Justice for All v. Faulkner ( 2005 )

  •                                                        United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                                                                   May 27, 2005
                          FOR THE FIFTH CIRCUIT
                          _____________________              Charles R. Fulbruge III
                              No. 04-50335
                                                 Plaintiffs - Appellees,
    LARRY FAULKNER, Dr., individually and in
    his official capacity as President of the
    University of Texas at Austin; MARK YUDOF,
    individually and in his official capacity
    as Chancellor of the University of Texas
    System; CULLEN M. GODFREY, individually and
    in his official capacity as Vice-Chancellor
    of the University of Texas System; JAMES W.
    VICK, Dr., individually and in his official
    capacity as Vice President for Student Affairs
    of the University of Texas at Austin; JOE
    A. POWELL, individually and in his official
    capacity as Associate Vice President of the
    Employee and Campus Services of the University
    of Texas at Austin; TERESA GRAHAM BRETT,
    individually and in her official capacity as
    Associate Vice President of Student Affairs and
    Dean of Students of the University of Texas at
    Austin; CHERYL WOOD, individually and in her
    official capacity as Senior Student Affairs
    Administrator of the University of Texas at
    Austin; JEFFERY VAN SLYKE, individually and
    in his official capacity as Police Chief of the
    University of Texas at Austin Police Department;
    CHARLES MILLER, individually and in his official
    capacity as Chairman of the Board of Regents of
    the University of Texas System; RITA C. CLEMENTS,
    individually and in her official capacity as the
    Vice Chairman of the Board of Regents of the
    University of Texas System; WOODY L. HUNT,
    individually and in his official capacity as the
    Vice Chairman of the Board of Regents of the
    University of Texas System; FRANCIE A. FREDERICK,
    individually and in her official capacity as
    Counsel and Secretary of the Board of Regents of
    the University of Texas System; ROBERT A. ESTRADA,
    individually and in his official capacity as a
    member of the Board of Regents of the University
    of Texas System; JUDITH L. CRAVEN, Dr., individually
    and in her official capacity as a member of the
    Board of Regents of the University of Texas System;
    CYNDI TAYLOR KRIER, individually and in her official
    capacity as a member of the Board of Regents of the
    University of Texas System; H. SCOTT CAVEN, JR.,
    individually and in his official capacity as a member
    of the Board of Regents of the University of Texas
    System; JAMES RICHARD HUFFINES, JR., Dr., individually
    and in his official capacity as a member of the Board
    of Regents of the University of Texas System; JOHN W.
    BARNHILL, individually and in his official capacity as
    a member of the Board of Regents of the University of
    Texas System,
                                                     Defendants - Appellants.
               Appeal from the United States District Court
                     for the Western District of Texas
    Before JOLLY, DAVIS, and CLEMENT, Circuit Judges.
    E. GRADY JOLLY, Circuit Judge:
         The University of Texas at Austin (“the University”) is the
    flagship campus of the University of Texas System. Justice For All
    (“JFA”) is a student anti-abortion group at the University.              JFA
    brought   this   action   challenging      the   University’s   “Literature
    Policy”, which requires that all printed materials distributed on
    campus    bear   the   name   of   a   university-affiliated    person    or
    organization responsible for their distribution. JFA contends that
    the policy is an unconstitutional restriction on anonymous speech
    in a designated public forum.          The University responds that the
    policy is a reasonable, viewpoint-neutral regulation of speech
    within a limited public forum. The district court agreed with JFA,
    and issued a permanent injunction barring enforcement of the
    Literature      Policy   to   prevent     JFA   from     engaging     in   anonymous
          We AFFIRM the district court’s holding that the Literature
    Policy is invalid under the First Amendment.                   As to the specific
    remedy     ordered,   however,      we   REMAND   for    further      consideration
    consistent with this opinion.
          In December 2000, and again in February 2001, JFA submitted to
    the University’s Dean of Students an “Application for Use of
    University Facilities” requesting permission to erect a 5600 square
    foot photographic exhibit on the University’s Main Plaza.                          The
    University denied the requests, but gave JFA permission to erect
    the exhibit elsewhere on campus on two occasions.
          JFA alleges that, during one of the displays, University
    officials attempted to prohibit its members from handing out
    leaflets.       The   leaflets      in   question   read,      simply,     “Life   is
    Beautiful –- Choose Life”. Although neither party expressly states
    as much, it is clear that the intervention occurred solely because
    the leaflets did not identify JFA as the organization responsible
    for   their     distribution,       as   is   required    by    the    University’s
    Literature Policy.
