Gilles v. Garland

GILLES, Plaintiff-Appellant, James G. GARLAND, Defendant,

Jim Powers, individually Andrew and in his (Patrol capacity Commander, official University Department); Miami Police Hodge, David capacity in his official (President University), of Miami De- fendants-Appellees.

No. 07-3645. United States of Appeals, Court

Sixth Circuit. June SILER,

BEFORE: MOORE McKEAGUE, Judges. Circuit OPINION

McKEAGUE, Judge. Circuit Plaintiff-appellant Gilíes, G. James campus evangelist, was denied a speech grounds continue Oxford, Miami Ohio. He sued officials, alleging policy they during they open, those hours when speech, of his free free enforced violative exercise, by determined Presi- process equal protection due such hours to be University or designated The district court dismissed the dent official.” rights. claim, Complaint proceed- H JA 10. Plaintiff complaint for failure state a valid security office challenged policy repre- campus inquire ed holding reasonable, any campus area on content-neutral restric- whether there was sents challenge engage in his ruling expressive Plaintiffs to this on where he could tion. Lieutenant Andrew ad- appeal speech is limited free activities. Powers although him some on process due claims. vised that areas campus designated speech as free were facial validity plain- review of the Our not, plaintiffs speech areas and some were handicapped the fact that by tiffs claims is “legitimate was business” considered little parties made effort to communi- permitted anywhere on would not litigation each other before this cate with campus. later, Years pattern was commenced. this counsel, appellate briefing, thereupon as the Plaintiff retained repeated parties argue past university’s gen- each other. wrote a letter to the continue who counsel, Yet, viewing of the com- eral dated November 2002. favor, plaint in that liberally grounds we con- letter contended public university campus property rep- at that dismissal these two claims clude stage premature. was For resent a “traditional forum” and pleading follow, expressive re- limitation of the reasons we therefore activities court’s is unconstitutional unless plain- verse the district dismissal of these areas Asserting reli- speech “severely and due claims. restricted.” process tiffs free speech gious protected discussion is under I. BACKGROUND1 Amendment, letter the First demand- university ed rescission of evangelist Gilíes is a Christian James speech religious classified Gilles’s as not duty proclaim who considers his his being business.” “legitimate colleges at faith to students and universi- and be- throughout ties United States clarifying This response letter elicited yond. On October he had been counsel, university general from Robin fulfilling this engaged duty for about Parker, 27, 2002. Specifical- on November Quad” at the “Academic minutes ly, campus property repre- she denied Oxford, University of Miami sents forum. She advised interrupted by he a cam- Ohio when Gilíes, visitor, as a denied access officer, pus Delph. Offi- security Donald al- campus property, certainly but Delph advised that he needed cer campus. ex- through lowed to She walk campus; to conduct a also be plained that Gilíes would allowed he be arrested. Plaintiff otherwise would if he conduct a formal were invited copy union to obtain a speak any recog- went to the student university policy. What he received Parker fur- organization. nized student stated, part: “Every person in pertinent explained “policy ther that this and consis- legitimate practice,” requiring business tent with visitors, privilege sponsorship speeches of free access to the has the by other reli- accepted been and followed buildings grounds areas of the facts, stantially plaintiff’s version of the appeal de review of the this entails novo As 12(b)(6) complaint, which set in his facts based on forth lower court's Rule dismissal accepted present purposes. summary pleadings, fact based sub- as true Gideons,” free and due claims. gious speakers, like “The his who Bibles, He asks the court to order issuance evangel- distribute and noted local also remand, preliminary injunctive ist “Brother Jeb.” relief on She invited Gilíes to pending proceedings further the district organizations, obtain list might identify sponsor. court. organiza- Gilíes to fifteen wrote II. ANALYSIS tions, sponsor- but was unable to obtain ship. sponsorship, Absent his A. Standard Review desire to present quali- a on failed to properly Whether the district court dis fy later, permission. Nearly years two complaint pursuant the Rule missed Gilíes commenced this action a filing 12(b)(6) question subject is a of law to de complaint in the Southern District of Ohio Allen, novo review. Mezibov v. 411 F.3d 14, on October 2004. Named as defen- (6th Cir.2005). 712, The reviewing Garland, dants Jim then-President of in complaint court must construe the a University, Miami has since been who re- accept light plaintiff, most favorable to all placed by Hodge; defendant David true, well-pled allegations factual as Powers, Lieutenant Andrew Patrol Com- plaintiff undoubtedly determine whether mander, University Miami Police Depart- prove can no of facts in support set ment. In four paragraphs, complaint allegations those him to would entitle asserts rights four civil claims under 42 Rutter, Harbin-Bey v. relief. 1983, § alleging U.S.C. pro- defendants’ (6th Cir.2005). 571, Yet, to survive a mulgation and enforcement of the universi- dismiss, con complaint motion must ty’s “legitimate policy business” unconsti- tain or allegations either direct inferential tutionally restricts speech. all respecting material elements to sustain alleges Plaintiff is unconstitu- recovery a some legal theory. under viable tionally vague, overbroad and discrimina- Mezibov, 411 Conclusory F.3d 716. al tory face, on its and as applied, violation legations legal conclusions masquerad of his of speech, freely freedom his right ing allegations as factual will not suffice. religion, exercise his and his due 12(b)(6), complaint Id. under Rule Even equal protection rights. The com- containing merely facts statement of plaint prays for declaratory, injunctive and suspicion legally creates a of a cognizable compensatory relief. right of action is insufficient. Bell Atlan — Corp. U.S. -, Twombly, tic Defendants moved dismiss com- 1965, (2007). 1955, 12(b)(6) 167 L.Ed.2d plaint under Rule of the Federal “[fjactual allegations enough must Rules of Civil Procedure on December a right to relief above decided, specula 2004. raise Before the motion was level;” they tive must “state a claim to plaintiff moved for preliminary injunction plausible relief that is on its face.” Id. at April 1, April 2005. On 1965, 1974; also see Ass’n district court Cleveland issued calendar order di- Cleveland, Fighters City Fire recting that the preliminary injunction mo- (6th Cir.2007). 545, 548 tion be in abeyance pending ruling held progress motion to dismiss. Little Dispute B. Nature of during years. made next two On 20, 2007, April making ruling, district court issued its its district court opinion granting and order struggled defendants’ to reconcile the claims asserted motion to dismiss all four claims. On ap- alleged support with the facts those plaintiff peal, challenges only the dismissal claims. Plaintiff contends the criterion, “legitimate business” taining

