In their amended complaint, plaintiffs sought a declaration

1

that Ianni's actions were unconstitutional, injunctive relief

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 brought 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

history students (collectively plaintiffs), against Lawrence Ianni,

Chancellor of UMD, alleging that Ianni deprived them of rights protected

by the free speech clause of the First Amendment. Ianni appeals from the 1
-2-

district court's order denying his motion for summary judgment on the basis

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 by

ordering the removal of two photographs, one of Burnham and the other of

Marchese, from a display case located in a hallway outside the UMD history

department's classrooms. 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 the

center of this dispute, were originally part of a visual exhibit conceived

of and created by the Kohns while they were students at UMD. The Kohns

were both members of the UMD history club, for which Burnham was the

faculty advisor. The Kohns' objective in displaying the exhibit was to

convey to observers the history faculty's diverse interests. In

photographing the UMD history professors, the Kohns asked each to pose with

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

The photographs were then juxtaposed with written descriptions of the

subject's academic background, 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;

Marchese, who specializes in ancient Greece and Rome, posed wearing a

cardboard laurel wreath and holding a Roman short sword.
 Burnham then removed the remaining photographs in the Kohns' 2

exhibit.

-3-

On May 5, 1992, an officer with the UMD campus police, acting under

instructions from Ianni, removed the photographs of Burnham and Marchese

from the display case. Ianni ordered the removal of the two photographs 2

because he considered them inappropriate for display in light of events

that had occurred over the previous year. 

In June of 1991, approximately one year before the photographs of

Burnham and Marchese were removed from the display case, Sandra Featherman

was appointed to the post of UMD vice chancellor. Shortly thereafter, she

began receiving graphically violent threats from an anonymous source or

sources using the identities "Deer Hunters" and "Prince of Death," and

warning her that if she did not stay away from Duluth, she would be

kidnapped or killed. At the same time, a phony memorandum, bearing a

forged signature purporting to be Ianni's, was circulated through the UMD

mail system and distributed on and around campus. This fraudulent

memorandum referred to the "conspiracy to kidnap Sandra Featherman going

on at UMD." Appellant's Appendix at 17 (forged memorandum).

Beginning in March 1992, UMD history professor Judith Trolander

became the target of threats similar to those directed at Featherman. Both

Featherman and Trolander had been involved in a program to improve

diversity and equality on the UMD campus. A flyer entitled "Target

Information" was anonymously posted around campus which said, among other

things, "The Imperial Council of Deer Hunters Proclaim Open Season on Judy

Trolander Lesbian Feminist Bitch." This document told the reader where to

find Professor Trolander's picture and where she lived, and stated the

following:
-4-

She will be a good target for shooting at long range.

The house has large windows and the terrain is clear of

obstacles in all directions. Shooting from the beach or

even from a boat in the bay or lake Superior is

feasible. A 30-60 rifle with 20X2 Bushnell scope would

be a suitable weapon with dum-dum bullets dipped in

poison. Don't forget to put in a couple of clicks in

the crosshairs for windage as the wind is usually strong

there. It is recommended that the hunter shoot from

behind the Surf and Sand Health Center, if there is

return fire from the house it well only kill a few old

people. She is the only occupant of the house, so it is

OK to shoot silhouettes on drawn shades.

Get cracking you kill crazy buckaroos. Its OK to kill

her, the Imperial Counsel rules UMD, the commission on

women is dissolved.

Also, all faculty members ordered to participate in

Featherman's administrative development project will be

sentenced to death along with their pets, children, and

spouses if they comply with these orders. Any one who

cooperates with Featherman will have their target

information published.

The deer hunters need target information on Featherman,

just mention where she lives in the faculty club and

everything will be taken care of.

Appellant's Appendix at 38.

In an attempt to respond to the tension and widespread fear of

violence created by these terroristic threats, Ianni distributed on campus

a memorandum dated March 16, 1992, assuring that the matter was being

investigated by local and federal authorities, that every effort would be

made to bring the perpetrators to justice, and that the school remained

committed to improving the conditions of women and minorities on campus.

On or about March 27, 1992, less than a month after the so-called

"Target Information" flyer was posted, the photographs of Burnham and

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 holding weapons, particularly

the picture of Burnham holding a gun. Professor Trolander, who was

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 of

tension and fear on campus. Several meetings involving Karon, Ianni, the

Kohns, Burnham, Marchese, and other faculty members in the history

department, were held to discuss the two photographs. The chairman and

other members of the history department steadfastly opposed their removal.

See Appellant's Appendix at 50 (internal history department memorandum:

"[s]omehow, this ugly trend of History governance by external

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 ordered

the two photographs removed from the display case.

Plaintiffs filed this § 1983 action alleging that the removal of the

photographs violated their First Amendment right of free speech. Ianni

filed several motions, including a motion for summary judgment on qualified

immunity grounds. The district court denied that motion, explaining:

On the facts of this case, the court finds,

without hesitation, that "[t]he contours of the right

[were] sufficiently clear [so] that a reasonable

official would understand that what he [did] violates

that right." . . . Ianni asserts that his actions were

taken with the intent to "maintain a positive and

efficient working and learning environment conducive to

the mission of an academic institution." . . .

Chancellor Ianni is, presumably, an educated and erudite

person. It is inconceivable to this court that the

Chancellor of a major University could have failed to

know that [the] First Amendment forbade, except in the

narrowest of circumstances, the type of conduct at issue

here.
-6-

Burnham v. Ianni, 899 F. Supp. at 400-01 (citations omitted). Having held

that plaintiffs' clearly established First Amendment rights had been

violated, the district court also denied Ianni's motion to dismiss. Id.

at 404. In reaching its conclusion on the merits, the district court noted

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 was

subject to a reasonableness test. Id. (citing Perry Educ. Ass'n v. Perry

Local Educators' Ass'n, 460 U.S. 37, 49 (1983) (Perry)). The district

court then determined that the photographs were removed because they were

offensive to some viewers and, therefore, the suppression was content-based

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 advocated support for those

[who] had made the threats which motivated their

removal. This is an impermissible content based

restriction. . . . That some members of the faculty and

administration were discomfited by the sight of the

photographs displaying weapons is insufficient to

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 the

district court's order denying Ianni's motion for summary judgment on

qualified immunity grounds insofar as the district court held, as a matter

of law, that Ianni violated plaintiffs' clearly established First Amendment

rights. See Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995) (citing

Mitchell v.
-7-

Forsyth, 472 U.S. 511, 530 (1985) (interlocutory appellate jurisdiction

exists where qualified immunity issue involves application of "clearly

established" law to a given set of undisputed facts)). 

