### The Honorable Mi chael J. Davis, United States District Court 1 

### Judge for the District of Minnesota. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 95-1962

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

___________ Submitted: January 14, 1997 Filed: July 11, 1997

___________ Bef ore RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG , BOWMA N, WOLLMAN, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD , Circuit Judges, en banc.

___________ BEAM, Circuit Judge.

In this s ection 1983 action, Chancellor Lawrence Ianni appeals from the di strict court’s denial of his motion for summary judgment based o n 1 qualified immunity. A panel of this court reversed. Our decision to gran t en banc review vacated that

### The Kohns have now graduated from UMD. 2


### -2- deci sion. See Burnham v. Ianni , 98 F.3d 1007 (8th Cir. 1996). We no w affirm.

I. BACKGROUND

Because discovery has not been conducted in this case, the fac ts are derived from the plaintiffs’ pleadings and the a ffidavits submitted by the parties. Plaintiff Albert Burnham has been a part-time professor in the history department at the University of Minnesot a-Duluth (UMD) since 1986. Plainti ff Ronald 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. 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 the faculty advisor to the Club.

During th e fall quarter of 1991, two student members of the History Club, plaintiffs Michael and Louise K ohn, conceived an idea for a project 2 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 instructors 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 supplie d informa tion about their fields of expertise, academic background, an d historical heroes, as well as a quotation to be used along with the above information and their photographs.

### The debate over how to present history in our nation’ s 3 

### schools has been a topic of pu blic concern for some time. Indeed, it has been the subject of numerous books, law reviews an d newspaper articles. See , e.g. , Stephen E. Gottlieb, In the Name of Pa triotism: The Constitutionality of ‘Bending’ History in Publi c Se condarySchools , 62 N.Y.U.L. Rev. 497 (June 1987) (compilin g author ities). In 1994, this nationwide concern resulted in th e rele ase of a national curriculum guidebook which was widel y criticized as bowing to political correctness to the detriment of offe ring students an accurate account of United States history

. See Co nnie Cass, History Standards Criticized as Too Politicall y Cor rect , 1994 WL 10105333 (1994). The most widely criticize d aspect of the guidebook was its downplaying of historical heroes, to the exclusion of persons su ch as Thomas Edison, Paul Revere and Robert E. Lee. Id. Although a revised guidebook emerged in 1996, it too caused quite a stir. See Elizabeth Martinez, A New Way of Looking At Our U.S. Origin Myth , 1996 WL 2163654 (1996)

. Regardless of the current stat us of a proposed national guidebook, however, the debate over how to teach history is alive and well

. As one author recently stated: One cannot study history without an appreciation of the conflicts it contains both among the actors in the past and among the historians of the present. The idea that history

can be taught as a set of names and dates or tha t science can be taught as a set of formulas is a s distasteful to students as to those with any knowledge o f the disciplines. Yet, if one is to get beyond the level
-3- For his photograph, Professor Burnham posed with a .45 calibe r military pistol, wearing a coonskin cap. His sp ecial interest in American history includes military history in particular. He listed John Adams and Davy C rockett among his historical heroes. Consistent with hi s professional interests, Professor Marchese elected to hold an ancient Roma n short swo rd while wearing a cardboard laurel wreath. He listed hi s specialties as “Ancient Greece and Rome, Homeric Literature” and identifie d Homer and Alexander the Great as his historical heroes.

A total of eleven professors posed for or supplied pictures. Th e Kohns assembled an exhibit that incorporated these photographs along with the written comments submitted by each faculty member. The photographs an d the accompanying written material were thought to communicate matters of public interest. The exhibit was 3

### of names and dates, one dwells in a realm of dispute d

ideas. Gottlieb, 62 N.Y.U.L. Rev. at 573 (footnote omitted).
-4- intended to be viewed by students and prospectiv e students, as well as any membe rs of the public who might be on the premises. It was designed t o impart information about the professors and their attitudes toward history

- -as reflected, for example, in their choices of historical heroes.

