John McGlone v. Robert Bell ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0162p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
X
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JOHN MCGLONE,
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Plaintiff-Appellant,
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-
Nos. 10-6055/6169
v.
,
>
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ROBERT BELL; ED BOUCHER; MARK
Defendants-Appellees. -
OCHSENBEIN; MICHAEL LAMBERT,
N
Appeal from the United States District Court
for the Middle District of Tennessee at Cookeville.
No. 10-00029—Aleta Arthur Trauger, District Judge.
Argued: July 28, 2011
Decided and Filed: April 23, 2012*
Before: BOGGS and CLAY, Circuit Judges; TARNOW,** District Judge.
_________________
COUNSEL
ARGUED: Nathan W. Kellum, ALLIANCE DEFENSE FUND, Memphis, Tennessee,
for Appellant. William J. Marett, Jr., OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellees. ON BRIEF: Nathan W. Kellum,
Jonathan A. Scruggs, ALLIANCE DEFENSE FUND, Memphis, Tennessee, for
Appellant. William J. Marett, Jr., Blind Akrawi, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.
*
This decision was originally issued as an “unpublished decision” filed on April 23, 2012. On
May 16, 2012, the court designated the opinion as one recommended for full-text publication.
**
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.
1
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 2
_________________
OPINION
_________________
TARNOW, District Judge. Appellant is an evangelical Christian who wishes to
speak on the campus of Tennessee Technological University (TTU) about his religion.
TTU requires non-affiliated individuals and groups to obtain permission before speaking
on certain parts of the campus. TTU employs a fourteen business day advance notice
period for all applications. Appellant attempted to speak on TTU’s campus. When he
was denied the opportunity to speak anywhere except the north patio and was removed
from campus, Appellant brought an as-applied and facial challenge to TTU’s policy in
the district court.
Appellant filed a motion for preliminary injunction, and Appellees filed a motion
to dismiss. The district court held that Appellant did not suffer an injury in fact and
therefore, did not have standing to bring the suit. It held that the campus use policy is
content-neutral and narrowly tailored. The district court further granted Appellees’
motion to dismiss and denied Appellant’s motion for preliminary injunction.
Because Appellant has suffered an injury in fact, has standing, and TTU’s policy
is not narrowly tailored, we REVERSE the district court’s finding that Appellant does
not have standing to pursue his claims; REVERSE the district court’s grant of
Defendants’ motion to dismiss and REMAND for further proceedings consistent with
this opinion; and VACATE the district court’s denial of McGlone’s motion for
preliminary injunction and REMAND for further proceedings consistent with this
opinion.
BACKGROUND
The following facts come from the district court’s Memorandum and Order
granting Defendants’ Motion to Dismiss and denying Plaintiff’s Motion for Preliminary
Injunction. The district court accepted as true Plaintiff’s version of the facts. R. 29, at
1-2; Appellant’s Br., at 13.
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 3
Plaintiff McGlone is a professing evangelical Christian who
resides in Breeding, Kentucky. As a tenet of his faith, he conveys his
beliefs and convictions to others in public. He does this orally, either in
small groups or in one-on-one conversations and through distribution of
literature and display of signs. Plaintiff often discusses issues of the day
from his religious perspective. To share his faith, the plaintiff frequently
visits public universities and expresses his religious beliefs with students
and others found on campus. Plaintiff’s message relates to the hope that
he believes Jesus Christ offers for humanity. In plaintiff’s view, there is
no better place to share his faith than on a college campus.
The plaintiff makes no attempt to solicit funds or membership in
any organization. He does not try to harass anyone or encourage
violence, and he expresses himself in a peaceful manner. He claims that
he does not try to force anyone to listen to him or to accept the literature
he distributes; he seeks only to share his beliefs and to engage other
persons in respectful conversation and rational dialogue about the
teachings and benefits of Christianity. Tennessee Technological
University (“TTU”) is a public university located in Cookeville,
Tennessee. The TTU campus blends in with the City of Cookeville;
other than a few signs, there are no demarcations signifying where TTU
ends and the City of Cookeville begins. Various city streets run around
and through the TTU campus. The city streets that run through campus
include University Drive, Dixie Avenue, North Willow Avenue, and
North Peachtree Avenue. TTU’s campus is bounded by 12th Street to the
north, a railroad to the east, Pine and North Franklin Avenues to the west,
and various residences, commercial establishments, and public streets to
the south. The sidewalks on the perimeter of the TTU campus and on
streets running through campus are indistinguishable from City of
Cookeville sidewalks. There are no fences or barricades on the perimeter
of the campus to prevent members of the general public from gaining
access to the campus. The TTU campus is open to the public at large,
and individuals not associated with the university have free access onto
the grounds. The campus contains many open, accessible areas on the
grounds, including sidewalks, park areas with benches and tables,
pedestrian malls, and other public ways.
On April 6, 2009, the plaintiff called TTU to learn how he could
express his religious views on campus. He spoke with Susan Henry in
the Student Information Office, and she told him to stop by the office
when he wanted to speak.1
The next day, on April 7, 2009, Mr. McGlone and his friend,
Shawn Holes, visited the TTU campus for the specific purpose of
1
It is not clear why Ms. Henry did not mention to Mr. McGlone that there was a written policy
applicable to such requests.
