Court, however, light ing prove Frisby, times of turmoil. The otherwise. read Kokinda, suggest there is suggest does not where this histori- Grace analysis ysis applies equally to determine whether 11. While the Court uses its of the spaces to historical and traditional use of the spaces are traditional fora or non-tra- designated spaces are determine whether ditional fora. fora, non-public fora or the same anal- sidewalks, Here, streets, produce failed to presumption expres- anything being associated with evidence which would establish plazas located, conduct, they are public forum re sive wherever other than a traditional fora, to be traditional presumed are for which the Union garding purposes other proved Mall, Fountain, otherwise. While unless Brough Peace Com may constitute traditional spaces regarding created or the his mons were *22 Nev., fora, at 1099 333 F.3d see ACLU and traditional uses of those torical law spaces these are the the case n. I conclude spaces.12 Accordingly, would public fora. presumes to be traditional to the failed to meet its burden to rebut Bow produce evidence sufficient sparse record the instant Given the at showing spaces facie prima man’s case, us to determine upon it is incumbent public are traditional fora.13 Never issue a proving partic- whether a framework theless, A inquiry. not end the this does public forum. space ular is a traditional whether determination must still be made by established presumption Given regulations comport with the standard Frisby, permit we a Grace and should scrutiny regulation of tradi applied to public of a traditional prima showing facie public tional fora. plaintiff a estab- forum to be made when street, a space public lishes the at issue is V
sidewalk, plaza expres- associated with Here, Mr. Bowman has activity. sive Although disagree I with Court’s clearly done so. analysis place appro- forum and failure to priately the burden of rebuttal on the a facie plaintiff prima a makes
When
I
University,
agree with the ultimate dis-
showing
is a traditional
position of
the advance
this ease because
forum, the defendant should bear the bur-
permit requirements,
notice and
as well as
objective
of the
produce
den to
evidence
(2)
restrictions,
(1)
day
imposed by
the dead
characteristics,
physical
original
(3)
University pass constitutional muster un-
purpose, or
historical
traditional
analysis,
der the traditional
plain-
use of the
which would rebut
day
while the five
limitation does not.14
prima
showing.
tiffs
facie
has restricted
than the Union Mall or the Peace Fountain.
That
Brough
among
unique even
for over a decade does not establish that those
Commons is
history
public places
comport
greater
other two
because it is located
restrictions
with the
spaces
compatibility
or their inherent
at the intersection of two
streets and is
Indeed, although
separated
city
expressive purposes.
from the
sidewalks and
change
public thoroughfares by
University may attempt
a fence or other clear
the charac
forum,
pas
only
The record establishes a
ter of a traditional
it can
demarcation.
legitimately by changing
physical
serby
do
would not know she had entered
so
may
"special
protections
space-it
not do so
enclave” with reduced
characteristics of the
Lee,
passed
expressive conduct once she
onto
fiat. See
505 U.S. at
Grace,
J.,
Kokinda,
concurring);
Brough
(Kennedy,
Commons area. See
J.,
179-80,
1702;
(Brennan,
Initiative and
U.S. at
(1965)), given University’s limited re
sources, permit the advance notice and significant nevertheless serve
regulations protecting interests in
governmental
Uni
CARE, INC.;
versity
against
solicita PEDIATRIC
Entities
unwanted
SPECIALTY
Day Clinics,
ensuring proper
tion and
crowd control
& Youth Pediatric
Child
Inc.; Family Counseling Diagnostic
capabilities,
being narrowly
while
tailored
&
Glover,
Clinic;
Learning
to those interests. See
762 F.2d at
Tomorrow’s Child
Center, LLC;
Family
D D
(concluding
1201-03
solicitation restriction
&
Enter-
fora, see,
Goulart,
event,
designated public
e.g.,
any
spaces
In
the contests
which
disagree
might
I
im-
occur
not be considered either tradi-
the Court's
designated
plicit suggestion
tional
fora or unlimited
there is a lessened burden
imposed
public fora and the limitations
re-
designated public
fora because the Univer-
speech.
I
redesignate
strict both student and non-student
sity may simply
space at
issue.
speculation
question the Court's
Uni-
University may redesignate
further
While the
activities,
versity
expressive
which
Entities's
designated
if the
is deemed a
forum,
may
speech by
not associ-
include
individuals
redesignation
such a
cannot
education,
to the
ated with
are more attuned
designated
serve to avoid review under the
during
quiet
standard,
needs of the
applied
forum
nor can it be
Nevertheless,
days
public.
dead
than the
post
as a
hoc
an
rationalization for
unconsti-
by
differential treatment raised
Bowman does
expressive
tutional restriction of
conduct.
regulation improper
to make the
serve
regarding
analysis
15. Bowman has raised concerns
be-
under a traditional
significant government
the distinction between
and Non-
cause it serves
inter-
narrowly
speech
days.
tailored to those interests
Entities'
on dead
I
ests and is
disagree with the
treatment
this
since it minimizes the distractions faced
Court’s
argument
during
period
exam
and leaves
insofar as the limitations on athletic
students
highly
during
plant
ample other times
contests and
maintenance are
Further,
distinguishable.
may
occur.
such claims
Maintenance work is not
activities
Equal
protected expressive activity.
properly
are more
raised under
Limitations on
speech,
the First
do limit
but it is
Protection Clause than under
athletic contests
Kokinda,
precedent
See
unclear
from our
whether such
Amendment.
actually
protected speech.