Rock for Life-UMBC v. Hrabowski

KING, ers known as the Before NIEMEYER and Circuit Genocide Awareness CONRAD, JR., (the Judges, and ROBERT J. Project display”). “GAP Judge District for the Chief United States sponsor, is described Center Carolina, sitting District of North Western Reform, Bio-Ethical as by designation. traveling photo-mural a exhibit which compares contemporary genocide by opinion. unpublished Affirmed historically recognized abortion to forms in Judge opinion, CONRAD wrote genocide. university It visits campus- Judge joined. Judge which NIEMEYER the country many es around to show as concurring separate opinion KING wrote a possible students as what abortion actu- part, dissenting part, concurring in in and ally does to unborn children get and judgment. in the them to think about abortion a broad- binding are not Unpublished opinions er historical context. precedent in this circuit. at twenty-four Id. 254-55. There are CONRAD, Judge: Chief District posters, different GAP and each comes in by a six-foot thirteen-foot “standard” Life-UMBC, a registered Rock for stu- by eight-foot display four-foot “mini-GAP” organization University dent at the of Ma- size. (“UMBC”) ryland, County and Baltimore appeal

two of its former student-members At the time of Rock for Life’s initial summary judgment judg- an award of request, operated UMBC under a facilities defendants, pleadings ment on the to the policy designed use to provide recognized officials, Amend- UMBC on several First organizations student with access to aca- brought ment claims U.S.C. university proper- demic and non-academic follow, For the reasons that we 1983. ty. requests evaluated based on UMBC affirm. appropriateness,” “room and it reserved right deny any request “dependent I. upon circumstances.” Id. at 234. The public university a honors lo- UMBC is “[scheduling may also stated that Baltimore, an en- Maryland, cated move an event to a different location with- 13,000 approximately rollment of under- responsible out notice. UMBC is not graduate Rock for graduate students. any resulting costs incurred a user registered organization Life is a student change from a location.” Id. at 235. a UMBC with stated mission “to defend initially sought permission Rock for Life of the unborn and to awake display the GAP at the Univer in the consciоusness and awareness Plaza, sity facility Center located at the community catastrophic UMBC about the buildings center of several academic persons effects of abortion for all involved western campus. request side of duty stop practice.” and our moral Calizo, first sent to Lee director of student (“JA”) Appendix April Joint 17.1 In life, 24th, approval. April On Calizo request Rock for Life submitted a then-acting presi Life emailed campus to reserve non-academic space post- in order to a series of dent Alex to inform him that she Vernet clear, argument, current 1. At oral counsel for the defen- made nor is Rock for Life's of its dants informed the Court that Rock for Life is status at UMBC material to number claims, recently longer registered purposes we deci- as of no student assume for this organization operate at UMBC. Because the evidence sion that Rock for Life continues to registered organization. supporting development this factual (3)Submission rejection to or such associаted with had viewed a website is used as the conduct an individual placing “7ft tall concerned and was employment deci- for academic or in front of the Plaza basis signs 22 ft wide” to the build sions. restrict access entrance would fact, Life Rock for ing. Id. at 824. provision sub- violation of either JA A by eight- display four-foot only planned to range possible to a disci- jects a student However, it does signs.

foot “mini-GAP” measures, including suspension plinary brought for Life this appear that Rock university. from the expulsion other discrepancy to Calizo’s UMBC, Rock During meeting between during their sub official’sattention UMBC Institute,2 Life, Leadership for and the negotiations. sequent with a presented for Life UMBC Rock Rock for Life’s re spread As word police pres- a uniformed requesting letter display, the GAP UMBC “nu- quest during display to show the GAP due to ence how best to handle unprovoked physical officials discussed attacks from merous The during nature of the event. ex- pro-abortion previous controversial students” Tkacik, Further, in- plaintiffs allege Chris UMBC’s hibitions. Id. at 270. counsel, might рosition the First

house stated students Rock for Life’s display, pay “emotionally required feel harassed” Amendment UMBC security parties, measure. The right prevent such cost this and UMBC had however, agree- never reached a definite The contend this harassment. police assigned ment on whether should be alleged implicated two additional comment so, event, pay if who should for policies place. then in The to the UMBC B(2)(f) V, Paragraph Article the costs. first is former Conduct, which of the Code of Student 25th, 2007, April On Calizo informed emotional harass

prohibited “physical or display Rock for Life that the GAP would ment,” although this term was not further University at the not be allowed Center Id. at 62. The second is defined. Plaza, at the but could be held Commons prohibition against sexual harass Terrace Terrace instead. Commons ment, defined as Commons, adjacent to the patio is a area advances, requests for unwelcome sexual described as the “hub of student life favors, physi- or sexual and other verbal positioning its within the campus,” and cal conduct of a sexual nature when: “congestion point” it a be campus makes

(1) purpose Such conduct has the or campus tween residence halls and other unreasonably interfering effect Life buildings. Id. at 1356. Rock for per- an individual’s academic or work found the Terrace to be a desirable loca formance, creating intimidating, or of an agreed compromise. tion and to this How hostile, or offensive educational or work- ever, Executive Joseph Reiger, Director environment; ing or Commons, expressed soon concern (2) an inappropriate that the Terrace was also Submission such conduct He implicitly place display. either or for the GAP described explicitly made steps on the Terrace as hazardous because employment term or condition of or for (JA sight are not in a “known line.” UMBC-sponsored in a edu- participation 1356). Calizo, He further stated that like program activity; cational bringing display to Leadership non-profit or- the GAP UMBC. 2. The Institutе is ganization that assisted Rock for Life in before, display he understood the GAP to include play. responded about twelve five-foot thirteen-foot GAP display permitted only would circumstances, signs. Based on these the North Lawn. Life decided Reiger thought the Terrace an unsui not to hold the event. (1) table venue for three reasons: the GAP later filed suit signs too of a were much “visual barrier” U.S.C. of Maryland, District (2) location; alleging that UMBC had violated their space pedes leave adequate