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 4
expressing a Christian message to students by conversation, literature
distribution, and display of signs. McGlone wished to speak in any open,
outside area of the campus where students could be found, including but
not limited to, the south patio/plaza area outside the University Center,
Sherlock Park, the Main Quad near South Hall, and the sidewalks along
12th Street, Dixie Avenue, North Willow Avenue, North Peachtree
Avenue, and 7th Street. (Docket Nos. 2-2 through 2-14, Exs. B through
O.)
Upon arriving at the TTU campus, McGlone and Holes went to
the University Center to meet with Ms. Henry. They noticed a few
students on the south patio outside the University Center (Docket No. 2-
1, Ex. B) and immediately started talking to them before checking in with
Ms. Henry. The south patio has several tables and chairs and flows into
a large plaza area. (Docket Nos. 2-2 & 2-3, Exs. C & D.) Students gather
in this area, which resembles a pedestrian mall.
After a few minutes, McGlone went inside the University Center
to find Ms. Henry, while Holes stayed outside and talked with students.
Ms. Henry was not present that day, so McGlone spoke with Mark
Ochsenbein, Director of Student Activities. Mr. Ochsenbein said that
McGlone could speak on the north patio. (Docket No. 2-15, Ex. P.)
McGlone asked if he could use the south patio/plaza instead, there being
more students and tables and chairs in that area. Ochsenbein declined
McGlone’s request and told him that the north patio was his only option.
McGlone asked to see the written policy limiting expressive activity to
the north patio. Ochsenbein became agitated and said that if McGlone did
not use the north patio he would call the university police and have him
arrested.
McGlone went outside to inform Holes of Ochsenbein’s
comments. Holes agreed that the north patio was inadequate for their
expressive activities, as there were few students and no tables and chairs.
McGlone went back inside the University Center and spoke to Ed
Boucher, Dean of Student Affairs. McGlone explained why he and
Holes did not want to use the north patio, and he asserted that their use
of the south patio/plaza area would in no way cause a disruption. Dean
Boucher said that he would check university policy and get back to
McGlone.
McGlone then returned to the south patio outside the University
Center, where he and Holes, without permission, continued to distribute
tracts and engage others in conversation. A few minutes later, TTU
police officer Michael Lambert approached and informed McGlone and
Holes that they had to stop their activities and leave campus or they
would be arrested for trespass. McGlone and Holes left the campus.
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 5
The following day, on April 8, 2009, at approximately 9:00 a.m.,
McGlone telephoned Dean Boucher to find out whether he could speak
on campus. Dean Boucher said that plaintiff could speak, but he needed
to follow TTU’s campus use policy. (Docket No. 2-19, Ex. T.)
According to Dean Boucher, the policy required plaintiff to submit a
written application before speaking (Docket No. 2-20, Ex. U) and to
submit that application in person at least 14 business days prior to
speaking.
The policy, entitled “Use of Campus Property And Facilities,”
states that its purpose “is to provide a uniform basis upon which the
institutions and area vocational-technical schools governed by the
Tennessee Board of Regents can regulate the use of campus property and
facilities by affiliated and non-affiliated groups, organizations and
individuals.” (Docket No. 2- 19 at 1, 0240-1-1.01.) The policy also
provides that it
is intended to provide a system of regulations calculated
to promote the orderly conduct of activities on campus
property and in campus facilities: to prevent interruption
of or interference with normal missions, processes and
functions of the institutions and schools; to promote an
educational rather than commercial atmosphere on
campus; to prevent commercial exploitation of students;
to preserve residential tranquility and to prevent use of
campus property and facilities contrary to federal, state,
or local law or regulation, or policies or regulations of the
Tennessee Board of Regents, or the institution and
schools.
(Id.) The policy further provides that the campuses and facilities of the
institutions and schools are restricted to students, faculty, staff and guests
of the institutions or schools, except when part or all of the campuses, its
buildings or facilities are open to the general public for a designated time
and purpose or “when use by non-affiliated groups, organizations or
individuals has been granted or approved pursuant to the provisions of
this policy or the policy of the individual institution or school.” (Id. at
1, 0240-1-1.02(2)(a).) The policy specifically states that “[n]on-
affiliated groups, organizations and individuals may utilize campus
property and facilities on a temporary basis for the purpose of religious
worship or evangelical activities subject to the specified registration
requirements and procedures.” (Id. at 5, 0240-1-1.04.)
The policy requires all non-affiliated individuals, groups, or
organizations desiring use of campus property or facilities or desiring to
distribute literature on campus to submit a written application for
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 6
registration of the proposed activity at least fourteen (14) days in advance
(excluding weekends and holidays) to the appropriate official at the
institution or school. (Id. at 2, 0240-1-1.02(4)(b).) In the event an
applicant misses the 14-day advance notice deadline, “the President of
the institution or director of the area school, or his or her designee, may
approve applications for registration filed at a later time upon such
official’s determination that the use of property requested can be
reasonably accommodated and that adequate cause exists for late filing
of the application for registration.” (Id.) Approval of a late application
is within the sole discretion of the President, the director of the area
school, or his or her designee. Applications must be submitted on a
designated form. (Id.)