          As    a   result   of   the    incident,    JFA    brought      this   action,
    challenging various University policies on First Amendment grounds.
    In   response,    the   University    amended   or    repealed     some   of   the
    policies in question, leaving two claims for the district court to
    resolve.    One of the two, which challenged the University’s rules
    regarding the erection of stationary exhibits on campus, was
    dismissed    by   the   district     court.     JFA   does   not    appeal     the
          The second of JFA’s two claims challenged the Literature
    Policy as an unconstitutional restriction on anonymous speech
    within a     designated    public    forum.     The   Literature     Policy     is
    actually comprised of two discrete rules: Institutional Rule § 13-
    404 and Regents Rule § 12.         Regents Rule § 12 applies generally to
    the University of Texas System and provides that “[a]nonymous
    publications are prohibited, and any individual or organization
    publishing or aiding in publishing, or circulating or aiding in
    circulating,      an    anonymous    publication      will   be    subject     to
    disciplinary action”.       Institutional Rule § 13-404 implements the
    Regents Rule on the Austin campus, and states that “all literature
    distributed on campus must identify the University person or
    organization1 responsible for its distribution”.2
           The term “university person or organization” refers to
    registered student, faculty, or staff organizations, and individual
    students, faculty members, or staff members. Under § 13-103 of the
    Institutional Rules, all other persons and organizations are deemed
    “off-campus persons or organizations”.
           We would also emphasize what is not under review in this
    case. JFA has not challenged provisions in the Institutional Rules
    requiring individuals and groups to identify themselves on signs
    posted on University kiosks (§ 13-503(d)) or departmental bulletin
          The University has advanced several justifications for the
    Literature Policy.       Before the district court, it argued, inter
    alia, that the policy was enacted to prevent littering on campus.
    On   appeal,     the   University   has     abandoned    the   anti-littering
    rationale and contends that the Literature Policy ensures that
    literature is not distributed by non-affiliated individuals or
    groups, thus preserving the campus for use by students, faculty,
    and staff.
          The district court concluded (1) that “the campuses of public
    colleges   and    universities”     are    “designated   public   forums   for
    student expression” and (2) that the University’s Literature Policy
    was not narrowly tailored to serve a significant state interest.3
    As such, it granted summary judgment for JFA and permanently
    enjoined the University from enforcing the Literature Policy “to
    prevent Plaintiffs from engaging in anonymous leafletting”.                The
    University now appeals that decision.
          JFA contends that the Literature Policy violates the First
    Amendment, insofar as it effectively bars anonymous leafleting by
    students on the campus of a public university.            Before turning our
    boards (§ 13-506(b)). As noted in the district court order, what
    is at issue here is the “distribution” of literature –- i.e., the
    physical handing out of leaflets and other materials.
           The substantive analysis in this case was done, quite ably,
    by Magistrate Judge Austin. Because the district court adopted the
    findings and recommendations of the magistrate in full, we refer to
    them as being those of the district court.
    attention to the Literature Policy itself, we must address two
    threshold questions.      First, we must determine whether the speech
    at issue –- that is, anonymous leafleting –- is protected under the
    First Amendment.      If it is, we must determine the proper level of
    constitutional      scrutiny     to    apply    to   the   particular    forum   in
          As a general proposition, anonymous speech is protected by the
    First Amendment.       See, e.g., McIntyre v. Ohio Elections Comm’n.,
    514 U.S. 334
        (1995);    Buckley    v.    American    Constitutional       Law
    Foundation,    Inc.,     
    525 U.S. 182
    ,    199-200     (1999);     Talley    v.
    362 U.S. 60
    , 64 (1960).             In striking down prohibitions
    on anonymous publication, the Supreme Court has noted, inter alia,
    the importance of anonymity as a means of permitting “[p]ersecuted
    groups and sects” to “criticize oppressive practices and laws”.
    Talley, 362 U.S. at 64.
          More   specifically,       the    First    Amendment’s     protection       of
    anonymous speech extends beyond traditional publishing to encompass
    anonymous leafleting.          In Talley, for example, the Supreme Court
    held void a city ordinance barring the distribution of handbills
    that did not include the name and address of both the author and
    distributor.       See id. at 60-61, 65.        Moreover, the Court observed
    in McIntyre that “anonymous pamphleteering is not a pernicious,
    fraudulent practice, but an honorable tradition of advocacy and
    dissent”, which “exemplifies the purpose behind the Bill of Rights,
    and of the First Amendment in particular”.    514 U.S. at 357.
