*3 GARWOOD, Before DAVIS and recognizes that speech freedom of DENNIS, Judges. Circuit assembly are basic and essential to both intellectual and social development. DAVIS, W. EUGENE Judge: Circuit freedoms, These guaranteed by The appellant Jeremy Sonnier chal- First and Fourteenth Amendments to lenges the preliminary injunc- denial of a Constitution, the United States shall be tion seeking enjoin enforcement of the enjoyed by the university community at speech policy time, regulating place Southeastern. Free discussion of ideas one sity may designate or more areas on or non-controver- either controversial campus where individuals assemble curtailed. nature shall not be sial All engage activities. freedoms, however, are not ab- These assembly speech and activities must be Colleges and universities have solute. university conducted in accordance with time, regulate rights well-established regulations. that activities do and manner so place, policy spe- provides interfere with the then upon intrude time,1 regulations governing cific and administrative programs academic speech. manner3 of university. place,2 The univer- processes *4 concerning policy concerning speech 3. The manner speech policy time re- SLU 1. The SLU states: states: restrictions strictions de- accordance with U.S. Federal Court In cisions, individual(s) Any organization pub- may or University right regu- the has the to licly peaceful or demonstrate in a assemble assembly speech time of or activi- late the attaining permission manner after the of (2) period two time will be ties. A hour the Vice President Student Af- Assistant of individual(s) organiza- provided to and/or designee. fairs or his or her purposes at for these Southeastern. tions application publicly to or 1. An assemble will be to Speech/assembly activities limited (7) days must be made seven demonstrate per seven-day peri- two hour limit one time provided by in advance on a form the Assis- od, commencing Monday of each week. the tant Affairs and Vice President Student concerning place speech policy shall contain: 2. The SLU name, address, (a) applicant's phone states: the restrictions number, security and date social number university designated following the birth; peaceful public for discussion sites and/or (b) location, (1) proposed the date and time assembly the public or demonstration: demonstration; assembly for or the Union Annex steps in front the Student (c) anticipated partici- the number of grassy immediately in the area front of and sidewalk; (2) pants; including rep- a list of authorized steps by the the and bounded organization the who will grassy the B. resentatives of area in front of Claude the addresses, Center; (3) Activity present along Pennington, Jr. be with their Student numbers, birth, phone of the dates of social se- Plaza area north Student Presidential Union, speech public curity purpose and for be- as areas where number their there, by ing speaking, helping i.e. with set- assemblies be conducted students (ID up, prior approval. provided cards to In- etc. will be without administrative individuals); dividuals) wishing organizations or use these (d) register purpose assembly required will of the or dem- such areas be onstration; speech assembly a public or minimum of or, (e) (7) days through signature applicant if an the office seven advance organization, representa- of Assistant Vice President of Student Af- authorized tive. fairs. assembly, or The Assistant Vice President of [sic] Public discussion demonstra- approve application tion shall not or interfere with Student Affairs shall an disturb event, activity approved properly 2 there program, prior made under section unless or assembly, grounds discussion or dem- reasonable believe that: onstration; (a) unreasonably disciplinary applicant is shall not disturb under prohibiting publicly assembling operations penalty or interfere with normal university; demonstrating; of the and will not be or activities (b) during major proposed al- is unavailable scheduled other events location inappropriate requested; ready campus. Use the time scheduled on (c) proposed date are unrea- activities could and time area shall include which sonable; non-permissible constitute solicitation or (d) assembly or would would be demonstration an infraction univer- unreasonably pedestrian or ve- sity sign policy regards to obstruct indiscriminate- traffic; ly handing passers-by. out materials to hicular regarding II. STANDARD OF REVIEW provides provisions pay- also security particular fees in situa- ment of a preliminary We review denial of tions.4 discretion, injunction abuse of but a 4, 2008, Sonnier filed an On November legal prin- grounded decision in erroneous §§ al- action under U.S.C. ciples de novo. is reviewéd Women’s Med. violates leging Bell, (5th Ctr. F.3d speech. to free right his First Amendment Morales, Cir.2001); Hoover F.3d particularly, challenged More Sonnier five Cir.1998); Concerned Women (1) provisions speech policy: SLU’s America, Lafayette County, Inc. v. (2) notice seven-day requirement; the two- (5th Cir.1989). F.2d See also Doran (3) limitation; hour, once-per-week the col- Inn, Inc., 922, 931-32, v. Salem (4) information; personal lection (1975) (“But (5) security requirement; the limi- fee applied specific while the standard tation of three locations. instituted a and an as-ap- Sonnier district deciding plain- court whether *5 plied challenge provisions of these preliminary injunction tiff to a is entitled is policy, seeking injunctive speech SLU’s stringent, appellate the standard of review relief, declaratory and well as nominal is simply whether the issuance of the in- action, At damages. the time he filed his junction, light applicable of the the stan- preliminary in- Sonnier also moved for a discretion.”) dard, an of constituted abuse junction restraining of the enforcement Chote, 452, 457, (citing 411 U.S. Broum 3, 2009, speech policy. On March after (1973)). S.Ct. L.Ed.2d 420 counsel, arguments hearing of the district A prelimi- district court should issue court a prelim- denied Sonnier’s motion for nary injunction only if plaintiff the inary injunction. timely filed this estab- Sonnier (1) appeal. lishes: a substantial likelihood of suc- (e) speech guard the will constitute clear and tive audiences who cannot their by avoiding danger privacy speech. present orderly to the institution's staff, students, operation, faculty or or speech policy concerning security 4. The SLU property, through advocacy of immediate fees states: action. only by freedom ideas is limited approved public 4. The manner for the constraints, practical certain necessitated assembly or demonstration will include but securing such considerations as following is not limited to the conditions. safety person property and the need (a) Individual(s) organizations or will be prevent disruption learning of the envi- place restricted to the described in the The use of ronment. Southeastern Louisi- registration and are not allowed to leave staff; University ana Administration Uni- assembly. that area to conduct their Police, Police, versity city of Hammond acts, (b) No harmful destruction or de- Tangipahoa Deputies, Sheriffs Louisiana physical property, facement of or assaults Police, private security company or a State persons will be allowed. This includes in connection with the event is at the sole par- threats aimed intimidation and/or University determining discretion creating ticular individuals and in them a for, strength both the need and the of the personal safety realistic fear for their or security sponsoring detail. The individu- security property. of their al(s) organization responsible is for the (c) amplification No use of devices is al- security beyond normally cost of this lowed. provided by University, specifically (d) speech may projected be not onto who those must be administrators/officers areas, private such hall assigned directly away as resident rooms to the event and/or thereby creating cap- operational or classrooms and from normal duties. their (1997); (2) Ward v. Rock merits; threat L.Ed.2d substantial cess on Racism, 791, 109 Against 491 U.S. injunction if the not injury irreparable (1989). (3) 2746, 105 Con- injury S.Ct. L.Ed.2d issued; the threatened time-place-manner restrictions injunction out- tent-based by the denial caused scrutiny, if are under strict mean- will result examined any harm that weighs (4) narrowly to ef- ing they must drawn granted; injunction compelling state interest. Per- fectuate a injunction will not disserve grant ry Perry Local Educators’ Educ. Ass’n Palmer v. Waxahachie interest. public (5th Ass’n, Dist, Sch. Indep. (1983).
Cir.2009). acknowl- only L.Ed.2d 794 Sonnier appeal, parties In this second, first, third, edges SLU does requirement; the first dispute challenged provisions fifth are content- the other dispute that Sonnier has met Therefore, TR at 188. alleges we neutral. Sonnier requirements. three challenged provision fourth content- the district court abused examine whether based. Id. finding that Sonnier did its discretion likelihood of success have substantial agrees signifi- Sonnier that SLU the merits. in implementing cant interest cases, mini- policy promotes the court must education and In free type disruptions setting. mizes to the academic of fora. There first determine TR at objection fora: traditional 189. Sonnier’s central types three fora, fora, designated and the is that is not tailored public *6 that agree Ark. Television to serve SLU’s interest. We non-public fora. Educ. the Forbes, strong in promoting 523 118 SLU has a interest v. U.S. Comm’n (1998). Therefore, only L.Ed.2d The education. we examine 140 875 S.Ct. court dis- the in this case is whether the district abused its agree that fora parties finding public policy a cretion in that public designated a fora or either Brief, 1821; narrowly to serve in- Appel- at tailored SLU’s Appellant’s fora. Brief, agree. The scruti- terest. at 11. We lee’s time-place-manner restric- applied to ny narrowly A restriction is tailored public for both a fora and
tions is same substantially when it does not “burden fora. States v. designated public United necessary more than to further Kokinda, 497 U.S. government’s legitimate interests.” (1990). Therefore, L.Ed.2d 571 we 111 Ward, 798-99, at 109 2746. S.Ct. the locations need not determine whether scrutiny, “In context of intermediate that at issue this campus on SLU’s are require tailoring narrow does not that public designated fora or case are long least means be used. As restrictive fora. as the promotes restriction substantial time-place-man governmental interest would be Content-neutral re effectively under in less without restrictions are examined achieved ner striction, sufficiently narrowly tai they are scrutiny, meaning termediate Houston, narrowly lored.” long they SEIU permissible so (5th Cir.2010) (quoting significant governmen F.3d tailored serve Ward, 798, 109 open ample alterna 491 U.S. at S.Ct. interest and leave tal reasonable, (1989)). in constitutes communication of the “What tive channels for FCC, depends on a regulation tailored Sys. formation. Turner Broad. factors, including the 180, 213-14, variety character regulation place maybe pertinent in which the issues that a resolu- Thus, questions, par- tion of the constitutional we examine enforced.” Id. at ticularly as regards perhaps applica- at in the all of restrictions issue con- tion and the policy, execution this but where are to text of location dealing I’m here policy its a college campus. enforced: you While it maybe concede that face. face, I content neutral on its haven’t III. OF SCOPE APPEAL argument applied, heard it’s argues the district court Sonnier least, you because gone haven’t into dis- denying challenge both his facial erred this, covery yet on applied whether it’s speech policy as-ap- and his just say religious groups certain or plied challenge. argue defendants groups opposed to It others.... court, objection the district without if seems as some there’s facts need trial parties, adopted plan from the to be determined here to resolve this consider its particular case. preliminary injunction
consideration of the (“TR”) (em- Transcript Record at 22021 of the as-applied defer consideration added). phasis challenge until the evidentiary hearing on court, ruling, then stated: permanent injunction that is scheduled ... I don’t find that here the February university, least present set me, of facts that I have before would 65(a), Under Fed.R.CivP. a district justify the in granting preliminary [sic] in deciding court broad discretion injunction. I require would further dis- a preliminary whether consolidate in execution, covery on its as well as on the junction hearing with the of the motion for actual surrounding circumstances injunction. permanent See Dillon v. incident, because there’s differences of Co., Bay City Constr. opinions on presented the facts here as (5th Cir.1975). permits “The rule the Tri day what occurred that with Mr. *7 Judge flexibly al to merge and hear the campus Sonnier and officials. So it will component parts thereby aof case avoid require discovery, further but on face ing repetition unnecessary delay.” Id. neutral, it’s policy content the is. Although in preliminary this motion for preliminary I finding make that it does injunction brought Sonnier both a facial appear violate First Amendment challenge and an as-applied challenge, the insofar policy issues as the itself on its plan district court’s trial is evident in the face.