The policy permits officials to deny applications for use of
campus property in nine (9) specific circumstances: (1) where the
requested use would cause substantial disruption or interference with the
normal activities of the institution or school conducted in the course of
its lawful mission, processes and functions; (2) the requested use would
be contrary to federal, state, or local law or regulation, or policies or
regulations of the Tennessee Board of Regents, or the institution or
school; (3) the applicant or sponsor failed to provide accurate and
complete information on the application for registration; (4) the applicant
or sponsor has been responsible for policy violations during previous
registered use of campus property or facilities; (5) approval for the use
of property or facilities has previously been given to another group,
organization or individual for the time(s) and location(s) requested;
(6) use of the property or facilities requested would be impossible due to
the set-up time and/or take down time required for other previously
scheduled activities at the requested location immediately before and/or
after the requested use, or due to other extenuating circumstances; (7) the
activity is of such nature or duration that it cannot reasonably be
accommodated in the particular area for which application is made,
provided that in such event, an alternative on campus site, if available for
the activity, may be proposed by the institution or school; (8) the activity
creates or would create a danger, or dangerous condition impacting on
the health, safety, and welfare of others; and (9) such use conflicts or
would conflict with existing contractual obligations of the institution or
school. If an application is denied for a reason stated in paragraphs
(1), (2), (4), (7), (8), or (9), the applicant has a right to appeal the denial
to the President or area school director or his or her designee. (Id. at 4,
0240-1-1.03(e).)
Plaintiff McGlone, believing this policy burdensome on speech,
requested to talk to Dean Boucher about his concern in person. McGlone
did not complete the application required by the policy, and Dean
Boucher refused to meet with him.
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 7
Later on April 8, 2009, McGlone met with Holes, and they
decided not to return to TTU’s campus because they did not want to
submit an application and wait for 14 days. Instead, they went to a
location that they thought was off TTU’s campus, about 150 feet north
of the intersection of Dixie Avenue and 9th Street. (Docket Nos. 2-17 &
2-18, Exs. R & S.) This area looked to them like a city sidewalk, and
they claim that they believed it to be a city sidewalk. Upon arrival, they
began talking to people, displaying signs, and distributing literature.
Approximately 15 minutes after their arrival, Dean Boucher approached
McGlone and Holes and advised them that they could not speak on that
sidewalk without university permission because the sidewalk was on
university property.
McGlone has not returned to TTU’s campus since this incident,
he says for fear of arrest. He asserts that TTU’s campus use policy serves
to chill and deter his expression and that many of the provisions
adversely affect his speech. TTU requires him, as an individual speaker
or as part of a small group, to apply in person and to supply 14 business
days advance notice of his desire to speak. The plaintiff claims that this
requirement affects his message because he does not necessarily know
where he will be 14 business days in advance. Weather could dictate a
sudden change in schedule. Also, he often likes to speak to the issues of
the day, which requires him to be spontaneous. He claims that the notice
requirement eliminates spontaneity and that he sees no good reason for
this requirement.
The TTU application requires any outside speaker to identify a
program title and purpose, state whether literature will be distributed, and
state whether the speaker qualifies as an assembly, political or religious.
The plaintiff claims that these requests deter him because he does not
want to divulge personal information like this just to share his beliefs.
He is afraid that the information will be used to discriminate against him.
Based on the language of the campus use policy, TTU specifically
allows individuals unaffiliated with the university, like the plaintiff, to
speak on campus, but the policy does not specify where the plaintiff can
speak or how long he can speak. The plaintiff believes that TTU officials
used this “open-ended discretion” to discriminate against him and his
particular message by placing him in an isolated area like the north patio,
“where no one ever goes.” If not for the campus use policy and the
actions of the defendants, the plaintiff claims that he would immediately
return to TTU to share his message.
On June 23, 2009, counsel for the plaintiff sent a six-page letter
to TTU President Dr. Robert Bell, Dean Boucher, and Police Chief Gay
Shepherd, outlining the legal reasons why plaintiff believed his First
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 8
Amendment rights had been violated. (Docket No. 2-21.) On July
22, 2009, an Associate General Counsel with the Tennessee Board of
Regents sent a responsive letter to plaintiff’s counsel. (Docket No. 2-22.)
The letter stated in part:
As you appear to be aware, TTU may impose reasonable
time, place and manner restrictions pertaining to the
property under its control. TTU may restrict access to its
property and facilities in a manner consistent with its
pedagogical mission in order to prevent interruption of or
interference with normal missions, processes and
functions of the institution. To that end, TTU has in
place a policy and process which it consistently applies in
a viewpoint-neutral manner allowing affiliated and non-
affiliated groups, organizations and individuals the ability
to request use of campus property and facilities. Courts
have consistently held as constitutional, policies and
practices similar to those in place at TTU. TTU
welcomes freedom of expression and speech on its
campus. If Mr. McGlone wishes to utilize the TTU
campus to share his religious beliefs with students and
staff, and to distribute literature, he must first follow the
appropriate procedure and fill out an application not later
than 14 days prior to the date of his requested use.
Should he fail to do so, he will be denied access to the
campus.