would not expression free en through the wishing trians to access the Commons forcement of its sexual policy, harassment entrance; through the Terrace its prohibiting emotional harass area if congested would become too stu and, ment most directly, facilities use dents to “flee” from a alterca had violent Calizo, policy. Reiger, Engler Fey tion resulting display. from the Id. at Reiger were named both their further stated that his con individual and cern about violence arose because Rock official capacities, as were Freeman Hra security, letter requesting bowski, Life’s UMBC, Nancy President of his past experience the or group Young, successor to as Fey Vice President body. UMBC’s student Affairs, Lynne Schaeffer, of Student Vice President of Administration and Finance largely Reiger’s Based on recommenda- Williams, University and Antonio Chief of tion, Fey, of Charles Vice President Stu- complaint sought Police.3 The Affairs, permanent dent to the GAP decided move injunctive against relief of enforcement all display once more from Commons Ter- Lawn, policies three as well space puni race to the North an as nominal open and Commons, damages. agreed, between the tive residence halls and UMBC later how ever, library. main to partially Life members address the plaintiffs’ were informed of this decision Eric by striking claims “emotional harassment” Commons, Engler, acting of director prohibitions from the of in list its of code morning on the April of 30th as at- replacing conduct and it with to “failure tempted set GAP on up display to repetitive cease unwanted behavior direct Commons Terrace. Rock for Life then particular ed toward a individual or indi Lawn, display moved the North viduals.” JA also UMBC revised where it was police pres- held without a policy by adding specific facilities use cri ence plaintiffs and without incident. The event, teria for denying moving an but contend that footage surveillance from that the sexual harassment un policy remained day indicates the North Lawn saw less changed. After the facilities use policy Terrace, foot traffic than the and thus revised, Rock for Life made a third fewer students were able to view the GAP request October 2008 reserve display message. and its Commons Terrace for an exhibition of the granted

In re display. November Rock for Life GAP this made GAP attempt quest, second to reserve the and the was held on Commons an Terrace for exhibition of the dis- Terrace Commons without incident. Hrabowski, (4th Cir.1994) (only super 3. The district court held F.3d Schaeffer, Young, and Williams were immune visor who exhibits "deliberate indifference to liability plaintiffs failed because tacit authorization of” a subordinate’s con any personal may responsible evidence their or su be held of stitutional violations 1983). pervisory giv § involvement in the action chal state do not Stroud, ing lenge finding appeal. to this rise lawsuit. Shaw v. this News, 12(c) Independence de the Rule novo. light developments, these Charlotte, 148, 154 complaint City with- Inc. v. an amended plaintiffs filed (4th Cir.2009). injunctive reviewing relief an award drawing claims for “In their code against enforcement of UMBC’s on the we assume judgment pleadings, policy. The use conduct and facilities alleged pleadings the relevant facts five complaint alleged causes amended true, infer we all reasonable and draw expressed action under better N. Equip. therefrom.” Volvo Const. ences they chal- speech policies terms Co., Inc., Am., Inc., Equip. v. CLM (1) Due First Amendment and lenged: Cir.2004). (4th F.3d against claims UMBC’s sexual Process summary award also review an We injunctive relief policy, seeking harassment stan de novo under the same judgment monetary damages; well and as as court. See applied dard the district Amendment, Equal First Due Process Servs., Inc., 320 Canal Ins. Co. v. Distrib. against code of Protection claims Cir.2003). Summary seeking policy, facilities use conduct and plead “if the judgment granted shall be monetary damages only. materi ings, discovery and disclosure lacked stand Finding that file, any als affidavits show injunctive claims relief ing to assert genuine as to materi there is no issue against code of conduct sexual movant al and that the is entitled fact grant court policy, harassment district Fed. matter law.” judgment judgment pleadings the defen ed 56(c). a sum ruling on R.Civ.P. When Rule on claims under Federal dants those motion, a view judgment court must mary 12(c). Rock of Civil Procedure for Life- from the the evidence and inferences Hrabowski, F.Supp.2d 598 594 in the most favorable to light ‍​​‌‌‌​‌​​​​​​​​​‌‌​​​‌​‌​‌‌​‌‌​‌​‌​​‌‌‌‌​​‌​‌​​​‍evidence ”). (D.Md.2009) (hereafter I “Rock for Life Liberty Anderson v. nonmoving party. filed cross- discovery, parties After Inc., 242, 255, 477 106 S.Ct. Lobby, U.S. summary judgment motions for “ (1986). 2505, 91 L.Ed.2d 202 ‘Where remaining plaintiffs’ claims. district as a could not lead record taken whole defendants, judgment to the court awarded find the non- rational trier fact to for finding plaintiffs’ challenge facial genuine is no issue moving party, there policy to the former facilities use ” — U.S. -, DeStefano, Ricci v. trial.’ moot, applied had been and 2658, 2677, 174 490 129 L.Ed.2d S.Ct. as a regard without content reasonable (2009) Ra (quoting v. Zenith Matsushita time, place, regulation of their manner 574, 587, 106 S.Ct. Corp., dio 475 U.S. speech. Rock Hrabow Life-UMBC (1986)). 1348, L.Ed.2d 89 538 (D.Md.2009) (here ski, F.Supp.2d 643 729 ”). II after “Rock claims 1983 Because Life must estab- damages, they seek to recover plaintiffs timely appealed the dis- only deprived lish not that the defendants granting judgment orders trict court’s right, but also them of constitutional summary judgment pleadings defendants, in their actors state sued only. claims We their First Amendment capacities, undeserving are individual 28 jurisdiction pursuant have U.S.C. Fitz- qualified immunity. See Harlow v. § 1291. 800, 808-09, 102 S.Ct. gerald, 457 U.S. II. (1982). 2727, 73 396 Whether L.Ed.2d quali- government deserving official We review a district court’s decision immunity personal liability is a pleadings fied grant judgment