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

an appealable final judgment, an exception exists for a summary judgment

order denying qualified immunity . . . [and for] issues of law that are

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 Cir. 1994), cert. denied, 115 S. Ct. 2584 (1995)). We

review the district court's denial of Ianni's motion for summary judgment

de novo. Id. (citing Get Away Club, Inc. v. Coleman, 969 F.2d 664 (8th

Cir. 1992)). Summary judgment is appropriate where there are no genuine

issues as to any material fact and the moving party is entitled to judgment

as a matter of law. Id.; Fed. R. Civ. P. 56(c).

B. Nature of plaintiffs' claim

In the present case, plaintiffs maintain that the two photographs of

Burnham and Marchese constitute protected speech because they capture and

convey 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 and

advocated the professors' interests in the traditional study of classical

and American military history"). Plaintiffs describe the message

purportedly conveyed by the two photographs as follows. 

For his 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 were

3

intended to portray the faculty in an "informal" and "somewhat

humorous" manner, Brief for Appellees at 2, they do not argue, nor

would we find, that the photographs were intended to be forms of

entertainment. Accordingly, we need not consider the First

Amendment standard applicable for some forms of entertainment. Cf.

Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993

F.2d 386, 390-91 (4th Cir. 1993) (because college fraternity's

"ugly woman contest" was similar in nature to a theatrical

performance, it was an inherently expressive form of entertainment

and entitled to constitutional protection despite offensive

caricature of African-American woman).

-8-

tangible objects in his lectures, and he had previously

used the sword in that way. Second, one of his

interests is military history. He believes that a

thorough knowledge of the ancient world must include an

appreciation for the military culture and techniques

that allowed Rome to gain and hold an ascendancy over

the Mediterranean world. His courses on ancient history

include far more than military history, but he thinks

that military history is an important aspect of that

era. Hence he believed the Roman sword was an

appropriate "prop" for his photograph.

Professor Burnham's special interest in American

history includes military history in particular. Among

his historical heroes he listed were John Adams and

David Crockett. Consistent with his professional

interests, 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 analytical

premise, the two professors' claims derive from the assertion that they

were engaging in non-verbal expressive conduct by their choices of clothing

and props, as worn and displayed in each 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 party, which was held at the Fraternal Order of Police

4

Lodge, was not an official police department function but was

attended by off-duty police officers and their guests. Tindle v.

Caudell, 56 F.3d 966, 968 (8th Cir. 1995).

-9-

decision in Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995) (Tindle),

addressing the standards that apply to this precise type of First Amendment

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-day

suspension for appearing at a Halloween party wearing a blackened face,

dressed in bib overalls and a black curly wig, and carrying a watermelon.4

In acknowledging that the plaintiff had facially asserted a First Amendment

right, this court stated:

What one chooses to wear can communicate an

expressive message to others. . . . Wearing a

particular outfit or costume is non-verbal conduct that

is protected as speech under the first amendment if it

is intended to convey a "particularized message" and if

the likelihood is great that the message will be

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) (wearing 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 the

Persian Gulf War was nonverbal conduct protected under the free speech

clause). However, this court then went on to explain in Tindle that, even

if a person's chosen appearance is found to be expressive non-verbal

conduct or speech, it is not entitled to absolute protection. 56 F.3d at

970. Because the plaintiff in Tindle was a public 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": 

The first question is whether the employee's speech

addresses a matter of public concern. Connick v. Myers,

461 U.S. 138, 146 (1983) [(Connick)]. If it does, then

the court must balance the "interests of the [employee],

as a citizen, in commenting upon matters of public

concern and the interests of the State, as an employer,

in promoting the efficiency of the public services it

performs through its employees." Pickering v. Board of

Educ., 391 U.S. 563, 568 (1968) [(Pickering)].

Tindle, 56 F.3d at 970; accord Waters v. Churchill, 511 U.S. 661, ___, 114

S. Ct. 1878, 1884 (1994) (Waters). It is the job of the court to apply

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

Burnham and Marchese have adequately demonstrated that they sought to

convey a "particularized message" through the clothing 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 argument, that the likelihood

was great that this "particularized message" would be understood by those

who viewed the photographs. 

It is undisputed that Burnham and Marchese are public employees and

that Ianni was acting in his official capacity as a public employer

representing the interests of UMD when he ordered the removal of the

photographs from the display case located in the corridor near the UMD

history department's classrooms. Therefore, consistent with Tindle, the

suppression of the two photographs must be analyzed according to the twopart analysis required by the Pickering-Connick-Waters line of Supreme

Court cases dealing with
 Plaintiffs make much of the fact that the present case is

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 of

Lawrence Ianni, ¶ 9). The fact that Ianni chose to respond to what

he considered to be inappropriate 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 First Amendment rights of public employees. As the Supreme Court

5

observed in Waters, "the government as employer indeed has far broader

powers than does the government as sovereign." 114 S. Ct. at 1886.

Accordingly, the courts "have consistently given greater deference to

government predictions of harm used to justify restriction of employee

speech than to predictions of harm used to justify restrictions on the

speech of the public at large." Id. at 1887; accord Tindle, 56 F.3d at 972

(same). 