         Certainly, the right to “anonymous speech” has a somewhat
    different meaning for a student who speaks on the campus of a
    public university than it has for a leafleter on a public street.
    Public universities can and typically do restrict access to campus
    facilities.   Identifying oneself as a student to a designated
    university official will often serve as one’s “admission ticket” to
    use those facilities for various purposes, including speech.     As
    such, on-campus speech –- by virtue of the simple fact that it
    occurs within a forum that only certain persons may use –- will
    almost never be completely anonymous.
         What remains of a student’s anonymity after he has identified
    himself to university officials, however, is significant.   He may,
    if he chooses, remain anonymous in relation to other students, as
    well as most faculty and staff.   This residual anonymity is no less
    critical to the expression of controversial ideas on university
    campuses than the right to more complete anonymity is to such
    expression in traditional public spheres.      As such, we have no
    trouble concluding that the anonymous leafleting prohibited by the
    Literature Policy is a form of speech protected under the First
         We thus proceed to determine what level of First Amendment
    scrutiny to apply in our review of the Literature Policy.        The
    policy is a restriction on speech on government-owned property –-
    i.e., the campus of the University of Texas at Austin.                          The
    standards by which regulations of speech on government property
    must be    evaluated     “differ      depending     on   the   character   of   the
    property at issue”.            See Perry Education Assn. v. Perry Local
    Educators’ Assn., 
    460 U.S. 37
    , 44 (1983).                As such, our analysis
    turns on how the University’s campus is classified as a forum for
    protected speech under the Supreme Court’s precedents.
         Broadly speaking, there are three types of forum for purposes
    of   First       Amendment     scrutiny:      traditional,      nonpublic,      and
    designated.        See   id.    at   44-46.     Restrictions      on   speech    in
    traditional public forums, such as streets and parks, receive the
    strictest scrutiny.4           Restrictions in nonpublic forums, such as
    military installations, receive the most forgiving.5               The campus of
    the University of Texas at Austin, however, fits neither category.
    It falls instead within the middle category, broadly referred to as
    “designated” public forums.
         In recent years, the Supreme Court has made it clear that this
    middle category is further divided into two discrete types of
    forum:    true    “designated”       forums   and   “limited”     forums.6      The
             See, e.g., Carey v. Brown, 
    447 U.S. 455
    , 461 (1980).
             See, e.g., Greer v. Spock, 
    424 U.S. 828
           Although the Supreme Court and the circuits have clarified
    the functional difference between designated and limited forums,
    the precise taxonomic designation of the latter remains elusive.
    As we observed in Chiu v. Plano Independent School District, 260
    distinction is critical in this case, because restrictions on
    speech in a designated forum are subject to strict scrutiny,
    whereas such restrictions in a limited forum are reviewed under a
    less demanding standard for “reasonableness”.            See Chiu, 260 F.3d
    at 346; see also Rosenberger, 515 U.S. at 829.7
         In    Chiu,   this   court   set    forth   a    two-factor   test    for
    classifying such intermediate public forums as either designated or
    limited.   Under Chiu, we look to “(1) the government’s intent with
    respect to the forum, and (2) the nature of the forum and its
    compatibility with the speech at issue”.             260 F.3d at 346.     As a
    preliminary matter, however, we note that there is some dispute
    between the parties as to the precise nature of the “forum” at
    issue in this case.       As such, before applying the Chiu test, we
    must define the parameters of the forum.
    1 F.3d 330
    , 346 n. 10 (5th Cir. 2001), the Supreme Court at one time
    “referred to limited public forums as being a subcategory within a
    designated public forum”, but had more recently “used the phrase
    ‘limited public forum’ to describe a type of nonpublic forum of
    limited open access”. Compare Widmar v. Vincent, 
    454 U.S. 263
    273-74 (1981) with Rosenberger v. Rector & Visitors of the Univ. of
    515 U.S. 819
    , 829 (1995).
            In Rosenberger, the Supreme Court reviewed speech
    restrictions in a “limited forum” only (1) for viewpoint
    neutrality; and (2) to determine whether the restriction was
    “reasonable in light of the purpose served by the forum”. 515 U.S.
    at 829. This standard is identical to that which the Court has
    applied to nonpublic forums. See, e.g., Perry Education Assn., 460
    U.S. at 49.