On March 29, 2010, McGlone filed suit in this court under
42 U.S.C. § 1983 against Dr. Bell, in his official capacity as President of
TTU, and against Dean Boucher, Ochsenbein, and Officer Lambert in
their official and individual capacities, seeking declaratory and injunctive
relief and nominal damages. In his first cause of action for violation of
the Free Speech Clause of the First Amendment, plaintiff alleged that his
religious speech is protected speech under the First Amendment and that
TTU’s policy and practices, and enforcement thereof, including but not
limited to TTU’s campus use policy, are vague and overbroad; restrain
constitutionally- protected speech in advance of its expression, without
appropriate guidelines or standards to guide the discretion of officials
charged with enforcing the policy; chill the free speech and free exercise
of religion of plaintiff and of other third-party citizens; allow the exercise
of unbridled discretion; are not narrowly tailored to achieve any
legitimate government purpose; and fail to leave open alternative
avenues for expression. He also alleged that defendants have no
compelling or legitimate reason to justify their “censorship” of the
religious viewpoints sought to be expressed by plaintiff.
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 9
In the second cause of action, for violation of the Due Process
Clause of the Fourteenth Amendment, plaintiff alleged that defendants’
policies are vague and lack sufficient objective standards to curtail the
discretion of officials and that this allows defendants ample opportunity
to enforce the policies in an ad hoc, arbitrary, and discriminatory manner.
Plaintiff alleged that defendants have no compelling or legitimate reason
to justify their vague policies.
In the motion for a preliminary injunction, plaintiff asks the court
to enjoin the defendants and their agents, servants, employees, attorneys,
and all persons and entities in active concert or participation with them,
directly or indirectly, from applying the TTU campus use policy on its
face and from applying the campus use policy to prevent plaintiff from
engaging in his desired and constitutionally protected speech activities.
In the absence of a preliminary injunction, plaintiff asserts that he will
suffer irreparable injury in the loss of his rights and freedoms guaranteed
by the United States Constitution.
R. 29, Mem., at 2-11.
The district court found that Plaintiff lacked standing to bring the claim and
dismissed the Complaint with prejudice. Id. at 17. The district court reasoned that since
Plaintiff’s claim was nothing more than a subjective “chill” of his First Amendment
rights, it was insufficient to confer standing. Id. at 14 (citing Morrison v. Bd. of Educ.,
521 F.3d 602, 608 (6th Cir. 2008)). Consequently, the district court also denied the
motion for preliminary injunction and dismissed all Defendants in their individual and
official capacities. Id. at 18-20; R. 30, Order; R. 35, Order. The court also found that
the campus use policy is content-neutral, narrowly tailored to serve significant
government interests, and left ample alternative channels for communication. R.
29, Mem., at 15-17.
STANDARD OF REVIEW
This consolidated appeal arises from the district court’s orders granting
Defendants’ motion to dismiss and motion for judgment on the pleadings.2 “Motions
2
Defendants filed an untimely motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), as it was filed after Defendants’ Answer. The district court, using its discretion to address
substance over form, treated Defendants’ motion to dismiss as a 12(c) motion for judgment on the
pleadings. R. 35, Order, at 1-2 (citing Satkowiak v. Bay Cnty. Sheriff’s Dep’t, 47 F. App’x 376, 377
n.1 (6th Cir. 2002)).
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 10
for judgment on the pleadings under Federal Rule of Civil Procedure12(c) are analyzed
under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6).”
Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008) (internal
citation omitted). “For purposes of a motion for judgment on the pleadings, all well-
pleaded material allegations of the pleadings of the opposing party must be taken as true,
and the motion may be granted only if the moving party is nevertheless clearly entitled
to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)
(internal citations and quotations omitted). A motion to dismiss for failure to state a
claim is disfavored, especially when one’s civil rights are at stake. Nuchols v. Berrong,
141 F. App’x 451, 453 (6th Cir. 2005) (unpublished); see Westlake v. Lucas, 537 F.2d
857, 858 (6th Cir. 1976).
A dismissal for lack of standing is also reviewed de novo. Prime Media, Inc. v.
City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007) (internal citation omitted).
In general we review a district court’s denial of a motion for preliminary
injunction for abuse of discretion. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th
Cir. 1996). When reviewing a preliminary injunction with First Amendment
implications, however, the review is de novo. Cnty. Sec. Agency v. Ohio Dep’t of
Commerce, 296 F.3d 477, 485 (6th Cir. 2002) (internal citation omitted). No deference
is afforded to the district court. See Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 499 (1984).
DISCUSSION
The district court held that McGlone did not have standing. In the alternative,
it held that TTU’s policy was a content-neutral, time, place, and manner regulation
warranting dismissal of the complaint. Both prongs–standing and dismissal–will be
discussed below.
STANDING
The district court found that “plaintiff did not submit proof of any concrete and
particularized harm that is actual and imminent, and he alleges nothing more than a
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 11
subjective ‘chill’ of his First Amendment rights.” R. 29, Mem., at 14. Upon a de novo
review of the record, we find that the district court erred in making such a
determination. McGlone has satisfied the constitutional and prudential standing
requirements to bring his First Amendment claims for the reasons stated below.