court’s the throughout hearing comments injunction.
on preliminary the The court began the on hearing pre- the motion for denying injunction In preliminary the liminary injunction by asking a number of however, request, right we the reserve counsel, preliminary questions to including all particular to revisit of these issues as questions just about what facts developed, occurred before further on its but face I don’t find that at Sonnier was escorted from the there’s a basis campus. prelimi- this time for the issuance of a Thereafter the court stated: nary injunction. It you key sounds like all have some Id. 228-29. factual dispute issues that are in as to what occurred here when Mr. Sonnier objected Sonnier never the hear- during went on campus ing as well as some pro- other to the district court’s decision to injunction and to address the1 as- challenge. waiting Al- facial to hear the ceed challenge hearing on the applied until express agreement no there is though injunction. permanent hearing to limit the Sonnier the record counsel did Sonnier’s challenge, facial to a Therefore, only appeal, we review the on hearing beginning of at the announce in- preliminary district court’s denial of present he had no witnesses challenge, facial re- junction for Sonnier’s had record that Sonnier from the it’s clear serving right present of Sonnier to fact, In discovery.5 or no little conducted support as-applied his chal- evidence to rule 26 providing initial resisted Sonnier challenge up- facial at the lenge and his requested by the defendants. discovery injunc- coming hearing permanent on the sum, gave no indication to Sonnier tion. preliminary court that his focus anything on other hearing was injunction IV. ANALYSIS challenge the facial consistent than this was judge’s announcement is, ... challenge “A facial to resolve at issue that intended the sole course, challenge most difficult with Sonni- hearing. This is consistent successfully, challenger mount since in the dis- stay proceedings motion er’s must that no set of circumstances establish appeal where he stated: pending court trict exist under which the Act would be valid.” heavily case depend issues of this Salerno, United States law, fact. The not of disputes (1987).6 745, 107 L.Ed.2d — challenge SLU’s primary Stevens, See United States v. U.S. Thus, the challenge. case is a facial -, 1577, 1580, 176L.Ed.2d 435 130 S.Ct. purely legal Fifth Circuit will address (2010) (stating that the Salerno standard likelihood of issues determine typical used to succeed standard And, merits. success plaintiffs attack). challenge A fail facial facial will speaks to the once Fifth Circuit “plainly legitimate when the statute has a law, case would es- meaning of the Washington Glueksberg, sweep.” sentially resolved. 702, 740 n. (1997) J., (Stevens, concurring at the L.Ed.2d 772 position parties
Given
Court
justified
judgments).
in address-
hearing,
court was
why
challenges
reg-
explained
abstract
the facial
to SLU’s
ing
*8
hearing
preliminary
on
disfavored:
ulations
the
the
argument
during appellate
example,
discovery
oral
had
or
stated
5. For
Sonnier
no
designed
why
to show
the
"regular”
challenge
evidence
Universi-
and not
this was a
facial
regulations
narrowly tailored
ty’s
were not
or
challenge.
Ap-
an overbreadth facial
See also
regulations
the
could be more
how
Brief,
(discussing
pellant's Reply
23
the
University’s legiti-
the
drawn and still serve
challenge and a
differences between a facial
purposes.
mate
Moreover,
challenge).
facial overbreadth
may
bring
as-ap-
challenger
either an
context,
challeng-
In the First Amendment
challenge
challenge,
plied
or an overbreadth
may
by establishing that the
also
er
succeed
may
bring
Virginia
See
v.
but
both.
he
regulation
impermissibly overbroad be-
is
118-19,
2191,
113,
Hicks,
U.S.
123 S.Ct.
539
applications
cause a substantial number of its
(2003).
148
Because Sonnier
156 L.Ed.2d
Grange,
Wash. State
are unconstitutional.
as-applied challenge
brought
that is still
Ferber,
6;
n.
A. Mote, v. Chapter See ACLU Student 423 (4th Cir.2005) argues Sonnier first the re F.3d (allowing 445 quirement University Maryland that an application require to assemble of to non- days or demonstrate be made spot speak seven students to reserve a to or narrowly up days advance is not tailored. de distribute leaflets to five ad- vance); Cole, argue seven-day fendants that the notice Glover v. 762 F.2d 1203
445 requiring permit a “ordinances Cir.1985) college precedent, (4th (stating “[a] by people a of for its demonstrations handful campus for preserve to right a college signifi to protect narrowly tailored serve and are not purpose intended of solicita- pressures v. from the interest.” Knowles government students cant tion”). (5th Waco, F.3d City Cir. 2006). also relate cities But these by drawn the distinction agree We See, e.g., to universities. Ameri and not Circuits. Universi- Eighth and the Fourth Comm. v. can-Arab Anti-Discrimination than cities and other equipped ties less (6th Dearborn, 600, 608 City 418 F.3d fora) (or public designated public fora Cir.2005) group excep a small (requiring on notice. disruptions short respond to special to hold event permit tion for a university with advance notice Providing a Dearborn); adequately City City take Cox v. university allows the (4th pub- Charleston, associated with care of issues F.3d 284-86 Cir. might 2005) speech or demonstration group exception lic a small (requiring to meet its university’s ability hamper the in the gathering City to hold a permit for stu- goal education primary Rest). Eighth Both of Travelers Cir —the dents. Circuit have not re cuit and Second quired group excep or small individual “concerns over traf- argues that
Sonnier requirements on tion for advanced-notice maintenance, fic, control, property crowd Bowman, campuses. university See justify long welfare do not public or 982; Miles, However, v. he F.3d at Powe F.2d cites requirements.” notice Cir.1968). (2d fact, Bowman, college campus concerning no case Instead, the cases assertion. Eighth upheld permit require makes this Circuit require- relate notice by cited Sonnier speaker single, when the ment even city public on streets ments for much like traveling preacher, street Sonnie See, e.g., City Au- Sullivan parks. r.7 (1st Cir.2007) 16, 38-40 gusta, F.3d require- thirty-day notice down
(striking acknowledge that seven- We streets); city Doug- parades ment for longer than no day requirement notice las, (striking down a at 1523-24 by other cir requirements tice considered parades requirement five-day notice cuits, in length this modest increase but streets); city Grossman pickets the regu us to conclude that does not lead Portland, F.3d tailored for Sonnier’s lation is Cir.1994) seven-day (striking down a in a challenge. In order to succeed facial public speeches requirement notice challenge, plaintiff must estab parks). Because demonstrations regulation would invalid in all lish the have different needs public universities Grange, 128 circumstances. Wash. State cities, cases cited than and limitations There are situations in at 1191. in this case. controlling are not Sonnier notice well be re seven-day which a expected to attract a quired. If Sonnier objects to the sev- Additionally, Sonnier his mes large number of students with requirement there is en-day notice because entire seven sage, might need the exception. individual group no small logistically prepare for Sonnier’s days under Fifth Circuit argues Sonnier alone, *10 placed speaker the re- speaker on the men! noted that Bowman court expect- he gardless of the number students spoke, he sometimes as drew crowds when students, require- ed. permit the large but as 200 speak preventing speaker If to on one from monopolizing arrival.8 Sonnier desired at a num- on campus space campus, provision the same time as the the was not SLU’s organizations individuals and narrowly ber other tailored to achieve inter- those campus, to on SLU speak wished SLU’s ests. Id. at 982. days orga- entire to might need the seven We agree defendants speak. when individual would If nize each policy SLU less restrictive than the speaker another wished to Sonnier or policy at issue Bowman. While multiple at a when speak time members speakers Bowman restricted to the SLU administration were scheduled to semester, speaking per five times the SLU office, might be out of the SLU need the speakers allows to regulation speak sixteen days entire seven to coordinate who would per times semester. attend the event. Given there are however, More importantly, Sonnier has seven-day instances which the notice not demonstrated that the regulation SLU necessary,
requirement the district is invalid in all circumstances. There are court did not deny- abuse its discretion in limiting situations in which the number of ing preliminary injunction facial for the times an speaks individual on campus and challenge require- seven-day of the notice length time an speaks individual on ment.9 campus pro- are valid means for to legitimate tect If large interests. B. number of or organizations individuals Next, argues limiting Sonnier to on speak campus during wish the same organi the amount of time an individual week, University must have non- hours, may speak zation on to campus two discriminatory manner of granting permis- per week, narrowly once is not tailored. many to speakers possi- sion as diverse compares He the regulation provision to a By restricting ble. all speakers to that was struck down in Bowman. The week, two per University hours can distinguish defendants regulation the SLU better ensure that the greatest number of from provision by the Bowman arguing different organizations individuals and regulation that the SLU is less restrictive. message able to their campus. deliver on Accordingly, Bowman, we find the district reviewing court did the district not abuse facial, overbreadth, its discretion in Sonni- ruling denying court’s on regulation. er’s to this as-applied challenge, the court struck a provision down limited a person’s C. ability speak to on a college campus five to days per provision Next, semester because requir Sonnier asserts that narrowly was not tailored. 444 at ing applicant personal F.3d to disclose infor Eighth 981-82. Circuit found that mation about himself or herself is not nar a university while significant rowly had a interest tailored achieve SLU’s interest. fostering diversity viewpoints and The defendants requiring contend that hearing Sonnier's counsel even opportunity pro- slated 9. Sonnier have will preliminary injunction hearing perma- duce evidence that "if injunction nent that demonstrates the seven- applying group peo- were hundred day requirement narrowly notice is not tai- ple speak campus want to come and him, applied lored as and the defendants you prepare would time adequately need Sonnier, justify why, applied have will for that.” TR at 194. requirement tailored.