         The University’s case is based on a general assertion that
    “the University campus” is a limited public forum.           The University
    suggests that to hold otherwise would render the entire campus “the
    equivalent of a public park”, insofar as any regulation of speech
    by “students, teachers, or anyone else” would be subject to strict
    scrutiny.    Moreover, the University notes that it affirmatively
    prohibits speech by “off-campus persons or organizations” –- i.e.,
    anyone who is not a student, faculty member, or staff member –- and
    contends    that   the   district   court’s   order,    if   upheld,   would
    undermine its ability to do so.      The University’s arguments do not
    reflect an appreciation of the distinction between limited and
    designated public forums as they exist within the university
         The distinction between limited and designated public forums
    is not a simple “all-or-nothing” proposition.          The Supreme Court’s
    forum analysis jurisprudence does not require us to choose between
    the polar extremes of treating an entire university campus as a
    forum designated for all types of speech by all speakers, or,
    alternatively, as a limited forum where any reasonable restriction
    on speech must be upheld.8     Instead, as the Supreme Court indicated
           More generally, we note that a central function of the
    limited/designated dichotomy has been to permit courts to strike a
    balance between “the necessit[y] of confining a forum to the
    limited ... purposes for which it was created” and the requirement
    that the state, once it has opened a forum, “respect the lawful
    boundaries it has itself set”.      Rosenberger, 515 U.S. at 829
    (citing Cornelius v. NAACP Legal Defense and Education Fund, Inc.,
    473 U.S. 788
    , 804-06 (1985)); see also Perry Education Assn., 460
    in Arkansas Public Television Assn. v. Forbes, a given forum may be
    designated for one class of speaker or speech, and still “limited”
    with respect to others.9   See 
    523 U.S. 666
    , 677-81 (1998) (“If the
    government excludes a speaker who falls within the class to which
    a designated public forum is made generally available, its action
    is subject to strict scrutiny.”).
         As such, the University’s concern that an adverse holding must
    necessarily throw open the gates of public universities to any type
    of speech by any speaker is unfounded.   We are not called upon in
    this case to decide whether the University of Texas at Austin has
    opened its entire campus to unfettered expression by the general
    public.   Instead, our task is simply to determine whether outdoor
    open areas of the University’s campus, accessible to students
    generally, have been designated as a forum for student expression.
    We now proceed with that inquiry.
         We turn, then, to the first element of the Chiu test:     the
    government’s intent with respect to the forum.   Government intent
    U.S. at 46-48. Such a balancing would be largely impossible were
    the designated/limited dichotomy to be treated as a simple binary
    choice to be made at a facility-wide (here, campus-wide) level.
           This court has drawn similar distinctions in its own case
    law. In Chiu, for example, we noted that “when school district
    authorities elect to open public school facilities after school
    hours for public meetings during which public issues will be
    discussed in a manner similar to a limited-topic school board
    meeting, the district officials have designated a public forum for
    the limited time and topic of the meeting”. See Chiu, 260 F.3d at
    348 (emphasis added).
    represents “the critical starting point” of forum analysis, as “the
    government creates a designated public forum ‘only by intentionally
    opening a nontraditional forum for public discourse’”.          Chiu, 260
    F.3d at 347 (quoting Cornelius, 473 U.S. at 805).
         The University contends that, by enforcing a “pervasive and
    comprehensive     ...   system”   of    speech   regulations,    it   has
    demonstrated an intent to establish its campus as a limited public
    forum.   The general thrust of these regulations is summarized in §
    6.1 of the Regents Rules, which provides that:
               The property, buildings, or facilities owned
               or controlled by the U.T. System or component
               institutions are not open for assembly,
               speech, or other activities as are the public
               streets,    sidewalks,   and   parks.       The
               responsibility of the Board of Regents to
               operate   and   maintain   an   effective   and
               efficient system of institutions of higher
               education requires that the time, place, and
               manner   of   assembly,   speech,   and   other
               activities on the grounds and in the buildings
               and facilities of the U.T. System or component
               institutions be regulated.