of his must be read the broad- construed defendants’ the district court possible est manner. He characterizes his light of Robin actions complained-of vague action and stan- challenging university’s explaining Parker’s letter “legitimate policy that dardless business” made it clear “speech policy,” which to ban religious expression is enforced legitimate apparent enforcement anywhere campus. This characteriza- requirement hinged on business made tion is based on statements to Gilíes er- This invitation. Delph Officer and Lt. Powers on Octo- contends, all four ror, because ber But be- the conversation directed expressly his claims and Miami did not tween Gilíes not the access legitimate-business later, end on 14. A month Gilíes October the dis- speech policy. Plaintiff contends the sought and obtained clarification of accept his trict court failed to to university’s position by writing letter grant to him the benefit as true and failed university’s general the counsel. In the be might inferences that of all reasonable received, response Gilíes he learned that allegations. from the drawn be proposed religious expression his would he invi- permitted and when obtained an allega Yet, complaint includes plaintiffs sponsorship recognized tation from letter as well. concerning Parker’s tions ap- It thus became organization. student only to letter is not referred the parent that the rationale for exclusion to an understand complaint, but is central simply the unfet- speech Gilles’s was not plaintiffs of the factual bases for ing discretionary by Lt. tered determination letter, the attached It claims. follows not le- preaching Powers that Gilles’s was dismiss, to motion was defendants’ Rather, the gitimate proposed business. part plead considered properly Gilíes, visitor, speech not consid- was not though it attached ings even was because he had legitimate ered business Greenberg v. Ins. Co. See complaint. Life requisite sought not and secured the invi- Cir. Virginia, 177 F.3d Inc., tation Co., from administration 1999); v. Klais and Weiner (6th Cir.1997). group. or a The district court therefore construed Assessing alleged actions defendants’ challenging letter, plaintiffs complaint pol- of the Parker district light authority policy. restrict icy whereby university speech on so-called focused that, speech delegated to student court observed viewed The district is, organizations. notwithstanding allegations, fact light plaintiffs That own alone, only nomi- standing policy, his claims are access argument claims. by plaintiffs nally implicated actions in enforc- addressed to defendants’ 116.2 n. JA p. and order university’s policy,” Opinion con- ing the “access Delph [Plain- elaborated that entirety: Officer provides 21. 2. Footnote 6 in its speak on cam- permission need tiff] would Currently, maintains his chal- Plaintiff Delph ad- permit, Officer policy, pus. not Without a lenge access is to Defendant's However, colleague thorough speech policy. his vised that [Plaintiff] Complaint reading of Plaintiff’s reveals be arrested. would policy, not the access was plain made Powers [Defendant] 28. expression was upon which Plaintiff's basis any engage not could that he [Plaintiff] stopped: If campus MU. expression form Delph bluntly, "Al- declared Officer so, arrest- attempted he to do would he get right guys, you've got to here. you out of ed. go.” Got to evangelistic speech he at Miami alleged Plaintiff has not that was denied an Universi- later, the public campus prop- ty. years apparently access to areas of Two without erty, intervening but that he was uni- permission denied communications with speech. Delph officials, conduct a versity Whereas Officer he this action. commenced only and Lt. Powers advised Gilíes that he primarily at the complaint is directed a speech could conduct because he did clarifying policy despite access Parker’s — permission, explained not have Parker letter, despite acknowledg- Gilles’s permission to conduct a condi- ment, in his implicit allegations, own upon university tioned permission speech depended conduct invitation. of the access policy satisfaction legitimate-business requirement, but on