Consistent with Pickering and its progeny, we first consider the

issue of whether Burnham's and Marchese's expressive conduct, as captured

in the two photographs, addressed a matter of public concern. In

addressing the meaning of speech on a matter of "public concern," the

Supreme Court has explained: "[w]hen employee expression cannot be fairly

considered as relating to any matter of political, social, or other concern

to the community, government officials should enjoy wide latitude in

managing their offices, without intrusive oversight by the judiciary in the

name of the First Amendment." Connick, 461 U.S. at 146. Assuming that

Burnham's and Marchese's conduct "expressed and advocated the professors'

interests in the traditional study of classical and American military

history" and "inform[ed] students and prospective students about the

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 argument that it did. Thus, we next proceed to balance the

interests of Burnham and Marchese in commenting upon or expressing their

particular areas of academic interest, through "humorous" and "lighthearted" portrayals of 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 photographs. 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 March 1992 threat against Professor Trolander

inflamed an already tense environment. I saw numerous

employees in tears during that time period, which they

reported to me was due to concern over the death threats

and fears that someone would randomly open fire on the

campus. . . . The atmosphere was unique in my

experience.

Id. at 7 (Affidavit of 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 of

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 had

any motive in removing the photographs other than 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

anticipated disruption in this context need not be actual, but may be

merely potential. Waters, 114 S. Ct. at 1890 ("the potential

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 the

balancing process under Pickering"); accord Jeffries v. Harleston, 52 F.3d

9, 13 (2d Cir.) (Jeffries) (noting that Waters stresses that actual

disruption is not required), cert. denied, 116 S. Ct. 173 (1995). We also

recognize that, in balancing the interests of a public employee against the

interests of the government employer in this context, the constitutional

standard takes into account proportionality. "[T]he closer the employee's

speech reflects on matters of public concern, the greater must be the

employer's showing that the speech is likely to be disruptive before in may

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 omitted). In the present case, Ianni need only have made

a minimal showing of potential disruptiveness to justify his actions

because Burnham's and Marchese's speech at best only remotely touched upon

a matter of public concern (i.e., "the professors' interests in the

traditional study of classical and American military history," Brief for

Appellees at 34). Cf. Dunn, 40 F.3d at 292 (message intended to be

conveyed by wearing a patch bearing the American flag during the United

States' military buildup in the Persian Gulf was "squarely within `the

center of public debate'"). In the present case, it is undisputed that

violent death threats had been widely publicized on campus less than two

months before the photographs were removed from the display case. It

cannot seriously be disputed that, during that spring 1992 semester, the

atmosphere on campus was more tense than normal. Upon de novo review, we

have little difficulty holding as a matter of law that the balance of

interests tips in favor of Ianni in this particular instance. As the

Supreme Court has clearly stated: 

The key to First Amendment analysis of government

employment decisions . . . is this: The government's

interest in achieving its goals as effectively and

efficiently as possible is elevated from a relatively

subordinate interest when it acts as sovereign to a
 On this point, we emphasize that Ianni's actions were

6

directly targeted at the source of the potential disruption and

were not in retaliation for the speech.

 In support of our holding, we also note the undisputed facts 7

that, following the 1992 summer break, the photographs were posted

in the student center on campus and no action was taken at that

time because the atmosphere on campus had improved. Appellant's

Appendix at 8 (Affidavit of Lawrence Ianni, ¶ 12). These facts

further 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, 632

(7th Cir.) ("[t]he discouragement is much less, and hence the

abridgment of freedom of expression is less, when the college says

-14-

significant one when it acts as employer. The

government cannot restrict the speech of the public at

large just in the name of efficiency. But where the

government is employing someone for the very purpose of

effectively achieving its goals, such restrictions may

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 of

Waters, holding that defendants, university officials, were entitled to

judgment as a matter of law on professor's claim that they violated his

First Amendment rights by reducing his term as department chair because of

derogatory comments he made about Jews in an off-campus speech). In

Jeffries, 52 F.3d at 13, the Second Circuit explained:

Whittled to its core, Waters permits a government

employer to fire an employee for speaking on a matter of

public concern if: (1) the employer's prediction of

disruption is reasonable; (2) the potential

disruptiveness is enough to outweigh the value of the

speech; and (3) the employer took action against the

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 violate

Burnham's and Marchese's First Amendment rights to the extent that they

were engaging in non-verbal expressive conduct by 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 further hold that, even if we were to find that Ianni violated

Burnham's and Marchese's First Amendment rights, Ianni may not be held

personally liable to pay damages because, under the specific circumstances

of the present case, he is protected by qualified immunity. 

[P]ermitting damages suits against government officials

can entail substantial social costs, including the risk

that fear of personal monetary liability and harassing

litigation will unduly inhibit officials in the

discharge of their duties. [Harlow v. Fitzgerald, 457

U.S. 800, 814 (1982).] Our cases have accommodated

these conflicting concerns by generally providing

government officials performing discretionary functions

with a qualified immunity, shielding them from civil

damages liability as long as their actions could

reasonably have been thought consistent with the rights

they are alleged to have violated. See, e.g., Malley v.

Briggs, 475 U.S. 335, 341 (1986) (qualified immunity

protects "all but the plainly incompetent or those who

knowingly violate the law"); Mitchell v. Forsyth, 472

U.S. 511, 528 (1985) (officials are immune unless "the

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, 434

U.S. 555, 562 (1978). Somewhat more concretely, whether

an official protected by qualified immunity may be held

personally liable for an allegedly unlawful official

action generally turns on the "objective legal

reasonableness" of the action, Harlow [v. Fitzgerald],

457 U.S. at 819, assessed in light of the legal rules

that were "clearly established" at the time it was

taken, id. at 818.

Anderson v. Creighton, 483 U.S. 635, 638-39 (1987) (citations omitted).
-16-

In Anderson v. Creighton, the Supreme Court addressed the degree of

generality versus specificity with which the relevant legal rule is to be

defined for purposes of determining whether the law was "clearly

established" at the time of the relevant events. Id. at 639. The Court

explained that, in order for the concept of a "clearly established" law to

comport with the "objective legal reasonableness" standard set forth in

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 by

qualified immunity unless 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 pertinent case law in existence at the time Ianni removed the

photographs from the display case included the Supreme Court's decisions

in Connick and Pickering, as well as a body of lower federal court

decisions which had applied Connick and Pickering -- none of which were

factually similar to the present case. With this in mind, we now ask the

question: assuming that 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 established" at the time of

his actions? Stated differently, would the assumed 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 test involves a two-part

inquiry: (1) whether the speech is on a matter of public concern, Connick,

461 U.S. at 146, and, if so, (2) whether, on balance, the interests of the

employee in making the statement
-17-

outweigh the interests of the government employer in promoting the

efficiency and effectiveness of the public services it performs.