         The Institutional Rules implement the general directives of
    the Regents Rules on the Austin campus.            Chapter 13 of the
    Institutional Rules, entitled “Speech, Expression, and Assembly”,
    begins by guaranteeing the expressive rights of students, faculty,
    and staff.      Subchapter 13-100 provides the following “Governing
               a.     The freedoms of speech, expression, and
                      assembly are fundamental rights of all
                      persons and are central to the mission of
                      the University. Students, faculty, and
                      staff have the right to assemble, to
                        speak, and to attempt to attract the
                        attention of others, and corresponding
                        rights to hear the speech of others when
                        they choose to listen, and to ignore the
                        speech of others when they choose not to
              b.        Students, faculty and staff are free to
                        express their views, individually or in
                        organized groups, orally or in writing or
                        by other symbols, on any topic, in all
                        parts of the campus, subject only to
                        rules necessary to preserve the equal
                        rights of others and the other functions
                        of the University. ...
    The Institutional Rules “preserve ... the other functions of the
    University” primarily by designating appropriate locations, times
    and/or procedures for the use of, inter alia, signs, banners,
    kiosks, tables, “exhibits”, and amplified sound.           They are, as
    Regents Rule 6.1 suggests, generally the sort of “time, place, and
    manner” regulations that might be enforced in any public forum –-
    designated, traditional, or otherwise.10
         In contrast to its relatively comprehensive regulation of the
    time, place, and manner of speech, the University imposes only
    minimal restrictions on the substance of speech. Section 13-101(c)
    of the Institutional Rules provides that “[e]xcept as expressly
    authorized     by    subchapter   13-200,   the   University   shall   not
    discriminate        on   the   basis   of   the   political,   religious,
           In traditional public forums, “[t]he state may ... enforce
    regulations of the time, place, and manner of expression which are
    content-neutral, are narrowly tailored to serve a significant
    government interest, and leave open ample alternative channels of
    communication.”   See, e.g., Chiu, 260 F.3d at 345 n.9 (quoting
    Perry Education Assn., 460 U.S. at 45).
    philosophical, ideological, or academic viewpoint expressed by any
    person”.    Notably, subchapter 13-200 prohibits only obscenity,
    defamation, harassment, commercial solicitation, and incitements to
    violate the law, all of which reflect distinctions as to content,
    rather than viewpoint.    Moreover, Section 13-305(b) provides that
    “even [the] rules [set forth in Chapter 13] are subject to the
    constitutional   right   of   free   speech”     and   as   such,   “must   be
    viewpoint neutral”.
         Thus, the University’s Institutional Rules mandate that any
    substantive restrictions on student speech –- at least in open,
    outdoor portions of the campus -- must be both (1) viewpoint
    neutral and (2) content neutral, unless one of a small number of
    expressly   delineated   exceptions       applies.11    Put   another   way,
    although the University’s restrictions on the time, place, and
    manner of speech are indeed “comprehensive”, it has nonetheless
    affirmatively and expressly guaranteed its students, faculty, and
            As further evidence of its intent to establish a limited
    forum, the University points to provisions within the Regents Rules
    that deny the above-described protections to non-affiliated
    individuals and organizations –- i.e., the general public.       We
    agree that the Regents Rules evince a clear intent on the part of
    the University of Texas System to restrict the public’s right to
    speak on its campuses. The Literature Policy, however, does not
    apply to the general public; it applies solely to university-
    affiliated individuals and groups.     As noted supra, the narrow
    question before us is whether the University has sufficiently
    demonstrated an intent to limit speech by the affected class –-
    i.e., students, faculty, and staff. The exclusion of other classes
    is not relevant to that inquiry.
    staff virtually all of the rights that the Constitution provides
    speakers in traditional public spaces.
         The University’s regulations are not materially different –-
    at least, with regard to their treatment of student speech12 –- from
    those that we reviewed in Hays County Guardian v. Supple, 
    969 F.2d 111
     (5th Cir. 1992).   In Hays County Guardian, we considered an
    earlier version of the Regents Rules, which, much like the current
    Institutional Rules, guaranteed students the right to “assemble and
    engage in free speech” subject to “reasonable nondiscriminatory
    regulations as to time, place, and manner of such activities”. Id.
    at 117. We observed that the Regents Rules “support the conclusion
    that the University intended the campus to serve as a public forum
    for its students” and held that the campus was a “limited public
    forum, designated for the speech of students”.13
         The Institutional Rules, like the regulations in Hays County
    Guardian, clearly evince an intent to maintain the Austin campus as
    a designated forum for student expression, subject only to time,
             The version of the Regents Rules we considered in Hays
    County Guardian extended the right to speak on campus to “[a]ny
    group or person, whether or not a student or employee”. See 969
    F.2d at 117.
