### In their amended complaint, plaintiffs sought a declaratio n 1 

### that Ianni's actions were unconstitutional, injunctive relie f against Ianni in his official capacity, and monetary relief against Ianni in his individual capacity in the amount of at least $ 50,000, plus interest. Appellant's Appendix at 4 (amended complaint). ____________ No. 95-1962

____________
Albert Burnham; Ronald * Marchese; Michael Kohn; * Louise Kohn, * * Appellees. * * v. * Appeal from the United States
* District Court for the Lawrence Ianni, in his * District of Minnesota official capacity as * Chancellor of the University * of Minnesota at Duluth and * in his individual capacity, * * Appellant. *

____________ Submitted: December 11, 1995 Filed: October 16, 1996

____________ Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

This action was brou ght in the United States District Court for the District of Minnesota pursuant to 42 U.S.C. § 1983 by Albert Burnham and Ronald Marchese, two history professors at the University of Minnesota at Duluth (UMD), and Michael Kohn and Louise Kohn ( the Kohns), two former UMD his tory students (collectively plaintiffs), against Lawrence Ianni , Chancellor of UMD, alleging that Ianni deprived them of rights protected by the free speech clause of the Firs t Amendment. Ianni appeals from the 1

### -2-

district court's order denying his motion for summary judgment on the basi s of qualified immunity. Burnham v. Ianni , 899 F. Supp. 395 (D. Minn. 1995)

. For reversal, Ianni argues that the district court erred in holding that he violated plaintiffs' clearly established constitutional rights b y ordering the removal of two photographs, one of Burnham and the other of Marchese, from a display case located in a hallw ay outside the UMD history department's classroo ms. For the reasons discussed below, we reverse the order of the district court and remand the case to the district court with directions to enter judgment for Ianni.

I. Background

The underlying facts of this case are generally not in dispute. Id. at 397. The two photographs of Burnham and Marchese, which are at th e center of this dispute, were originally part of a visual exhibit conceived of an d created by the Kohns while they were students at UMD. The Kohn s
were b oth members of the UMD history club, for which Burnham was th e faculty advisor. The Kohns' objective in displaying the exhibit was t o convey to observers the history faculty's diverse interests. I n photographing the UMD history professors, the Kohns asked each to pose wit h

a "prop" of his or her own choice, related to his or her areas of interest

. The ph otographs were then juxtaposed with written descriptions of th e subject's academic ba ckground, historical heroes, and a chosen quotation. Burnham, who has a special interest in American military history, chose to be photographed wearing a coonskin cap and holding a .45 caliber pistol; Marches e, who specializes in ancient Greece and Rome, posed wearing a cardboard laurel wreath and holding a Roman short sword.

### Burnham the n removed the remaining photographs in the Kohns' 2 

### exhibit.
-3- On May 5, 1992, an o fficer with the UMD campus police, acting under instructions from Ianni, removed the photographs of Burnham and Marchese from the d isplay case. Ianni ordered the removal of the two photographs 2 bec ause he considered them inappropriate for display in light of event s that had occurred over the previous year.

In June of 1991, approximately one year before the photographs o f Burnham and Marchese were removed from the displ ay case, Sandra Featherman was appointed to the post of UMD vice chancellor . Shortly thereafter, she began receiving graphically violent threats from an anonymous source o r
sources using the identities "Deer Hunters" and "Prince of Death," an d warning her that if she did not stay away from Duluth, she would b e kid napped or killed. At the same time, a phony memorandum, bearing a forged signature purp orting to be Ianni's, was circulated through the UMD mail sys tem and distributed on and around campus. This fraudulen t memorandumreferred to the "conspiracy to kidnap Sandra Featherman going on at UMD." Appellant's Appendix at 17 (forged memorandum).

Beginni ng in March 1992, UMD history professor Judith Trolande r became the target of threats similar to those directed at Featherman. Bot h Featherm an and Trolander had been involved in a program to improv e diversity and equality on the UMD campus. A flyer entitled "Targe t Information" was anon ymously posted around campus which said, among other things, "The Imperial Council of Deer Hunters Pr oclaim Open Season on Judy Trolander Lesbian Feminist Bitch." This documen t told the reader where to find Professor Trolander's picture and where she lived, and stated th e following:

### -4- She wi ll be a good target for shooting at long range

. The hou se has large windows and the terrain is clear of obstacles in all directions. Shoo ting from the beach or even fro m a boat in the bay or lake Superior i s feasibl e. A 30-60 rifle with 20X2 Bushnell scope would be a suitable weapon with dum-dum bullets dipped i n po ison. Don't forget to put in a couple of clicks i n the crosshairs for windage as the wind is usually strong there. It is recommended that the hunter shoot fro m behind the Surf and Sand Health Center, if there i s return f ire from the house it well only kill a few ol d people. She is the only occupant of the house, so it is OK to shoot silhouettes on drawn shades.
Get crack ing you kill crazy buckaroos. Its OK to kil l her , the Imperial Counsel rules UMD, the commission o n women is dissolved.
Al so, all faculty members ordered to participate i n Feather man's administrative development project will be sentenc ed to death along with their pets, children, and spouses i f they comply with these orders. Any one wh o coop erates with Featherman will have their targe t information published.
The dee r hunters need target information on Featherman, just mention where she lives in the faculty club an d everything will be taken care of.

Appellant's Appendix at 38.

In a n attempt to respond to the tension and widespread fear o f violence created by these terroristic threats, I anni distributed on campus

a memorand um dated March 16, 1992, assuring that the matter was bein g investigated by local and federal authorities, that every effort would be made to bring the perpetrators to justice, and that the school remaine d committed to improving the conditions of women and minorities on campus.

On or abo ut March 27, 1992, less than a month after the so-calle d "Targe t Information" flyer was posted, the photographs of Burnham an d Marchese were placed in the display case along with the other photographs and written materials contained in the Kohns' exhibit. Judith Karon, UMD' s director of personnel and affirmative

### -5-

action officer, began receiving complaints and anonymous calls objecting to the depictions of the two faculty members hol ding weapons, particularly the pictu re of Burnham holding a gun. Professor Trolander, who wa s extremely upset about the photographs, also contacted Karon. Karon made efforts to have the photographs removed, expressing her belief that they

were inappropriate in light of the recent events and the atmosphere o f tension and fear on c ampus. Several meetings involving Karon, Ianni, the Kohns, Burnham, Marchese, and other faculty members in the histor y department, were held to discuss the two photographs. The chairman an d other members of the history department steadfas tly opposed their removal. See Appellant's Appendix at 50 (internal history department memorandum : "[s]ome how, this ugly trend of History governance by externa l administrators and bureaucrats must be called into account; if the photo display is our line in the sand, so be it"). On May 4, 1992, Ianni ordere d the two photographs removed from the display case.

Plaintiffs filed this § 1983 action alleging th at the removal of the pho tographs violated their First Amendment right of free speech. Iann i filed several motions, including a motion for summary judgment on qualifie d immunity grounds. The district court denied that motion, explaining:

On the facts of this case, the court finds , with out hesitation, that "[t]he contours of the righ t [were] sufficiently clear [so] that a reasonabl e offi cial would understand that what he [did] violate s that righ t." . . . Ianni asserts that his actions wer e ta ken with the intent to "maintain a positive an d efficie nt working and learning environment conducive to the mission of an academic institution." . .

. Chancellor Ianni is, presumably, a n educated and erudite person. It is inconceivable to this court that th e Chance llor of a major University could have failed t o kno w that [the] First Amendment forbade, except in th e narrowest of circumstances, the ty pe of conduct at issue here.

### -6-

Burnham v. Ianni , 899 F. Supp. at 400-01 (citati ons omitted). Having held th at plaintiffs' clearly established First Amendment rights had bee n violated, the district court also denied Ianni's motion to dismiss. Id. at 404. In reaching its conclusion on the merits, the district court note d that the display case was a nonpublic forum. Id. at 403. Therefore, the district court held, the suppression of speech at issue in the case wa s subject to a reasonab leness test. Id. (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 49 (1983) ( Perry )). The distric t court then determined that the photographs were removed because they were offensive to some viewers and, therefore, the suppression was content-base d and not reasonable. Id. at 403-04. The district court stated:

Whether the photographs advocated anything is irrelevant in this context; on the contrary, it was the perception that the photographs somehow advoc ated support for those [who] had made the threats which motivated thei r remova l. This is an impermissible content base d restric tion. . . . That some members of the faculty and ad ministration were discomfited by the sight of th e phot ographs displaying weapons is insufficient t o justify the removal of the photographs.