Pickering, 391 U.S. at 568. If both criteria have been met, then a First

Amendment violation has occurred. In the present 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 been

clear to an objectively reasonable official that the photographs contained

speech on a matter of public concern, even assuming they "expressed and

advocated the professors' interests in the traditional study of classical

and American military history." Brief for Appellees at 34. As stated

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.

Moreover, at the time Ianni removed the photographs, it would not

have been apparent to an objectively reasonable official that Burnham's and

Marchese's interests in displaying themselves holding weapons, as a way of

demonstrating their individual academic specialties, outweighed UMD's

interest in removing the photographs, in an effort to maintain an efficient

and effective campus environment. As discussed above, there were numerous

competing factors which contributed to Ianni's decision to remove the

photographs at that particular time, including the atmosphere of tension

and fear on campus resulting from the recent highly publicized death

threats and the fact that alternative channels were left open for

plaintiffs to convey the same information. See infra slip op. at 20-21.

We believe our qualified immunity analysis is consistent with the

current state of qualified immunity jurisprudence as it has evolved in this

and other circuits. In Grantham v. Trickey, 21 F.3d 289, 292-95 (8th Cir.

1994) (Grantham), this court thoroughly examined the history of Eighth

Circuit case law dealing
 A very similar 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), we

observed that the constitutionally protected liberty interest which

parents have in familial integrity is not absolute, and when a

parent alleges that official conduct infringed upon that right, the

merits of that constitutional challenge are determined by a

balancing test. We then observed that "[t]he need to continually

subject the assertion of this abstract substantive due process

right to a balancing test which weighs the interest of the parent

against the interests of the child and the state makes the

qualified immunity defense difficult to overcome." Id. at 510.

"Moreover, the requirement that the right be clearly established at

the time of the alleged violation is particularly formidable." Id.

(citing cases). In Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.

1987), also a case involving the constitutional right of familial

integrity, we applied the doctrine of qualified immunity after

noting our agreement with the Seventh Circuit's observation in

Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479

U.S. 848 (1986), that, when a determination of constitutional

protection turns on application of a balancing test, "the right can

rarely be considered 'clearly established,' at least in the absence

of closely corresponding factual and legal precedent." 

-18-

specifically with the applicability of qualified immunity in the public

employee speech context. Implicit in that opinion is the fundamental tenet

that the qualified immunity analysis should always be adapted to the

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 analysis in Bartlett v. Fisher, 972 F.2d 911 (8th Cir.

1992) (Bartlett). In Bartlett, 972 F.2d at 916-17, we recognized that,

"because Pickering's constitutional rule turns upon a fact-intensive

balancing test, it can rarely be considered 'clearly established' for

purposes of the Harlow qualified immunity standard." We agree with this 8

statement as a general proposition, and think that the present case is not

an exception. Qualified immunity is ordinarily a formidable defense to

overcome where the
 Having 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 applicable

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 violated

teachers' First Amendment rights under Pickering. See Southside

Pub. Schs. v. Hill, 827 F.2d 270, 272-75 (8th Cir. 1987) (denying

qualified immunity to defendants, school officials, who had

constructively terminated elementary school teachers in retaliation

for having written a letter to the state department of education

complaining about violations of the federal statutory requirement

that handicapped children be provided a free appropriate public

education); Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 318

(8th Cir. 1986) (qualified immunity denied to school superintendent

and school board members who fired school principal for the stated

reason, among others, that he had publicly criticized their

decision to transfer his wife from the high school to the junior

high school level).

-19-

constitutionality 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 violated

Burnham's and Marchese's First Amendment rights, "officers of reasonable

competence could disagree on this issue" and, therefore, "immunity should

be recognized." Malley v. Briggs, 475 U.S. at 341. Accordingly, as an

alternative basis for our disposition, we hold that Ianni would, in any

case, be protected by qualified immunity. 

E. The Kohns' First Amendment rights

While Burnham and Marchese were responsible for the expressive

conduct that was captured in each of their respective photographs, it was

the Kohns who conceived of the idea for the exhibit and who were

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 the

History Department's faculty, while at the same time portraying the faculty

in an informal, somewhat
 The Kohns have not alleged that their constitutional rights 10

were violated because the photographs at issue represent a form of

artistic expression, either standing alone or as an integral part

of the overall exhibit.

-20-

humorous way." Brief for Appellees at 2. Their claims require a

10

separate analysis.

To begin, we agree with the district court's conclusion that the

display case was a nonpublic forum. Burnham v. Ianni, 899 F. Supp. at 403

(focusing on facts that the display case was under UMD's control, that UMD

allowed members of the history club to use it upon request, and that the

display case was dedicated to use of the UMD history department for

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 display

case turns on whether "the distinctions drawn [were] reasonable in light

of the 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 access

to a nonpublic forum can be based on subject matter." Id. "The

reasonableness of the Government's restriction of access to a nonpublic

forum must be assessed in the light of the purpose of the forum and all the

surrounding circumstances." Id. at 809.

We hold that Ianni's decision to remove from the display case the two

photographs which depicted professors holding weapons was not an

unreasonable subject matter restriction in light of the purpose of the

forum, which was to disseminate information about the history department

and, additionally, according to plaintiffs, to display items of historical

interest. Brief for Appellees at 4-5. His actions were narrowly tailored

and left open other channels through which the Kohns could still publicize

Burnham's and Marchese's interests in classical and American military

history. 
-21-

See Perry, 460 U.S. at 53 ("the reasonableness of the limitations . . . is

also supported by the substantial alternative channels that remain open").