447 regulation is that this information about fendants personal of disclosure necessary significant to their interest for to address tailored speaker applicants By knowing challenge. safety and ensure broad Sonnier’s concerns public campus, identity speakers of on where University. to the access speak, purpose, intend and their to enti public have allowed Other circuits University equipped is better to ensure universities, ties, require a including necessary safety security precau- that provide personal information to speaker to Also, informa- obtaining tions are taken. Bowman, 444 F.3d at permit. obtain a See regarding tion the future allows the requirement a that (upholding in University steps required to take college a cam speakers permit obtain a on to continue normal education advance Westchester, County Hobbs v. pus); speech. While there during functions (2d Cir.2005) 133, 150-51 (upholding F.3d all of be circumstances which requirement planning that use people not nar- requested by information SLU is during perform props equipment and/or tailored, rowly Sonnier has not demon- public permit); forum obtain a ances in regula- every strated that in this instance County, S. Or. Barter Fair Jackson Therefore, tion is invalid. district (9th Cir.2004) (upholding a state F.3d deny- court did abuse discretion required applicants out statute ing injunction per- preliminary submit, among other gatherings door mit requirement. name, address, their estimated at things, tendance, gath of the proposed and nature D. Sonnier cites Watchtower Bible ering). argues Society Village
and Tract
New York v.
Sonnier
next that SLU’s
Stratton,
150, 166-67, 122
Amend
speech policy
violates the First
(2002),
University
prop
gives
for the
ment because it
153 L.Ed.2d
right
speak
...
determining
osition
he has the
“sole discretion
both
Watchtower, however,
for,
anonymously.
strength
held the need
and the
of the secu
rity”
public
village
require
assembly
at the
or demonstra
could not
door-to-
tion,
register
door distributor of handbills to
and assesses
cost
additional
Mayor’s
canvassing security
sponsoring
with the
office before
on the
individual
organization.
response,
In
private
agree
homes. We
with Sonnier
defendants
anonymous
has
door- assert
the fee has never been
Court
found
protected
pamphleteering
by charged. Regardless
to-door
to be
of whether the fee
However,
charged,
agree
been
Son
First Amendment.
Sonnier
ever
we
pamphle
nier.
engaging
door-to-door
teering
private property; Sonnier is
Forsyth County
Move-
Nationalist
university’s campus.
speaking
public
ment,
Court struck
U.S.
Therefore,
concerning
we find the cases
pro-
down
fee
virtually
security
identical
permit requirements
speak
required organizations
pay
vision that
forums more instructive than Watchtower.
necessary
for “the cost
reasonable
...
applicant’s protection
ex-
policy requires
[for assemblies]
[that]
The SLU
address,
number,
name,
phone
social secu-
ceeds the usual and normal costs
law
number,
birth,
rity
proposed
date of
loca-
enforcement....”
(1992).
date,
speech,
tion,
and time of the
antici- S.Ct.
L.Ed.2d
security
pated
participants,
purpose Forsyth County
number
Court found the
because, among other
assembly.
agree
We
with the de-
fee unconstitutional
*12
reasons,
objec-
no
regulation
campus
speaking
included
the SLU
to students.
precludes
how to
directing
policy simply
tive standards
establish The
demon-
group
Instead,
level of the fee.
the amount
occurring
strations and assemblies from
security fee
left to
“whim of
University
University
sidewalks. The
133, 112
Id. at
the administrator.”
S.Ct.
obviously
significant
keeping
has
interest
open
its sidewalks and
streets
allow
students and
campus.
others access
security
provision
fee
has the
SLU
shortcomings as the ordinance struck
same
reject
“The courts
proposition
‘that a
County.
As the
Forsyth
down
campus must make all of its facilities
states, determining the additional amount
equally available to students and nonstu
security
needed is at the “sole discre-
alike,
a university
grant
dents
or that
must
University;
objective
no
tion”
fac-
free access to all of
grounds
its
or build
provided
University
rely
tors are
for the
”
Blanchard,
ings.’
466,
Gilles v.
477 F.3d
upon
making
when
such determination.10
Cir.2007)
v.
(citing Widmar Vin
Because of the unbridled discretion this
cent,
5,
454 U.S.
268 n.
102 S.Ct.
provision gives to
we
University,
con-
(1981).
E.
doubtedly,
significant
has a
interest
finally
Sonnier
contends
re-
in preserving
property
for educational
quirement
all
assemblies and demon- purposes
limiting
where outside
strations must occur in three specific on-
speakers may assemble or demonstrate is
overly
campus venues is
broad restric-
purpose.
tailored to that
See
Further,
tion of speech.
argues
Sonnier
Flonda,
Adderley
385 U.S.
that the
speech policy
SLU’s
unconstitu-
(1966) (“The
tionally
him
speaking
bans
from
on the State, no less than
private
owner of
campus’ sidewalks. The
argue
defendants
property,
power
preserve
prop
that the policy
prohibit
does not
Sonnier
erty under its
control for
use to which
speaking
University’s
from
on the
side-
dedicated.”); Bowman,
lawfully
limiting
walks and that
the geographic
(“[A] university’s
F.3d at 978
mission speak
area
non-students to
and assem-
knowledge—
education and the search for
proper.
ble is
to serve as a
‘special type
enclave’ de
Thus, streets,
reading
speech policy
higher
Our
SLU’s
voted to
education.
sidewalks,
consistent with the
reading
open
might
defendants
and other
areas that
policy: nothing
policy prohibits
otherwise be traditional
fora
Sonnier from walking
differently
on the sidewalks of
treated
when
fall within
Hamp-
testimony
The defendants also cite Coxv. New
no
evidence
the statute
shire,
85 L.Ed.
granted
licensing
unfettered discretion to the
(1941)
proposition
govern-
for the
authority,”
Forsyth County,
whereas
as in
may impose
speakers
ment
fees
for the
case,
there was evidence that the admin-
defendants,
expenses
speech.
incident to
question
istrator of the fees in
had unbridled
however,
Forsyth County's interpre-
misread
Forsyth County,
discretion to set the fees. See
Forsyth
County,
tation of Cox.
the Court
sions of
district court and
CONCLUSION
First,
majority
the
the district court and
erroneously
plaintiffs
the
reach and decide
reasons,
AFFIRM the
the above
we
For
speech policy
facial
the SLU
prelimi-
the
denying
court’s order
district
deciding
plain-
first
whether
without
the
chal-
injunction on Sonnier’s facial
nary
challenges
as-applied
tiffs
have merit.
following provisions on the
to the
lenge
Second,
binding
majority adopts
the
(1)
no-
seven-day
the
speech policy:
SLU
precedent misconception
a
of what makes
(2)
two-hours,
the
once-
requirement,
tice
facially
a
invalid under
First
law
the
(3)
limitation,
the collection
per-week
majority erroneously
Amendment.
(4)
information,
the limitation
and
personal
invalidity
inquiry
sees the facial
sim-
specific
three
locations. We
“no
ple all-purpose
set
circumstances”
deny-
district court’s order
REVERSE
test,
prevail
can
in
plaintiff
under which
regard
ing
preliminary injunction
if
challenge only
the court is un-
facial
security
requirement,
fee
and
SLU’s
imagine
single
even a
set of circum-
able to
injunction
restrain-
grant
preliminary
regulation
stances under which
law or
enforcing
portion
from
ing defendants
an as-applied
could survive
chal-
issue
speech policy.
of the
has
lenge. Although
Supreme
Court
part.
in
Affirmed
dicta, it
never
to that test in
adverted
part.
Reversed
challenge.
deciding
on
facial
relied
fact,
the “no set of circumstances” test
DENNIS,
Judge, concurring in
Circuit
by
and
holdings
is contradicted
reason-
dissenting
part.
part and
growing
ing of a substantial and
number
Supreme
and Fifth Circuit cases.
part
majority
I
of the
Court
concur
one
Moreover,
single
use
holds that
test
opinion
IV.D—which
—section
challenges
all
provision
applies to
security
supposedly
fee
of Southeastern
(SLU) policy
incompatible
with the Su-
University’s
appears
Louisiana
explanation in
facially
preme
unconstitu-
Court’s recent
Citi-
assembly
—FEC,
-,
tional,
from
respectfully
I
dissent
zens United
but
—
-
(2010), that
upholds
L.Ed.2d
majority opinion,
rest of the
as-ap-
facial and
challenged
“the distinction between
provisions
the other
college campuses
particular
cites ad-
whether
areas
11. None of the cases that Sonnier
here,
public
question presented
namely
constitute a
fora. These cases do not
dress
proposition
college cam-
public university may
for the
that a
limit
stand
whether
campus.
pus
particular
must allow non-students to assemble or
speech to
areas on
Instead,
campus.
all
areas of the
the cases Sonnier cites discuss
demonstrate
plied challenges” has no
began
“automatic effect”
case
This
when Southeastern Loui-
(SLU)
“pleadings
on the
of a
disposition”
University
siana
applied certain
case.
provisions
Id.
its official
on speech
assembly
Sonnier,
to Jeremy
majority
Finally,
properly
fails
plaintiff-appellant. Sonnier
ais Christian
apply
constitutional
required
test
preacher
a pedestrian
who stood in
mall on
Court
Ward
Rock
*14
campus along
SLU’s
with a handful of
Racism,
Against
491 U.S.
friends, holding
sign,
a
and tried to start
(1989),
religion
conversations about
with individu-
applied by
this
circuit Knowles v.
passed
als who
by.
ac-
Sonnier’s sworn
Waco,
Cir.2006).
count of these events is undisputed in the
As the
Court Ward stated:
record, and there is no evidence that he
Our
clear ...
that
cases make
even
give
public
tried to
speech to an audi-
government
forum
im-
ence,
classes,
that
nor
he disrupted
pose
time,
reasonable
on
restrictions
traffic,
blocked
in any way
foot
or
incited
place,
protected
manner
speech,
unrest or disorder. Sonnier was accosted
provided the
justified
restrictions “are
by a campus police officer who
him
told
without
to
reference
the content of the
speak
that he could not
because “people
regulated speech,
that
are narrowly
here” disagreed with him. He was threat-
tailored to serve a significant govern-
arrest,
ened
prevented
with
from convers-
interest,
mental
and that
they leave
ing with passersby, and
that
told
he could
open ample alternative
for
channels
speak
not
in this manner without first
communication
information.”
getting permission from a
offi-
university
(quoting
S.Ct. 2746
cial.