Id. at 404. This appeal followed.

II. Discussion

A. Appellate Review

As stated above, the underlying essential facts are not in dispute. Under these circumstances, we have appellate jurisdiction to review th e distri ct court's order denying Ianni's motion for summary judgment o n qualified immunity grounds insofar as the distri ct court held, as a matter of law, that Ianni violated plaintiffs' clearly established First Amendmen t rights. See Johnson v. Jones , 115 S. Ct. 2151, 2156 (1995) (citin g Mitchell v.

### -7-

Forsyth , 472 U.S. 511, 530 (1985) (interlocutory appellate jurisdictio n exis ts where qualified immunity issue involves application of "clearl y established" law to a given set of undisputed facts)).

"'While the denial o f a motion for summary judgment is not normally

an appealable final judgment, an exception exists for a summary judgment order d enying qualified immunity . . . [and for] issues of law that ar e closely related to the qualified immunity determination.'" Beyerbach v. Sears , 49 F.3d 1324, 1325 (8th Cir. 1995) (quoting Henderson v. Baird , 29 F.3d 464, 467 (8th Ci r. 1994), cert. denied , 115 S. Ct. 2584 (1995)). We review the district c ourt's denial of Ianni's motion for summary judgment de no vo . Id. (citing Get Away Club, Inc. v. Coleman , 969 F.2d 664 (8t h Cir. 1992)). Summary judgment is appropriate where there are no genuine issues as to any material fact and the moving party is entitled to judgmen t as a matter of law. Id. ; Fed. R. Civ. P. 56(c).

B. Nature of plaintiffs' claim

In the present case, plaintiffs maintain that t he two photographs of Burnham and Marchese constitute protected speech because they capture and

conv ey an informational message concerning the UMD history department

. Brief for Appellees at 4 ("[t]he exhibit was intended to inform students and prospective students about the interests and areas of expertise of the professors in the department"), 34 (the photographs "expressed an d advocated the profess ors' interests in the traditional study of classical and American military history"). Plaintiffs describe the messag e purportedly conveyed by the two photographs as follows.

For hi s photograph, Professor Marchese elected to pose with an ancient Roman short sword while wearing a cardboard laurel wreath. . . . He chose to pose with the Roman sword for two reasons. First, he likes to use

### While plaintiffs also maintain that the photographs wer e 3 

### intended to portray the faculty in an "informal" and "somewha t humorous" manner, Brief for Ap pellees at 2, they do not argue, nor would we find, that the photographs were intended to be forms o f ente rtainment. Accordingly, we need not consider the Firs t Amendment standard applicable for some forms of entertainmen t. Cf. Iota Xi Chapter of Sigma Chi F raternity v. George Mason Univ. , 993 F. 2d 386, 390-91 (4th Cir. 1993) (because college fraternity' s "ug ly woman contest" was similar in nature to a theatrica l performance, it was an inheren tly expressive form of entertainment and entitled to constitutional protection despite offensiv e caricature of African-American woman).
-8- tangibl e objects in his lectures, and he had previously used the sword in that way. Second, one of hi s interes ts is military history. He believes that a thoroug h knowledge of the ancient world must include an appreciation for the military culture and technique s that allowed Rome to gain and hold an ascendancy ove r the Mediterranean world. His cour ses on ancient history includ e far more than military history, but he think s that military history is an important aspect of tha t era. Hence he believed the Roman sword was a n appropriate "prop" for his photograph.

Professor Burnham's special interest in America n history

includes military history in particular. Among his historical heroes he listed were John Adams an d Davi d Crockett. Consistent with his professiona l interes ts, he posed with a .45 caliber military pistol, wearing a coonskin cap.

Id. at 3.

C. Burnham's and Marchese's First Amendment rights

Although plaintiffs have failed to articulate this analytica l pre mise, the two professors' claims derive from the assertion that the y
were engaging in non-verbal expressive conduct by their choices of clothin g and props, as worn and displayed in e ach of their respective photographs. 3 Accordingly, in determining whether Ianni violated Burnham's and Marchese' s rights in suppressing the two photographs, our analysis is guided by this court's recent

### The p arty, which was held at the Fraternal Order of Polic e 4 

### Lod ge, was not an official police department function but wa s attended by off-duty police officers and their guests. Tindle v. Caudell , 56 F.3d 966, 968 (8th Cir. 1995).
-9- deci sion in Tindle v. Caudell , 56 F.3d 966 (8th Cir. 1995) ( Tindle ) , addressing the standards that apply to this precise type of First Amendmen t claim.

In Tindle , a police officer with the Little Rock Police Department (LRPD) brought a § 1983 action against the chief of police on grounds that his First Amendment rights were violated when he was given a thirty-da y
sus pension for appearing at a Halloween party wearing a blackened face , dressed in bib overalls and a black c urly wig, and carrying a watermelon. 4
In acknowledging that the plaintiff had facially asserted a First Amendmen t right, this court stated:

What one chooses to wear can communicate a n expressive message to others. . . . Wearing a particu lar outfit or costume is non-verbal conduct that is protected as speech under the first amendment if i t is inte nded to convey a "particularized message" and if the l ikelihood is great that the message will b e understood by those who view it.

Id. at 969; accord Tinker v. Des Moines Indep. Com. Sch. Dist. , 393 U.S. 503, 505-06 (1969) (w earing black armband to express students' opposition to Vietnam War was symbolic act protected by the free speech clause of the First Amendment); Dunn v. Carroll , 40 F.3d 287, 291-92 (8th Cir. 1994 ) ( Dunn ) (wearing patch bearing American flag during months preceding th e Persian Gulf War was nonverbal conduct protected under the free speec h clause). However, this court then went on to ex plain in Tindle that, even if a person's chosen appearance is found to be expressive non-verba l conduct or speech, it is not entitled to absolute protection. 56 F.3d at 970. Because the plaintiff in Tindle was a publ ic employee, and the state was acting in its capacity as his employer in suspending him

### -10-

on the basis of his speech, his First Amendment claim was to be analyzed according to the following "two-step test":

Th e first question is whether the employee's speec h addresses a matter of public conce rn. Connick v. Myers , 461 U.S . 138, 146 (1983) [( Connick )]. If it does, then the court must balance the "intere sts of the [employee], as a ci tizen, in commenting upon matters of publi c concern and the interests of the State, as an employer, in pro moting the efficiency of the public services i t perform s through its employees." Pickering v. Board of Educ. , 391 U.S. 563, 568 (1968) [( Pickering )].

Tindle , 56 F.3d at 970; accord Waters v. Churchi ll , 511 U.S. 661, ___, 114 S. Ct. 1878, 1884 (1994) ( Waters ). It is the job of the court to appl y this analysis to the facts. Waters , 114 S. Ct. at 1884 (citing Connick , 461 U.S. at 148 n.7 & 150 n.10).

In the present case, we will assume, for the sake of argument, that Burnha mand Marchese have adequately demonstrated that they sought t o convey a "particularized message" through the cl othing worn and props held in each of their respective photographs. That message, as they describe it, was to "express[] and advocate[] [their] interests in the traditional study of classical and American military history ." Brief for Appellees at 34. We will further assume, for the sake of arg ument, that the likelihood was great that this " particularized message" would be understood by those who viewed the photographs.

It is undisputed tha t Burnham and Marchese are public employees and that Iann i was acting in his official capacity as a public employe r repr esenting the interests of UMD when he ordered the removal of th e photo graphs from the display case located in the corridor near the UM D history department's classrooms. Therefore, consistent with Tindle , the suppression of the tw o photographs must be analyzed according to the twopart analysis required by the Pickering

- Connick

- Waters line of Suprem e Court cases dealing with

### Plain tiffs make much of the fact that the present case i s 5 

### different from the public employment cases cited by Ianni in that it does not involve a personnel action such as a termination or a suspension of Burnham or Marchese from their employment. We find this distinction irrelevant. Ianni removed the photographs in part because he considered them detrimental to the collegiality within the history department. Appellant's Appendix at 7 (Affidavit o f Lawrence Ianni, ¶ 9). The fact that Ianni chose to respond to what he considered to be inappropri ate employee conduct by the narrowly tailored act of suppressing the photographs themselves makes this case no less employment-related than if he had terminated Burnham and Marchese as an indirect means to remove the photographs or if he had terminated or suspended them after the fact for refusing to remove the photographs voluntarily.
-11- the F irst Amendment rights of public employees. As the Supreme Cour t 5 observed in Waters , "the government as employer indeed has far broade r powers th an does the government as sovereign." 114 S. Ct. at 1886

. Accordi ngly, the courts "have consistently given greater deference t o govern ment predictions of harm used to justify restriction of employe e speec h than to predictions of harm used to justify restrictions on th e speech of the public at large." Id. at 1887; accord Tindle , 56 F.3d at 97 2 (same).