For example, nothing prevented the Kohns from replacing the removed

photographs with similar pictures of Burnham and Marchese without weapons,

while continuing to publicize through written descriptions their interests

in American military and classical history. Moreover, Ianni's actions were

reasonable in light of the events of the preceding year, during which two

UMD employees, including one professor in the history department, had been

the targets of violent threats and efforts to intimidate them by

encouraging others to commit acts of violence against them. While

plaintiffs emphasize that "neither plaintiffs nor their pictures had

anything whatsoever to do with [the threats against Featherman and

Trolander]," Brief for Appellees at 17, the law does not require Ianni to

prove such a correlation. "[A] finding of strict incompatibility between

the nature of the speech . . . 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 classical history, Ianni has

demonstrated beyond any dispute that his removal of the photographs had

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. at

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 viewpointneutral.

In sum, we hold as a matter of law that Ianni did not violate the

Kohns' First Amendment rights when he had removed from the
-22-

display case two photographs depicting what he reasonably 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 qualified immunity from liability for damages because "officers of

reasonable 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 reasons, we hold as a matter of law that Ianni did

not violate any of plaintiffs' First Amendment rights. We further hold,

in the alternative, that, even if Ianni did violate any of plaintiffs'

First Amendment rights, he is protected by qualified immunity.

Accordingly, the order of the district court denying Ianni's motion for

summary judgment is reversed and the case is remanded to the district court

with instructions to enter judgment for Ianni.

BEAM, Circuit Judge, dissenting.

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

an American 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 and

publicize areas of teaching expertise and special interest within the

department. This content-based suppression was clearly not an act by the

University chancellor that properly balanced free speech against work place

tranquility. It was, rather, as aptly stated by the district court,

unvarnished censorship. The court's opinion is not a demonstration of

legitimate First Amendment jurisprudence but is, rather, an example of the

triumph of the political correctness agenda of three or four
 It does not appear that discovery of any kind has been

11

conducted in this case. Apparently 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 are

"generally not in dispute." Supra at 2. The opinion omits, however, other

"undisputed" facts of importance to the case and several disputed material

facts as well. Since this matter is before the court on motion for summary

judgment based on a claim of qualified immunity, the court "ordinarily

11

must look at the record in the light most favorable to the party

[plaintiffs/appellees] opposing the motion, drawing all inferences most

favorable to that party." Harlow v. Fitzgerald, 457 U.S. 800, 816 n.26

(1982). With this requirement 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.

Plaintiff Burnham has been a part-time professorial member of the

history department at the University of Minnesota-Duluth (UMD) since 1986.

He holds a Ph.D. and his special expertise is United States history,

particularly military history.

Plaintiff Marchese is a tenured professor in the University of

Minnesota system. He is a professor of humanities, classics and history

at UMD and a professor of ancient history and archaeology in the Center for

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 quarter of 1991, two student members of the History

Club, plaintiffs Michael 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 the same time portraying the

faculty in an informal, somewhat humorous way. The Kohns approached

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 to

supply information about their areas of interest, their academic

background, their historical heroes, and to supply a quotation to be used

along with the above information and their photographs.

For his photograph, Professor Marchese elected to pose with an

ancient Roman short sword while wearing a cardboard laurel wreath. He

listed his specialties as "Ancient Greece and Rome, Homeric Literature" and

identified Homer and Alexander the Great as historical heroes. He chose

to pose with the Roman sword for two reasons. First, he likes to use

tangible objects in his lectures, and he had previously used the sword in

that way. Second, one of his interests is military history. He believes

that a thorough knowledge of the ancient world must include an appreciation

for the military culture and techniques that allowed Rome to gain and hold

an ascendancy over the Mediterranean world. His courses on ancient history

include far more than military history, but he thinks that military history

is an important aspect of that era. Hence he believed the Roman sword was

an appropriate "prop" for his photograph.

Professor Burnham's special interest in American history includes

military history in particular. Among the historical
-25-

heroes he listed were John Adams and Davy Crockett. Consistent with his

professional interests, he posed with a .45 caliber military pistol,

wearing a coonskin cap.

A total of eleven professors posed for or supplied pictures. The

Kohns assembled an exhibit that incorporated these photographs along with

the written comments submitted by each faculty member.

The photographs and the accompanying written material comprising the

exhibit communicated something of considerable public interest. The

exhibit was intended to be viewed by students and prospective students, as

well as any members of the public who might be on the premises. Its

purpose was to inform students and prospective students about the interests

and areas of expertise of the professors in the department. It was also

intended to communicate information about the professors and their

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 the

department, on March 27, 1992. This display case is designed to hold

material that communicates ideas to the public. The case and its contents

are seen by students who are taking classes located in the vicinity, by

faculty members, and by members of the general public. The display case

is reserved for the use of the history department. The plaintiffs allege

that the case has contained, for a number of years, an exhibit on Roman

siege warfare equipment that was assembled by Professor Marchese. The case

has been used by members of the History Club as well as by the history

department faculty. The case is used only to communicate matters that are

considered to be of public interest. It is not used for private

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 who assembled it. For two weeks no one expressed any

criticism of the exhibit. The display appeared to make a contribution to

morale and good relations within the department itself.

On April 10, 1992, Judith Karon (who was then UMD's affirmative

action officer) and UMD Police Captain Harry Michalicek came to the history

department and viewed the exhibit. It was subsequently learned that this

was in response to a complaint by Charlotte Macleod, an assistant professor

who was the head of the UMD Commission on Women. Karon went to the

departmental secretary, 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 College

of Liberal Arts, John Red Horse, stating that she expected the photos to

be removed immediately because she found them to be "totally

inappropriate." Dean Red Horse apparently refused to act on Karon's

request. On April 30, 1992, Karon sent Professor Burnham a memorandum

explaining her reasons for wanting to censor the photographs of Professors

Burnham and Marchese. In her memorandum, Karon again stated that she

ordered the exhibit censored because she found the photographs

"insensitive" and "inappropriate." 
-27-

On the morning 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 Ianni

said that he personally found nothing wrong with the photographs.