Cmty.
Non-Violence,
Clark
Creative
Officer Carmichael told Sonnier that he
would be arrested unless he discontinued
(1984)).
L.Ed.2d 221
Although it appears
expressive activity.
all
He told Sonnier
undisputed that the
speech policy
SLU
is a
that there had
“complaints”
been
and that
set of content-neutral
restrictions on the
he was
“disruptive
considered
... because
time, place, or manner of speech
pub-
in a
there
people
here who are not agree-
forum,
lic
not shown by the
ing
you.”
with
explained
He further
record in this
case
its restrictions are
your
“when
speech becomes offensive to
to
a significant
tailored
serve
other people, then it
a problem.”
becomes
Thus,
governmental
interest.
the chal-
When
to explain
asked
how holding sign
lenged
require
restrictions —which
even
or trying
engage
in conversation
an
on
groups
small
and individuals to seek the
open
education,
mall could be disruptive to
government’s permission
days
seven
in ad-
the officer could not do so.
vance of
speaking
public, to entrust
Sonnier was then taken
office of
significant personal
SLU,
information to
McHodgkins,
Jim
Vice-President of Stu-
to speak
for no more than two hours
Affairs,
dent
who supported Officer Carmi-
per
days
unconstitutional,
seven
—are
chael’s comments and actions and refused
least as applied
plaintiffs
to the
speech in
give
permission
Sonnier
to speak on
this case.
campus
day.
Sonnier and his friends
I. The
As-Applied Challenge
Plaintiffs
then left the
campus
fear
of arrest.
The majority
errs
treating
ap-
denying
this
permission
Sonnier
speak,
peal as involving purely
challenge.
McHodgkins
“University
relied
SLU’s
argu-
pages of
injunction included several
Assembly and
Speech,
on Public
Policy
(referred
how
specifically explained
as “the
SLTJ ments
Demonstrations”
“adversely
policy”
speech
or “the SLU
restrictions on
policy”
SLU’s
dissent).
expression.”
this
and his
throughout
impact Sonnier
out of
are the events
Those
filed
months after Sonnier
four
About
challenging
lawsuit arose.
Sonnier
injunction,
preliminary
his motion for
speech,
merely
restrictions
SLU’s
on that
argument
court heard oral
district
disagreement
he has
abstract
because
period,
four-month
During that
motion.
them,
contends that
because he
but
provide any evi-
government
did
applied to him
policy was
the SLU
whatsoever; thus,
account
Sonnier’s
dence
burdened,
unconstitutionally
way
applied
had been
of how the SLU
burden, his First Amend-
and continues to
*15
argu-
During oral
him was uncontested.
case,
By
he
rights.
bringing
ment
ment,
to ex-
Sonnier’s counsel continued
can, without
that he
seeks to establish
application to
plain
policy’s
that the SLU
days in advance
permission seven
seeking
For exam-
unconstitutional.
Sonnier was
restric-
other SLU’s
complying
with
judge
one
asked whether
ple,
point
campus,
tions,
around the
walk or stand
to one-on-one conversa-
policy applied
with
sign,
a
and have conversations
carry
to an
speeches
as well as to
delivered
tions
actions for
individual students —the
replied,
counsel
“I
audience. Sonnier’s
by campus
he
with arrest
a
was threatened
applica-
confirmed
actual
think that’s
of a senior
police
support
with the
officer
He
there
tion to Mr. Sonnier.
was
university official.
conver-
engage
one-on-one
attempted
therefore,
challenge,
This constitutional
____
attempted
engage
a
[H]e
sation
meaningful
in any
facial”
“purely
is not
dialogue with one
one-on-one
student
as-applied
It
case
has been
sense.
and the officer
theological points
about
beginning. Along
his
very
from
that until he
said that he
do
couldffi’t]1
for a
filed a motion
complaint, Sonnier
university.”
permission from the
obtained
sum-
injunction
provided
preliminary
on
thus contradicts
appeal
The record
support
evidence
mary judgment-type
gave
“Sonnier
majority’s
assertion that
motion,
set-
consisting
an affidavit
his
court that
focus at
above;
no indication
copy
facts as stated
ting out the
on
injunction hearing
was
preliminary
map
and a
speech policy;
of the SLU
challenge.”2
anything
than the facial
other
campus. His memorandum
the SLU
court,
But the
de-
preliminary Maj. Op.
443.
district
of the motion for
support
"could,”
"couldn’t,”
giving
ready given his account of the events
says
transcript
1. The
it clear that Sonnier’s
the lawsuit in his uncontradicted affi-
but the context makes
rise to
(or
say)
said
intended to
counsel must have
filed
months earli-
which had been
four
davit
"couldn’t.”
er.
The-majority implies
some-
that Sonnier did
majority opinion
did
notes that Sonnier
providing
thing wrong
ini-
when he "resisted
any discovery, but
it does not
conduct
requested by
discovery
the defen-
tial Rule 26
explain why
should have conducted
Sonnier
However,
Op.
assuming
Maj.
dants.”
personal
discovery.
already knew from
He
argument
this is true
for the sake
policy
ap-
experience how the SLU
had been
(although
rule
the district court did not
plied to him.
disputes),
majority
any discovery
does not
as-ap-
ignoring all
explain
of Sonnier’s
Likewise,
how
apparent
why
there is no
reason
arguments
appropriate
plied
be an
could
called witnesses
Sonnier should have
any
hearing.
such misbehavior.
injunction
had al-
sanction for
preliminary
He
spite
Cir.2009).
explana-
written and oral
Sonnier’s
In order
why
speech policy
success,
tions of
to show such
a likelihood of
him,
applied
unconstitutional as
decided
who
plaintiff
preliminary injunc
seeks a
on the
solely
aspects
focus
tion
a governmental
because he believes
arguments.
Sonnier’s
The court made
restriction on speech is unconstitutional as
what it
preliminary finding
described
“a
him
applied
argument
has to make the
it does not appear
to violate First
the restriction is unconstitutional
Amendment
issues insofar as the
If a
applied.
simply ignores
court
all as-
itself on its face”
applied arguments,
and denied
motion
plaintiff
then the
injunction.
for a preliminary
prevented
using
from
those arguments to
demonstrate his likelihood of
success
This was erroneous
for two reasons.
plaintiff
the merits. The
is therefore de
First, be
party
should
self-evident
injunctive
nied
relief to which he
bringing
preliminary
motion for
injunc
entitled,
having
any
without
been afforded
right
tion
has the
to make
relevant
real opportunity to explain why he is enti
legal argument
in support of that motion.3
tled to it.4
Among
prerequisites
preliminary
for a
injunction
moving party
is that
must
The fact that the district court intended
*16
“a
establish
likelihood
substantial
of suc
hear as-applied
to
arguments
at a later
E.g.,
cess on the merits.”
Palmer ex rel.
stage
of this case does not excuse the
Dist.,
v.
Palmer
Indep.
Waxahachie
Sch.
failure to consider them at the preliminary
that,
helpful
3.
It
clarify
Supreme
Cir.1975),
to
as
proposition
for the
recently
has
explained,
Court
facial and as-
that the district court acted within its discre-
applied challenges
However,
really separate
Maj. Op.
are not
tion.
these authori-
claims,
irrelevant;
merely
arguments
but are
different
ties are
neither of them comes
support
plaintiff's
anywhere
claim that the
permitting
consti
close to
a district court
rights
tutional
ignore
have been violated. In
as-applied arguments
to
Citizens
and entertain
FEC,
U.S. -,
United v.
only
arguments
-
130 S.Ct.
facial
a preliminary
for
in-
- L.Ed.2d - (2010),
explained
junction.
65(a)
the Court
Rule
states
"the
that
court
Citizens
United’s facial
advance the trial on the merits and con-
—in
it
asked the
to
Court
overrule
v.
injunction]
Austin
solidate it
[preliminary
with the
Commerce,
Michigan Chamber
hearing,”
but the district court did not do
case; rather,
110 S.Ct.
anything
L.Ed.2d 652
like that in this
it held
(1990)
claim,”
a
only
“not new
but
preliminary injunction
was
a
hearing but
—was
refused
argument”
“a
support
new
as-applied
Citizens
to
arguments.
consider
United's already-existing "claim that the FEC
Dillon,
court held
a
this
district
violated
right
ha[d]
its First Amendment
to
by
court had abused its discretion
consolidat-
United,
speech.”
free
Citizens
ing
preliminary injunction
a
hearing with a
893,
regardless subject ny According matter. decide whether are —that majority, to the that test is the “no set of narrowly significant tailored to serve a test, plain- under which a circumstances” government interest. prevail
tiff if can the court cannot majority’s reasoning A. The relies on the imagine single even a set of circumstances test, “no set circumstances” and not which the or regulation under law at issue scrutiny. intermediate could as-applied challenge. survive an majority’s reliance on that test is errone- Although majority seems to ac- ous for three principal reasons. knowledge that scrutiny intermediate is
First,
applicable
case,
in
single
Maj. Op.
the idea that there is
test
test
this
468-69,
for all
challenges
is contradicted
reasoning ultimately
relies in-
Supreme
explanation
Court’s
Citi
stead
the “no set of circumstances” test.
zens
United
FEC that
majority
challenged
facial/as-
holds that
applied distinction does not have “some provisions of the SLU speech policy are
automatic effect” or “control the pleadings
facially
(except
constitutional
secu-
disposition
every
involving
case
rity
provision)
fee
majority
because the
—
challenge.”