Consis tent with Pickering and its progeny, we first consider th e issue of whether Burn ham's and Marchese's expressive conduct, as captured in the t wo photographs, addressed a matter of public concern. I n addressing the meaning of speech on a matter of "public concern," th e Supreme Court has exp lained: "[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concer n to the community, government officials should enjoy wide latitude i n managing their offices, without intrusive oversight by the judiciary in th e
name of the First Amendment." Connick , 461 U.S. at 146. Assuming tha t Burnham's and Marches e's conduct "expressed and advocated the professors' intere sts in the traditional study of classical and American militar y hi story" and "inform[ed] students and prospective students about th e interests and areas of expertise of the professors in the department, " Brief for Appellees at 34, 4, it

### -12-

arguably did address a matter of public concern. We will assume for the sake of arg ument that it did. Thus, we next proceed to balance th e interests of Burnham and Marchese in commenting upon or expressing their particu lar areas of academic interest, through "humorous" and "light

hearted" portrayals o f themselves, against the interests of UMD, as their employer, in avoiding the potential disruption that Ianni predicted would result from the continued display of the photogr aphs. According to Ianni, his intent in removing the two photographs "was to maintain a positive and efficient working and learning environment conducive to the mission of an academic institution." Appellant's Appendix at 8 (Affidavit of Lawrence Ianni, ¶ 11). He explained in his affidavit:

The Ma rch 1992 threat against Professor Trolander inf lamed an already tense environment. I saw numerou s emp loyees in tears during that time period, which the y reported to me was due to concern over the death threats and fears that someone would randomly open fire on th e campus. . . . The atmosphere was unique in m y experience.

Id. at 7 (Affidavit o f Lawrence Ianni, ¶ 8). According to his affidavit, he also felt that a failure to remove the photographs would have a detrimental effect on faculty collegiality. Id. at 7 (Affidavit o f Lawrence Ianni, ¶ 9).

Plaintiffs maintain that Ianni's prediction of potential disruption

on campus and detriment to faculty collegiality was illogical. However, they do not allege, nor does anything in the record suggest, that Ianni ha d any motive in removing the photographs other tha n those which he described in his affidavit. Moreover, in considering the weight to be given Ianni's prediction of disruption, we note that it is now well-established that the anticipate d disruption in this context need not be actual, but may b e
mer ely potential. Waters , 114 S. Ct. at 1890 ("the potentia l disruptiveness of the speech as reported was enough to outweigh whatever First Amendment value it might have had"); Tindle , 56 F.3d

### -13-

at 972 (" [a] showing of actual disruption is not always required in th e balancing process under Pickering "); accord Jeff ries v. Harleston , 52 F.3d 9, 13 (2d Cir.) ( Jeffries ) (noting that Waters stresses that actua l disruption is not required), cert. denied , 116 S . Ct. 173 (1995). We also recognize that, in balancing the interests of a public employee against th e interests of the government employer in this context, the constitutional standard takes into account proportionality. "[ T]he closer the employee's speech ref lects on matters of public concern, the greater must be th e employer's showing that the speech is likely to be disruptive before in ma y be punished. . . . There is, thus, a proportion between the nature of the speech and the nature of the sanction that may ensue." Jeffries , 52 F.2d at 13 (citation omitt ed). In the present case, Ianni need only have made

a mini mal showing of potential disruptiveness to justify his action s because Burnham's and Marchese's speech at best only remotely touched upon

a matter of public concern (i.e., "the professors' interests in th e traditional study of classical and American military history," Brief for Appellees a t 34). Cf. Dunn , 40 F.3d at 292 (message intended to b e conveyed by wearing a patch bearing the American flag during the Unite d States' military buildup in the Persian Gulf was "squarely within `th e center of public debate'"). In the present case, it is undisputed tha t violent death threats had been widely publicized on campus less than two months bef ore the photographs were removed from the display case. I t cannot seriously be disputed that, during that spring 1992 semester, the atmosphere on campus was more tense than normal. Upon de novo review, we hav e little difficulty holding as a matter of law that the balance o f int erests tips in favor of Ianni in this particular instance. As th e Supreme Court has clearly stated:

The ke y to First Amendment analysis of government employment decisions . . . is this: The government' s interest in achieving its goals as effectively an d effi ciently as possible is elevated from a relativel y subordinate interest when it acts as sovereign to a

### On this point, we emphasize that Ianni's actions wer e 6 

### direct ly targeted at the source of the potential disruption an d were not in retaliation for the speech. In support of our holding, we also note the undisputed facts 7 

### that, following the 1992 summe r break, the photographs were posted in the student center on campus and no action was taken at tha t tim e because the atmosphere on campus had improved. Appellant' s Appen dix at 8 (Affidavit of Lawrence Ianni, ¶ 12). These fact s fur ther support our conclusion that Ianni, as chancellor of UMD , did not act unreasonably in handling this entire matter. Cf. Piarowski v. Illinois Com. College Dist. 515 , 759 F.2d 625, 63 2 (7t h Cir.) ("[t]he discouragement is much less, and hence th e abridgment of freedom of expre ssion is less, when the college says
-14- sig nificant one when it acts as employer. Th e gov ernment cannot restrict the speech of the public a t lar ge just in the name of efficiency. But where th e governm ent is employing someone for the very purpose of effectively achieving its goals, such restrictions ma y well be appropriate.

Waters , 114 S. Ct. at 1888 (emphasis added); accord Jeffries , 52 F.3d at 10 ( on remand from the Supreme Court for reconsideration in light o f Waters , holding that defendants, university officials, were entitled t o judgment as a matter of law on professor's claim that they violated hi s First Amendment rights by reducing his term as d epartment chair because of dero gatory comments he made about Jews in an off-campus speech). I n Jeffries , 52 F.3d at 13, the Second Circuit explained:

Whittl ed to its core, Waters permits a government employer to fire an employee for s peaking on a matter of pu blic concern if: (1) the employer's prediction o f disruption is reasonable; (2) the potentia l disrup tiveness is enough to outweigh the value of th e speech; and (3) the employer took action against th e employee based on this disruption and not in retaliation for the speech. [6]

Accordingly, we hold as a matter of law that Ianni, in ordering the removal of the two photographs from the display case, did not violat e Bur nham's and Marchese's First Amendment rights to the extent that the y were engaging in non-verbal expressive conduct b y bearing weapons in their photographs. 7

### . . . you may exhibit your work on campus -- just not in the alcove

off the mall"), cert. denied , 474 U.S. 1007 (1985).
-15- D. Qualified Immunity

We furthe r hold that, even if we were to find that Ianni violate d Burnham's and Marchese's First Amendment rights, Ianni may not be hel d personally liable to pay damages because, under the specific circumstances of the present case, he is protected by qualified immunity.

[P]ermi tting damages suits against government officials can ent ail substantial social costs, including the risk that fear of personal monetary liability and harassin g liti gation will unduly inhibit officials in th e dis charge of their duties. [ Harlow v. Fitzgerald , 45 7 U.S. 800, 814 (1982).] Our cases have accommodate d thes e conflicting concerns by generally providin g governm ent officials performing discretionary functions wit h a qualified immunity, shielding them from civi l damage s liability as long as their actions coul d reasona bly have been thought consistent with the rights they are alleged to have violated. See, e.g. , Malley v. Bri ggs , 475 U.S. 335, 341 (1986) (qualified immunit y pro tects "all but the plainly incompetent or those wh o know ingly violate the law"); Mitchell v. Forsyth , 47 2 U.S

. 511, 528 (1985) (officials are immune unless "th e law clearly proscribed the actions " they took); Davis v. Scherer , 468 U.S. 183, 191 (1984); Harlow v. Fitzgerald , supra , at 819. Cf., e.g. , Procunier v. Navarette , 43 4 U.S. 555, 562 (1978). Somewhat mo re concretely, whether an offi cial protected by qualified immunity may be held personally liable for an allegedly unlawful officia l action generally turns on the "objective lega l reasonableness" of the action, Harlow [v. Fitzgerald] , 457 U. S. at 819, assessed in light of the legal rule s that we re "clearly established" at the time it wa s taken, id. at 818.