Plaintiffs policy notion that the access speech policy satisfaction of the student- played a role in the restriction of his requirement. sponsorship ostensibly stems fact that given copy he was of that he when no We find fault in the district court’s went to the student having union after to construe the decision as actu- interrupted by Then, been Delph. when ally challenging speech policy, clarification, Lt. he asked Powers for appears, by plaintiffs allegations, to own told that he lacked been actual have basis defendants’ speech conduct a anywhere campus denial of to a permission speech conduct property. Judging allegations, from the it campus Considering property. appears that Gilíes did not ask how to wrong of complained speech, is denial obtain permission and Lt. Powers did not access, not it practically denial of is incon- tell him.3 Apparently, it he when plaintiff prove any ceivable that could set received Parker’s letter that Gilíes learned of facts consistent with his he, visitor, what as a must do to obtain would entitle him relief if complaint his permission. Gilíes attempted to obtain challenging were construed as access permission by soliciting policy. Until Gilíes received Parker’s clar- sponsorship. Gilíes implicitly thus ac- letter, ifying may he suspicions have had knowledged permission conduct he legally cognizable had a cause speech on campus dependent on ob- university’s presumed action based taining sponsorship, on persuading not policy. enforcement the access Parker’s president or other university official that letter, however, dispelled suspicions these proposed religious his speech constituted permission and revealed that conduct “legitimate business.” pursuant speech was denied to the speech him,

Unfortunately for Gilíes until policy only was unable he obtained sponsorship. to obtain sponsorship. appears complaint Gilíes then Inasmuch as the ac- expressly to have abandoned his efforts to conduct knowledges the role of the letter Gilles’s (Plaintiff's added). Complaint, emphasis Complaint, imposes No- which is in the discussed Complaint impermissible allege speech. where in the an restriction on does Plaintiff himself, facts he was told to remove or threat- alleged 3. Plaintiff has ever not asked removed, campus ened to be from MU's as he any university "legiti- official what constitutes Instead, "legitimate did not have business". how mate business” or to obtain alleged Complaint, the facts as demon- speech. to conduct a Even the confrontation- stop speaking strate he was told to his as he attorney al letter sent Gilles's complied speech policy. had not with MU’s (which general counsel elicited eventual whether, Accordingly, the Court will discuss explanation) inquiry does include as to alleged,

based on the facts might permission. how Gilíes obtain construction, university, right judicial or administrative