Standing to pursue a claim is a threshold question in every federal case. Warth
v. Seldin, 422, U.S. 490, 498 (1975). “The burden of establishing standing is on the
party seeking federal court action.” Rosen v. Tenn. Comm’r of Fin. & Admin., 288 F.3d
918, 927 (6th Cir. 2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). A plaintiff must meet Article III and prudential standing requirements to
proceed with his case. Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009).
To establish Article III, constitutional standing, a plaintiff must show:
(1) it has suffered an injury in fact that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical; (2) the injury
is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Id. (quoting Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir.
2004)). To establish prudential standing requirements
(1) a plaintiff must assert his own legal rights and interests, without
resting the claim on the rights or interests of third parties; (2) the claim
must not be a ‘generalized grievance’ shared by a large class of citizens;
and (3) in statutory cases, the plaintiff’s claim must fall within the ‘zone
of interests’ regulated by the statute in question.
Id. (quoting Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999)).
Most factors as to standing are clearly met by McGlone, as there are limited
factual disputes in this case. The alleged injury is fairly traceable to Appellees, as
TTU’s policy was created and enforced by the school and its officials. His alleged injury
will be redressed by a favorable decision. He is asserting his own legal rights and
interests; he is the one who wants to speak on campus. Since it is personal to him, it is
not a “generalized grievance” and it falls with the zone of interests regulated by the
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 12
statute—his right to free speech. The only factor as to standing that is in dispute is
whether McGlone has suffered an injury in fact, which is discussed in detail below.
1. Injury in Fact
Plaintiff is challenging four aspects of the TTU campus use policy:
1) the provision which requires individuals and small groups to
obtain permission before speaking on campus fourteen business
days in advance (R. 2-19, Ex. T, at § 2(4)(b));
2) the provision requiring speakers to disclose personal information,
including the content of their message, before speaking on
campus (R. 2-19, Ex. T, at § 2(4)(b); R. 2-20, Ex. U,
Application);
3) the waiver provision which allows TTU officials to waive or
enforce the advance notice requirement ((R. 2-19, Ex. T, at
§ 2(4)(b)); and
4) the absence of a provision limiting the discretion of the TTU
officials’ choice of where and how long a speaker may speak on
campus (R. 2-19, Ex. T). Appellant’s Br., at 14.
“It is well-settled that a chilling effect on one’s constitutional rights constitutes
a present injury in fact.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d
1071, 1076 (6th Cir. 1994) (internal citation omitted). To show the existence of an
objective chill, a plaintiff must show that he has an “intention to engage in a course of
conduct arguably affected with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder . . .” Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979); accord Planned Parenthood Ass’n of
Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1394-96 (6th Cir. 1987). Plaintiffs
may have standing even if they have never been prosecuted or threatened with
prosecution. Doe v. Bolton, 410 U.S. 179, 188 (1973).
Plaintiff is not required to “first expose himself to actual arrest or prosecution to
be entitled to challenge a statute that he claims deters the exercise of his constitutional
rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also Planned Parenthood,
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 13
822 F.2d at 1395-96. With regard to a plaintiff’s First Amendment rights, the Supreme
Court has held that:
when a licensing statute allegedly vests unbridled discretion in a
government official over whether to permit or deny expressive activity,
one who is subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license.
City of Lakewood v. Plain Dealer Publ’n Co., 486 U.S. 750, 755-56 (1988); see also
East Brooks Books, Inc.v. Shelby Cnty. Tenn., 588 F.3d 369 (6th Cir. 2009) (finding that
plaintiff had standing based on the suppression of his future protected speech even where
his license was not actually revoked).
The district court accepted Appellees’ argument that because McGlone did not
apply for a permit, he did not suffer an injury in fact. Appellees rely heavily on the Sixth
Circuit case of Morrison v. Board of Education and claim that McGlone has only shown
a subjective chill of his First Amendment rights. See Morrison v. Bd. of Educ., 521 F.3d
602 (6th Cir. 2008).
In Morrison, we held that subjective chill alone is insufficient to establish
standing. Morrison, 521 F.3d at 608. Morrison was a high school student and Christian
who believed that his religion required him to tell homosexual students that their sexual
orientation was a sin. Id. at 605. His high school had a written policy prohibiting
students from making potentially harassing or derogating statements to students based
on their sexual orientation. Morrison alleged that the written policy chilled his speech
because he was scared of being punished. Id. After filing his lawsuit, the school board
changed the policy to permit anti-homosexual speech unless it was “sufficiently severe
or pervasive that it adversely affects a student’s education or creates a climate of
hostility or intimidation for that student, both from the perspective of an objective
educator and from the perspective of the student at whom the harassment is directed.”
Id. at 607.
The Court held that Morrison did not have standing. Id. at 608. The Court
reasoned that “the record [was] silent as to whether the school district threatened to
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punish or would have punished Morrison for protected speech in violation of its policy.”
Id. The Court declined to find standing where Morrison’s claim was based solely on
apprehension and without any specific action by the Board that supported his fear that
punishment would result. Morrison’s reliance on the written policy by itself was held
to be insufficient. Id.Here, the district court imposes the requirement that McGlone apply for and be
denied a permit to speak before he is afforded standing. The law does not support such
a result. Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also Planned Parenthood,
822 F.2d at 1395-96.
McGlone’s intention to engage in expression regulated by TTU’s policy is
sufficient to support his assertion that the policy objectively chills his desired speech.