Anderson v. Creighton , 483 U.S. 635, 638-39 (1987) (citations omitted).

### -16- In Anderson v. Creig hton , the Supreme Court addressed the degree of generality versus spe cificity with which the relevant legal rule is to be define d for purposes of determining whether the law was "clearl y established" at the time of the relevant events. Id. at 639. The Court explained that, in order for the concept of a "c learly established" law to compor t with the "objective legal reasonableness" standard set forth i n Harlow v. Fitzgerald , 457 U.S. at 819, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right." Anderson v. Creighton , 483 U.S

. at 640. "This is not to say that an official action is protected b y qualified immunity un less the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id. at 640 (citations omitted).

Needless to say, the very conduct at issue in the present case had not been specifically held unlawful at the time of the relevant events

. The pert inent case law in existence at the time Ianni removed th e photographs from the display case included the Supreme Court's decisions in Connick and Pickering , as well as a body of lower federal cour t decisions which had applied Connick and Pickering -- none of which wer e factually similar to the present case. With this in mind, we now ask the question: assuming th at Ianni had violated Burnham's and Marchese's First Amendment rights, would that violation have been objectively reasonable, in light of the legal rules that were "clearly e stablished" at the time of his actions? Stated differently, would the assu med unlawfulness have been apparent in light of pre-existing law? See Anderson v. Creighton , 483 U.S

. at 640.

As discussed above, the Pickering balancing tes t involves a two-part inquiry: (1) whether the speech is on a matter o f public concern, Connick , 461 U.S. at 146, and, if so, (2) whether, on bal ance, the interests of the employee in making the statement

### -17-

outwei gh the interests of the government employer in promoting th e effici ency and effectiveness of the public services it performs

. Pickering , 391 U.S. a t 568. If both criteria have been met, then a First Amendment violation has occurred. In the presen t case, if we were to find that a First Amendment violation occurred, we would conclude that it was not based upon clearly established law. First, it would not have bee n clear to an objectively reasonable official that the photographs contained speech on a matter of public concern, even assuming they "expressed an d advocated the profess ors' interests in the traditional study of classical and American military history." Brief for Appellees at 34. As state d above, we think these photographs, which were intended to be informal and humorous visual displays of each professor's individual academic interests , at best only remotely touched upon a matter of public concern. See supra slip op. at 13.

Mor eover, at the time Ianni removed the photographs, it would no t have been apparent to an objectively reasonable official that Burnham's an d Marchese's interests in displaying themselves ho lding weapons, as a way of dem onstrating their individual academic specialties, outweighed UMD' s interest in removing the photographs, in an effort to maintain an efficien t and effective campus environment. As discussed above, there were numerous compet ing factors which contributed to Ianni's decision to remove th e photographs at that particular time, including the atmosphere of tension and fear on campus resulting from the recent highly publicized deat h threa ts and the fact that alternative channels were left open fo r plaintiffs to convey the same information. See infra slip op. at 20-21.

We bel ieve our qualified immunity analysis is consistent with th e current state of qualified immunity jurisprudence as it has evolved in thi s and other circuits. In Grantham v. Trickey , 21 F.3d 289, 292-95 (8th Cir. 1994) ( Grantham ), this court thoroughly examined the history of Eight h Circuit case law dealing

### A very simi lar view has been expressed by our court in other 8 

### constitutional contexts. For example, in Manzano v. South Dakota Dep't of Social Servs. , 60 F.3d 505, 509-11 (8th Cir. 1995), w e observed that the constitutionally protected liberty interes t which parents have in familial integrity is not absolute, and when a parent alleges that official conduct infringed upon that rig ht, the meri ts of that constitutional challenge are determined by a balancing test. We then observed that "[t]he need to continually su bject the assertion of this abstract substantive due proces s right to a balancing test which weighs the interest of the parent against the interests of the child and the state makes th e qualif ied immunity defense difficult to overcome." Id. at 510

. "Moreover, the requirement that the right be clearly establi shed at the time of the alleged violation is particularly formidable ." Id. (citing cases). In Myers v. M orris , 810 F.2d 1437, 1462 (8th Cir. 1987), also a case involving the constitutional right of familial in tegrity, we applied the doctrine of qualified immunity afte r no ting our agreement with the Seventh Circuit's observation i n Benson v. Allphin , 786 F.2d 26 8, 276 (7th Cir.), cert. denied , 479 U.S. 848 (1986), that, when a determination of constitutiona l protection turns on application of a balancing test, "the ri ght can rarely be considered 'clearly established,' at least in the absence of closely corresponding factual and legal precedent."

-18- specif ically with the applicability of qualified immunity in the publi c employee speech context. Implicit in that opinion is the fundamental tene t that the qualified immunity analysis should always be adapted to th e specific case at hand

. Id. at 293-95. In Grantham , 21 F.3d at 295, this court determined that it was appropriate under the circumstances of that case to follow the an alysis in Bartlett v. Fisher , 972 F.2d 911 (8th Cir. 1992) ( Bartlett ). In Bartlett , 972 F.2d at 916-17, we recognized that , "b ecause Pickering 's constitutional rule turns upon a fact-intensiv e balanc ing test, it can rarely be considered 'clearly established' fo r purposes o f the Harlow qualified immunity standard." We agree with this 8 statement as a general proposition, and think th at the present case is not

an exception. Qualified immunity is ordinarily a formidable defense t o overcome where the

### H aving said this, we are quick to caution that today' s 9 

### holding by no means suggests that qualified immunity will protect public officials in every instance where the applicabl e constitutional standard involves a balancing test. As plaintiffs point out in their brief, this court has on at least two occasions denied qualified immunity to school officials who violate d teache rs' First Amendment rights under Pickering

. See Southsid e Pub. Schs. v. Hill , 827 F.2d 270, 272-75 (8th Cir. 1987) (denying quali fied immunity to defendants, school officials, who ha d constructively terminated elementary school teachers in reta liation for having written a letter to the state department of educatio n complaining about violations of the federal statutory requirement that handicapped children be provided a free appropriate publi c education); Lewis v. Harrison Sch. Dist. No. 1 , 805 F.2d 310, 318 (8th Cir. 1986) (qualified immunity denied to school superin tendent and school board members who f ired school principal for the stated reas on, among others, that he had publicly criticized thei r decision to transfer his wife from the high school to the junio r high school level).
-19- consti tutionality of official conduct is being assessed according to a fact-intensive balancing test. 9

In sum, we conclude that, even if we were to find that Ianni violate d Burnham's and Marchese's First Amendment rights, "officers of reasonable competence could disa gree on this issue" and, therefore, "immunity should be reco gnized." Malley v. Briggs , 475 U.S. at 341. Accordingly, as a n alternative basis for our disposition, we hold that Ianni would, in an y case, be protected by qualified immunity.

E. The Kohns' First Amendment rights

Wh ile Burnham and Marchese were responsible for the expressiv e conduct that was capt ured in each of their respective photographs, it was the Ko hns who conceived of the idea for the exhibit and who wer e responsible for placing the photographs in the display case. Therefore, the Kohns have asserted a First Amendment right to use the two photographs

as a means "to publicize some of the areas of expertise and interest of th e History Department's faculty, while at the same time portraying the facult y in an informal, somewhat

### The Kohns have not alleged that their constitutional rights 1 0 

### were violated because the phot ographs at issue represent a form of artistic expression, either standing alone or as an integral part of the overall exhibit.
-20- humorou s way." Brief for Appellees at 2. Their claims require a 10 separate analysis.

To begin, we agree with the district court's conclusion that th e display case was a nonpublic forum. Burnham v. Ianni , 899 F. Supp. at 403 (focusing on facts that the display case was und er UMD's control, that UMD allowed members of the history club to use it upon request, and that the display c ase was dedicated to use of the UMD history department fo r disseminating information about the department). Because the display case was a nonpublic forum , the issue as to whether the Kohns' First Amendment rights were violated when the two photographs were removed from the displa y
case turns on whether "the distinctions drawn [were] reasonable in light of th e purpose served by the forum and [were] viewpoint neutral. " Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 806 (1985) ( Cornelius ). So long as these requirements are met, "[c]ontrol over acces s to a nonpublic forum can be based on subject matter." Id. "Th e
reason ableness of the Government's restriction of access to a nonpubli c forum must be assessed in the light of the purpose of the forum and all th e surrounding circumstances." Id. at 809.