-,
constitutional
imagine
able to
in which
situations
those
—
-
876, 893,
130 S.Ct.
L.Ed.2d
provisions
as-applied
would survive
chal-
(2010). Second,
“no
set of circum
lenges.
According
majority,
“there
incompatible
stances” test is
with the test
seven-day
instances which the
notice
actually
does determine the constitu
requirement may
necessary”
and there-
tionality of
time-place-
the content-neutral
requirement
fore that
facially
constitu-
manner
restrictions that are chal
Maj. Op.
majority
tional.
445. The
like-
lenged
namely, intermediate
case—
wise concludes that
limitation
scrutiny, as
defined
eases like
v.Ward
speech to
per
days
two hours
seven
Racism,
Against
Rock
facially constitutional because “Sonnier has
2746, 105
(1989),
L.Ed.2d 661
regulation
demonstrated that the SLU
Waco,
Knowles v.
“[tjhere
is invalid in all circumstances” and
(5th Cir.2006). Third,
are situations in
limiting
the number
Court and
Fifth
repeated
Circuit have
*18
of times an
speaks
campus
individual
on
ly disregarded or rejected the
set
“no
of
length
and the
of time an
speaks
individual
a variety
circumstances” test in
of circum
campus
on
are valid means for SLU to
stances, due
incompatibility
to its
with nu
protect
legitimate
Maj.
interests.”
Op.
merous
substantive
constitutional doc
majority
446. And the
per-
holds that the
test,
trines and tests such as the Lemon
sonal
requirement
information disclosure
doctrine,
the vagueness
and intermediate
“[wjhile
facially
is
constitutional because
scrutiny.
there
circumstances which all of
reasons,
For these
even
it
if were true
by
information requested
SLU is not
this appeal
purely
involves a
facial
tailored,
narrowly
has
Sonnier
not demon-
challenge, the “no
set
circumstances”
every
strated that
regula-
instance this
test on which the majority relies would
Maj.
tion is invalid.”
Op.
wrong
still be the
to apply.
way
test
The
Thus,
to
the test that
determine whether the
determines the out-
challenged pro-
speech
visions
the SLU
majority
are con-
come
reaches is
“no
set of
apply
stitutional is to
intermediate scruti-
circumstances” test.
majority’s
The
line of
here,
exception
arguments
rely
is not relevant
since Sonnier's
do not
on that doctrine.
substantially more
it
to
restriction
possible
“burden[s]
reasoning is that because
necessary
further
speech than is
to
of circumstances
imagine some set
Ward,
legitimate interests.”
government’s
speech
on
each of these restrictions
which
Instead,
U.S.
(for
challenge
an as-applied
would survive
merely imagines
majority
hypothetical
speaker
example,
Sonnier or another
“[i]f
imagin
that such
situations and decides
multiple
time when
speak
wished
facially justify
ings are sufficient
SLU’s
administration were
members of
speech.
restrictions on
office,” Maj. Op.
to be out
scheduled
446),
majority’s
are therefore
“no set
circumstances”
all of the restrictions
words,
hardly
scrutiny
at all.
un-
test thus
amounts
In other
facially constitutional.
puts
practically
barri-
It
insurmountable
if
majority
reasoning,
one
opinion’s
der the
path
in the
er
Sonnier’s
imagined
par-
in which a
can be
situation
constitutionality
governmen-
facial
of these
jus-
would be
ticular restriction on
speech.6
my objec-
But
tal limitations
tified,
uphold a restric-
enough
that is
majority’s
tion to the
use of the “no set of
applies
to all situations.
tion
it
circumstances” test is not
Although it sometimes mentions inter
practical
making
effect of
facial chal-
tailoring,
scrutiny
narrow
mediate
Rather,
lenges
important
futile.
the most
intermedi
majority opinion
apply
does not
“no set of circumstances”
problem
speech re
scrutiny
challenged
to the
ate
test
that it is an incorrect statement of
is,
attempt
it
That
makes no
strictions.
below,
I
it
explain
the law: as
is contra-
each of the
determine whether
restrictions
by
Supreme
numerous
Court and
dicted
a significant
tailored to serve
concerning
Fifth
chal-
Circuit cases
facial
interest,
written or
either as
government
scrutiny,
lenges and intermediate
and it is
majority
to Sonnier.
does
applied
ultimately
nothing
based on
more than a
each restriction
not determine whether
controversial dictum in one case.
no
“targets and eliminates more than the
B. The
Court in Citizens Unit-
‘evil’it
to reme
exact source of the
seeks
explained
Knowles,
ed has
that the distinction
(quoting
dy.”
ings every and disposition involving case cases, Supreme Court has relied on Citizens Unit challenge.” constitutional perhaps what is explanation clearest — FEC, ed v. -, U.S. 130 S.Ct. the relation between facial and as-applied — L.Ed.2d - (2010).7 Fallon, Jr., challenges: Richard H. As- significance
The real Applied Challenges Third-Party and facial/as- applied distinction, the Court explained, Standing, 113 Harv. L.Rev. (five majority All nine explained Justices and that Citizens United's facial chal- dissenters) agreed four with this statement. (which lenge asked the Court to overrule Aus- United, See 130 S.Ct. at n. Citizens Commerce, Michigan tin v. Chamber J., (Stevens, dissenting) (expressly S.Ct. 876 agreeing that "the distinction between facial (1990)) was "not a new claim” but was as-applied challenges and does not have argument” "a support new of Citizens mechanically 'some automatic effect’ that United's "claim that the FEC ha[d] violated task"). judicial controls the See also id. right speech.” its First Amendment free (Roberts, C.J., (further concurring) dis- United, 130 S.Ct. at Citizens cussing unimportance of the distinction Thus, underlying claim was that the as-applied between facial challenges). and plaintiff's right constitutional had been violat- (quoting See discussing note 10 infra ed; as-applied challenges the facial and were concurrence). Chief Justice Roberts's plaintiff's arguments support of that noting It is also Supreme worth that the claim; and the difference between Court the facial decided the facial in Citizens way as-applied arguments United in a that was consistent with this was that led to analysis facial/as-applied dissent’s tinction, dis- different remedies. employ and did not the "no set of Likewise, case, instant Sonnier’s fa- circumstances” test. The Court announced as-applied cial challenges sepa- are not it deciding constitutionality that was the facial claims, rate issue, arguments but are sup- distinct 892-96; of the statute at id. at ex- plained porting Sonnier’s applying scrutiny, that was claim that SLU strict id. has violated 898; at unconstitutional, facially and held that the statute was right speech. his First Amendment to free id. 913. Several more The difference between Sonnier's facial and examples Court and Fifth Circuit as-applied arguments as-applied *20 cases in which the courts have resolved facial arguments, accepted, if lead would to nar- challenges disregarding while the "no set of holding challenged rower the is circumstances” test are in collected section circumstances, invalid under certain whereas II.D below. arguments the facial would lead to a broader underscoring as-ap- Further holding challenged policy that facial and that the is invalid in plied challenges simply arguments all circumstances. remedies, particular United Court Citizens
(2000).9 Marbury, In article at Court consid- quoting It is worth provision com- whether a in to correct some ered length here order Judiciary Act permissibly vested the misconceptions: mon original jurisdiction with over Court Wil- frequently sug- of discourse [T]he terms Marbury’s against liam suit James Mad- categorical sharp, there is a gest that In that Article III ruling ison. forbade as-applied facial and distinction between jurisdiction, in exercise Court adjudication that courts are often adjudi- in engaged as-applied one sense general principles upon apply called It cation. decided constitutional is- challenges. sug- Both governing facial determining sue as an incident of misleading. gestions are jurisdiction particular in a case. At time, reasoning Marbury’s was same sharply are not cate- challenges Facial general. The made clear Court from chal- gorically as-applied distinct Judiciary challenged provision of Act lenges validity of statutes. Under merely applied invalid not III, always court must Article federal Madison, Marbury’s against suit but in case, begin concrete framed it purported all cases insofar as con- including allegation of harm to a facts original Supreme jurisdiction fer Court by an specific plaintiff caused identified contemplated by III. Article The focus concern must defendant. plaintiff be is entitled whether Madison, Marbury it was in so As case, however, adjudicate a To relief. myriad other circumstances: in is doctrine, typically legal court invoke will challenge, ruling as-applied on an rules, principles, in general as reflected incidentally court reaches a conclusion Moreover, the application or tests. broadly that a is more invalid. statute including processes rea- day, variety modern of tests doctrine— necessary to resolve dis- soning litigation constitutional employed unmistakably, pute sometimes Nonetheless, seemingly famil- endless. —will necessarily, yield the conclusion even iar kinds of recurring tests illustrate invalid, merely as that a statute is adjudication can as-applied how inevita- facts, applied generally but more bly “Pur- result facial invalidations. cases, In such or even whole. identify if pose” tests statutes invalid outgrowth as an invalidation occurs constitutionally enacted for forbidden adjudication. as-applied tests, “Suspect-content” motives.... Madison, 137, regulate on Marbury v. under statutes [5 justified as nar- (1803),] regarded as the certain bases must L.Ed. 60 often compelling rowly model tailored to advance a for the traditional foundation interest, have effects. A adjudication, exemplary. state similar as-applied Fallon, 893, (internal United, 1328) quo (quoting supra, at at 9. See 130 S.Ct Citizens (''[O]nce omitted)); Sabri, brought, gen no S.Ct. 876 a case 541 U.S. at tation marks making Fallon, categorical eral bars court from supra, line (citing S.Ct. at invalidity pronouncements of broader 1351). Fallon, properly 'as-applied' (quoting cases.” courts, too, appellate have often Federal 1339) (internal supra, quotation marks E.g., article. Richmond Med. made use Carhart, omitted)); Gonzales Herring, 570 F.3d 172— Ctr. Womenv. (2007) banc) Cir.2009) (en (quoting length challenges are ("[A]s-applied the basic build 1368). Fallon, supra, at from ing adjudication.” of constitutional blocks *21 suspect-content Examples multiplied, that fails a all statute test could be court upholds the same effect: when a invalid in whole. is constitutional