547 requires us to means that “the two-pronged inquiry injury must affect the (1) whether the officialviolated determine: plaintiff personal in a way.” and individual if right; a constitutional so wheth addition, Id. at 560 n. 2130. In S.Ct. “clearly er the at established” “there must be a causal connection be Katz, the time of its violation. Saucier v. injury tween the and the conduct com 194, 201, 533 U.S. S.Ct. plained of....” Id. 112 S.Ct. 2130. (2001). Recently L.Ed.2d the Su Stated differently, injury must be overruled preme part Court Saucier “fairly traceable” to action the defen two-step inquiry hold that the traditional Finally, dant. Id. “it likely, must be mandatory; into opposed to merely speculative, that ap “the district courts and the courts of injury will be redressed a favorable peals permitted should be to exercise their (inter 561, 112 decision.” Id. at in deciding sound discretion which of the omitted). quotation nal marks qualified immunity anal prongs two A regulation that burdens cre ysis light should be addressed first a justiciable injury ates if on its face it particular the circumstances in the case at expressive activity by restricts the class to Callahan, hand.” Pearson v. plaintiff which the if belongs, pres 808, 813, 818, 172 L.Ed.2d 565 ence otherwise chill plaintiffs tends to (2009). case, In this the district court exercise of First rights. Amendment N.C. and, step inquiry addressed one Bartlett, Right Life, Inc. v. concluding after that the failed to (4th Cir.1999). However, fears of of a present sufficient evidence constitu violation, unnecessary “imaginary” tional found it to enforcement are step two. address “wholly speculative” are insufficient to con fer standing. Babbitt v. United Farm

III. Union, Nat’l Workers U.S. begin We with the district court’s 60 L.Ed.2d 895 To standing conclusion that the lack plaintiffs standing establish a under Arti challenge to sexual UMBC’s harassment III, cle challenged regulation must policy of “[Standing and code conduct. present a threat of enforcement credible jurisprudence two strands: Arti contains against the party bringing suit. N.C. standing, cle III which enforces the Con Bartlett, Right Life, to Inc. v. 168 F.3d case-or-controversy requirement stitution’s (4th Cir.1999). 705, plaintiff 710 A must prudential ... and standing, which embod a threat respect establish such judicially self-imposed ies limits on the ex provisions challenge, each of the seeks jurisdiction.” ercise of federal Elk Grove standing regarding aspect as one of a poli Newdow, 1, v. Sch. Dist. 542 U.S. Unified cy bootstrapped standing cannot be into 2301, (2004). 11, 124 159 98 S.Ct. L.Ed.2d S.C., to the rest. See Media Covenant of standing requires plaintiff Article III Charleston, City LLC v. N. 493 F.3d of (1) (2) injury-in-fact; show: a causal con (4th Cir.2007). 421, 429-30 or traceability; nection and redressabil ity. Lujan Wildlife, v. 504 Defenders of A. 555, 560-61, 2130, 112 U.S. S.Ct. 119 plaintiffs argue standing The that their injury-in-fact L.Ed.2d 351 cri challenge UMBC’s sexual harassment contemplates alleged injury- teria that the policy is rooted its unconstitutional over- in-fact is both “concrete particularized and However, 560, while the overbreadth actual or 112 breadth. imminent.” Id. at “particularized” permits plaintiff “challenge 2130. The term doctrine 548 Burke, 2; n. accord III.” 139 F.3d 405 it also threatens on its face because

statute court[,]” California, Bd. Air v. 304 F.3d others not before Canatella State Jesus, (Broadnck Inc., (9th Cir.2002) 482 843, v. port Comm’rs Jews 854 & n. 14 574, 2568, 569, 96 L.Ed.2d III, 107 S.Ct. U.S. Article but not prudential, relaxes (1987); v. accord Broadrick Okla 500 requirements). standing homa, 601, 612, 93 37 alleged the facts in the Upon review of (1973), it not circumvent L.Ed.2d 830 does complaint, nothing sug- plaintiffs’ amended plaintiff suffer an requirement plaintiffs face a credible gests that injury from the existence of individual disciplinary action threat with. provision begin Burke contested policy. harassment As sexual Charleston, n. 139 F.3d City v. noted, aspect no the district court (4th Cir.1998); Torgersen, Gilles readily applicable to the display Cir.1995) (citing Sec’y harassment,” definition of “sexual policy’s Co., Inc., 467 Joseph Md. v. H. Munson “unwelcome sexual ad- which is limited to L.Ed.2d U.S. vances, favors, requests for sexual (1984)). To demonstrate a credible physical verbal or conduct of a sexu- other policy is threat that a sexual harassment Although the GAP al nature....” future, a likely to be enforced in the histo convey a related to abor- message seeks to actual enforcement of ry of threatened or tion, necessarily upon which touches issues plaintiff or other policy against reproduction, this gender related to will often similarly-situated parties suffice. of a type speech simply not “conduct Candaele, Lopez v. policy. nature” covered sexual (9th Cir.2010); Regents, Booher v. Bd. of Moreover, allege do not faсts 2:96cv135, 1998 Dist. LEXIS No. U.S. officials ever suggesting 21, 1998); (E.D.Ky. July at *19-20 punish threatened to their as sexu- F.Supp. Michigan, Doe v. Univ. of expressed al harassment. Even if Tkacik (E.D.Mich.1989). 852, 859-60 concern, complaint alleges, as the amended cite the recent Third Cir ha- “emotionally that students would feel McCauley University cuit decision demonstration, by the GAP he did rassed” (3d Islands, Virgin 618 F.3d 232 Cir. express concern that students would 2010), proposition for the Broadrick harassed, sexually nor is there feel standing confer to chal progeny and its disciplinary enforcement suggestion lenge speech regulations absent evidence of the sexual harassment was dis- chilling particular speak of a effect to the any point. point, cussed at More to the er before the court. See id. at 238-39 Life has now shown the GAP Rock for (holding plaintiff standing that a had to display campus twice and has not faced challenge university’s sexual harassment disciplinary threatened or actual action for the fact that he failed to policy despite Although plain- the sexual harassment. ... сhilled speech assert that “his chilling speech, claim a effect to their tiffs Code.”). Broadrick, however, the cannot argument at to they were unable oral broadly. be read so While the over- any expressive activity name form of that prudential doctrine limita breadth relaxes for Life or its members wish to normally that standing tions on would in, but refrain from fear of engage the prevent plaintiff vindicating from violating poli- sexual harassment UMBC’s it rights speakers, of other hold, therefore, cy. plaintiffs that the We dispense “obligation] does not with the as a credible threat of have not demonstrated allege an initial matter to distinct injury by Article enforcement under UMBC’s sexual harass- palpable required standing case, policy ment and are without to In this UMBC never undertook challenge constitutionality. its investigate “concrete act” to or sanction plaintiffs