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); accord Planned
Parenthood, 822 F.2d at 1394-96. McGlone has a desire to speak spontaneously on
TTU’s campus in areas that are subject to the policy. The fact that McGlone can speak
freely on the north patio does not affect his standing to bring the instant claim. See Am.-
Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 607 (6th Cir. 2005)
(allowing plaintiff to challenge notice/permit provision even though the city of Dearborn
has provided ample alternative means of communication such as the city hall and public
parks).
This case is distinguishable from Morrison. Here, the record is not “silent” as
to a threat of punishment. McGlone is alleging more than the apprehension based on a
written policy. McGlone attempted to seek a waiver of the fourteen-day notice
requirement by speaking in the south patio/plaza area of the campus. He was denied the
waiver and was told that he could only speak on the north patio. Furthermore, he was
approached by a campus police officer who threatened to arrest him for trespass if he did
not stop speaking and leave the campus. Appellees also sent a letter to McGlone
notifying him that he would not be allowed on campus if he did not first obtain
permission. We hold that McGlone has suffered an injury in fact that is concrete and
particular. He was not allowed to speak on campus and was not afforded a waiver. His
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 15
First Amendment rights have also been objectively chilled by the threat of arrest. The
injury is actual, as it already occurred and will imminently occur again if he violates the
policy.
We hold that McGlone has standing to challenge the policy on its face and as-
applied to him. The district court erred in holding otherwise.
DISMISSAL
At the district court, Appellees filed a motion to dismiss for failure to state a
claim and Appellees also moved to dismiss defendants in their individual capacities
based on immunity. R. 13, Defs.’ Mot. to Dismiss; R. 14, Defs.’ Mem. in Supp. of Mot.
to Dismiss. The district court ruled that TTU’s policy was a permissible, content-
neutral, time, place, and manner restriction warranting dismissal. The district court also
dismissed the TTU officials in their individual capacities based on qualified immunity.
These decisions were erroneous.
1. Whether Appellant Brings a Claim for Which Relief Can Be Granted
This Court reviews a grant of a motion to dismiss for failure to state a claim de
novo. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). “In determining whether
a party has failed to state a claim, we construe the complaint in the light most favorable
to the non-moving party and accept all factual allegations as true. Id. The complaint
“need contain only ‘enough facts to state a claim to relief that is plausible on its face.’”
Paige v. Coyner, 614 F.3d 273, 277 (6th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Forum analysis is required to determine whether a restriction on speech violates
the First Amendment. Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 1985);
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797 (1995). We
use a three-step process to determine: 1) whether the expressive activity deserves
protection; 2) the nature of the forum, and 3) whether the justifications for exclusion
from the relevant forum satisfy the requisite standard. Saieg v. City of Dearborn,
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 16
641 F.3d 727, 734-35 (6th Cir. 2011) (internal quotations and citations omitted);
Cornelius, 473 U.S. at 797.
A. Whether the Expressive Activity Is Protected
As to the first factor, McGlone’s desire to share his religious message through
public speaking, one-on-one conversation, distribution of literature, and display of signs
is protected First Amendment activity. See, e.g., Boos v. Barry, 485 U.S.
312, 318 (1988) (holding that the display of signs as protected speech); Heffron v. Int’l
Soc’y for Krishna Consciousness, 452 U.S. 640, 647 (1981) (holding that written and
oral dissemination of religious viewpoint are protected speech); Murdock v. Com. of Pa.,
319 U.S. 105, 108 (1943) (holding that the hand distribution of religious materials are
protected speech).
B. The Nature of the Forum
The district court declined to make a decision on whether the areas on TTU’s
campus are traditional public fora or designated public fora. R. 29, at 14, n.2 (“[T]he
court need not resolve this issue because the standard applicable to traditional public fora
and designated public fora is the same.”). We, however, hold that this issue is now ripe
for review, as no facts are in dispute. The issue is purely a question of law.
McGlone argues that the open areas on TTU’s campus are public fora. We agree.
The perimeter sidewalks along TTU’s campus are traditional public fora and all other
open areas are designated public fora.
There are three types of property for the purposes of forum designation:
traditional, designated, and nonpublic fora. Putnam Pit, Inc. v. City of Cookeville,
221 F.3d 834, 842 (6th Cir. 2000) (internal citations omitted). “Traditional public fora,
such as streets, sidewalks, and parks, are ‘places which by long tradition or by
government fiat have been devoted to assembly and debate.’” Id. (quoting Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). In a designated public
forum, the government “intentionally open[s] a nontraditional public forum for public
discourse.” Id. (quoting Cornelius, 473 U.S. at 802).
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(i) Perimeter Sidewalks
Appellant would like to speak on the perimeter sidewalks along the side of the
TTU campus. Appellant argues that the sidewalks should be characterized as traditional
public fora. Sidewalks have long been considered “prototypical” examples of traditional
public fora. Schenck v. Pro-Choice Network of W. New York, 519 U.S. 357, 377 (1997).
The burden is on TTU to show that the sidewalk is overwhelmingly specialized to negate
its traditional forum status. Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992).
Appellees have not attempted to dispute Plaintiff’s characterization of the
perimeter sidewalks as traditional public fora. McGlone argues that the sidewalks on
TTU’s campus “look like, lie adjacent to, and blend in with other city sidewalks.”