dispute with practice.” City alleged enforcement of relief based well-established Co., as exposed unsubstan- policy Publ’g the access v. Plain Dealer Lakewood i.e., mani- speculative at tiated [108 486 U.S. best — subject (1988). Rule festly Thus, dismissal under a statute or L.Ed.2d 771] 12(b)(6). Twombly, S.Ct. at 1965. the First Amendment ordinance offends if the is construed as im- Only grants it official “unbri when sponsorship plicitly challenging the re- the official’s dled discretion” such that (the quirement acknowledged basis for the con to limit is not decision speech) appear does set restriction criteria, may by objective but strained i.e., one that rises forth colorable subjective claim— rea “ambiguous rest on level,” speculative one “above Advertising, Inc. sons.” Desert Outdoor “plausible on its face.” Id. City Valley, Moreno denied, Cir.1996), cert. [522 Due Process C. 118 S.Ct. 294 L.Ed.2d 912] [139 U.S. recognized plain- The district (1997). 227] challenge tiffs due vague. speech policy is MU’s vagueness based on two-pronged, clearly defined so prohibitive terms theories, rejected and overbreadth ordinary intelligence person objects only On appeal, both. standard for readily could define the vagueness ruling. the district court’s All' inclusion and exclusion. court’s of the due The district evaluation speeches by a visitor to MU’s challenge embodied process vagueness unless MU or prohibited invited paragraphs: in two Additionally, organization. Due enact requires state nothing policy per- which there vagueness held void for its ment be to limit based mits MU officials clearly not defined prohibitive terms are ambiguous subjective on and or reasons. intelli person ordinary that a of such any allegation that MU Nor is there readily identify applicable can the gence organiza- the officials restrict student exclusion. standard for inclusion and prospective content of upon tions based Grayned Rockford, v. 408 City See any allega- In speech. the absence 2294, 104, 33 L.Ed.2d [92 108 U.S. cannot contrary, the court tions (1972). stan of clear absence 222] policy conclude the confers “unbridled pub the the guiding discretion of dards officials. discretion” authority the lic official vested with 15-16, JA 118-19. Opinion pp. and order by abuse enactment invites enforce the the quarrel with Plaintiff does enabling to administer the the official court, employed by the district standards impermissible fac on the basis of policy He misapplied the court them. but insists v. City Leonardson East tors. See guid complains policy’s that the standards 190, Lansing, Cir. 896 F.2d hardly found ing can be officials’discretion 1990). vagueness “doctrine re policy the sufficiently clear where to be [government] the limits the quires writing.4 reduced to has not even been implicit in its law made claims are Indeed, “speech poli the of the binding existence incorporation, explicit by textual policy charge the is unwritten. the Although record on there little dispute do not the defendants evaluate give a formal un cy” emerge did not even until over denied access permission month by organization, after Gilíes was denied then less a student invited speak campus, in Parker’s November must limiting practice be “well-under 27, response 2002 letter to Gilles’s attor uniformly and Child applied.” stood fact, ney. despite In fact that Gilíes Fellowship S.C. Evangelism sought Dist, clarification October from Five, School 470 F.3d Anderson Delph, from Officer adminis (4th Cir.2006) 1062, (quoting City union, tration at student from Lt. Co., Publ’g Lakewood v. Plain Dealer Powers, he never advised that was 770 n. 108 S.Ct. U.S. reason he lacked was that (1988)). plead The present L.Ed.2d 771 had failed to obtain an invitation ings concluding afford no basis for group. undisputed student These facts requirement student-sponsorship well- support alone reasonable inference To extent pleadings understood. speech policy not as clear any insight operation afford into the of the well-established defendants now con can policy, we conclude unwritten tend. by university well understood letter, Even in the Parker which affords charged officials with most immediate re only inkling policy’s parameters, sponsibility enforcing allega it. The the “policy and consistent practice” is de- any tions of are devoid simply allowing scribed as not visitors suggestion Delph that Officer or Lt. Pow speeches “make presentations, formal ers asked if he even Gilíes had been invit displays, erect conduct similar activities by ed speak organization. unless to do invited so Further, the complaint also affords abso by a recognized organization.” lutely determining no basis for That’s it. Defendants would have us as- practice” “consistent has been and is uni sume that Parker’s characterization of the formly applied. policy unwritten and complete; accurate Blanchard, Gilles that this unwritten has been consis- (7th Cir.2007), Circuit, 472-73 the Seventh tently uniformly applied; and that evaluating student-sponsorship a similar evidence policy is unwritten conclusively policy challenged the same James pass sufficient to constitution- Gilíes, al muster and the summarily policy “hope foreclose further characterized as proceedings plaintiffs vagueness Still, chal- lessly vague.” based on review of lenge though policy, the as de- policy’s record evidence of the operation, —even scribed, hardly seems believable.5 the court concluded that Vincenne Univer sity’s the policy construction of well- was policy

A writing need not be reduced fairly applied. established and The court challenge. However, to survive vagueness that challenged concluded the construction business,” “legitimate as in used the just “practice,” “long was not but by written access is defined had “consis practice” tent to mean that visitors are been a norm.” Id. at 472. The “bewilder- really university responsibility protect pristine 5. Can it be that the has abdi- its entire the responsibility disap- cated approving all or disrup- environment from unwanted proving on-campus speeches presenta- organizations tion ... to student —carte by long group tions visitors? As student as policy The have blanche? defendants would speaker, any speaker, speak invites sustain, to the it at us extent has been defined manner, time, any subject, any any in in all, unsubstantiated, is but seems area, any open speaker the has the universi- implausible. ty’s permission? university delegated him of it entitle miscellany” support that would ing speakers invited the library “any to refute allegations, though lawn was deemed relief. The factual against right inference discrimination disfa- sufficient to raise sparse, are Id. at 478. Con- points vored pres- view.” the level speculative relief above cluding any that could student invite that on its face. plausible ent a claim is speak library lawn, any speaker to dismissing the order therefore reverse We diversity “the the court observed that due claim. plaintiffs diversity mirrors of the uni- speakers versity demonstrating uni- community,” Speech D. Freedom of non-discriminatory application form of the evaluating claim that his plaintiffs policy. Id. at 474. right speech improperly to freedom of Here, contrast, in record there is no began by iden- infringed, district court speech In upholding policy evaluate. in which tifying the nature of the forum plaintiffs vagueness challenge, over right plaintiffs restricted —whether nothing district court concluded there is (or forum, “desig- traditional limited ambiguous requirement about the nated”) forum, nonpublic forum. speech