Th e exhibit was put up in the history department’s display case , located in the public corridor next to the classrooms used by th e departmen t, on March 27, 1992. The case and its contents are seen b y students taking classes nearby, faculty members, and members of the genera l public

. The display case is reserved for the use of the histor y department. It has c ontained, for a number of years, an exhibit on Roman siege warfare equipment that was assembled by Professor Marchese. Th e dev ice has been used by members of the History Club as well as by th e history department fa culty. The case is used only to communicate matters that are considered to be of general interest. It is not used for private communications, like a mailbox or a message system.

The exhibit was, in fact, observed by hundreds, if not thousands, of people. Members of the department received many compliments on th e presentation, as did the students who assembled it. For two weeks, no one expressed any criticism about the exhibit. To the contrary, the display appeared to contribute to morale and good relati ons within the department.

### -5- On April 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. This was in response to a complaint by Charlotte Macleod, an assistant professor who was the head of the UM D Commission on Women. Karon went to the departmental secretary, Elizabeth Kwapick, and demanded that the pictures of Profe ssors Burnham and Marchese be removed. The department denied this demand.

Uponhearing of this attempt to remove the pictures, Professo r Burnham called a lawyer in the University of Min nesota’s Legal Department, who told him that she could find nothing wrong with the display a s described. The history department agreed that the department should resis t any attempt by the administration to censor the photographs, and th e department declined to remove them.

On April 27, 1992, Karon sent a memorandum to the Dean of the C ollege of Liberal Arts, John Red Horse, stating that sh e expected the pictures 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 remove the photographs of Professors Burnhaman d Marchese. In her memorandum, Karon again stated that sh e ordere d the exhibit taken down because she found the photograph s “insensitive” and “inappropriate.” On the morning of April 29, 1992, Louise Kohn, Michael Kohn , Elizab ethKwapick and Professor Burnham met with Chancellor Ianni t o explai n the display and protest Karon’s attempted censorship of th e pictures and the stud ents’ work. During that meeting, Ianni said that he personally found noth ing wrong with the photographs. On the afternoon of the same day, the history department held a

### Apparently, Professor Trolander had not initially bee n 4 

### offended in any way by the pictures; in fact, she participated in the pr oject by posing for a photograph and specifying he r speci alties. On the day the display was put up, Trolander sai d that she thought the display was “very nice.”
-6- meeting o n this issue, which was also attended by Ianni, Karon, and Re d Horse. During that meeting, Chancellor Ianni again stated that h e personally saw nothing wrong with the photographs, but hinted that he migh t nevertheless support their removal.

When aske d to explain why she wanted the photographs removed, Karon tried to connect them to a written threat against Professor Judit h Trolander w hich had been found on March 16, 1992. Members of th e 4 department told Karon that they thought her attempt to link the pictures to this deranged message was absurd. Karon also stated that she considere d the photographs to constitute sexual harassment. She was unable to explai n what she meant by this. She was also unable to state by what authority sh e could order the removal of a student departmental display.

On May 4, 1992, Chancellor Ianni ord ered UMD Plant Services Director Kir k Johnson to remove the pictures of Professors Burnham and Marchese

. Because Johnson was u nable to obtain access to the pictures at that time, Ianni ord ered the UMD police to remove the photos. The next day, UM D Police Captain Michal icek removed the photographs from the display. Only the two photographs with weapons were removed. The other nine photographs remained on display. Professors Burnham and Marchese then removed th e balance of their contributions to the exhibit.