Appellant’s Br., at 27. Where a private “[s]idewalk blends into the urban grid, borders
the road, and looks just like any public sidewalk” the Court has characterized such a
sidewalk as a traditional public forum. United Church of Christ v. Gateway Econ. Dev.
of Greater Cleveland, Inc., 383 F.3d 449 (6th Cir. 2004); see also United States v.
Grace, 461 U.S. 171, 180 (1983) (holding that the sidewalk serving as a perimeter to the
Supreme Court’s grounds is a traditional public forum where there is no separation,
fence, or indication that it is “some special type of enclave.”); see also Brister v.
Faulkner, 214 F.3d 675 (5th Cir. 2000) (finding that a university sidewalk that was
physically indistinguishable from nearby city sidewalks is a traditional public forum).
Because the perimeter sidewalks at TTU blend into the urban grid and are physically
indistinguishable from public sidewalks, they constitute traditional public fora.
(ii) Open Areas
The parties and the district court agree that the remaining open areas of the TTU
campus are designated public fora. TTU’s written policy states “[t]he campuses and
facilities of” TTU to “non-affiliated groups, organizations or individuals” who have
“been granted or approved pursuant to the provisions of this policy . . . .” R. 2-19, Ex.
T, Policy, § 2(2)(a). The other open areas at issue are designated fora. See Putnam Pit,
221 F.3d at 842 (finding a designated public forum where the government “intentionally
open[s] a nontraditional public forum for public discourse”).
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 18
C. Whether the Justifications for Exclusion from the Relevant
Forum Satisfy the Requisite Standard
A prior restraint is any law “forbidding certain communications when issued in
advance of the time that such communications are to occur.” Alexander v. United States,
509 U.S. 544, 550 (1993). TTU’s policy requires unaffiliated speakers to “submit a
written application for registration of the proposed activity at least fourteen (14) days in
advance (excluding weekends and holidays) . . .” R. 29, Ex. T. Because an unaffiliated
speaker’s exercise of a First Amendment right depends on the prior approval of a public
official, the policy imposes a prior restraint. See Déjà Vu of Nashville, Inc. v. Metro.
Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001).
“Any system of prior restraints of expression [bears] a heavy presumption against
its constitutional validity, and a party who seeks to have such a restraint upheld thus
carries a heavy burden of showing justification for the imposition of such a restraint.”
Cnty. Sec. Agency v. Ohio Dep’t of Commerce, 296 F.3d at 477, 485 (6th Cir. 2002)
(quoting New York Times Co. v. United States, 403 U.S. 713, 714 (1971)). A prior
restraint must be content-neutral, narrowly tailored to serve a significant governmental
interest, and leave open alternatives for communication. Forsyth Cnty., Ga. v.
Nationalist Movement, 505 U.S. 123, 130 (1992). Furthermore, it must not delegate
overly broad licensing discretion to official decision-makers. Id.TTU’s campus policy violates the First Amendment because the policy is not
narrowly tailored to any legitimate interest.
Appellant argues that 1) the fourteen business day advance notice requirement,
2) the requirement that speakers obtain permission to engage in any form of expression,
and 3) the requirement that the speakers must disclose their identity and content of
speech “burden substantially more speech than is necessary to further the government’s
legitimate interests.” Appellant’s Br., at 30 (quoting Ward v. Rock Against Racism,
491 U.S. 781, 798 (1989)).
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 19
(i) Advance Notice Period and Permission to Engage in
Expression
“Any notice period is a substantial inhibition on speech.” Dearborn, 418 F.3d
at 605. “The simple knowledge that one must inform the government of his desire to
speak and must fill out appropriate forms and comply with the applicable regulations
discourages citizens from speaking freely.” N.A.A.C.P. v. City of Richmond, 743 F.3d
1346, 1355 (9th Cir. 1984).
TTU’s fourteen business day notice period is much longer than other notice
periods that have been upheld. See Bowman v. White, 444 F.3d 967 (8th Cir. 2006)
(upholding a three day advance notice period)); see Sonnier v. Crain, 613 F.3d 436 (5th
Cir. 2010) (upholding a seven day advance notice period)). Appellees have not provided
any explanation for the need of a fourteen business day notice period. In fact, at oral
argument, Appellees agreed that the period was unreasonable.
Appellees have not met their burden to show that the restriction is narrowly
tailored to serve a significant government interest. See N.A.A.C.P., 743 F.2d at 1356-57
(finding it insufficient to “simply assert[], without citation to authority, that 20 days
notice” is narrowly tailored). We hold that TTU’s notice period is unreasonable. See,
e.g., City of Dearborn, 418 F.3d at 606-07 (invalidating a thirty-day advance notice
requirement for events in parks, on streets, and in other public areas); Douglas v.
Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (invalidating a five-day advance notice
requirement for processions of ten or more persons on streets, sidewalks, and public
ways); Grossman v. City of Portland, 33 F.3d 1200, 1204-07 (9th Cir. 1994)
(invalidating a seven-day advance notice requirement to demonstrate in a public park);
Roberts v. Haragan, 346 F. Supp. 2d 853, 868-69 (N.D. Tex. 2004) (invalidating a two-
day advance notice requirement for students to speak in designated campus areas).