visitor first who would conduct Miami Univer- The court determined that obtain invitation from the or a property represents a limited sity campus Yet, organization. though pol- on to forum. The court ob- went nominally in icy unambiguous requiring forum, that, in a re- serve invitation, a visitor to obtain an includes if it speech permissible striction of groups no standards light content-neutral and reasonable discharging the judge requests au- by the forum. The purpose served thority delegated university. them poli- university’s speech court held court that “there district observed requirement is con- cy student-sponsorship permits in the nothing policy which MU Accordingly, tent-neutral reasonable. ambigu- limit officials to based claim the court concluded Yet, subjective as far ous reasons.” policy impermissi- an constituted existing can be from the rec- determined rights infringement of his free ble ord, neither is anything there appeal, On fails to state claim. valid guides restrains discretion and abuse. court contends district erred recognized As the district its reci- one of conclusions. every these standards, it is governing tation of the clear guiding absence of standards dis- Nature Forum cretion official invites Yet, process. abuse offends due “no First There is doubt identify any district court failed to discre- rights and associa- Amendment speech poli- tion-guiding standards state uni- campuses of tion extend cy- Gibson, 236 Kincaid v. F.3d versities.” banc) (6th Cir.2001) (en 342, (quoting 347 extent This to the it “policy,” unwritten 263, 268-69, Vincent, 454 U.S. Widmar existing pleadings has been defined in the (1981)). L.Ed.2d 102 S.Ct. all, of standards appears at be devoid university. University is a state Miami facially process to due and is vulnerable regulation expressive of ac- Scrutiny of due challenge. Viewing the setting begins an tivity such educational claim in most favorable vagueness light Kincaid, 236 analysis.” “forum that he with it be said un- plaintiff, cannot of standard appropriate of facts in at prove can no set 347-48. doubtedly property at the campus scrutiny by is determined the nature of the connection with recognized types University There are three Arkansas: forum.

of forum: University, although of the In the case type public

The first is a traditional characteristics many of the “possesses it public forum. A forum is a traditional forum,” open such as side public of a place based restrictions rowly leave “the government fiat time, place, forum has been alternatively described communication....” The second ment need not retain forum “for use government may open “designated public forum.” forum is a nonpublic forum.” ... as a speakers, or for the does so ernment dards est, significant government subjects.” assembly sive assembly and they limited park.... government may “limited activity are sharply rights open ample drawn to serve a “which may apply may public forum, is bound “narrowly and manner of the state to limit ... Although public forum,” The third and final In traditional speech, by long debate,” control access to a non- by enforce content-neutral ha[s] been devoted alternative channels the public discussion a traditional tailored for forum. The compelling enforce content- such as a street if a limited tradition or regulations only the same stan- circumscribed”: “as open use interest, they ... public at long by nature of large ... The are nar- and as a govern- serve expres- type type certain certain inter- as it fora, gov- for by Mote, walks, its facilities A use, 2004) grounds might U.S. 461 U.S. provide higher university’s mission is education and the parks because a respect L.Ed.2d and nonstudents sity sidewalks, search for L.Ed.2d 736 example, about all Chapter-Univ. Widmar 5, 102 ‘“special university’s purpose, must and the public at 268 n. (quoting S.Ct. “[it] otherwise be traditional or a forum for all education.” ACLU ^[171] 440] that a topics type grant university’s function is not to differs in Vincent, and other F.Supp.2d equally even buildings.”). knowledge (1983)]); Widmar, 454 forums such as streets property government’s (“We at [United campus at all times. free access to all of its alike, 70 L.Ed.2d 440 5, 102 Md., municipal enclave’ devoted available to students 454 U.S. have not significant —to open see or that a univer States must College persons its traditional quite Thus, S.Ct. serve as intent make all of areas that 263, 268 n. v.] theaters.” Rather, held, different 1702 [75 respects 269 [70 Park v. Student streets, to talk (D.Md. (1981). Grace, with or differently may fora be treated when subject forum “based on matter of the they fall within the boundaries and speaker identity long so as the dis- University’s campus. vast light tinctions drawn are reasonable in purpose the forum served 11-12, Opinion pp. and order JA 114-15. viewpoint neutral.” court on to hold that The Bowman went (citations omitted). analogous to open areas those which Id. at 348 plaintiff permission speak seeks Mia- standards, Applying these the district designated mi were “unlimited determined that the areas on fora,” i.e., areas where the Universi- seeks (1) ty permitted had universi- of Arkansas speech represent pub- to conduct a ty non-university and entities to entities lic heavily fora. district court relied (2) speak; given preferential had treat- reasoning employed in v. Bowman (3) White, (8th Cir.2006), entities; university 444 in had F.3d 978 ment uni particular argument open public not intended to limit the use to a areas on a type speaker. of versity campus public are traditional fora. See also American Civil Liberties Union reached,