Following the removal of the photographs, Ianni explained that h e removed them because Karon had claimed that she had received anonymou s complaints about the display which objected to the

### The threats to others to which Ianni referred had occurre d 5 

### during the previous year. In June 1991, Sandra Featherman wa s appointed UMD Vice Chancellor. She later began receiving an onymous threats warning her to stay away from Duluth, or face th e possibility of kidnapping or e ven death. In March 1992, Professor Tro lander became the target of similar threats. Both Featherma n and Tr olander had been involved in a campus-wide campaign t o promote diversity in the UMD community. In response to thes e thre ats, Chancellor Ianni distributed a campus memorandum date d March16, 1992, assuring the UMD community that the matter wa s bein g investigated by local and federal authorities and statin g that the school was still committed to improving the conditi ons for women and minorities on campus.
-7- depiction of faculty members with weapons. Karon also claimed tha t Professor Trolander had contacted her about the display’s upsetting effect

on her. Ianni expressed his belief that the campus was enshrouded in an atmosphere of anxiety due to the earlier threats against Trolander an d others. He further explained that his removal of the photographs was an

5 attempt t o stop the disruption caused by the display and to preven t aggravation of the atmosphere of fear. Plaintif fs dispute that any milieu of concern existed and contend that the campus a tmosphere, whatever it may have been, was not aggravated or affected by the two photographs.

Copies of the photographs were later posted at the student center by a group of students p rotesting the administration’s actions. The student

cen ter display advanced the subject of censorship and was entitled “Th e AdministrationDoes Not Want You to See These.” The students used th e inciden ts surrounding the removal of the photographs as an example o f impermissible actions under the First Amendment. Apparently, no complaint s
were lodged about the student center exhibit, nor was there any evidence of an institutional breakdown upon the showing of the photographs. Plaintiffs, alleging First Amendment violations, filed this 42 U.S.C. § 1983 action against Chancellor Ianni and the University of

### In their amended complaint, plaintiffs sought a declaratio n 6 

### 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 App. at 4 (amended complaint).

Be cause this appeal solely concerns the denial of qualifie d 7 

### immunity, implicating only Ian ni’s liability for money damages, we do not , of course, address plaintiffs’ claims for injunctive o r other equitable relief. We note, however, that neither the state’s Eleventh Amendment immunity no r the doctrine of qualified immunity wo uld protect Ianni from injunctive or other equitable relief

. See , e.g. , Treleven v. University of Minnesota , 73 F.3d 816, 81 9 (8thCir. 1996) (state’s Eleventh Amendment immunity does no t sh ield official from prospective injunctive relief); Grantham v

. Trickey , 21 F.3d 289, 295 (8th Cir. 1994) (qualified immunity does not shield officials from equi table relief); Rose v. Nebraska , 748 F.2d 1258, 1262 (8th Cir. 1984) (state’s Eleventh Amendmen t immunity does not shield officials from declaratory or injunctive relief).
-8- Minnesota. Defendants moved for summary judgment, which the district cour t granted in part and d enied in part. The court dismissed, with prejudice, all plaintiffs’ claims against the University of Minnesota, all plaintiffs ’ claims f or money damages against Ianni in his official capacity a s Chancel lor of UMD, and the Kohns’ claims against Ianni for injunctiv e reli ef. The district court denied summary judgment on the remainin g content ions, including the issue of qualified immunity for Chancello r Ianni. The district court found th at Chancellor Ianni’s actions violated

6 the plaintiffs’ clear ly established First Amendment rights, in a way that

an objective university chancellor would have known. Burnham v. Ianni , No
. 5-94-6, mem. op. at 10-11 (D. Minn. Mar. 17, 1995). Ianni appeals th e denial of summary judgment on this ground, conte nding that the plaintiffs’ First Amendment rights were not clearly establis hed, thereby rendering his actions protected by qualified immunity. We review the district court’s conclusionon the qualified immunity issue de novo. White v. Holmes , 21 7 F.3d 277, 279 (8th Cir. 1994).