the for violation of the code of B. conduct. Id. at 610. plain Nor can the tiffs characterize the defendants’ decision alleged Tkacik’s had rel- comment more to move the GAP the display to North conduct, evance to which UMBC’s code a non-disciplinary Lawn as prohibited until enforcement of “emotional harassment” phrase that was excised the code the If code. the defendants considered the the during litigation. course of this As harassment, to be emotional it then result, plaintiffs concede ‍​​‌‌‌​‌​​​​​​​​​‌‌​​​‌​‌​‌‌​‌‌​‌​‌​​‌‌‌‌​​‌​‌​​​‍that the code equally so on either the North Lawn unconstitutionally of conduct is no longer Commons Terrace. Any subjective Nevertheless, vague overbroad. fear of disciplinary measures plaintiffs standing assert to sue for mone- plaintiffs might have felt never material tary damages theory that Tkacik’s actual, ized an objective into harm. isNor phrase mention of the them chill caused to there a credible threat of enforcement speech. their own future, as the policy sexual harassment recognized

We have that an actual chill has been revised so prohibits now protected ing is a discrete in specific the plaintiffs conduct have never fringement rights of First Amendment sought in. engage to mere gives rise a claim under effect, allegations of a chilling absent damages. nominal Reyes least UMBC, substantiating action taken City Lynchburg, 300 F.3d cannot establish their to chal standing Cir.2002). However, plaintiffs may lenge constitutionality of a now-defunct for damages against assert claims a speech speech regulation. policy that actually applied was never them. order to standing establish their IV. conduct, to challenge code of injury- must first demonstrate an Unlike poli UMBC’s sexual harassment through application pro in-fact of that cy conduct, actually and its code of S.C., vision. Covenant Media LLC v. applied regulate its facilities use Charleston, City North such, plaintiffs’ speech. As have (4th Cir.2007) FW/PBS, (citing 429-30 Inc. standing challenge constitutionality. its Dallas, v. City U.S. challenge assert a facial (1990)). L.Ed.2d 603 While policy, alleging “dependent the plaintiffs claim that the code of con upon circumstances” and “move without duct caused them to own speech, chill their “narrow, notice” provisions failed create “Allegations subjective of a ‘chill’ are objective, and to guide definite standards adequate an spe substitute for a claim of ” licensing authority,” v. City Green objective cific harm.... Laird Cir.2008) 293, (4th Raleigh, 523 F.3d 300 Tatum, 1, 13-14, 2318, 408 U.S. 92 S.Ct. 33 (quoting Forsyth Cnty. v. Nationalist (1972). L.Ed.2d 154 purposes “[F]or Movement, U.S. 112 505 S.Ct. standing, subjective requires chill some 2395, (1992)), 120 L.Ed.2d 101 as well as specific action on part the of the defendant challenge an to the as-applied defendants’ litigant order for the to demonstrate an decision to remove the GAP from injury-in-fact.” Morrison v. Board of (6th Cir.2008). Educ., 602, 521 F.3d 609 Terrace. Commons 550 453 for this court.” Id. at controversy

A. omitted). (footnote reached result We this Ter Citing our Valero decision challenge premised on because a facial (4th 211 112 Paige, F.3d Corp. restrial necessarily is forward-think- overbreadth Cir.2000), that the the district court held an ing: petitions it the court to invalidate to the facilities plaintiffs’ challenge facial it has speech regulation because overbroad perma light moot in of its policy use was “a рotential support substantial revisions, concede plaintiffs which the nent ” applications.... impermissible number of facially the policy are sufficient render Ferber, 747, 771, 102 New 458 U.S. York II, constitutional. Rock for Life-UMBC 3348, 73 L.Ed.2d 1113 When Valero, F.Supp.2d at 740-41. 643 regulation subse- facially a overbroad is plain mootness of a which addressed the quently narrowed within en injunctive against relief tiffs claim for boundaries, the inherent threat of content- regulatory stat of several state forcement null. based becomes discrimination utes, “statutory changes that we held ‘usu challenged practice are discontinue Here, allege former plaintiffs moot, case even if ally to render a enough facially policy facilities use was unconstitu to re possesses power the legislature delegated tional “unbridled dis because dis enact after the lawsuit is the statute deny re grant cretion” to UMBC ” (quoting 211 at 116 Native missed.’ F.3d This, too, Br. is a quests. App. at 55. Blatchford, Village Noatak v. premised on challenge facial overbreadth. Cir.1994)). 1505, (9th Valero, howev Forsyth, See 505 U.S. er, claim inapposite brought to a (“[T]he permitted party has Court com damages recover —either an ordinance under the over- challenge pensatory resulting every ap nominal — where breadth doctrine cases con prior speech. In this suppression of an risk of plication impermissible creates text, that even permanent have held we ideas, suppression of such as an ordinance the claim. remedial measures will moot overly broad discretion delegates Media, 429 n. 493 F.3d at Covenant decisionmaker[.]”). injury alleged (citing Henson v. Honor Comm. plaintiffs that Rock for Life’s Va., 72 n. 5 Univ. actually request was denied based on Cir.1983)); Reyes, 300 F.3d at 453. But speech, content of its attacks “[f]acial while the cause action granted discretion decisionmaker live, damages remains their claim that the facts dependent are not surround facially policy was unconstitutional is moot. permit Id. at ing any particular decision.” (citing 133 n. Lakewood Reyes, We addressed a similar issue in Cо., Publishing v. Plain Dealer where to recover nominal plaintiff sought 770, 108 S.Ct. 100 L.Ed.2d 771 charged damages being violating after (1988)). Rather, it is an assertion ordinance, parade a subsequently repealed policy the facilities use things ordi- arguing among other that the granted such broad discretion facially nance F.3d at overbroad. 300 chilling on all potential it created a effect found the overbreadth We including protected expression campus, challenge to ordinance mooted If Id. at their own. S.Ct. 2395. pa- repeal, observing repealed that “the overbroad, now, did, facially indeed rade ordinance cannot if it ever revisions cured this constitutionally pro- permanent reach amount of any threat content- question tected over- defect and removed conduct. The jus- in the future. The breadth does live case or based enforcement sciousness, Inc., 640, 647, ticiable issue remains before us is not 452 U.S. permit