A similar result the district (4th Cir.2005) Mote, 438, 444 Blanchard, v. 423 F.3d noted, in court v. where Gilles cam (holding University Maryland the Circuit addressed a similar Seventh challenge speech-limiting policy to a forum); public a limited pus was University. In connection with Vincennes Miller, F.Supp.2d v. Gilles campus public library area as the known (W.D.Ky.2007) Murray (holding State lawn, the court held that the desig campus open areas were rights its to limit access to was within fora). public nated speakers outside based on content-neutral determining, In these consistent with criteria: too, rulings, University, that Miami wonderfully No matter how suited the open treated its areas not as traditional library religious lawn is to and other fora, fora, public public but the as advocacy, University could if Vincennes allegations district court relied on the it wanted bar access to the lawn to In the plaintiffs complaint. particular, it for any outsider who wanted to use describing court relied on the it purpose, just as could bar outsiders plaintiff by statements made to Lt. Powers classrooms, libraries, dining from its uni- explaining and Robin Parker that the halls, and dormitories. It wouldn’t have versity prerogative, had its con- exercised in prove allowing them would mission, sistent its educational to limit with disrupt its educational mission. See in ar- expressive campus public activities

American Civil Liberties Union eas. The court noted that had not (4th Mote, Cir.2005). 423 F.3d attempted to refute these characterizations may permissible “[G]overnment draw among university policy. status-based distinctions differ speakers pre ent in order to classes appeal, plaintiff open maintains that On forum, of the purpose serve the even public university campus on a must areas proposed uses those inside when be considered traditional fora permitted speakers class of university’s expres that the intent to limit permitted class of those outside nature of sion is not determinative speakers quite similar.” Goulart v. support, the forum. In he relies on case Meadows, Cir. defining general parameters law 2003). analysis, precious forum but has identified Blanchard, 477 F.3d at 470. The Gilles authority proposition little library in observed lawn was a traditional campus property is designated public the nature of a “limited heavily Judge Bye’s forum. He relies Bowman, forum,” in as that term was used Bowman, concurring opinion unnecessary “an but deemed the label conclud Judge Bye at 983-91. would have Thus, although flourish.” Id. at 474. University of areas on the ed using Seventh Circuit refrained campus traditional Arkansas were analysis template,” recognized “forum it Judge Bye principled fora. made a While university to prerogative prevail, but was re argument, did regulate expressive activities Moreover, jected by majority. public areas in a manner consistent with proved principled distinction drew treatment as a limited forum. Judge practical consequence, of little Circuit, words, like the other the Seventh Bowman, majority substantially rejected Bye joined Eighth Circuit rejected open the notion that university’s upholding regulation of which public on a subject areas. areas public Accordingly, fora. we traditional Plaintiff also relies Brister v. Faulk- court’s deter- find no error the district (5th Cir.2000). ner, 214 F.3d 675 Bris- subject open that areas at mination ter, the University Fifth Circuit considered University represent public Miami property adjacent contigu- Texas to and fora. sidewalk, City public ous awith of Austin prohibited university policy where all leaf- 2. and Reasonable? Content-Neutral leting by The non-students. district court The concluded that Miami district court had plaintiffs declaratory awarded the i'e- speech in a limit University’s regulation of lief, holding subject area was a permissible long forum is as as it ed traditional public forum because it was in light content-neutral and reasonable indistinguishable city from sidewalk. by the purpose served forum. See are, Noting long sidewalks tradition, News fora, Good Club Central the Fifth af- Circuit Milford School, firmed, 98, 106-07, 121 “very based specific facts” U.S. (2001).6 case, involving unique piece “a of 150 L.Ed.2d district is, university property that for all constitu- held speech policy student-spon purposes, indistinguishable tional from the sorship requirement, described in the as city Austin at sidewalk.” Id. 683. letter, Parker is content-neutral on its face, applies as it to all visitors who would specific unique sort of campus. Further, conduct a facts that premises formed the of the Bris requirement court held reason ruling alleged ter have not been ably university’s related to the educational case. Plaintiff alleged has not mission in on-campus it limits Quad Academic other area by visitors to matters in speeches where he a speech would conduct at Miami one group least of students is interested. with, is so contiguous and tree that, Accordingly, the court concluded from, of visible a city demarcation sidewalk the extent could be con indistinguishable street as to be from it. as challenging strued Indeed, ruling Brister is manifestly any impermissible infringe failed to state narrow, very affirming a limited award of ment of free for speech rights which relief (where declaratory injunctive relief granted. be could denied) compensatory relief were closely tied to specific unique its facts. Indeed, analogous sponsorship Subsequently, held, the Fifth Circuit has requirements upheld have been as reason in connection challenge with another See speech. able restrictions on Gilles v. University of leafleting policy, Texas that Blanchard, (upholding 477 F.3d at 472-74 open areas on campus generally accessible student-sponsorship as a de requirement students are not traditional fo centralizing invitation assures rums, but “designated forums.” nondiscrimination and a reasonable diver Faulkner, Justice All v. sity viewpoints consistent with the uni (5th Cir.2005). Bowman, versity’s autonomy); 444 F.3d at persuade