             The University contends that the district court erred in
    relying on Hays County Guardian, observing that the case “predated
    the recent clarification” of the distinction between designated and
    limited forums.    The argument is without merit.     Although the
    designated versus limited distinction has been clarified to an
    extent in recent years, the court in Hays County Guardian reached
    precisely the same result it would reach today –- i.e., that
    regulations of student speech on campus were subject to strict
    scrutiny –- based on essentially the same substantive analysis.
    place, and manner regulations and a small number of enumerated
    content-based restrictions. In short, the University has given its
    students too broad a guarantee of expressive freedom now to claim
    it intended its campus to function as a limited public forum.
         We turn then, briefly, to the second element of the Chiu test:
    the compatibility of the speech being conducted with the forum
    created.   This element requires far less extensive analysis than
    the intent prong, as a university campus is clearly “an appropriate
    place for communication of views on issues of political and social
    significance”.    See Chiu, 260 F.3d at 349 (quoting Estiverne v.
    Louisiana State Bar Assn., 
    863 F.2d 371
    , 378-79 (5th Cir. 1989).
         The   only   plausible   argument   to   the   contrary   is   the
    University’s contention that the Literature Policy’s prohibition of
    anonymous leafleting functions as a mechanism for excluding non-
    university-affiliated leafleters, thus preserving the campus for
    student use.      This argument has some intuitive merit, but is
    properly considered infra as an argument that the Literature Policy
    serves a significant state interest, and thus survives strict
    scrutiny, rather than as an argument for avoiding strict scrutiny
         In sum, we hold that the University, through its own policies,
    has designated the outdoor open areas of its campus generally
    accessible to students     -- such as plazas and sidewalks –- as
    public forums for student speech. As such, the Literature Policy’s
    prohibition of anonymous leafleting in such areas is subject to
    strict scrutiny.
         In order to survive First Amendment strict scrutiny, a content
    neutral restriction on speech must be narrowly tailored to a
    significant state interest and must leave open ample alternative
    channels of communication.14     See, e.g., Perry Education Assn., 460
    U.S. at 45.    The University contends that the basic function of the
    Literature Policy is to allow University officials to identify the
    source of a given piece of literature and thereby prevent non-
    affiliated    persons   or   groups   from     distributing    literature   on
    campus.    As such, the University argues, the Literature Policy
    serves a significant state interest by preserving the campus for
    speech by students, faculty, and staff.
         JFA     contends   that   the    University’s     forum    preservation
    rationale is largely pretextual. It argues that the Literature
    Policy is underinclusive for the purpose of preventing on-campus
    speech by non-affiliated persons.           JFA observes that, although the
           JFA contends that the district court erred in classifying
    the Literature Policy as a content neutral restriction on speech.
    Instead, JFA asserts, the policy is a content-based restriction,
    insofar as it requires personal or group identification on the
    literature itself, and therefore must be (1) narrowly tailored to
    a “compelling government interest” and (2) the least restrictive
    alternative available to the government. See, e.g., United States
    v. Playboy Entertainment Group, Inc., 
    529 U.S. 803
    , 813 (2000).
    Because the Literature Policy fails to satisfy either formulation
    of strict scrutiny, we will assume, arguendo, that the Literature
    Policy is content neutral and that the less demanding test applies.
    Regents    Rules    prohibit      non-affiliated     persons   from   using   the
    University campus for speech of any type, the University’s attempts
    to preserve the forum for students by prohibiting anonymous speech
    extend only to the distribution of literature.                  Other forms of
    anonymous speech, such as signs and oratory, are permitted.
          The space available for distribution of literature by students
    is   reduced   to    the   same    extent    where   a   non-affiliated   person
    communicates via anonymous picketing, as opposed to anonymous
    leafleting.        Because the University prohibits the latter while
    permitting the former –- and presents no compelling argument as to
    why the two ought to be distinguished for purposes of “forum
    preservation” -- we agree that the credibility of its rationale is
    diminished.    See City of Ladue v. Gilleo, 
    512 U.S. 43
    , 52 (1994).15
          Nonetheless, we are persuaded that, as a general principle,
    the government does have a significant interest in preserving the
            The credibility of the University’s rationale is further
    eroded by the Literature Policy’s ineffectiveness at accomplishing
    even the narrow objective that the University has elected to pursue
    –- i.e., preserving the campus forum by prohibiting anonymous
    leafleting by non-affiliated persons. The University concedes that
    the main practical effect of the Literature Policy is to permit
    officials to collect anonymous leaflets “that have been detached
    from their speaker” and are “floating around the campus”.