whether Rock Life’s was denied 69 L.Ed.2d 298 Howev pursuant policy gave to a facilities use er, plaintiffs contend that whether the discretion, i.e., unduly poli- broad policy facilities use applied a con cy applied that could have been unconstitu- tent-neutral manner is a question of fact tionally, impermissible but whether con- jury. for the agree, although We tent-based discrimination did in fact occur. question is a much narrower one than the the facilities policy longer Because use no plaintiffs suggest. poses an inherent threat of content-based The defendants’ stated reasons for

discrimination, facial chal- moving the GAP display because of its lenge policy to the is moot notwithstanding shape size and are content-neutral criteria recovery the fact that it seeks the of dam- time, place restrictions, and manner ages injunctive rather than relief. Durham, see Am. Legion City B. (4th Cir.2001) (“Size ... criterion.”), to the not a content Turning plaintiffs’ as-applied plaintiffs chal and the lenge, correctly the district court deter fail to demonstrate sufficient evidence that mined that the facilities policy regulat use these stated prеtext. reasons were forum, public ed access to a limited and an defendants shape believed the size and “internal applied standard” because the signs would have created visual bar designed provide access to obscuring steps rier and slopes on the recognized organizations such as Terrace, Commons which charac Calizo II, Rock for Life. Rock for Life-UMBC “oddly shaped terized as an area.” JA F.Supp.2d at 744-45. Under this stan They developed this concern after dard, regulations content-neutral speech their own internet research about permissible are if they are “limited to ‘rea project led them to believe time, place, sonable restrictions on or man planned for Life ap row of [,] ... provided ner ... restrictions proximately twelve six-foot thirteen- narrowly significant are tailored to serve a fact, signs. foot GAP Rock for Life’s government interest, and ... leave open display only eight included four-foot ample alternative channels for communicа eight-foot signs, “mini-GAP” which could ” tion of the information.’ Warren v. Fair- arranged any shape to accommodate (4th Cir.1999) Cnty., 196 F.3d fax However, space floor limitations. whether (en banc) (quoting Against Ward Rock defendants’ decision was motivated Racism, the content display depends of the GAP (1989)). 105 L.Ed.2d A narrowly tai circumstances as defendants regulation speech lored “need not be the be, they actually believed them to not as least restrictive or least intrusive means were. The exchanged emails between the effectuating government’s of’ inter parties should have alerted the ests, Ward, 798, 109 491 U.S. at to this mistake and the defendants’ result may but it not “burden substantially more ing visibility safety. concerns for necessary than is to further [those] plaintiffs never attempted to correct this ... interests.” Id. at 109 S.Ct. 2746. misunderstanding during challenged sure, To be “the First Amendment does policy, enforcement of the facilities use guarantee to communicate nor have the otherwise shown one’s views at all places times and may that the defendants arrived at their con manner be desired.” Hef v. Int’l Society signs Krishna Con- clusions about the GAP in bad faith. fron 552 their con display GAP because ‍​​‌‌‌​‌​​​​​​​​​‌‌​​​‌​‌​‌‌​‌‌​‌​‌​​‌‌‌‌​​‌​‌​​​‍moving the suf- presented have

Although were first crowd violence were about that the defendants cerns evidence ficient signs, the GAP the size of by plaintiffs. about mistaken raised Life-UMBC the issue relevant to II, evidence How F.Supp.2d this is not at 746-47. 643 mo- their decision was issue, whether before us: ever, raises the of who regardless plaintiffs’ of the by the content tivated a speech is not reaction to “[listeners’ presen- manner of than its speech rather For regulation.” basis content-neutral tation. It 112 is at syth, 505 U.S. to characterize impossible if not that the de difficult suggest also in providing concerns interest logistical heightened fendants’ above-stated discrimina for content-based Terrace pretext are from the Commons escape routes other events numerous tion because See Ova but content-based. anything permitted concerns were posed similar Madison, 416 F.3d 537 City dal v. Terrace. We note the Commоns Cir.2005) (a (7th restriction content-based public fo designated limited or a “[o]nce likely “every proffered when speech can not government rum is established “directly for the restriction is justification” character to of a similar exclude entities audience). to the reactions” related Mote, generally allowed.” ACLU those safety is a public interest While an Cir.2005). From F.3d 443 423 regulate speech, to content-neutral basis of events with a number 2003 Alexandria, 710 Davenport City see have been held on varying attendance (4th Cir.1983) (en banc), 148, 151 But normal school hours.4 during Terrace a arising prediction from safety concerns events, to in none were shown of these speech react might listeners of how signs similar to those UMBC large clude effectively de-coupled from cannot be Thus, there dealing it with. believed was district Although, as the speech content. distinguish basis to is a content-neutral noted, “should not be court the defendants display. other events from the GAP these taking seriously the concerns faulted for by the presented A differеnt matter by plaintiffs],” Rock raised [the for Life- they moved stated reason defendants’ II, those F.Supp.2d UMBC adequate space display provide the GAP content of the arose from the concerns of a violent to flee in event for students message. by concern was raised altercation. This light in a most Viewing the evidence request from Rock response appears plaintiffs, favorable to the at the police presence provide for Life to con- by were motivated both defendants unpro- to “numerous display, due reasons and content-neutral tent-based exhi- during prior attacks” physical voked Rock for Life access when denied campuses. The district bitions at other Terrace. A content-based the Commons had determined that defendants court withstands constitu- by restriction to a “heckler’s veto” acquiesced p.m., by peo- p.m. to 2:00 attended held 12:00 include a free concert 4. These events sailing by club from by ple; erected p.m., p.m. to 2:00 attended from 1:00 p.m.; a “Teeter Totter-a- from 10:00 a.m. 3:00 people; prayer service held an outdoor hours, fundraising held for by people; thon” event p.m., attended p.m. to 1:45 1:00 by participants; and an environ- held from 11:00 attended involvement festival a student 1,500 p.m., p.m. to 10:00 people; mental fair held from 2:00 p.m., 2:00 attended a.m. to featuring people an elec- to 3:00 attended study fair held from 10:00 a.m. abroad entrance of the placed at the South people; "Bealtaine tric car p.m., attended festival) (a JA 1673-90. Terrace. Barbeque” pagan held Gaelic