the nature challenge, “as-ap Just as some assessments of test it applies will determine challenges necessarily yield plied” whether the statute is found unconstitu- wholly that a conclusion statute inval solely applied, part, tional as or in id, judicial analyses other —conducted whole. Even invalidations are the pursuant other doctrinal tests —estab is, litigation that in an outgrowth of part. lish statutes are invalid in sense, important as-applied. But once a brought, categorical case is no Treasury general United States National bars a making line court from broader Union, Employees [513 pronouncements invalidity in properly (1995),] S.Ct. L.Ed.2d 964 “as-applied” cases. Nor is there dis- example, plaintiffs challenged fed challenge” tinctive class “facial cases forbidding govern eral statute certain required which the court is do so. mental employees to receive honoraria (footnotes Fallon, supra, at omit- writing. or speaking To assess the ted). key point is that facial and as- claim, the Court articulated a balancing applied challenges are not categorically test, test. Under that it found stat types different cases to different applied relatively ute invalid as to the apply. contrary, rules of decision On the employees brought low-level who had to adjudicate order constitutional chal- suit, but reasoning noted that its lenges, apply courts whatever constitution- not necessarily apply would to cases in al doctrines and tests are relevant volving higher-level employees. The particular case, substance of each and the question Court thus reserved the analysis results determine whether validity statute’s categories as to of em unconstitutional, challenged law either ployees not before the [See Court. id. face applied or as to a particular 477-78, 115 1003.] situation.10 understanding by rights This is further reinforced Amendment any mean that —would Chief Justice corporation raising Roberts's concurrence in Citizens other the same chal- Likewise, ited: lenge Un would also win. a conclu- applied may sion that the Act be [T]he debate over whether to Citizens consider this as-applied pro- United —because it claim on an is constitutional to facial basis corporate political largely point. strikes me hibit as beside the Citi- —would similarly govern Regardless zens United ... has a claim— future cases. constitutional Amendment, the Act violates the whether we label First be- Citizens claim a United’s prohibits political cause it speech. "as-applied” challenge, "facial” or the con- may Government has a sequences defense'—the Act Court’s decision enforced, consistent with the First Amend- same. ment, against (Roberts, C.J., corporations. Whether the concurring). prevails question claim or the defense is the recognized, As the Chief Justice the labels of before us. "as-applied” "facial” were "beside the Given point”; question the nature claim de- the real was whether the fense, challenged it makes no difference of sub- law was consistent with the First Amendment, stance whether this case is resolved in- Court's answer to that validating the statute on its face or question substantive constitutional would de- applied to Citizens if United. Even consid- termine whether statute was unconstitu- terms, face, as-applied holding ered in applied, tional on its unconstitutional as applied case that the Act not be or constitutional. Likewise, corporations Citizens every United —because case in law which a enjoy well as pertinent subjected individuals First to a constitutional —in-
459
that
the
constitutional test
ing
substantive
said
Citizens
the
Court
As
constitutionality
type
of
United,
facial and
the
the
between
determines
“the distinction
not well defined
That
challenges
challenged
is
so
that is
here.
regulation
of
as-applied
130
has
automatic effect.”
scrutiny
it
some
as defined in
is intermediate
test
“no
cate-
general
Knowles,
There is
at 893.
S.Ct.
re-
like Ward and
cases
as-applied
facial and
line” between
gorical
restriction on
that a content-neutral
quires
Fallon, supra, at
(quoting
challenges.
Id.
must
time,
manner of
place,
the
1339).
distinction
facial/as-applied
The
significant
narrowly tailored
serve
be
remedy
the
“goes to the breadth of
merely
interest.
government
id.,
challenge
a facial
because
employed,”
of
for
facial invalidation
argument
is an
the
The
set
circumstances” test is
“no
C.
of
law,
challenge is
as-applied
an
whereas
the requirements
inconsistent with
of
remedy of
for
narrower
argument
the
there-
scrutiny,
intermediate
and is
Therefore,
the
invalidation.11
as-applied
inapplicable to this case.
fore
is,
this
underlying question in
case—that
majority’s
The
“no set of circumstances”
policy is consis-
the SLU
whether
from,
vastly
logically
is
test
different
First Amendment —must be
tent with the
with,
incompatible
the intermediate scruti-
determined,
by
special
test
applying
not
(the
ny test. These two tests allocate the bur-
majority’s “no
challenges
for all facial
test),
persuasion differently; they
apply-
provide
den of
set
circumstances”
but
of
745,
Salerno,
proper
would
valid.”
481 U.S. at
cluding
case—the
method
the instant
2095.
also
apply
relevant substantive constitu-
107 S.Ct.
See Members
of
Vincent,
tests,
Taxpayers
466
and the result of
Council
L.A. v.
doctrines and
tional
789, 797-98,
2118,
process
the chal-
L.Ed.2d
determines whether
U.S.
104 S.Ct.
80
(1984) ("In
hold-
lenged law should be held unconstitutional
772
cases of this character a
applied.
invalidity
ing
expresses
face or as
the conclu-
either
facial
applied
could never be
sion that
statute
noting
briefly
that this under-
It is worth
manner.”).
valid
standing
facial and
the distinction between
reading,
Circuit’s
Under
Federal
challenges
necessarily
as-applied
incon-
language
set
Salerno "no
of circumstances”
opinion
read as
that has been
sistent with
create a universal test
all facial
does not
test,
creating the "no set of circumstances”
instead,
challenges;
the out
describes
745,
Salerno,
739,
States v.
481
United
challenge.
come of a successful facial
This
2095,
(1987).
107 S.Ct.
reading
with all
authorities
consistent
in conflict with
cited in this dissent
Circuit,
Development
Federal
in Rothe
A few
the "no set
circumstances” test.
Defense,
F.3d 1327
Corp. Department
413
law
and at least one eminent
other courts
(Fed.Cir.2005),
challenge
adjudicated a facial
adopted
reading
professor have
of Saler
scrutiny and
a statute under strict
Society,
v. Wash. Humane
480
no. Daskalea
Id. at
"no set of circumstances” test.
MDK,
(D.D.C.2007);
F.Supp.2d
36 n.
explained,
is of
court
“Salerno
1337-38. The
Grafton,
F.Supp.2d
Inc. v. Vill.
here,
describing a
at
limited relevance
most
(E.D.Wis.2004);
re
Pa
Termination
applica-
that could result from
conclusion
P.,
Rights to
Wis.2d
rental
Diana
scrutiny
test.” Id.
1337-
tion of the strict
J.,
(2005) (Roggensack,
con
N.W.2d
Thus,
the Rothe court read Salerno
Jr.,
Fallon,
As-Applied
curring);
H.
Richard
principle
being
consistent
Third-Party
Challenges and
Stand
and Facial
“goes
facial/as-applied distinction
(2000).
ing,
L.Rev.
113 Harv.
remedy employed by breadth of
thorough
case
Court,”
United,
that makes most
article
Citizens
Isserles,
reading is Marc E.
Overcom
simply
for this
reading,
876. Under this
Salerno
Challenges
ing
and the
Overbreadth: Facial
means that
successful
Requirement,
48 Am. U.L.Rev.
"establish[ing]
no
Valid Rule
set of
the outcome of
(1998),
relied.
Act
on which the Rothe court
under which the
circumstances exists
*23
2746).
minimum,
different criteria to determine a
con-
regulation
law’s
“At
can
likely
validity;
they
are
stitutional
narrowly
not be
tailored unless the cost to
produce
great many
in a
opposite results
speech
‘carefully
and the fit
calculated’
cases,
Thus,
including
major-
one.
between the
burden
the state interest
”
ity’s reliance on the “no
of circum-
set
is ‘reasonable.’
(quoting
Id.
Bd. Trus
stances” test in this case contravenes the
Fox,
tees State Univ.
v.
492 U.S.
of N.Y.
precedents
numerous
establish
469, 481,
3028,
109 S.Ct.
Second,
scrutiny and the
intermediate
provisions
speech policy
of the
are
SLU
require
“no
test
set of circumstances”
I,
facially
on the other
constitutional.
entirely
their decisions on
courts
base
hand,
scrutiny
apply
would
intermediate
scrutiny
criteria.
Intermediate
different
and therefore
under Ward
Knowles
requires
begin by identifying the
courts to
permit
that the
of a
imposition
conclude
interests,
any,
if
legitimate government
requirement
on
and small
individuals
by
speech.
that are served
restriction
notice re-
groups,
seven-day
advance
the re-
must then decide whether
Courts
quirement,
the limitation of
two
tailored
those iden-
striction
days,
per
per-
and the broad
words,
hours
seven
other
whether
tified interests —in
requirement
information
sonal
collection
not ‘burden substan-
the restriction “does
necessary
why
are
tially
unconstitutional.
reasons
more
than
government’s legitimate
provisions
inter-
these
do not survive intermedi-
further the
("If
expect-
speaker
speak
Maj.
If Sonnier or another
wished
E.g.,
Op.
Sonnier
large
ed
of students with
to attract a
number
multiple
at a time when
members
speak
message
desired to
his
...
If Sonnier
were
to be out of
administration
scheduled
campus
at the same time as num-
SLU’s
office....").
organizations ...
ber
other individuals and
scrutiny
explained
ate
in Part We
apply
below
should therefore
intermediate
III.
scrutiny,
firmly
test that has been
estab-
long
lished
line of governing prece-
reasons,
majority’s
For all
ap-
these
dents.
plication of
“no set
circumstances”
long
test contravenes the
list of
D.
Supreme Court
Cir-
Fifth
Fifth
precedents
Court and
Circuit
repeatedly disregarded
cuit have
scrutiny
establish that
intermediate
is the
rejected
“no
set
circumstances”
way to
proper
determine whether a con-
*25
test in cases where it
incompati-
time, place,
tent-neutral
on the
restriction
ble with the relevant constitutional
or manner of
constitutional.14
It
doctrines.
not possible
apply
both the “no set of
circumstances” test and the
Controversy among Supreme
intermediate
Jus-
Court
scrutiny test and
among
reach consistent results.
tices15 and doubt
the lower courts16
Colorado,
703,
E.g.,
certiorari) (charac
v.
dissenting
Hill
530 U.S.
725-
from denial of
26,
2480,
(2000);
120 S.Ct.
The list of
tests —but
Court cases contra-
dicting
set of
were all
challenges,
“no
circumstances” test
in all
(but
to)
includes
is not limited
Hill v.
disregarded
rejected
them
courts
Colorado,
120 S.Ct.
“no
set of circumstances” test. These
(2000);
Indepen-
L.Ed.2d 597
Fe
Santa
cases,
us,
all of which
binding
Doe,
dent School District v.