We hold that Ianni's decision to remove from the display case the tw o photog raphs which depicted professors holding weapons was not a n unreasonable subject matter restriction in light of the purpose of th e forum, which was to disseminate information about the history department and, additionally, according to plaintiffs, to d isplay items of historical interest. Brief for Appellees at 4-5. His acti ons were narrowly tailored and left open other channels through which the K ohns could still publicize Burnham 's and Marchese's interests in classical and American militar y history.

### -21-

See Perry , 460 U.S. at 53 ("the reasonableness o f the limitations . . . is also supported by the substantial alternative ch annels that remain open"). For ex ample, nothing prevented the Kohns from replacing the remove d photographs with similar pictures of Burnham and Marchese without weapons, while continuing to publicize through written de scriptions their interests in American military and classical history. Moreover, Ianni's actions wer e reasonable in light o f the events of the preceding year, during which two UMD employees, including one professor in the hi story department, had been th e targets of violent threats and efforts to intimidate them b y encourag ing others to commit acts of violence against them. Whil e pl aintiffs emphasize that "neither plaintiffs nor their pictures ha d anythi ng whatsoever to do with [the threats against Featherman an d Trolander]," Brief fo r Appellees at 17, the law does not require Ianni to prove such a correlat ion. "[A] finding of strict incompatibility between the nature of the spe ech . . . and the functioning of the nonpublic forum is not mandated." Cornelius , 473 U.S. at 808.

Finally, notwithstanding our failure to discern any viewpoint from the exhibition of photographs which purportedly projected the interests of Burnham and Marchese in American military and cl assical history, Ianni has dem onstrated beyond any dispute that his removal of the photographs ha d nothing whatsoever to do with those matters. As discussed above, he was motivated solely by the potential disruptiveness of the photographs. On this point, we note the district court's emphasis on its conclusion that the suppression was "content-based." Burnham v. Ianni , 899 F. Supp. a t 403-04. However, the current constitutional standard in nonpublic forum

cases does not focus solely on whether the suppression was content-based but, rather, turns on whether the suppression was reasonable and viewpoint

neutral.

In su m, we hold as a matter of law that Ianni did not violate th e Kohns' First Amendment rights when he had removed from the

### -22-

display case two photographs depicting what he r easonably considered to be potentially disruptive and, therefore, inappropriate subject matter

. Furthermore, even if we were to conclude that Ianni violated the Kohns ' First Amendment rights, we would in any case hold that Ianni is shielded by qua lified immunity from liability for damages because "officers o f

reaso nable competence could disagree on this issue" and, therefore , "immunity should be recognized." Malley v. Briggs , 475 U.S. at 341.

III. Conclusion

For the forgoing rea sons, we hold as a matter of law that Ianni did not violate any of plaintiffs' First Amendment rights. We further hold, in th e alternative, that, even if Ianni did violate any of plaintiffs ' Firs t Amendment rights, he is protected by qualified immunity

. Acc ordingly, the order of the district court denying Ianni's motion fo r summary judgment is reversed and the case is remanded to the district cour t with instructions to enter judgment for Ianni.

BEAM, Circuit Judge, dissenting.

Under this opinion of the court, the plaintiffs/appellees can burn

an Ame rican flag outside the University history department, Texas v
. Johnson , 491 U.S. 397 (1989), but cannot advance, as students and members of the history faculty, expressive conduct intended to support an d public ize areas of teaching expertise and special interest within th e department. This con tent-based suppression was clearly not an act by the University chancellor that properly balanced free speech against work plac e tran quility. It was, rather, as aptly stated by the district court , unvarnished censorship. The court's opinion is not a demonstration o f legitimate First Amendment jurisprudence but is, rather, an example of the triumph of the political correctness agenda of three or four

### I t does not appear that discovery of any kind has bee n 11 

### conducted in this case. Appar ently all facts are advanced through plaintiffs' pleadings and affidavits submitted by the parties.
-23- campus personalities over well-established free speech rights of students and faculty. From this result, I dissent.

I. FACTS

The court sets forth what it calls "underlying facts" that ar e "generally not in dispute." Supra at 2. The opinion omits, however, othe r "undisputed" facts of importance to the case and several disputed material facts as well. Since this matter is before the court on motion for summar y judgment based on a claim of qualified immunity, the court "ordinaril y

11 must l ook at the record in the light most favorable to the part y [plai ntiffs/appellees] opposing the motion, drawing all inferences mos t favorable to that party." Harlow v. Fitzgerald , 457 U.S. 800, 816 n.2 6 (1982). With this re quirement in mind, a more complete recitation of the facts, some of them perhaps disputable at trial, based upon the affidavits in the record as annotated in the appellees' brief, is necessary.

Plaint iff Burnham has been a part-time professorial member of th e history department at the University of Minnesot a-Duluth (UMD) since 1986. He h olds a Ph.D. and his special expertise is United States history , particularly military history.

Plaint iff Marchese is a tenured professor in the University o f Minnesota system. He is a professor of humanities, classics and history at UMD and a professor of ancient history and archaeology in the Center fo r Ancient Studies at the University of Minnesota-Minneapolis.

### -24- The History Club, active for a number of years on campus, operates under the auspices of the UMD history department. At all relevant times, Professor Burnham was faculty advisor to the Club.

During the fall quar ter of 1991, two student members of the History Club, plaintiffs Mich ael and Louise Kohn, conceived an idea for a project that was intended to publicize some of the areas of expertise and interest of the history department's faculty, while at th e same time portraying the facu lty in an informal, somewhat humorous way. The Kohns approache d Professors Burnham and Marchese as well as other members of the department , all of whom agreed to participate. They agreed to pose for a picture with

a "prop" that related to their areas of interest. They also agreed t o supply information about their areas of interest, their academi c background, their his torical heroes, and to supply a quotation to be used along with the above information and their photographs.

For hi s photograph, Professor Marchese elected to pose with a n ancie nt Roman short sword while wearing a cardboard laurel wreath. H e listed his specialties as "Ancient Greece and Rome, Homeric Literature" an d identified Homer and Alexander the Great as historical heroes. He chose to pose with the Roman sword for two reasons. First, he likes to us e tangible objects in h is lectures, and he had previously used the sword in that way. Second, on e of his interests is military history. He believes that a thorough knowledge of the ancient world must include an appreciatio n for the military culture and techniques that all owed Rome to gain and hold

an ascendancy over the Mediterranean world. His courses on ancient histor y include far more than military history, but he thinks that military histor y is an important aspect of that era. Hence he be lieved the Roman sword was an appropriate "prop" for his photograph.

Profe ssor Burnham's special interest in American history include s military history in particular. Among the historical

### -25-

heroes he listed were John Adams and Davy Crockett. Consistent with his profes sional interests, he posed with a .45 caliber military pistol , wearing a coonskin cap.

A total of eleven professors posed for or supplied pictures. Th e Kohns assembled an ex hibit that incorporated these photographs along with the written comments submitted by each faculty member.

The photographs and the accompanying written ma terial comprising the

ex hibit communicated something of considerable public interest. Th e exhibit was intended to be viewed by students an d prospective students, as

we ll as any members of the public who might be on the premises. It s purpose was to inform students and prospective students about the interest s and areas of expertise of the professors in the department. It was also intended to communicate information about the professors and thei r attitudes toward history--as reflected, for example, in their choices of historical heroes.

The exhibit was put up in the history department's display case , located in the public corridor next to the classrooms used by th e dep artment, on March 27, 1992. This display case is designed to hol d material that communicates ideas to the public. The case and its contents

are seen by students who are taking classes located in the vicinity, b y faculty members, and by members of the general public. The display case is reserved for the u se of the history department. The plaintiffs allege that th e case has contained, for a number of years, an exhibit on Roma n siege warfare equipment that was assembled by Professor Marchese. The cas e has been used by members of the History Club as well as by the histor y department faculty. The case is used only to co mmunicate matters that are consid ered to be of public interest. It is not used for privat e communications, like a mailbox or a message system.

### -26- The exhibit was observed by hundreds if not thousands of people

. Members of the department received many compliments on the presentation, as did the students w ho assembled it. For two weeks no one expressed any criticism of the exhi bit. The display appeared to make a contribution to morale and good relations within the department itself.