On the afternoon of the same day, the history department held a

meeting on this issue, which was also attended by Ianni, Karon, and Dean

Red Horse. During that meeting, Chancellor Ianni again stated that he

personally saw nothing wrong with the photographs, but hinted that he

nevertheless might support their removal.

When asked to explain why she wanted the pictures censored, Karon

tried to tie them in with a written threat against Professor Judith

Trolander and other members of the department, which had been found on

March 16, 1992. Members of the department told Karon that they thought her

attempt to link the pictures to this deranged threat was absurd.

(Plaintiffs allege that Professor Trolander had not initially been offended

in any way by the pictures, in fact, she participated in the project by

posing for a photograph and specifying her specialties, a personal

quotation and historical heroes. On the day it was put up she said that

she thought the display was "very nice.") Karon also stated at that

meeting that she considered the photographs to constitute sexual

harassment. She was unable to explain what she meant by this. Karon was

asked by what authority she could order the removal of a student

departmental display, and she was not able to give any satisfactory answer.

On May 4, 1992, Chancellor Ianni ordered UMD Plant Services Director

Kirk Johnson to remove the pictures of Professors Burnham and Marchese, but

he reported he was unable to obtain access. Ianni then ordered UMD police

to remove the photos, and the next day, UMD Police Captain Michalicek went

to the history department
-28-

and removed the photographs. The photographs were apparently given to

Karon, who locked them up. Ultimately, through the efforts of Captain

Michalicek, they were returned to Michael and Louise Kohn. Only the two

photographs with weapons were removed. The other nine photographs remained

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

their contributions to the display.

II. DISCUSSION

The court's opinion concedes as it must that the censored

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

can hardly be argued that either students or teachers shed their

constitutional rights to freedom of speech or expression at the schoolhouse

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." Pickering

v. Board of Educ., 391 U.S. 563, 568 (1968).

A. Pickering Balancing

The court contends, however, that the right to express this

particular free speech must be balanced by the state employer's right to

content suppression in the name of work place efficiency and harmony. It

then employs a line of wholly inapposite employee discipline and

termination cases to summarily dispose of the violation of the faculty

members' First Amendment rights. See, e.g., Pickering, 391 U.S. 563

(teacher discharged for letter written to newspaper criticizing school

board and school superintendent); Connick v. Myers, 461 U.S. 138 (1983)

(assistant district attorney discharged for distributing questionnaire

concerning office morale and policy and confidence in supervisors); Waters

v. Churchill, 114 S. Ct. 1878, 1887 (1994) (nurse discharged
 Tindle is inapposite for an additional reason. It involves 12

a police department which, as pointed out by Judge Loken in

Bartlett v. Fisher, 972 F.2d 911 (8th Cir. 1992), “as a

paramilitary force, should be accorded much wider latitude than the

normal government employer in dealing with dissension within its

ranks.” Id. at 918. (See further discussion infra at 34). The

more apposite case, unmentioned by the court, is Kincade v. City of

Blue Springs, Missouri, 64 F.3d 389 (8th Cir. 1995), cert. denied,

116 S. Ct. 1565 (1996), a matter that is factually on point with

this action and arrives at a contrary conclusion. (See further

discussion infra at 34-35).

-29-

over statements dealing 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 issue in Pickering, Connick and Waters was directly critical of the

efficiency and operations of the employers' business. 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 affecting work place morale and efficiency. Here the speech was

essentially supportive of University operations, extolling the capabilities

and interests of certain faculty members. Contrary to the conduct in

Tindle, the photographs of Burnham and Marchese were not presumptively

divisive, even in the ambiance of the threats detailed by the court, nor

were they shown to have been a palpable threat to work place morale,

efficiency or harmony.

There was also no adverse employment action against which a free

speech right might be balanced. When put to the test on this misuse of

precedent, the court curiously explains, supra at 11 n.5, that the

censorship itself is somehow the adverse employment action. Turning to

Tindle, a case mightily relied upon by the court, an apt analogy,

considering this argument, would be for the police to have seized Tindle’s

bib overalls, black curly wig and his watermelon and called it an adverse

employment action. The adverse employment action was, of course, the

officer’s suspension.12
 The factual differences between this case and Tindle are

13

dramatic. Undisputed evidence was presented in Tindle showing that

racial divisiveness existed prior to the incident in question

sufficient to cause the police department to hire an individual to

conduct "prejudice reduction workshops;" that several AfricanAmerican officers resigned from the Fraternal Order of Police over

the incident; that Tindle's conduct violated a department rule; and

that Tindle admitted that his acts had "humiliated and offended a

number of African-American [police] officers." Tindle, 56 F.3d at

968. Here, there was no showing even remotely approaching these

proportions. Indeed, only two people, for certain, Karon and

Macleod, were critical of the display and the basis for their

criticism had little, if anything, to do with the ongoing

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 unreasonably endure dissident

and offensive speech without recourse simply because of the First

Amendment. As noted in Waters, however, the government employer must make

a substantial showing that the speech is, in fact, disruptive before it may

be punished. Waters, 114 S. Ct. at 1887. I concede the court's point that

a government, as an employer, has broader powers in suppressing free speech

than a government as a sovereign. I further concede that we have given

some deference to an employer's predictions of work 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 the

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 Cir. 1994). We have noted that "[a] public employee's

exercise of free speech rights affects the
-31-

efficiency of the operation of the public service 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 Supreme 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” character

of the opinion results from the court’s need to respond to an act

of “politically correct” censorship searching for a lawful

rationale--after the fact. Properly analyzed, Ianni’s position is

simply not defensible.