530 U.S.
strongly support
the conclusion that
(2000);
“no set of
simply
circumstances” test
is not
Morales,
Chicago
an accurate statement
gov-
of the law that
(1999);
L.Ed.2d 67
erns this case.
*27
Planned
Parenthood
Southeastern
of
of
The “no set
circumstances”
arose
test
Pennsylvania
833,
Casey,
v.
112
505 U.S.
from this sentence in Salerno: “A facial
2791,
(1992);
S.Ct.
Bowen
is,
challenge
legislative
course,
to a
Act
of
Kendrick,
589,
2562,
v.
487 U.S.
108 S.Ct.
the most difficult
challenge mount suc-
(1988);
101
Frisby
L.Ed.2d 520
v.
cessfully,
challenger
since the
Schultz,
must estab-
474,
2495,
487 U.S.
108 S.Ct.
101
lish that no
(1988).
set
circumstances exists
420
L.Ed.2d
Fifth
Circuit
which
under
the Act
be
would
valid.” 481
cases include
Employees
Service
Interna-
Union,
745,
Houston,
tional
Local
U.S.
107 S.Ct.
City
language
5 v.
2095. This
(5th Cir.2010);
dicta,
595 F.3d
holding,
588
Knowles v.
constitutes
not a
because it
Waco,
(5th
Cir.2006);
to the Bail
Furthermore,
“no set of cir-
Salerno’s
as
Act was unconstitutional
that the
claim
played a
language has never
cumstances”
3,n.
S.Ct.
Id.
them.
applied to
any subsequent Supreme
decisive role
Therefore,
really
if
had
Salerno
either,
my
ease
as far as
research
Court
applica
identifying
single
valid
that
held
Morales,
467
Nonetheless,
in the
aforementioned Establishment
the six-Jus-
2266.
cases,
“no set
application
Clause
majority declined to
Court
Supreme
tiee
been
test would have
of circumstances”
circumstances” test
the “no set of
apply
substantive
inconsistent with
relevant
facially
policy was
uncon-
that the
and held
major
constitutional doctrine which
(ma-
at
narrowly tailored. See id.
Furthermore,
the Fifth
has twice
Circuit
*31
S.Ct. 2495.
challenges
sustained facial
to content-neu-
Colorado,
Likewise,
restrictions,
in Hill v.
tral
time-place-manner
even
though
would plainly
those restrictions
had
that the
have
to hold
ordinance was
facially constitutional under
have been
facially
possible
of
test.
because it is
“no set
circumstances”
constitutional
Waco,
(5th
City
day
might
imagine
single
Knowles
a
which it
of
Cir.2006),
munici-
this
held
two
court
city
have been
for the
to confine
valid
facially unconstitu-
ordinances were
pal
to those
parades
downtown
two one-hour
narrowly
not
tai-
they were
tional because
instance, weekday
windows—for
when
governmental
significant
to serve a
lored
festival was
to take
some kind of
scheduled
“pa-
forbade
The ordinances
all
interest.
a.m. and
place
between 11:00
downtown
particular
at
activity”
and
rades”
“street
p.m.
court
2:00
But
SEIU Houston
day,
imposed
permit
re-
times of
and
reasoning;
kind of
rath-
did not follow this
a content-neutral foregoing analysis, To summarize the “no cir- though striction even set of there are at least three different lines required would have cumstances” test authority supporting conclusion court held that an opposite result. The dic- the Salerno “no set circumstances” weekday “eonfin[ing] ordinance downtown appropriate tum does stan- provide one-hour windows: 10:00 parades two adjudicating challenge. this facial dard p.m. 11:00 2:00 a.m. to a.m. and to 3:00 First, test the “no set circumstances” facially id. at unconstitu- p.m.,” governs challenges, all facial 604; supposedly Id. at also id. at 595 tional. see United but Court Citizens brought had (noting plaintiffs erroneous v. FEC has contradicted the challenge). applied If the court had test, single for all idea that there is one test “no set of circumstances” it would *32 challenges; contrary, ty scrutiny the the fa the intermediate standard as on have cial/as-applied distinction does not defined numerous cases such Ward on of any disposition test, “automatic effect” pass a and Knowles. To this law — 876, U.S. -, a case. narrowly sig- tailored to must serve — L.Ed.2d - (2010). Second, “no government nificant interest. The remain- incompatible set of circumstances” test is of this dissent whether the der examines scrutiny with intermediate because the two challenged speech restrictions —which re- ways, opposite allocate the tests burden quire apply and small to groups individuals very to focus on differ require courts days in permission seven advance for to criteria, ultimately incom produce ent and require speak public; the disclosure of results; thus, by patible applying the “no from significant personal information ev- test, majority set of circumstances” eryone plays any speech who role in the numerous precedents contravenes event; speech and limit the of individ- (such Knowles) holding that as Ward and or group per ual to two hours seven scrutiny is the appropriate intermediate days narrowly signifi- tailored to the —are constitutional test for the content-neutral government cant interests that has time-place-manner restriction that is is identified. Third, sue and here. Court repeatedly this court have cases decided A. Our Time-Place-Manner Precedents using reasoning con reaching and results uniformly gov- Our cases hold that the by trary required to those set of “no justify must ernment content-neutral re- Fe, test, e.g., circumstances” Santa Mor time, place, strictions and manner ales, Therefore, Casey, and con Knowles. public by forum27 showing above, all I sidering believe the narrowly are tailored serve a majority using this case has erred significant governmental interest. This is the “no set of circumstances” as the test commonly referred as intermediate reasoning. decisive element in its
scrutiny. Employees See Serv. Int’l Un- III. Application Intermediate Scruti- ion, Houston, City Local 5 v. 595 F.3d ny (5th Cir.2010); v. City Knowles Waco, Cir.2006); 462 F.3d case, plaintiff brought Miss., Tupelo, Beckerman v. provi- constitutional certain (5th Cir.1981). regula- F.2d “A sions of SLU’s and as- ‘is sembly. provisions targets These tion tailored if it are content-neu- time, tral26 regulate and eliminates no more than place, the exact source ” Therefore, speech. manner of remedy.’ the test the “evil” it seeks Knowles, that determines their constitutional validi- at 434 (quoting Frisby F.3d plaintiffs appellate argues public 26. The desig- brief either traditional forum or security provision fee public is not content-neu- nated forum. There need is no here, do not tral. I address that issue be- types public decide of these two agree majority’s holding cause I with the power forum is at issue "[t]he because state’s security provision fee is unconstitutional. speakers' designated] 'to restrict access to [a plaintiff acknowledges pro- that the other public subject forum is to the same first challenges visions he are content-neutral. apply amendment constraints tradi- ” Indep. Chiu tional forums.’ v. Plano Dist., (5th Cir.2001) majority opinion says, Maj. Op. As the Sch. Ass'n, acknowledge, pub- (quoting defendants Estiveme v. La. State Bar lic, (5th Cir.1989)). campus outdoor areas of F.2d
471
addressing
474, 485,
majority
is correct in
Son-
Schultz,
108
S.Ct.
487
v.
challenge,
is
(1988)).
nier’s facial
Knowles
indistin-
420
In other
2495, 101 L.Ed.2d
present
case.
guishable from
‘narrowly
words,
is
tailored’
regulation
“[a]
substantially
it
not ‘burden
when
does
Knowles,
anti-
plaintiffs were
necessary to further
speech than is
more
sought to
protesters
“pray,
abortion
who
legitimate interests.’”
government’s
display
signs,
anti-abortion
distribute liter-
Supple, 969
v.
Hays County Guardian
ature,
clients
and counsel clinic
on the
(5th Cir.1992)
111,
(quoting Ward
F.2d
118
clinic”;
an abortion
public sidewalk outside
Racism,
491 U.S.
Against
v. Rock
“challenging
suit
facial
brought
(1989)).
2746,
ests protecting include and furthering university’s the mission of edu- Application B. Precedents of Still, cating government its students. the determining constitutionality the justify speech must its restrictions on by provisions challenged showing narrowly the of the SLU that are tailored to specific, legitimate government serve speech policy,30we must intermedi- in- apply terests. Knowles. scrutiny, exemplified by ate (1)
Thus,
government
identify
must
the
the
Amendment
must
rights
“First
be ana-
significant
legitimate
in-
government
and
lyzed
light
‘in
special
the
characteristics
”
justifying
terests that
it asserts as
its re-
environment,’
school
the
as the Su-
(2)
strictions on speech, and
demonstrate
Vincent,
Widmar
preme Court stated in
that
the
policy’s speech
restrictions
263,
269,
454 U.S.
268 n.
70
narrowly
(1981)
are
gov-
tailored
further those
Tinker v. Des
440
(quoting
L.Ed.2d
Disk,
Indep.
Moines
Sch.
ernment
interests.
393 U.S.
(1983) (consider
analysis
The same method of
inter
under
S.Ct.
versity’s mission
It
government
interests.
mention some
*35
have never
Court
Supreme]
[the
sions
states,
govern
general principle,
“as
authority
impose
to
university’s
denied
interest
significant
have a
ment does
compatible with
regulations
reasonable
public colleges
campuses
preserving
campus
of its
upon the use
mission
for the use of students.”
universities
Nonetheless, “[w]ith
Id.
and facilities.”
(quoting
Br. 12
Justice
All
Appellees’
for
there,
entitled
be
persons
respect
(5th
760,
Faulkner,
770
Cir.