On Apri l 10, 1992, Judith Karon (who was then UMD's affirmativ e action officer) and UMD Police Captain Harry Michalicek came to the histor y department and viewed the exhibit. It was subsequently learned that this

was in response to a complaint by Charlotte Macleod, an assistant professo r who was the head of the UMD Commission on Women. Karon went to th e departmental secretar y, Elizabeth Kwapick, and demanded that the pictures of Professors Burnham and Marchese be removed. This demand was denied by the department.

Professor Burnham called a lawyer in the University of Minnesota's Legal Department, who told him that she could find nothing wrong with the display as described. The history department agreed that the department should resist any attempt by the administration to censor the photographs, and the department declined to remove them.

On April 27, 1992, Karon sent a memorandum to the Dean of the Colleg e of Liberal Arts, John Red Horse, stating that she expected the photos to be rem oved immediately because she found them to be "totall y inap propriate." Dean Red Horse apparently refused to act on Karon' s reque st. On April 30, 1992, Karon sent Professor Burnham a memorandu m explaining her reasons for wanting to censor the photographs of Professors Burnham an d Marchese. In her memorandum, Karon again stated that sh e orde red the exhibit censored because she found the photograph s "insensitive" and "inappropriate."

### -27- On the m orning of April 29, 1992, Louise Kohn, Michael Kohn , Elizabeth Kwapick and Professor Burnham met with UMD Chancellor Lawrence Ianni to explain the display and protest Karon's attempted censorship of the pictures and the students' work. During that meeting, Chancellor Iann i said that he personally found nothing wrong with the photographs.

On the aft ernoon of the same day, the history department held a meeting on this issue, which was also attended by Ianni, Karon, and Dean Red H orse. During that meeting, Chancellor Ianni again stated that h e persona lly saw nothing wrong with the photographs, but hinted that h e nevertheless might support their removal.

Whe n asked to explain why she wanted the pictures censored, Karo n tried to tie them in with a written threat against Professor Judit h Trola nder and other members of the department, which had been found o n March 16, 1992. Members of the department told Karon that they thought he r at tempt to link the pictures to this deranged threat was absurd

. (Plaintiffs allege that Professor Trolander had not initially been offende d in any way by the pictures, in fact, she participated in the project b y posing for a photograph and specifying her specialties, a persona l quotation and historical heroes. On the day it was put up she said that she th ought the display was "very nice.") Karon also stated at tha t meetin g that she considered the photographs to constitute sexua l harassment. She was unable to explain what she meant by this. Karon was

as ked by what authority she could order the removal of a studen t departmental display, and she was not able to give any satisfactory answer

.
On May 4, 1992, Chancellor Ianni ordered UMD Pl ant Services Director Kirk Johnson to remove the pictures of Professors Burnham and Marchese, bu t he reported he was unable to obtain access. Ian ni then ordered UMD police to remove the photos, and the next day, UMD Poli ce Captain Michalicek went to the history department

### -28-

and removed the photographs. The photographs were apparently given t o Karon , who locked them up. Ultimately, through the efforts of Captai n Michalicek, they were returned to Michael and Louise Kohn. Only the two photographs with weapons were removed. The other nine photographs remaine d

on display. Professors Burnham and Marchese then removed the balance of their contributions to the display.

II. DISCUSSION

The co urt's opinion concedes as it must that the censore d presentation at issue was constitutionally protected free speech. See , e.g. , Tinker v. Des Moines Indep. Community Sch. Dist. , 393 U.S. 503, 505- 06 (1969); Tindle v. Caudell , 56 F.3d 966, 969 (8th Cir. 1995). And, "[i] t
ca n hardly be argued that either students or teachers shed thei r constitutional rights to freedom of speech or expression at the schoolhous e gate." Tinker , 393 U.S. at 506. Indeed, the idea that a faculty member

can be compelled to relinquish First Amendment rights in connection with employment at a public school has been "unequivocally rejected." Pickerin g v. Board of Educ. , 391 U.S. 563, 568 (1968).

A. Pickering Balancing

The co urt contends, however, that the right to express thi s particular free speech must be balanced by the state employer's right to content suppression i n the name of work place efficiency and harmony. It then e mploys a line of wholly inapposite employee discipline an d termination cases to summarily dispose of the violation of the facult y memb ers' First Amendment rights. See , e.g. , Pickering , 391 U.S. 56 3 (tea cher discharged for letter written to newspaper criticizing schoo l boa rd and school superintendent); Connick v. Myers , 461 U.S. 138 (1983 ) (assistant district attorney discharged for distributing questionnair e concerning office morale and policy and confiden ce in supervisors); Waters v. Churchill , 114 S. Ct. 1878, 1887 (1994) (nurse discharged

### Tindle is inapposite for an additional reason. It involves 1 2 

### a police department which, as pointed out by Judge Loken i n Bartlett v. Fisher , 972 F.2d 911 (8th Cir. 1992), “as a paramilitary force, should be accorded much wider latitude t han the normal government employer in dealing with dissension within it s rank s.” Id. at 918. (See further discussion infra at 34). Th e more apposite case, unmentioned by the court, is Kincade v. City of Blue Springs, Missouri , 64 F.3 d 389 (8th Cir. 1995), cert. denied , 116 S. Ct. 1565 (1996), a matter that is factually on point wit h this action and arrives at a contrary conclusion. (See furthe r discussion infra at 34-35).
-29- over statements deali ng with hospital working conditions); and Tindle , 56 F.3d 966 (police officer suspended for attending Fraternal Order of Police party wearing blackened face, bib overalls, black curly wig and carrying watermelon).

These cases are inapplicable for at least two reasons. The speech at is sue in Pickering , Connick and Waters was directly critical of th e efficiency and operations of the employers' busi ness. In Tindle there was evidence that the conduct (although indirect in presentation) directly led to racial friction and disharmony within the Little Rock Police Department , thus affec ting work place morale and efficiency. Here the speech wa s essentially supportive of University operations, extolling the capabilitie s and intere sts of certain faculty members. Contrary to the conduct i n Tindle , the photographs of Burnham and Marchese were not presumptivel y divisive, even in the ambiance of the threats detailed by the court, nor

were t hey shown to have been a palpable threat to work place morale , efficiency or harmony.

There was also no adverse employment action against which a fre e speec h right might be balanced. When put to the test on this misuse o f preceden t, the court curiously explains, supra at 11 n.5, that th e
cen sorship itself is somehow the adverse employment action. Turning t o Tindle , a case mightily relied upon by the court, an apt analogy , considering this argument, would be for the poli ce to have seized Tindle’s bib overalls, black c urly wig and his watermelon and called it an adverse employm ent action. The adverse employment action was, of course, th e officer’s suspension. 12

### The factual differences between this case and Tindle ar e 1 3 

### dramatic. Undisputed evidence was presented in Tindle showi ng that racial divisiveness existed prior to the incident in questio n sufficient to cause the police department to hire an individual to conduct "prejudice reduction workshops;" that several African

American officers resigned fro m the Fraternal Order of Police over the incident; that Tindle's conduct violated a department ru le; and that Tindle admitted that his acts had "humiliated and offended a number of African-American [po lice] officers." Tindle , 56 F.3d at 968. Here, there was no showing even remotely approaching thes e pro portions. Indeed, only two people, for certain, Karon an d Macleod, were critical of the display and the basis for thei r critic ism had little, if anything, to do with the ongoin g efficiency and effectiveness of the educational operation at UMD.
-30- Even if this “square peg in round hole” approach by the court were to have any validity at all, which it does not, it would fail on the facts

. I do not believe that an employer must unreason ably endure dissident and of fensive speech without recourse simply because of the Firs t Amendment. As noted in Waters , however, the gov ernment employer must make

a substantial showing that the speech is, in fact, disruptive before it ma y be punished. Waters , 114 S. Ct. at 1887. I concede the court's point tha t
a government, as an employer, has broader powers in suppressing free speec h than a government as a sovereign. I further concede that we have give n some deference to an employer's predictions of w ork place disruption. Id. We have never given, however, and indeed we have rejected, any deference to a government supervisor's bald assertions of harm, especially those, as here, that are based on conclusory hearsay and rank speculation. 13 Recently we observed that "it is critical to determine whether th e defendants [employers] have put the Pickering balancing test at issue by producing evidence that the speech activity had an adverse effect on the efficiency of the . . . employer’s operations." Grantham v. Trickey , 21 F.3d 289, 294 (8th Ci r. 1994). We have noted that "[a] public employee's exercise of free speech rights affects the

### -31-

efficiency of the operation of the public servic e when [the evidence shows that] it affects the morale of the work force and damages the program' s reputation." Id. at 295. This is a burden that falls upon the employer. For instance, the Sup reme Court, in Pickering , noted that "no evidence to support [professional damage to the school board and superintendent] was introduced at the hearing" and rejected the work place disruption argument of the board. Pickering , 391 U.S. at 570.