### We have recently framed the inquiry in a slightly different, 8 

### but su bstantively similar, way by saying that “we must conside r what specific constitutional rights the defendants allegedl y violated, whether the rights were clearly established in law at the time of the alleged violation, and whether a reasonable person in the of ficial’s position would have known that his conduct woul d violate such rights.” Waddell v. Forney , 108 F.3d 889, 891 (8t h Cir. 1997).
-9- II. DISCUSSION

Since this matter is before the court on a motion for summar y judgment based on qualified immunity, the court “ordinarily must look at the record in the light most favorable to the pa rty [plaintiffs/appellees] opposing the motion, drawing all inferences most favorable to that party.” Harlowv. Fitzgerald , 457 U.S. 800, 816 n.26 (1982). Qualified immunity shield s government officials from suit unless their conduct violates a clearly established constitutional or statutory right of which a reasonabl e perso n would have known. Id. at 818; Yowell v. Combs , 89 F.3d 542, 54 4 (8th Cir. 1996).

Chance llor Ianni’s assertion that he is protected by qualifie d immunity triggers a three-pronged inquiry: (1) whether the plaintiffs hav e asserted a violation of a constitutional or statutory right; (2) if so , whether that right was clearly established at the time of the violation; and (3) whether, given the facts most favorable to the plaintiffs, there are no genuine issues of material fact as to whe ther a reasonable official would have known that the alleged action violated that right. Yowell , 89 F.3d at 544. Ianni focuses on the second prong of this analysis. H e 8
argues that the plaintiffs’ rights were not clearly established at the tim e of the removal of the photographs. Whether a legally protected interest is clearly established turns on the “objective

### The two student/plaintiffs would clearly not be covered b y 9 

### this argument. Pickering v. Board of Educ. , 391 U.S. 563 (1968). 10


### -10- legal reasonableness of an official’s acts. Where an official could b e expect ed to know that certain conduct would violate statutory o r constitutional rights, he should be made to hesitate.” Harlow , 457 U.S. at 819.

Ianni bears the burden of proving that the plaintiffs’ Firs t Amendme nt rights were not clearly established. See , e.g. , Siegert v

. Gille y , 500 U.S. 226, 231 (1991); Watertown Equip. Co. v. Norwest Ban k Watertown , 830 F.2d 1487, 1490 (8th Cir. 1987). In an attempt to shoulder this b urden, Ianni argues that: (1) some restrictions on speech i n nonpub lic forums are constitutionally acceptable and, thus, whic h restri ctions are acceptable in a given situation is never “clearl y established;” and (2) the professors were public employees andtheir First 9 Amendment rights were subject to the fact-intensive Pickering balancing 10 test, thus, precluding the rights from being “cl early established.” These arguments will be addressed in turn. First, ho wever, we note that the expressive behavior at issue here, i.e., the posting of the photographs within the history department display , qu alifies as constitutionally protected speech. See , e.g. , Spence v

. Washington , 418 U.S. 405, 410 (1974); Tinker v. Des Moines Indep. Communit y Sch. Dist. , 393 U.S. 503, 505-06 (1969); Tindle v. Caudell , 56 F.3d 966, 969 (8th Cir. 1995). Nonverbal conduct constitutes speech if it i s int ended to convey a particularized message and the likelihood is grea t that the message will be understood by those who view it, regardless o f whether it is actuall y understood in a particular instance in such a way. Spence , 418 U.S. at 411. Burnham and Marchese, through their

### -11-

photographs, were attempting, at least in part, to convey and advocat e their scholarly and professorial interests in military history and i n militaryweaponry’s part in their vocation. Michael and Louise Kohn, as well, were attempting to show their creativeness and interest in the scope of the te aching mission of the history department. The display was th e Kohns’ idea; they organized and exhibited it. Because these message s suffic ientlysatisfy the Spence test, the photographs and the displa y qualify as speech. Id. And, we do not understand that Ianni disputes thi s conclusion.