410 F.3d
v.
leave no
cases
Supreme Court’s]
[the
2005)).
words,
University
“the
In other
rights of
First Amendment
that the
doubt
reserving
resources
[its]
has an interest
cam-
to the
extend
and association
speech
community
Ap
University
members.”
for
268-69,
universities.” Id.
of state
puses
White,
(quoting
Br. 15
Bowman
pellees’
Therefore,
we have
269.32
102 S.Ct.
Cir.2006)
(8th
(quoting
982
uni-
involving
case
state
in another
held
Md.,
Chapter
ACLU Student
— Univ.
the bur-
bears
versity,
government
“[t]he
Mote,
F.Supp.2d
College Park v.
321
are
regulations
establishing that
den of
(D.Md.2004))). The defendants also
County Chiardian
Hays
reasonable.”
exigencies
plan
need “to
assert
Cir.1992).
F.2d
Supple,
re
control and insurance
such as crowd
They
Br.
ar
Appellees’
quirements.”
case,
government
the defendant
In this
university
government
as a
that “the
gue
carry
their bur-
have done little
officials
significant
pro
interest
entity ha[s]
re-
affirmatively that [the
“show
den to
experience of the
tecting the educational
narrowly
protect
tailored to
are]
strictions
in furtherance of its educational
students
interests.”
identified
government’s]
[the
safety in
insuring student
foster
mission
Indeed,
in their
point
at one
at 119.
Id.
Br. 16. And
ing diversity.” Appellees’
brief,
appear
the defendants
appellate
legitimate
has a
they reiterate that “SLU
“In
so:
attempt
to even
do
declining
be
order on
maintaining
sufficient
interest
in-
significant State
specific
case the
may
pri
it
conduct its
campus
so that
yet
not in fact
identi-
of SLU were
terests
an education to
mary
providing
mission of
in the
remain to be determined
fied and
unnecessary
preventing
its students and
Br. 12. That is
Appellees’
case in chief.”
learning envi
disruption of the academic
of the
an incorrect statement
of course
Br. 21.
Appellees’
ronment.”
law,
in this
appeal
the central issue
since
interests
re-
asserted state
constitutionality
These
SLU’s
(1) maintaining pub-
strictions,
fairly summarized
cannot be determined
Center,
Colorado,
Health
(quoting Madsen v. Women’s
Hill v.
31. See also
(2000)
Inc.,
L.Ed.2d 597
("[I]n determining
(1994)).
nar-
whether a statute is
L.Ed.2d 593
must,
tailored,
rowly
'[w]e
we have noted
course,
place which
take account
argued that Son-
The defendants have not
determining whether
regulations apply in
there”;
to be
their
was not "entitled
nier
speech than
burden more
these restrictions
speech policy,
the SLU
argument is
recog-
example, we have
necessary.’
... For
Sonnier,
applied to
is con-
its face and as
governmental interests sur-
special
nized the
the First Amendment.
sistent with
schools, courthouses,
places,
rounding
polling
omitted)
homes.”)
(footnotes
private
(2)
Knowles,
safety,
preventing
disruption
lie
this court recognized that
(3)
education,
held,
concur,
conserving
university’s
circuits have
“[o]ther
and we
(4)
resources,
diversity.
requiring
permit
ordinances
fostering
But
demonstrations
people
handful of
are
specific
the defendants have offered little
narrowly
significant
tailored to serve a
explanation
any
of how
of the challenged
government interest.”
dents forbid-—it requires a handful of peo-
ple
permit
to obtain a
before
can
Tailoring
2. Narrow
speak in a public place.
It is therefore
Requirement
a. Permit
Individuals
for
unconstitutional.
Groups
and Small
good
There is a
why
reason
six circuits
According to Sonnier’s uncontradicted
agreed
have
permit
that such
require-
affidavit, he and a handful of friends sim- ments are unconstitutional:
great
ma-
ply
pedestrian mall,
stood in a
with
jority
Sonni-
of individuals and small groups exer-
er holding up sign,
a
and tried to engage in
cising First Amendment
rights do not
passersby.
conversation with
They were
classes,35
block traffic or disrupt
whereas
peaceable
any
and did not
disrup-
cause
actually
few who
disrup-
intend to be
tion.
precedents
Under the
of the Fifth
tive or to
rights
interfere with the
of oth-
circuits,33
Circuit and five other
very unlikely
First
ers are
to seek
per-
advance
Amendment
government
forbids the
Thus,
from mission
doing
before
so.
permit
requiring individuals and small groups,
requirement
applies
groups
small
friends,
like Sonnier and his
to obtain ad-
and
can reasonably
individuals
expected
permission
vance
for public speech
accomplish
and to
nothing except burdening
assembly.
permit requirements
Such
are
of law-abiding, non-disruptive
narrowly
tailored to serve
legiti- people.
requirement
Such a
therefore
government
mate
interest.
substantially
“burdenfs]
more
than
Houston,
603;
Turner,
1387,
33. SEIU v.
Berger
595 F.3d at
Violence v.
893 F.2d
1392
Seattle,
1029,
(9th
City
(D.C.Cir.1990).
v.
569 F.3d
1039-40
Cases from the Fourth and
Cir.2009) (en banc); Knowles, 462 F.3d at
support
Sixth Circuits
proposi
also
the same
436;
Charleston,
281,
City
Cox v.
416 F.3d
supra
tion. See
note 30.
(4th Cir.2005);
286
Am.-Arab Anti-Discrimi
Dearborn,
Grayned
City Rockford,
See
v.
City
408
nation Comm. v.
U.S.
418 F.3d
2294,
600,
(6th Cir.2005);
Brownell,
92 S.Ct.
Douglas
608
v.
(1972) (“[I]t
1511,
(8th Cir.1996);
highly
would be
88 F.3d
unusual if the
1524
Grossman
Portland,
1200,
expressive gesture
City
solitary pick-
classic
v.
33 F.3d
1206-07
(9th
school,
Cir.1994);
disrupts anything
et
Cmty.
related to the
Creative Non-Vio
for
Turner,
1387,
public
(D.C.Cir.
open
least on a
pedestri-
sidewalk
lence v.
893 F.2d
ans.”);
Houston,
1990).
SEIU v.
b. Other specifically explain why requirement If carry narrowly also failed should be considered tailored. government The to justify being challenged way the other there no to it as justify its burden tailored, narrowly ought then our speech policy: court elements the SLU it is personal acknowledge simply in- unconstitu- requirement significant tional. every single from formation collected Bowman, regulation limiting speech policy
As for the by “does not itself fos- days, plainly it per two hours seven re- ter viewpoints; merely more it limits severely far more than stricts speech.” Id. [Sonnier’s] Because this re- necessary university’s legiti- to serve the striction is no more effective at serving le- diversity mate “fostering interest gitimate government interests than a viewpoints preventing speaker one much less restrictive alternative monopolizing space.” Maj. from Op. 446. be, narrowly would it is not tailored. goals accomplished just The same could be Finally, policy requires successfully by as a policy that would speakers all to apply permits seven merely give priority speakers who had days in majority advance. The opinion already spoken for two in a hours defends this advance requirement notice as given policy might week. Such a have the being necessary to allow university limiting everyone effect of to two if hours prepare for events involving large num- there a week extraordinarily high people, bers of or to allow SLU adminis- but, speaking demand for unlike the time— arrange trative staff to their own sched- here, policy that is at issue it would not ules so that can attend events. But purposelessly restrict speakers to two there is no why people reason a few hold- during hours even weeks when there were ing signs corner, on a street or a street competing no space demands for or time. preacher trying passers- to converse with Eighth very Circuit made the same by Bible, about the require would SLU to point concerning a similar restriction in engage anything days close to seven Bowman: logistical preparation. Nor is it realistic to University’s interest in fostering a suppose that University would expend diversity of viewpoints and avoiding the by its resources having an administrator monopolization space a signifi- serves reai'range his or her schedule spend However, cant interest. five-day watching hours a small group or an indi- cap is not sufficiently narrowly drawn to vidual preacher, street campus police when achieve that Policy interest. The officers can peace see that the kept written does not itself foster more part regular jobs. of their If the small viewpoints; merely limits Bowman’s group speakers of anti-abortion in Knowles speech. If no one else wants to use the subjected could not be to an advance per- space after Bowman has used his five mit requirement security or logistical permits, space go will unused if even reasons, then jus- there is likewise nothing Bowman still wants to space. use the A tifying imposition of a permit require- more policy might tailored ment speakers on the in this case. grant just Bowman more than days five *40 per speak semester to if space is not seven-day requirement notice used, being give but preference to other challenged in this might perhaps case speakers who already have not obtained applied tailored if it only large permits. five groups, but appears there to be no case so; F.3d at that even saying 981-82. The comes close to re- stricts a speaker’s speech seven-day period notice to one two-hour is more than twice (32 per semester), block week per long three-day hours as as the period notice (40 rather than the eight-hour upheld five blocks Bowman for a speaker who hours) Bowman, per semester many Therefore, id. at drew as people. as 200 I 981, but the Bowman court’s logic applies would avoid deciding whether a seven-day equally well. policy, The SLU like the notice period would be long too to be Indemnity Underwrit Protection large applied if it justifiable Policy Severally ers, Subscribing Instead, conclude simply I would groups. BO702/LF0-21040T, Defen applied to Number as it is unconstitutional Cross-Appellants. dants-Appellees groups. and small individuals No. 09-30378. Appeals, States Court
United Fifth Circuit. from respectfully I dissent summary, not to hold uncon- majority’s decision 28, 2010. July stitutional, plaintiffs applied restrictions on governmental speech, the (ex- case at issue this
speech that are I security provision, fee for the
cept unconstitutional). I do so
agree first, appeal properly this reasons:
three challenge as well as-applied
involves second, one; of whether regardless
a facial as-applied a facial or suit involves both, test the constitutional
challenge or speech re- to these applied must be scrutiny, not the is intermediate
strictions test; finally,
“no set of circumstances” that the failed to show government are narrow- speech restrictions
challenged govern- any legitimate serve
ly tailored to interest.
mental INC.; MARINE, Danos & Cu
DANOS Contractors, LLC, Plain Marine
role
tiffs-Appellants Cross-Appellees, *41 PRIMARY PROTECTION
CERTAIN
AND INDEMNITY UNDERWRIT Policy Severally
ERS, Subscribing C0I-3400773; Excess Certain
Number