### Part II(C) of the court’s opinion, which attempts to address Burnham and Marchese’s First Amendment rights, is a salmagundi of erroneous arguments and conclusions that are difficult to respond to in a concise and orderly fashion. The “mix and match” ch aracter of the opinion results from the court’s need to respond to an act of “ politically correct” censorship searching for a lawfu l rationale--after the fact. Pr operly analyzed, Ianni’s position is simply not defensible.

As conceded by the court, the Pickering/Connick balancin g test, if at all applicable, wh ich it is not, requires the court to determine whether the professo rs’ free speech rights “outweigh the interests of [UMD] in promoting the efficiency and effective ness of the public services it performs,” supra at 17, here the educ ational mission of the University. Unfortunately, the court, at best , pursu es an apples and oranges approach. It seems to attempt t o balance the free speech rights against, on the one hand, a purported campus “atmosphere of tension and fear,” supra at 17, and

on the other hand, but only peripherally and obliquely, th e disruption of the pedagogical mission of UMD. Because we ar e dealing with summary judgment rather than the results of a trial,

we note that the impact of the free speech on the campus’ s atmosphere, if any, is hotly disputed. Its impact upon th e ed ucational mission of UMD is totally unproven and unaddresse d except in the most conclusory fashion.

### -32-

### -33-

Of cou rse, there is really no evidence that the offendin g pho tographs actually impacted the campus atmosphere at all. Th e best that can be said for the court’s extensive discussion of the alleged threats to Ms. Featherman and Ms. Trolander, see supra at 3-4, is that some campus milie u may have been created by acts that occurred in June of 1991 and early March of 1992, acts precedin g the erection of the display. Obviously, the then non-existen t photog raphs had no effect upon the environment created by thes e incide nts. Indeed, Ianni’s memo of March 16, 1992, purportedl y dealing with these threats, preceded the March 27, 1992, pos ting of the display. And, although the affidavits of both Burnham an d Mar chese expressly discount and deny that a “climate of fear ” existe d on campus, clearly placing the “atmosphere” issue i n dis pute for summary judgment purposes, see Burnham Affidavi t Appellees' App. at 17 and Marchese Affidavit Appellees' App. at 27, it is obvious that the photographs had nothing to do with th e campus ambiance that existed a t the time of Ianni’s March 16 memo. Thus, the test, flunked by Ianni so far, is what effect, if any , did the photographs have on University functions. The presen t record leaves this question unanswered.

Even if, for the sake of argument, I were to concede th e
ex istence of pre-existing campus tension arising from th e Featherman and Trolander episodes, there is absolutely no ev idence, except for Ianni’s sweeping conclusions, that establishes a nexus between the two photographs and an exacerbated atmosphere of fear

on the campus or, more importantly, that establishes a relationship, direct or indirect, between the photographs and the “e fficiency and effectiveness” of UMD’s mission in publi c educ ation. Evidence that the photographs increased campus-wid e tension which in turn diminished the efficiency of the mission of UMD is totally absent, not just in dispute, although even a dispute

### -34-

of fact would doom a grant of summary judgment for Ianni on th e basic First Amendment issue.

### While our cases frame this alternative inquiry as one lead ing 14 

### to a d etermination of qualified immunity, the procedure actuall y tests wh ether a viable claim for relief has been stated under 4 2 U.S.C. § 1983. Ordinarily, denial of a motion for failure t o state a claim is interlocutory and unappealable. When coupled with a n affirmative defense of qualified immunity, however, the "failure to state a claim" issue become s appealable under the rationale set forth in Siegert . In my view, if a constitutional right has no t been asserted "at all," a defendant has no need for immunity

. Siegert , 500 U.S. at 232. The case should simply be dismissed for the lack of a workable claim. Conceptually, immunity is onl y needed to protect a government actor from suit if an actua l constitutional violation has occurred.
-35- Addi tionally, qualified immunity, the issue that gives thi s court jurisdiction to review the district court’s denial of summary judg ment, is an affirmative defense that Ianni must assert

. Siegert v. Gilley , 500 U.S. 226, 231 (1991). Thus, Ianni had the burden of proving, Watertown Equip. Co. v. Northwest Ban k Watertown , 830 F.2d 1487, 1490 (8th Cir. 1987), cert. denied , 486 U.S. 1 001 (1988), that the constitutional right asserted by th e plaintiffs was not clearly est ablished at the time of the incident or if established, was not discernible to an objective government off icial under the facts available or, in the alternative, o f pro ving the “necessary concomitant” that plaintiffs have no t asserted “a violation of a con stitutional right at all.” Siegert , 500 U. S. at 232. It is the alternative inquiry that the cour t pri marily relies upon today, i.e., is there a constitutiona l violation at all? As I have noted, Ianni has simply not sho uldered his burden of proof as to this prong of qualified immunit y jurisprudence or, at the very least, he has left a factual inquiry on this issue on the table to be fleshed out at a trial. 14



### The court’s secondary attempt to pump air into its reversa l bal loon, through a finding of qualified immunity enforceabl e th rough summary judgment, quickly deflates with the failure o f proof on the basic Pickering/C onnick issue. Beyond that, however,

### -36-

the court advances a new and surprising theory that whenever a Pickering/Connick balancing te st is required, government officials

### The cases cited by the court exclusively involve police and 1 5 

### pa ramilitary employers that this circuit has treated differentl y than general governmental bodi es, schools and colleges, especially where, as here, elements of ac ademic freedom are present. We have he ld that paramilitary employers have a heightened interest i n re gulating the speech of its employees to promote loyalty , obedienc e in the ranks and public confidence in the units. See , e.g. , Bartlett v. Fisher , 972 F.2d 911, 918 (8th Cir. 1992) (noting para military government employer “should be accorded much wide r latitu de than the normal government employer in dealing wit h dissension within its ranks”).
-37- must always be awarded qualified immunity. Supra at 18-19. 15 

### Although it admits the existence of several cases contrary to its theory, see supra at 19 n.9, the court fails to cite the mos t analogous case, Kincade v. Cit y of Blue Springs, Missouri , 64 F.3d 389 ( 8th Cir. 1995), cert. denied , 116 S. Ct. 1565 (1996), eve n though a member of the panel majority joined that opinion.

Kincade was discharged by Blue Springs for exercising his fre e speech rights. Because Kincade’s speech touched on a matter o f pub lic concern, as does the speech in this case, th e Pickering/Connick balancing te st was employed to review a district court denial of a motion for summary judgment on qualified i mmunity grounds. The court, noting that the only evidence of workplac e disruption was a conclusory statement to that effect by the mayor and other city officials, asserted:

th e Appellants [city officials] have merel y as serted that Kincade’s speech adversely affecte d the efficiency of the City’s operations an d substantially disrupted the work environmen t without presenting any specific evidence to suppor t this assertion. They therefore have not put th e Pickering balancing test at issue, and accordingly , we reject their claim that they are entitled t o qu alified immunity because free speech question s for public employees, as a matter of law, cannot b e “clearly established.”

### -38-

### -39-

Ki ncade , 64 F.2d at 398-99. This is precisely the factual an d legal situation we have in this case and the court’s opinio n clearly violates the precedent established in Kincade

.
Admittedly in different contexts, two recent cases generally dramatiz e the burden of proof allocation when free speech is a t issue. In 44 Liquormart, Inc. v. Rhode Island , 116 S. Ct. 149 5 (199 6), decided this past term, a case involving commercia l advertising, a commodity recognized as more freely subject t o regulation than other forms of protected speech, id. at 1504, the Supreme Court rejected the premise that the merchant/adverti ser had the burden of disproving Rhode Island’s stated reason for th e speech regulation, to-wit: the promotion of temperance by th e reduction of alcohol consumption. The Court, rejecting even a presum ption in favor of the state arising from the Twenty-firs t Amendment said:

[W]e note that a commercial speech regulation ma y not be sustained if it provides only ineffective o r remote support for the government’s purpose. Fo r that reason, the State bears the burden of showing not merely that its regulation will advance it s interest, but also that it will do so to a materia l degree. The need for the State to make such a showing is particularly great given the drasti c na ture of its chosen means--the wholesal e suppression of truthful, nonmisleading information

.