553 scrutiny only narrowly preponderance tional when tailored show a of the evidence necessary to a compelling serve state that it would the have taken same action Educ. interest. Arkansas Television other, reasons); constitutionally proper, Forbes, 666, 677, Comm’n v. 523 U.S. 118 Ferrero, see also v. F.Supp.2d Daker 506 (1998). 1633, S.Ct. 140 L.Ed.2d 875 Even (N.D.Ga.2007) 1295, 1309 (applying Mt. the were we find in pro to UMBC’s interest Healthy “proximate cause” framework a tecting safety compel the of its students prisoner’s First сlaim sup Amendment ling, a acquiescence to veto would heckler’s pression of speech). scrutiny, still fail under strict for the de Because the have demonstrat- employ fendants must the least restrictive ed a triable issue of fact on their as- means available further interest. applied to the challenge poli- facilities use Playboy United States Entertainment cy, we hold that the district court erred Inc., 803, 813, Group, 529 120 U.S. S.Ct. awarding summary judgment to defen- 1878, (2000). a Providing 146 L.Ed.2d 865 dants at the prong first of the Saucier test security presence at Commons Terrace for qualified immunity. would have been a less restrictive means safety. This ensuring espe V. cially in light true of the fact that defendants decided to move the event be Although the district court erred fore the GAP display up, was even set regard, this may we affirm nevertheless permitting opportunity them no to make summary if judgment we determine as a actually an assessment of how students matter law that fail to reacted the plaintiffs’ speech. The de demonstrate a violation aof fendants could not have been certain that right clearly was established. This is any real threat of violence existed. Given ” “purely question.... a legal Siegert that Rock for Life has now held Gilley, 1789, 500 111 U.S. S.Ct. incident, campus twice on without 114 L.Ed.2d 277 It requires the likely it most did not. to identify specific right alleged court “the Although Rock for Life permitted violated,” ly then if decide “at the time the GAP display on the North alleged right of the violation the was clear Lawn, message where its was heard ly Alford, established.” Pritchett v. walking campus, students across “[a] tax Cir.1992). (4th “The rele based speech content of does vant, dispositive inquiry determining become more constitutional because it is right clearly whether a established is Forsyth, small tax.” at U.S. whether would be clear to a reasonable The plaintiffs have therefore officer that his conduct was unlawful demonstrated violation of their First Saucier, situation he confronted.” rights Amendment unless the defendants at U.S. 121 S.Ct. 2151. “To deter show, by preponderance could of evi right clearly mine whether a federal dence, that аbsent concerns violence established at the time defendants’ still would have moved the GAP dis conduct, alleged we focus not upon play shape. because of its size and level, general at its most or abstract Healthy Mt. City School v. Doyle, Dist. but at the application level 274, 50 L.Ed.2d (a specific being challenged.” conduct Jack First Amendment violation Long, son v. Cir. must be “motivating factor” behind (internal 1996) omitted). action; quotation challenged state marks no constitutional violation if the government occurs can We are advised resolve issue content-based restriction possible at “earliest Pearson, 129

stage” litigation. they anticipated hostile because 815. listeners, from we exercise our reaction Pearson to examine discretion under may the we plaintiffs argue

The that whether this violated a constitutional immunity qualified of the issue address was, time, of that at of con material issues fact remain while clearly conduct or their established. cerning the defendants’ “summary Generally speaking, intent. persis one the most “Historically, immunity grounds judgment qualified is to tent and threats first amend insidious long as as there remains improper rights posed by ment has been that ac dispute regarding material factual veto,’ imposed by ‘heckler’s the successful of the defendants.” Buono tual conduct importuning to curtail ‘of government (4th Harris, 347, v. core 65 F.3d 359-60 speech peril suffering at dis fensive’ Cir.1995) Pritchett, (citing 973 F.2d at v. ruptions public Berger Bat order.” 313). Jackson, however, recognized In we (4th Cir.1985). 992, taglia, 779 F.2d ... dis resolution factual “[i]f recognized have a heckler’s veto Courts pute is immaterial to whether impermissible as an form of content- afforded,” may ques to be we address the speech regulation sixty for over based qualified immunity fact tion while issues v. years. City See Terminiello Chica 102 F.3d at 727. outstanding. remain 93 L.Ed. go, 337 U.S. Here, only of fact relevant to issue (1949). Repeatedly, courts have em plaintiffs’ as-applied challenge phasized responsibility per the state’s summary judgment would survive mit unpopular or controversial whether the defendants’ violence-related the midst of a hostile crowd reaction. safety proximate concerns were the cause See, Ovadal, 537; 416 F.3d at Smith e.g., dis- of their decision to remove GAP Ross, Cir.1973); play from Commons Terrace. While Abramson, F.Supp. this is fact issue relevant to whether the Grider deprivation have suffered a (W.D.Ky.1998), Cheryl cited A. 845-46 rights, it is one their First Amendment Leanza, Law Heckler’s Veto Case may that we resolve in their favor for Discourse, 35 Resource Democratic for determining the de- purposes of whether n. 49 Hofstra L.Rev. immuni- fendants are entitled abstract, least, impermissi In at maintain that ty. defendants bility clearly of a heckler’s veto is estab potential became concerned about the for jurispru First Amendment lished presented for violence after Rock Life dence. security asking letter however, is not meant inquiry, Our describing violent encounters on other “Put performed simply, in the abstract. campuses. have not shown Purnell, Henry v. context matters.” exaggerated this concern otherwise (4th Cir.2010). then, 337-38 As sincerely Assuming, held.5 stated, impermissible Supreme the defendants made an United States Court has court, briefing security рresence display. at the GAP submitted the district However, plaintiffs suggested that the defendants’ agreed pay Id. whether UMBC concern of violence was not "real.” Doc. No. security separate question is a plaintiffs supported at 60-1 37. The this con- safety. concerns for whether had by showing pay tention UMBC refused “clearly if the test of established law” The proposed location for the display, applied were to be gener this level of Terrace, posed Commons in the defen- ality, it would bear no relationship to the dants’ minds an additional safety hazard in “objective legal reasonableness” that is the event of crowd plain- violence. The the touchstone of Harlow. Plaintiffs apparent tiffs’ expectation that such vio- would be able to convert the rule of lence would occur must have left the de- qualified immunity that our cases plainly uniquely fendants on edge. establish into a virtually rule of unquali liability fied simply by alleging hindsight, we think the violation defendants extremely rights. abstract Harlow required by were the First Amendmеnt to would be transformed from a guarantee address these additional safety concerns of immunity into a rule of pleading. providing security presence at the sum, approach, Such an in destroy would display, GAP or watching the event closely “the balance that our cases strike be to determine whether security truly tween the interests in vindication of citi However, necessary. concern “[t]he zens’ rights public constitutional and in immunity inquiry is to acknowledge that performance officials’ effective of their reasonable mistakes can be made as to the duties,” by making it impossible for offi legal particular constraints on [govern cials “reasonably anticipate [to] when Saucier, 205, conduct.” ment] 533 U.S. at their conduct may give rise to liability Qualified S.Ct. 2151. immunity pro damages.” tects “all but plainly incompetent 635, 639, v. Creighton, Anderson 483 U.S. knowingly those who violate the law.” 3034, (1987) 107 S.Ct. 97 L.Ed.2d 523 Malley 335, 341, v. Briggs, 475 U.S. Scherer, (quoting 183, Davis v. 468 U.S. 1092, (1986). S.Ct. 89 L.Ed.2d 271 If the 195, (1984)). 104 S.Ct. 82 L.Ed.2d 139 defendants secured campus safety at too inquiry Our into whether the defendants high a plaintiffs’ cost to the right to free clearly violаted a established right of the expression, we do not believe should plaintiffs’ ‍​​‌‌‌​‌​​​​​​​​​‌‌​​​‌​‌​‌‌​‌‌​‌​‌​​‌‌‌‌​​‌​‌​​​‍not to be silenced a heckler’s pay made to for this mistake from their veto must account for the fact that it was pockets. own who issued a warning of crowd violence to the defendants in the place.