As conceded by the court, the Pickering/Connick balancing

test, if at all applicable, which it is not, requires the court to

determine whether the professors’ free speech rights “outweigh the

interests of [UMD] in promoting the efficiency and effectiveness of

the public services it performs,” supra at 17, here the educational

mission of the University. Unfortunately, the court, at best,

pursues an apples and oranges approach. It seems to attempt to

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, the

disruption of the pedagogical mission of UMD. Because we are

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 the

educational mission of UMD is totally unproven and unaddressed

except in the most conclusory fashion.
-32-
-33-

Of course, there is really no evidence that the offending

photographs actually impacted the campus atmosphere at all. The

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 milieu may have been created by acts that

occurred in June of 1991 and early March of 1992, acts preceding

the erection of the display. Obviously, the then non-existent

photographs had no effect upon the environment created by these

incidents. Indeed, Ianni’s memo of March 16, 1992, purportedly

dealing with these threats, preceded the March 27, 1992, posting of

the display. And, although the affidavits of both Burnham and

Marchese expressly discount and deny that a “climate of fear”

existed on campus, clearly placing the “atmosphere” issue in

dispute for summary judgment purposes, see Burnham Affidavit

Appellees' App. at 17 and Marchese Affidavit Appellees' App. at 27,

it is obvious that the photographs had nothing to do with the

campus ambiance that existed at 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 present

record leaves this question unanswered.

Even if, for the sake of argument, I were to concede the

existence of pre-existing campus tension arising from the

Featherman and Trolander episodes, there is absolutely no evidence,

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

“efficiency and effectiveness” of UMD’s mission in public

education. Evidence that the photographs increased campus-wide

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 the

basic First Amendment issue.
 While our cases frame this alternative inquiry as one leading 14

to a determination of qualified immunity, the procedure actually

tests whether a viable claim for relief has been stated under 42

U.S.C. § 1983. Ordinarily, denial of a motion for failure to state

a claim is interlocutory and unappealable. When coupled with an

affirmative defense of qualified immunity, however, the "failure

to state a claim" issue becomes appealable under the rationale set

forth in Siegert. In my view, if a constitutional right has not

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 only

needed to protect a government actor from suit if an actual

constitutional violation has occurred.

-35-

Additionally, qualified immunity, the issue that gives this

court jurisdiction to review the district court’s denial of summary

judgment, 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 Bank

Watertown, 830 F.2d 1487, 1490 (8th Cir. 1987), cert. denied, 486

U.S. 1001 (1988), that the constitutional right asserted by the

plaintiffs was not clearly established at the time of the incident

or if established, was not discernible to an objective government

official under the facts available or, in the alternative, of

proving the “necessary concomitant” that plaintiffs have not

asserted “a violation of a constitutional right at all.” Siegert,

500 U.S. at 232. It is the alternative inquiry that the court

primarily relies upon today, i.e., is there a constitutional

violation at all? As I have noted, Ianni has simply not shouldered

his burden of proof as to this prong of qualified immunity

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 reversal

balloon, through a finding of qualified immunity enforceable

through summary judgment, quickly deflates with the failure of

proof on the basic Pickering/Connick issue. Beyond that, however,
-36-

the court advances a new and surprising theory that whenever a

Pickering/Connick balancing test is required, government officials
 The cases cited by the court exclusively involve police and 15

paramilitary employers that this circuit has treated differently

than general governmental bodies, schools and colleges, especially

where, as here, elements of academic freedom are present. We have

held that paramilitary employers have a heightened interest in

regulating the speech of its employees to promote loyalty,

obedience in the ranks and public confidence in the units. See,

e.g., Bartlett v. Fisher, 972 F.2d 911, 918 (8th Cir. 1992) (noting

paramilitary government employer “should be accorded much wider

latitude than the normal government employer in dealing with

dissension within its ranks”).

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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 most

analogous case, Kincade v. City of Blue Springs, Missouri, 64 F.3d

389 (8th Cir. 1995), cert. denied, 116 S. Ct. 1565 (1996), even

though a member of the panel majority joined that opinion.

Kincade was discharged by Blue Springs for exercising his free

speech rights. Because Kincade’s speech touched on a matter of

public concern, as does the speech in this case, the

Pickering/Connick balancing test was employed to review a district

court denial of a motion for summary judgment on qualified immunity

grounds. The court, noting that the only evidence of workplace

disruption was a conclusory statement to that effect by the mayor

and other city officials, asserted:

the Appellants [city officials] have merely

asserted that Kincade’s speech adversely affected

the efficiency of the City’s operations and

substantially disrupted the work environment

without presenting any specific evidence to support

this assertion. They therefore have not put the

Pickering balancing test at issue, and accordingly,

we reject their claim that they are entitled to

qualified immunity because free speech questions

for public employees, as a matter of law, cannot be

“clearly established.”
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Kincade, 64 F.2d at 398-99. This is precisely the factual and

legal situation we have in this case and the court’s opinion

clearly violates the precedent established in Kincade.

Admittedly in different contexts, two recent cases generally

dramatize the burden of proof allocation when free speech is at

issue. In 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495

(1996), decided this past term, a case involving commercial

advertising, a commodity recognized as more freely subject to

regulation than other forms of protected speech, id. at 1504, the

Supreme Court rejected the premise that the merchant/advertiser had

the burden of disproving Rhode Island’s stated reason for the

speech regulation, to-wit: the promotion of temperance by the

reduction of alcohol consumption. The Court, rejecting even a

presumption in favor of the state arising from the Twenty-first

Amendment said:

[W]e note that a commercial speech regulation may

not be sustained if it provides only ineffective or

remote support for the government’s purpose. For

that reason, the State bears the burden of showing

not merely that its regulation will advance its

interest, but also that it will do so to a material

degree. The need for the State to make such a

showing is particularly great given the drastic

nature of its chosen means--the wholesale

suppression of truthful, nonmisleading information.

Id. at 1509 (citations and internal quotations omitted). The

Court, here, affirms the wholesale suppression of truthful,

nonmisleading free speech, of a higher order than liquor

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

Television Comm'n, No. 95-2722, slip op. (8th Cir. Aug. 21, 1996),
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in an opinion concurred in by the majority members of this panel,

in litigation in which a minor candidate was excluded from a

televised debate because a government functionary thought he was

not a "viable" candidate, this court said, “We hold that a

governmentally owned and controlled television station may not

exclude a candidate, legally qualified under state law, from a

debate [free speech] organized by it [the television station] on

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 advanced

here. In sum, the court’s holding that “Ianni need only [make] a

minimal showing of potential disruptiveness to justify his

actions,” supra at 13, is simply an incorrect statement of First

Amendment law.