Id. at 1509 (citations and internal quotations omitted). Th e Court , here, affirms the wholesale suppression of truthful , nonmis leading free speech, of a higher order than liquo r advertising upon Ianni’s self-serving, factually unsupported , subjective state of mind that the censorship might “maintain a positive and efficient working and learning environment conducive to the mission of an academic institution.” Supra at 12.

### -40-

In an even more recent case, Forbes v. Arkansas Educ

. Television Comm'n , No. 95-2722 , slip op. (8th Cir. Aug. 21, 1996),

### -41-

in an opinion concurred in by the majority members of this panel, in litigation in which a minor candidate was excluded from a televi sed debate because a government functionary thought he wa s not a "viable" candidate, this court said, “We hold that a govern mentally owned and controlled television station may no t exclude a candidate, legally qualified under state law, from a deb ate [free speech] organized by it [the television station] o n such a subjective [lack of viability] ground. To uphold such a defense would, in our view, place too much faith in government. ” Id. at 3 . The same goes for the subjective suppression advance d here. In sum, the court’s holding that “Ianni need only [make] a minimal showing of potential disruptiveness to justify hi s actions,” supra at 13, is simply an incorrect statement of Firs t Amendment law.

Giving the best gloss possible to the fac ts adduced by Ianni, nothing remotely approaching lower morale and program damage at UMD

was established. The censorship itself did more damage to th e morale of the history department than any other possible even t except, perhaps, the announcement of a budget cut. Viewing th e competing affidavits favorably to Burnham and Marchese, as we must at this summary judgment juncture, we find only three or fou r people in support of censorship and none of them offerin g objections or reasons running directly to institutional morale or program damage. As stated earlier, Judith Karon, at the tim e UMD's af firmative action officer, thought the display was "insensitiv e and in appropriate." She later thought the photographs migh t
some how constitute "sexual harassment." Professor Trolander, a member of the history department faculty, at first thought th e displa ys were "very nice" but later, apparently, thought th e display was inappropriate. Th e other offended individual revealed in the record was Charlotte Macleod, the original complainant, an assistan t professor at UMD and the head of the UMD Commission o n

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Women. Without derogation of the strong feelings of these thre e individuals, their states of mind are not reason enough to allow

### The court excuses this incon sistent position by reference to 16 

### an “improved” atmosphere. Supra at 14 n.7. I find no support in reason or precedent for such a rationale. The plaintiffs po int out in their brief that UMD studen ts recognized the censorship even if Ianni and Karon did not. The student center display was , appare ntly, on the subject of censorship and was headed "Th e Administration Does Not Want You to See These." The second showing argument advanced by Ianni and accepted by the court wa s characterized by Judge Davis as "at best, disingenuous." Burnham v. Ianni , No. 594-6, mem. op. at 12 (D. Minn. Mar. 17, 1995).
-43- the University administration to run roughshod over the Firs t Amendment rights of Burnham and Marchese.

Finally, the court notes, supra at 14 n.7, that later in 1992 , copies of the photographs censored by Ianni were posted at th e student center on campus witho ut complaint of any kind and without any evidence of an institutional breakdown. Far from proof of the 16


### prop riety of Ianni's earlier censorship, as the court contends , this is evidence that there never could have been a showing of work place disruption. Free speech is free speech whether it occurs in May in the history display cas e or in August at the campus student center.

The facts f ail to support Ianni's position, and the district court so found. Judge Davis stated "[t]his is not an employmen t
case w here there is a threatened disruption to the efficien t delivery of services." Burnha m v. Ianni , No. 594-6, mem. op. at 9 (D

. Minn. Mar. 17, 1995). The court, in its summary judgment , fac t-finding exercise, seems to have found this holding to b e clearly erroneous. It is, however, the court that is in error.

B. Content Suppression

The mo st troublesome aspect of the court's opinion is it s failure to properly analyze th e real free speech/censorship issues

### -44-

br ought clearly into focus in this case. These are the issue s summarily, and incorrectly, di sposed of by the court in Part II(E)

### The display case, as earlier noted, was in the hall outside 1 7 

### the history department's classrooms and had been placed there t o hold information about the department, the faculty and stude nts for the benefit of students, prospective students and the public

. Dis plays in the case were designated and intended to communicat e truthful, nonmisleading ideas to students, prospective students , faculty and the public on a permanent, ongoing basis.
-45- under the heading "The Kohns’ First Amendment rights." Supra a t 19. The violation involved all four plaintiffs' First Amendmen t rights and not just those of the students.

The court discusses the nature of the forum, an irrelevan t matter. Even so, its conclusion is wrong. Under the facts of this act ion, the display case was clearly a limited designated forum , Perry Educ. Ass'n v. Perry Loc al Educators' Ass'n , 460 U.S. 37, 45 (1983). See also Forbes , slip op . at 3. Thus, the content-based

17


### suppre ssion at work here must have served a compelling stat e interest through censorship na rrowly drawn to serve that interest. Widmar v. Vincent , 454 U.S. 263, 270 (1981). No such test wa s applied in this case by either Ianni or the court and no suc h showing could possibly have been made under the undisputed f acts of this litigation.

At the b ottom line, however, the nature of the forum make s little difference. Even if the display case represented a closed forum, Ianni violated the First Amendment rights of the plai ntiffs, and in a way that any objective University chancellor would o r should have known.

We need look no further than Tinker v. De s Moines Independent Community School District , 393 U.S. 503, for controlling precedent although the answer is so fundamental it governs dozens of case s decided in this circuit alone. In Tinker , of course, thre e students, ages sixteen, fifteen and thirteen, wore black armbands

### -46-

during attendance at their res pective Des Moines senior and junior high schools to publicize their objections to the Vietnam War. A

### -47-

few students made hostile rema rks to the students wearing armbands but there were no threats or acts of violence on school premises. Id

. at 508. The school authorities were found by the distric t court to have acted reasonably in prohibiting the armbands " because [the action] was based upon [the school's] fear of a disturbanc e from the wearing of the armbands." Id.

The Su preme Court rejected this conclusion saying "in ou r system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Id. The Court further noted that "[i]n our system, state-operated schools may not be enclaves of totalitarianism." Id. at 511. Freedom of expression may be regulated only with a specific showing of a
co nstitutionally valid reason. Id. There had to be a factua l sh owing that the suppressed conduct would "materially an d substantially interfere with the requirements of appropriat e discipline in the operation of the school." Id. at 509.

As i n Tinker , there is no such showing made here by Ianni

. Th e after-the-act recitation of outside threats made against a faculty member and a UMD administrator, with no shown or know n connection to the history department display, is simply a "re d herr ing" drawn across the trail leading from the Universit y chancellor's suite, via the af firmative action officer's quarters, to the unconstitutional censorship of two photographs totall y unrelated to the purported concern. The argument that a pho tograph of a male, laurel-wreath bedecked UMD faculty member holding a Roman short sword, as part of a eleven-person faculty display , someho w exacerbated or threatened to exacerbate a purported, bu t unproven, atmosphere of fear on the UMD campus is almost lau ghable. There was no valid constitutio nal basis for the censorship, it was simply an act of regulation of what Karon believed to b e politically incorrect speech, a display of weapons.

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III. CONCLUSION

Followed to its logical conclusion, the court’s holding simpl y permits the suppression of too much speech on arbitrary an d

ca pricious grounds. Indeed, the opinion would even permi t suppression of Sandra Featherm an’s advocacy of gender and cultural div ersity at UMD if Chancellor Ianni subjectively felt that suc h speech contributed to an inefficient and negative working an d learning environment on the campus because of unlawful or ve hement, but protected, opposition to Featherman’s views. Surely tha t cannot be the law in this circuit.

Furthe r, the court grants the motion for summary judgmen t based upon qualified immunity because it finds no First Amendment violat ion. The court improperly limits the facts it considers , mistakenly applies a Pickering/Connick balancing test and accepts

se lf-serving statements by Ianni, unsupported by evidence excep t evidence of the political correctness concerns of two facult y
mem bers and an affirmative action administrator. This is error

. I dissent.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.