first Although does not render VI. permissible defendants’ conduct Amendment, the First the letter bears In summary, we conclude that all claims upon context and the circumstances as the except plaintiffs’ as-applied challenge perceived defendants them. UMBC’s facilities use were prop- plaintiffs’ letter warned that erly dismissed on standing or mootness had encountered “numerous grounds. Although the district court unprovoked physical proabor attacks from erred holding that the failed tion students on the first few campuses it to demonstrate a triable issue of fact ” .... visited JA 270. Public universities whether regulated the defendants their are taxed with a dual responsibility to content, speech based on its the defen- permit expression freе of ideas on dants are nevertheless entitled to campus providing while for the safety and immunity from 42 U.S.C. 1983 claims students, security of their see S.U.N.Y. brought against them in their individual Fox, 109 S.Ct. 106 capacities. (1989), L.Ed.2d 388 plaintiffs’ and the se

curity put concerns these interests odds. AFFIRMED. of assessment. See 555 proper order

KING, concurring in Judge, Circuit 808, 813, 818, concurring dissenting part, part, U.S. judgment: L.Ed.2d my concur separately I to confirm write large measure Pearson rule was for—most rence in—and admiration recognition that on the Court’s predicated opin majority well-crafted Judge Conrad’s two-step protocol to Saucier’s “[a]dherence IV.B and ion, exceptions Parts rule of constitu- general from the departs majority with the Although fully agree I V. (citing, at 821 avoidance.” tional quali are entitled that the defendants TVA, alia, inter Ashwander U.S. as-applied fied 80 L.Ed. 688 policy on facilities challenge to UMBC’s (“The J., (Brandéis, will concurring) Court use, solely I would resolve that issue question pass upon More of the Saucier test. prong the first record, presented by the although properly I rule that the defen specifically, would ground some other if there is also qualified entitled to dants are disposed may which the case be upon constitutional violation has because no of.”)). rule, however, also The Pearson I as to shown. therefore dissent been to another substantial and valid responded which majority opinion, the IV.B of Part from Saucier’s manda- concern that arose (the prong of addresses the first Saucier a protocol defendant tory sequence —that have no prong), constitutional violation on the suffer an adverse decision could prong the second of Sauci reason to reach prevail on prong, violation constitutional (the clearly prong) established ad er (and thus clearly prong the established majority opinion. in Part V of the dressed judgment), yet a favorable but

secure I. review appellate to seek and secure unable rul- adverse constitutional violation Supreme the The test formulated ing. a two- Id. at 820. required in v. Katz Court Saucier of a pronged of battle” assessment “order immunity claim. A. 150 L.Ed.2d case, ruling on majority’s In this the in rendered After Saucier was prong first constitutional Saucier’s —the obliged court was reviewing a in Part question addressed violation prongs sequence, asking two assess the Before elabo- patently IV.B—is incorrect. sufficiently had plaintiff first whether the however, emphasize I rating, must If violation. established constitutional flaw in the address a more fundamental prong the the court’s answer on first was majority’s appeal. resolution of this Put “no,” proceed to or ad then it could ruling on Saucier’s simply, majority’s the prong. the But if the answer dress second unnecessary dicta prong first constitutes “yes,” obliged the court then was question, contravening on a constitutional whether the violation was of clear decide In- spelled out in Pearson. principles the ly right. established constitutional deed, majority recognizes in Part V of the Callahan, however, Pearson (under prong) Saucier’s second opinion Supreme unanimously recedеd Court right it identifies in that the constitutional battle,” mandatory “order of de Saucier's clearly established. Un- Part IV.B is longer no

ciding reviewing that a court was rule, therefore, major- der the Pearson prongs the two required to address have addressed the merits ity should not analysis sequence, but could Saucier (under the constitutional violation issue to decide exercise its “sound discretion” prong) good Saucier’s first absent some without an to seek opportunity appellate or reason, review, compelling “pro- such as a need defy certiorari views development of constitutional court, motet] lower adhere to practices that have view, precedent.” my at 818. In been declared illegal, and thus invite new good no such compelling need other potential punitive suits and damages.” Id. Thus, proper reason is here. added). 820 (emphasis course majority simply as B.