         Removing abandoned literature after it has been distributed
    does little to free up space for legitimate distribution by
    students.    Indeed, it would appear that a more plausible
    explanation for the Literature Policy is the University’s interest
    in the prevention and removal of litter –- a justification the
    University advanced before the district court but abandoned on
    campuses of      public    colleges   and    universities     for    the   use   of
    students. As such, we will assume that the narrow purpose actually
    served by the Literature Policy –- i.e., preserving outdoor areas
    of the campus specifically for leafleting by students –- likewise
    represents a significant state interest.
         In addition, it is clear that the Literature Policy leaves
    open “ample alternative channels of communication” for students.
    See Perry Education Assn., 460 U.S. at 45.                As JFA acknowledges,
    numerous forms of anonymous speech –- including oratory, public
    displays, and signs –- remain available for students who wish to
    employ them.
         The   crux       of   our   analysis    is     the    “narrow    tailoring”
    requirement.     A regulation is narrowly tailored when it “does not
    burden substantially more speech than is necessary to further the
    government’s legitimate interest”.           Hays County Guardian, 969 F.2d
    at 118 (quoting Ward v. Rock Against Racism, 
    491 U.S. 781
    , 799
    (1989)).   Even a legitimate interest cannot justify a restriction
    if the latter accomplishes its goal at “an inordinate cost to
    speech”.   Id.
         The University contends that the Literature Policy is narrowly
    tailored because “the campus forum is defined by who can speak”,
    and thus, a speaker’s identity “is the necessary admission pass to
    use this forum at all”.          This argument misses the finer point at
    issue.     It    is    undoubtedly    true   that    the    Literature     Policy
    represents one method of identifying a given speaker.                The “narrow
    tailoring” inquiry, however, asks whether that particular method
    burdens substantially more speech than is necessary. In short, the
    relevant question today is not whether the university may require
    an “admission pass” to leaflet on campus, but whether that “pass”
    need be printed on every leaflet that a student distributes and
    reveal his identity to everyone.
         We hold, as we must, that the Literature Policy is not
    narrowly tailored to the state’s interest in “forum preservation”.
    The essence of the University’s “forum preservation” rationale is
    the need of certain University officials to know whether a given
    leafleter is or is not affiliated with the University, such that,
    if he is not, he (and his leaflets) can be removed.    By contrast,
    the Literature Policy requires that the speaker identify himself,
    not just to certain University officials, but to every person who
    receives the literature being distributed.    As the district court
                There are far more direct means through which
                the University can prevent non-students from
                leafleting on the UT Campus, which would be
                far less burdensome on speech. ... In order
                to enforce its policy, the University could
                direct its staff to ask suspected non-students
                engaging in leafleting to show a University
                identification card.    If the distributor of
                the leaflet is a non-student, then the
                University could ask that individual to leave
    Although the procedure outlined by the district court might require
    a student distributing leaflets to identify himself to a University
    official, it would burden substantially less speech than the
    Literature Policy’s requirement that every leaflet handed out
    identify the student.
          We recognize that any alternative policy aimed at preserving
    the campus for student use will likewise involve some loss of
    speaker anonymity.         Moreover, alternative policies may yield new
    administrative challenges.        The University contends, for example,
    that requiring leafleters to show identification to University
    officials might (1) lead to claims of selective enforcement, and
    (2)   increase      the   frequency   of   confrontations     with   University
          We do not presume to tell the University precisely how it
    should go about preventing unauthorized use of its campus.                   In
    response to the concerns raised above, however, we make two general
    observations.       First, the University is responsible for ensuring
    the even-handed enforcement of all of its regulations relating to
    speech. To the extent that a change in policy creates a perception
    of selective enforcement, transparency and open dialogue would
    appear    to   be   better   remedies      than   overbroad   restrictions   on
          Second, as to concerns regarding increased confrontation with
    University police, the University is perfectly capable of providing
    students with alternatives –- that is, with some choice as to the
    means of identification. In particular, we do not suggest that the
    method of identification prescribed by the Literature Policy would
    be constitutionally impermissible if alternate, less intrusive,
    means were also made available to students.             By the University’s
    own admission, a majority of student organizations voluntarily
    identify   themselves   on   the   literature    they    distribute.     The
    minority who choose not to do so might be given the choice of
    showing    identification    at    the   point     of    distribution,   or
    alternatively, advising a single designated officer beforehand that
    a distribution will occur at a given time and place, thereby
    eliminating the need to interrupt the act of distribution itself.