(ii) Disclosure of Identity and Content of Speech
As a general matter, anonymous speech is protected by the First Amendment.
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995); see also Buckley v. Am.
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 20
Constitutional Law Found., Inc., 525 U.S. 182, 199-200 (1999); Talley v. California,
362 U.S. 60, 64 (1960). Registration requirements dissuade potential speakers by
prohibiting anonymous speech. See Watchtower Bible, 536 U.S. at 166; see also
McIntyre, 514 U.S. at 341-42 (“[A speaker’s] decision in favor of anonymity may be
motivated by fear of economic or official retaliation, by concern about social ostracism,
or merely by a desire to preserve as much of one’s privacy as possible.”); see also
Berger v. City of Seattle, 569 F.3d 1029, 1037-38 (9th Cir. 2009).
Appellant argues that TTU’s permit, which requires individuals and small groups
to submit information about their identity and about the program purpose is an
unconstitutional restriction. Appellant’s Br., at 38-40. TTU’s form asks for the
“Program Purpose.” Id.; R. 2-20, Ex. U. The form asks for the name and topic of the
speaker. Id. It also requires an applicant to indicate whether the speech is “political”
or “religious.” Id.Appellant argues that the only reason TTU requires such information is to
discriminate on the basis of content, specifically to deny applicants or raise security costs
in anticipation of the concerns about a given message. Appellant’s Br., at 39. Appellant
argues that there is no reason for TTU to inquire as to whether a message is “religious”
or “political.” Id. Appellant claims that he is hesitant to disclose such information and
would like to engage in anonymous speech. Id. at 40.
Appellees do not address this argument directly. Appellees’ only response is that
“[t]he campus use application form to be completed by the individual or group seeking
to utilize campus property is also narrowly tailored to require only that amount of
information necessary to serve the significant interests of TTU in maintaining order and
preventing interruption of its educational mission.” Appellees’ Br., at 16.
Here, Appellees have failed to meet their burden in defending the policy.
Appellees have not specified the “significant interests,” nor have they elaborated on an
“educational mission.” They have not explained how the policy at issue maintains order
or prevents interruption of an educational mission. Appellees have failed to show that
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 21
the policy is narrowly tailored. We reverse the district court’s decision to grant
dismissal as to this issue and remand for further proceedings consistent with this opinion.
(iii) Whether the Policy Allows Unbridled Discretion
Appellant also argues that the campus use policy’s discretionary waiver policy
is unconstitutional. The policy identifies nine specific circumstances in which a permit
may be denied. R. 2-19, Ex. T, § 2(4)(d). The policy, however, allows officials to waive
the fourteen business day waiting period for any reason. In light of the invalidity of the
notice period, as discussed supra, we reverse the dismissal of this claim and remand for
further proceedings consistent with this opinion.
QUALIFIED IMMUNITY
The district court erroneously dismissed the TTU officials in their individual
capacities based on their qualified immunity. R. 29, Mem., at 20. Appellant has
correctly and adequately addressed this issue in its brief. Appellant’s Br., at 44-45, n.18.
Appellant argues:
The qualified immunity inquiry asks two distinct questions: “(1) whether,
considering the allegations in a light most favorable to the party injured,
a constitutional right has been violated, and (2) whether that right was
clearly established.” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir.
2008). For a right to be clearly established, the contours of the right must
be sufficiently clear that a reasonable officer would understand that what
he is doing violates that right. Harris v. City of Circleville, 583 F.3d
356, 366-67 (6th Cir. 2009). To make this assessment, this Court looks
to decisions of the Supreme Court, its own decisions, and finally to
decisions of other circuits. Daugherty v. Campbell, 935 F.2d
780, 784 (6th Cir. 1991). There need not be a prior case directly on point
for a law to be clearly established; generalized statements of the law or
a general constitutional rule already identified in the decisional law are
sufficient. Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir.
2010). As established herein, McGlone had a clearly established right to
engage in his desired expression free from the unconstitutional
requirements imposed by TTU. Therefore, the District Court’s ruling
with respect to qualified immunity should . . . be reversed.
Nos. 10-6055/6169 McGlone v. Bell, et al. Page 22
Id. We agree. We reverse the district court’s decision to dismiss the TTU officials
based on qualified immunity.
PRELIMINARY INJUNCTION
When evaluating a motion for preliminary injunction, we must consider four
factors: “(1) whether the movant has a strong likelihood of success on the merits; (2)
whether the movant would suffer irreparable injury without the injunction; (3) whether
issuance of the injunction would cause substantial harm to others; and (4) whether the
public interest would be served by issuance of the injunction.” Bonnell, 241 F.3d at 809
(quoting Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.
1998)).
In light of the above, we vacate the district court’s denial of McGlone’s
preliminary injunction motion and remand for further proceedings consistent with this
opinion.
CONCLUSION
In summary, we REVERSE the district court’s finding that Appellant does not
have standing to pursue his claims; REVERSE the district court’s grant of Defendants’
motion to dismiss and REMAND for further proceedings consistent with this opinion;
and VACATE the district court’s denial of McGlone’s motion for preliminary injunction
and REMAND for further proceedings consistent with this opinion.