sume constitutional violation had occurred, proceed and then address majority’s Part IV.B assessment of “clearly Saucier, prong established” question constitutional violation is not granting qualified immunity summary Pearson, only “advisory dictum,” see judgment ruling. basis its Part V (as noted) S.Ct. at but also previously does, however, In proceeding as it patently Simply put, incorrect. the relevant majority departed has from the post-Pear violation, fail facts to show a constitutional practice. son settled See Walker v. Prince I and would therefore resolve this case on George’s Cnty., 575 F.3d Cir. prong only. Saucier’s first Unlike ma 2009) J.) (O’Connor, (“Here, we think it is jority’s approach, such resolution would plain ... constitutional [the] “procedural not result in the tangle” creat not clearly established. We thus decline Saucier, ed where expenditure invest substantial ruling violation from review” “insulate[d] judicial by scarce resources engaging by the determination that the asserted essentially the academic exercise deter right constitutional not clearly estab all.”).1 mining whether that exists at Pearson, lished. See 129 S.Ct. at n. 2. worse, To make majority’s matters the the Turning majority’s merits unwarranted сonstitutional discussion in ruling issue, on the constitutional violation Part will deny any meaning IV.B UMBC six on plaintiffs rely the words which these opportunity appellate ful seek secure are much too thin a supporting reed for review of the adverse constitutional viola as-applied their First Amendment chal tion ruling by made majority. the As the Indeed, lenge. challenge hinges on a Pearson, Supreme explained in Court single in an Google Desktop line electronic “procedural tangle” created the Saucier notice, Tkacik, reminding in- Mr. UMBC’s rule re “ar[ises] the Court’s settled counsel, house of meeting scheduled with fusal to appeal by entertain an on party Vernet, president Mr. the student of Rock below, an prevailed issue toas which he Life, April 27, for 2007. on That line practice that insulates from review adverse contains these only six words: “re: contro merits decisions that inside fa are locked exhibit; versial Rock for Life.” 1622. J.A. rulings.” vorable reject I the view provide that these words Pearson, 129 S.Ct. at n. 2. As Justice support sufficient for a First Amendment Alito explained for the Pearson unanimous violation. Court, [here, ‘prevailing’ “the defendant correctly recog- faces an As the district UMBC] unenviable choice: com court dictum, nized, ply with lower advisory court’s “reference to exhibit contro- Dep’t [plaintiffs'] rights pri- rel. ... Doe ex Johnson S.C. Soc. dress Cf. Servs., (4th Cir.2010) 169-70 addressing any rights or to whether such (“Because clarify we believe this case will and clearly were established the time upon prior jurisprudence elaborate our im- alleged wrongdoing.”) portant necessary ways, we will first ad- (1) the First violate Amendment alerting letter choice: arose from Plaintiffs’ versial group’s securi addressing nature of to the controversial Defendants concerns; security.” ty for chance and the need lose Hrabowski, Rock summary judgment by ad prevailing on Life-UMBC (D.Md.2009). The let F.Supp.2d By preventing an dressing such concerns. first Motz referred was Judge ter which prevailing on institution from educational delivered majority’s rule summary judgment, 19, 2007, April department on police principle on tramples the settled Tkacik in advance of was faxed Mr. re qualified immunity should be issue letter April meeting.2 possible stage “at the earliest solved that, Center for “because [the asserted Pearson, 129 S.Ct. at 815. litigation.” Reform, one of Rock Life’s Bio-Ethical inappropriately impinges This result also nu ‘supporting organizations’] suffered in educational institution’s manifest on an physical attacks from unprovoked merous security in the terest of its students. first few cam on the pro-abortion students James, Healy v. visited, transports] now puses [it] (1972) (“[A] college 33 L.Ed.2d crowd-control barri employ[s][its] own dis legitimate preventing interest has I simply, 821. Put whole cades.” J.A. campus.”). ruption that the heartedly agree Judge Motz faulted for tak “Defendants should II. by Plain ing seriously the concerns raised Life-UMBC, foregoing, agree tiffs.” I Consistent with at 746-47. F.Supp.2d that we award majority with the should qualified immunity to the defendants the fact that By dismissing as irrelevant challenge as-applied First Amendment plaintiffs who first raised the it was the use, I facilities but issue, majority has also creat- security get by a different route— would there heckler’s something ed akin to “reverse namely, by concluding that a First Amend- ruling, Part V an edu- veto.” Under Be- has not been shown. ment violation cational institution has no choice but violation, there no cause security group’s con- address rely solely prong I concerns, would Saucier’s first in addressing cerns.3 But those award to the de- Part the institution ruling under the IV.B in a basis. being engaging risks seen as content- fendants inevitably creat- based restriction — the institution

ing jury question when rea-

asserts an alternative content-neutral insti-

son for its conduct. educational faced thereby

tution is with Hobson’s regard, recognizes only police department on either majority 2. to Tkacik In this April April id. at 1457. given to Tkacilc at the see that the letter was Mr. meeting. April at 6. There See ante is, however, story. Although majority opinion, Tka more to Part V of Pursuant may provided cik with an addition have been in this Circuit an educational institution ‍​​‌‌‌​‌​​​​​​​​​‌‌​​​‌​‌​‌‌​‌‌​‌​‌​​‌‌‌‌​​‌​‌​​​‍meeting, copy April "required by al letter at the First Amendment now safety he the record received the letter additional concerns reflects address th[e] watching pro security presence ... Specifically, providing letter was beforehand. closely police department on event to determine whether securi- vided to the UMBC necessary.” truly at 34. April ty Ante [is] see J.A. and was faxed

Case Details

Case Name: Rock for Life-UMBC v. Hrabowski

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 16, 2010

Citation: 411 F. App'x 541

Docket Number: 09-1892

Court Abbreviation: 4th Cir.