Giving the best gloss possible to the facts adduced by Ianni,

nothing remotely approaching lower morale and program damage at UMD

was established. The censorship itself did more damage to the

morale of the history department than any other possible event

except, perhaps, the announcement of a budget cut. Viewing the

competing affidavits favorably to Burnham and Marchese, as we must

at this summary judgment juncture, we find only three or four

people in support of censorship and none of them offering

objections or reasons running directly to institutional morale or

program damage. As stated earlier, Judith Karon, at the time UMD's

affirmative action officer, thought the display was "insensitive

and inappropriate." She later thought the photographs might

somehow constitute "sexual harassment." Professor Trolander, a

member of the history department faculty, at first thought the

displays were "very nice" but later, apparently, thought the

display was inappropriate. The other offended individual revealed

in the record was Charlotte Macleod, the original complainant, an

assistant professor at UMD and the head of the UMD Commission on
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Women. Without derogation of the strong feelings of these three

individuals, their states of mind are not reason enough to allow
 The court excuses this inconsistent 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 point out

in their brief that UMD students recognized the censorship even if

Ianni and Karon did not. The student center display was,

apparently, on the subject of censorship and was headed "The

Administration Does Not Want You to See These." The second showing

argument advanced by Ianni and accepted by the court was

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 First

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 the

student center on campus without complaint of any kind and without

any evidence of an institutional breakdown. Far from proof of the 16

propriety 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 case or in August at the campus student

center.

The facts fail to support Ianni's position, and the district

court so found. Judge Davis stated "[t]his is not an employment

case where there is a threatened disruption to the efficient

delivery of services." Burnham v. Ianni, No. 594-6, mem. op. at 9

(D. Minn. Mar. 17, 1995). The court, in its summary judgment,

fact-finding exercise, seems to have found this holding to be

clearly erroneous. It is, however, the court that is in error.

B. Content Suppression

The most troublesome aspect of the court's opinion is its

failure to properly analyze the real free speech/censorship issues
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brought clearly into focus in this case. These are the issues

summarily, and incorrectly, disposed of by the court in Part II(E)
 The display case, as earlier noted, was in the hall outside 17

the history department's classrooms and had been placed there to

hold information about the department, the faculty and students for

the benefit of students, prospective students and the public.

Displays in the case were designated and intended to communicate

truthful, nonmisleading ideas to students, prospective students,

faculty and the public on a permanent, ongoing basis.

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under the heading "The Kohns’ First Amendment rights." Supra at

19. The violation involved all four plaintiffs' First Amendment

rights and not just those of the students.

The court discusses the nature of the forum, an irrelevant

matter. Even so, its conclusion is wrong. Under the facts of this

action, the display case was clearly a limited designated forum,

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45

(1983). See also Forbes, slip op. at 3. Thus, the content-based 17

suppression at work here must have served a compelling state

interest through censorship narrowly drawn to serve that interest.

Widmar v. Vincent, 454 U.S. 263, 270 (1981). No such test was

applied in this case by either Ianni or the court and no such

showing could possibly have been made under the undisputed facts of

this litigation.

At the bottom line, however, the nature of the forum makes

little difference. Even if the display case represented a closed

forum, Ianni violated the First Amendment rights of the plaintiffs,

and in a way that any objective University chancellor would or

should have known.

We need look no further than Tinker v. Des Moines Independent

Community School District, 393 U.S. 503, for controlling precedent

although the answer is so fundamental it governs dozens of cases

decided in this circuit alone. In Tinker, of course, three

students, ages sixteen, fifteen and thirteen, wore black armbands
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during attendance at their respective Des Moines senior and junior

high schools to publicize their objections to the Vietnam War. A
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few students made hostile remarks 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 district

court to have acted reasonably in prohibiting the armbands "because

[the action] was based upon [the school's] fear of a disturbance

from the wearing of the armbands." Id.

The Supreme Court rejected this conclusion saying "in our

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

constitutionally valid reason. Id. There had to be a factual

showing that the suppressed conduct would "materially and

substantially interfere with the requirements of appropriate

discipline in the operation of the school." Id. at 509.

As in Tinker, there is no such showing made here by Ianni.

The after-the-act recitation of outside threats made against a

faculty member and a UMD administrator, with no shown or known

connection to the history department display, is simply a "red

herring" drawn across the trail leading from the University

chancellor's suite, via the affirmative action officer's quarters,

to the unconstitutional censorship of two photographs totally

unrelated to the purported concern. The argument that a photograph

of a male, laurel-wreath bedecked UMD faculty member holding a

Roman short sword, as part of a eleven-person faculty display,

somehow exacerbated or threatened to exacerbate a purported, but

unproven, atmosphere of fear on the UMD campus is almost laughable.

There was no valid constitutional basis for the censorship, it was

simply an act of regulation of what Karon believed to be

politically incorrect speech, a display of weapons.
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III. CONCLUSION

Followed to its logical conclusion, the court’s holding simply

permits the suppression of too much speech on arbitrary and

capricious grounds. Indeed, the opinion would even permit

suppression of Sandra Featherman’s advocacy of gender and cultural

diversity at UMD if Chancellor Ianni subjectively felt that such

speech contributed to an inefficient and negative working and

learning environment on the campus because of unlawful or vehement,

but protected, opposition to Featherman’s views. Surely that

cannot be the law in this circuit.

Further, the court grants the motion for summary judgment

based upon qualified immunity because it finds no First Amendment

violation. The court improperly limits the facts it considers,

mistakenly applies a Pickering/Connick balancing test and accepts

self-serving statements by Ianni, unsupported by evidence except

evidence of the political correctness concerns of two faculty

members and an affirmative action administrator. This is error.

I dissent.

A true copy.

Attest:

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