    Regardless of the precise method or methods employed, however, the
    University must offer student leafleters some choice as to the
    means of identification that does not involve disclosing name or
    organizational affiliation to all who receive the message.
         In sum, we reiterate that, where the government designates a
    forum for use by a given class of speaker, it is nearly inevitable
    that those who wish to make use of the forum will be required to
    sacrifice some measure of anonymity.             The Literature Policy’s
    requirement that speakers identify themselves to every person who
    receives their message, however, sacrifices far more anonymity than
    is necessary to effectively preserve the campus forum for its
    intended beneficiaries.      As such, the Literature Policy is not
    narrowly tailored to a significant government interest, and thus,
    is invalid under the First Amendment. Accordingly, the judgment of
    the district court is affirmed in this respect.
         Finally, having concluded our First Amendment analysis, we
    turn to the remedy ordered by the district court.             Although JFA
    asked     the   district   court   to    declare   the   Literature   Policy
    unconstitutional on its face, the court enjoined enforcement of the
    policy only as it applied to JFA.
         In its brief, JFA asks this court to alter the district
    court’s ruling on the breadth of its holding, direct the district
    court to declare the Literature Policy unconstitutional on its
    face, and order the Literature Policy permanently enjoined across
    the board.      Because JFA did not cross-appeal from the district
    court’s judgment, however, we lack jurisdiction to expand the scope
    of the remedy ordered.       See Ayers v. United States, 
    750 F.2d 449
    457 (5th Cir. 1985); United States v. American Rwy. Express Co.,
    265 U.S. 425
    , 435 (1924) (absent cross-appeal, “appellee may not
    attack the decree with the view either to enlarging his own rights
    thereunder or of lessening the rights of his adversary”).
         Nonetheless, we express two basic concerns as to the district
    court’s remedy.     First, it is apparent that a facial challenge to
    the Literature Policy was appropriate and was made in this case.16
           See Board of Airport Commissioners v. Jews for Jesus, Inc.,
    482 U.S. 569
    , 574 (1987) (“an individual whose own speech or
    conduct may be prohibited is permitted to challenge a statute on
    its face because it also threatens others not before the court”);
    see also Watchtower Bible & Tract Society of New York, Inc. v.
    Village of Stratton, 
    536 U.S. 150
    , 167 n.14 (2002) (“We may,
    therefore, consider the impact of this ordinance on the free speech
    rights of individuals who are deterred from speaking because the
    registration provision would require them to forgo their right to
    speak anonymously.”).
    Nowhere in the court’s order or in the magistrate judge’s rather
    extensive report, however, is the rationale set forth for rejecting
    JFA’s facial challenge.            Our review of the record has discerned no
    material differences between the Literature Policy’s impact on JFA
    and its impact on other students or student organizations.                            We
    therefore see no clear reason why an “as applied” invalidation was
    ordered in this case.
          Equally unclear is how the University might cease enforcement
    of   the   Literature        Policy   against     JFA    in   particular       without
    abandoning        the    policy    altogether.      How,      for   example,     is   a
    University        official    to    respond   if    he     encounters      a   person
    distributing literature that does not identify its source?                            It
    would appear that, in all such cases, the official would have to
    assume     that    the    distributor    is   a    member     of    JFA,   acting     in
    accordance with the district court’s order.                As such, it seems that
    an injunction barring enforcement of the Literature Policy “as
    applied” to JFA would operate as a de facto facial invalidation.
          Given this rather strange result, we think it prudent to
    remand the case to the district court.                   The court may wish to
    reconsider JFA’s injunction request.
          For the reasons set forth above, we AFFIRM the holding and
    judgment of the district court that the Literature Policy violates
    the First Amendment, but REMAND to the allow the district court, at
    its option,   to   alter   its   injunction   to   bar   the   University’s
    Literature Policy across the board.
                                                       AFFIRMED and REMANDED.