Plaintiff (upholding permit has failed to us to 980-81 content-neutral depart weight great authority, requirement tailored to narrowly ensure Kincaid, Any governmental 6. content-based restriction would have to interest. 236 F.3d at narrowly compelling drawn to effectuate a 512 14, JA See also Opinion p. minimize and order safety, disruption setting, Miller,

educational allow coordina at 948-49 F.Supp.2d v. 501 Gilles by multiple tion of limited space use of reasoning). (applying same entities); Miller, F.Supp.2d v. Gilles reasoning. Plaintiff has not refuted this at 948-49 (upholding student-sponsorship is, alleg has despite That the fact that he requirement as content-neutral rea invitation, to edly been unable secure an sonable). not demon alleged he has or otherwise challenge directly Plaintiff does not requirement sponsorship strated rulings district regard. court’s in this In- reasonably or not content-neutral not is stead, that argues speech policy, mis university’s educational related him, applied perpetual to a amounts noted, As the Circuit has sion. Seventh as he been unable to ban—inasmuch has not a uni “the does commit Constitution sponsorship secure which there no —for a versity faculty that allows member Yet, justification. as the district court ob- the professor to invite student served, plaintiff yet that the fact give talk on also to ology sponsorship obtained does not in itself evi- else anyone Brother Jim and who invite dence or lack of viewpoint discrimination use, worthily, like however would relationship reasonable between re- university’s soapbox.” facilities as his university’s striction and the educational Blanchard, v. 477 F.3d at 474. Gilles mission: on its policy is content-neutral face. Nevertheless, con- inasmuch as have we Furthermore, is devoid Complaint vague- plaintiffs cluded that due factual student challenge facially ness meritless requirement sponsorship results view- that further proceedings warranted point applied. discrimination as the contours of unwritten define allege does not that a condi- operation, its we are speech policy and organ- being registered tion of student undoubtedly loath to conclude that no having viewpoint ization is associated facts with prove can no set of consistent Bourgault with the Plaintiff. See Yu- him to allegations that his would entitle (N.D.Tex. dof, F.Supp.2d Be- his free claim. relief under 2004). Moreover, if even there no ill-defined, we are cause the remains agree organization student that will unwilling stage conclude at this sponsor speech, Plaintiff’s Plaintiff fails fail. necessarily claim must plaintiffs to allege any facts which establish MU impression proof our Notwithstanding prohibits holding groups views improba- free claim is similar to Plaintiffs views. As discussed unlikely, claim is recovery ble by the Bourgault court: scrutiny well-enough to withstand pleaded allegation that There is no evidence or 12(b)(6). Twombly, See under Rule organizations only permit- (“[A] well-pleaded complaint at 1965 beliefs,

ted hold they ... if certain savvy proceed strikes may even prohibited students would be facts is proof of those judge actual an forming organization because very recovery and ‘that improbable, viewpoint particular top- on a their Scheuer unlikely.’”) (quoting remote and ic. There is no for the court to reason Rhodes, 232, 236, 94 S.Ct. 416 U.S. ... cannot form believe students (1974)). Accordingly, 40 L.Ed.2d organization regardless an their the free dismissing district court’s order viewpoints. shall, extent, consti claim also areas Miami vacated. I it is tute limited fora. believe that holding to necessary not for us reach this Preliminary Injunction

E. doing requires glossing so over and that and fact questions To the extent that of mixed of law complex, dismissal his claims reversed, plaintiff is asks to the record us address the that are better considered once preliminary injunction motion for in developed. majority filed in this The case 1, April the district court on 2005. not a does address the distinction between response, correctly argue forum, defendants public also as a limit limited known they opportunity respond never had the forum, designated public desig and a ed court, in the motion the district that the public forum, a nated also known as true completed, record was never and that the designated public unlimited forum. The district court ruled it. never The mo- explained Fifth Circuit has that “the Su injunction tion for preliminary prop- not preme Court at one time limit ‘referred to us; erly before it can be addressed being subcategory ed public forums as remand, district after court if there is still forum’, designated public within a had but controversy parties.7 live between the recently more ‘used the limited phrase public type nonpub forum describe a of ” III. CONCLUSION open lic forum of limited access.’ Justice reasons, For the foregoing the district Faulkner, For All v. n. court’s dismissal of (5th free Cir.2005) (quoting In Chiu Plano is, due claims to the extent Dist., (5th dep. Sch. 260 F.3d 346 n. 10 they challenge university speech poli- Cir.2001)). Eighth The Circuit conducts VACATED, cy, RE- this matter analysis, explaining similar that a limited MANDED the district court for further categories open forum certain proceedings consistent opinion. with this of speakers subjects designat while similarly ed forum is limited. MOORE, KAREN NELSON Circuit (8th White, Bowman v. 444 F.3d Judge, concurring in the judgment. Cir.2006). important The distinction is be I judgment concur in the majority our cause sister circuits have held that opinion because I agree questions that the restrictions a limited surrounding fact param- content and they forum are allowed content- eters Miami University’s ill-defined reasonable, neutral and while restrictions speech policy require us to reverse designated public in a forum must be ana district pursu- court’s dismissal of this case lyzed strict-scrutiny under the standard. ant to Federal Rule of Civil Procedure Id.; All, see also Justice For 410 F.3d at 12(b)(6). I separately write I because be- prior 765-66. Dicta one our own majority lieve that opinion decides opinions did delineate distinction necessary more than is or advisable in a limited forum and des between reviewing grant of University’s Miami forum, ignated public in but the decision motion to dismiss. analysis applicable volved the forum to a majority opinion yearbook

The holds that the dis- and not the areas determining trict court did not err in physical university campus. Kin- Similarly, request qualified question defendants' that Lt. Pow- immu- not reach it. granted qualified immunity too, ers be is deferred. nity, shall be addressed the district Although the was raised defen- defense court the first instance. dismiss, dants’ motion the district did hold Gibson, prudent that it believe would caid v. Cir.2001). yet na- We have to decide whether questions regarding now may open campus constitute either areas University’s speech policy ture of Miami designated forum the case and make inadvisable dismiss bears conse whether the distinction determining the sta- to refrain from forum constitutionality of quences for the areas at tus of relevant restrictions. early stage litigation before the record developed. is further clear majority is correct rejects authority the notion that weight university tra

open campuses areas on are majority slights ditional fora. The fact, however, that sister circuits our approaches to deter varying taken have kind of fora these mining exactly what Only the Fourth campus areas constitute. open Circuit has held that areas on a to a limited university campus amount forum, in which restrictions on speakers subject of “external” are class requiring standard the deferential the restrictions are content-neutral GHORBI, Petitioner, Khadi EL reasonable. Am. Civil. Liberties Un Mote, ion v. 444-445 Cir.2005). Eighth Fifth Circuits MUKASEY, Respondent. Michael B. university held that areas have No. 07-3469. fora, in designated public campuses subject restrictions on Appeals, United States Court All, For 410 F.3d scrutiny. strict Justice Sixth Circuit. Bowman, 769; Fi 444 F.3d at 976-80. June Seventh has ex nally, while the Circuit First Amendment does plained require invite plaintiff in who is the

same James Gilíes campus, a talk give case rejected analy forum Seventh Circuit approach resolving as the correct sis Blanchard, legal issue. Gilles (7th Cir.2007). 466, 473-74 Answering question whether in this case consti- campus areas at issue forum, designated tutes forum, neither, a factual involves Kel- analysis. Nathan W. legal as well ... lum, Like Duck Tradi- It Looks If Open Areas Status tional Public Forum University Campuses, 33 Has- Public (2005). tings 1., I Q. L. 35-36 Const.

Case Details

Case Name: Gilles v. Garland

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 18, 2008

Citation: 281 F. App'x 501

Docket Number: 07-3645

Court Abbreviation: 6th Cir.