Althoughthe right of free speech is not absolute, the Firs t Amendment generally prevents the government from proscribing speech of any kind simply because of disapproval of the ideas expressed. R.A.V. v. City of St. Paul , 505 U.S. 377, 382 (1992). Indeed, with a few exceptions, mos t speech receives First Amendment protection. Cohen v. California , 403 U.S. 15, 24 ( 1971); see , e.g. , New York v. Ferber , 458 U.S. 747, 756 (1982 ) (child pornography is unprotected speech); Miller v. California , 413 U.S. 15, 23 (1973) (obscene speech is unprotected speech); Chaplinsky v. Ne w Hampsh ire , 315 U.S. 568, 572 (1942) (fighting words are unprotecte d speech). The First Amendment’s protection even extends to indecent speech

. Sable Communications v. Federal Communications Comm’n , 492 U.S. 115, 126 (19 89). It also extends to speech unprotected on one basis (e.g. , obscen ity) but protected on another (e.g., content in opposition t o governmental acts). R.A.V. , 505 U.S. at 384-86. Clearly then, plaintiffs ’ speech is worthy of constitutional protection. Becaus e this case involves Ianni’s suppression of plaintiffs ’ protec ted speech, plaintiffs have (at least for purposes of summar y adju dication) sufficiently established a violation of a constitutiona l right--unless limitations indigenous to the forum

### We recognize that both the terms “limited public forum” and 11 

### “designated public forum” are used to describe this second c ategory of pro perty. See , e.g. , International Soc’y for Krishn a Consciousness, Inc. v. Lee , 505 U.S. 672, 686 (1992) (using terms inte rchangeably); see also Perry Educ. Ass’n v. Perry Loca l Educators’ Ass’n , 460 U.S. 37, 46 (1983); Capitol Square Review & Advi soryBd. v. Pinette , 115 S. Ct. 2440, 2469 (1995). Fo r purposes of our discussion, we will use the term “limited publi c forum.”
-12- lawfu llypermit restrictions on plaintiffs’ First Amendment privileges

. We turn to that inquiry.

A. The Forum

Access to and the character of speec h on government-controlled areas may be limited depending upon the type of property at issue. Court s recognize three categories of property on which the government may, i n greatly varying degrees, restrict speech: (1) p ublic forums, places which bytradition have been devoted to assembly or debate; (2) limited public foru ms, properties which the state has opened for use by the public a s

11 places for expressive activity; and (3) nonpubli c forums, places which are not by tradition or designation forums for public communication. Perr y Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45-46 (1983)

. In public forums, the state’s right to limit expression is “sharpl y circ umscribed.” Id. at 45. In limited public and nonpublic forums , however, the state’s right to regulate speech is more pervasive.

Ianni argues, and the district court found, that the histor y department display case is a nonpublic forum. Ianni further claims that because the expression occurred in a nonpublic f orum, speech restrictions

were permissible or, at least, the extent of any permissible restriction was unclear. Thus, Ianni states,

### We do note, however, that the display case could well be a 12 

### limi ted public forum. See Perry , 460 U.S. at 48; Forbes v

. Arkansas Educ. Television Comm’n , 93 F.3d 497, 500 (8th Cir. 1996), cert. granted , 117 S. Ct. 1243 (1997). The case, as earlier noted, was located in the hall outside the history department’s cla ssrooms and wa s intended for public viewing. UMD had designated it as a fo rumfor use by the history department. In turn, the histor y department allowed its faculty and students access to the case--to communicate information about the history department to students, prospective students, faculty and the public on an ongoing basis. If the display case were considered a limited public forum, th e content-based suppression at w ork here would have to have served a compelling state interest and would have to have been narrowl y drawn to serve that interest in order to be upheld. Widmar v

. Vincent , 454 U.S. 263, 270 (1981). However, because we find that the suppression here fails even the most lenient forum test, w e need not address this issue.
-13- plaint iffs’ First Amendment rights were extinguished, limited or at a minimu m, not clearly established. Therefore, Ianni says, the distric t court’s denial of qualified immunity was error. We disagree.

In this case the nature of the forum make s little difference. Even 12 if the di splay case was a nonpublic forum, Ianni is not entitled t o qualified immunity. The Supreme Court has declared that “the State ma y
reserv e [a nonpublic] forum for its intended purposes, communicative o r otherwise , as long as the regulation on speech is reasonable and not a n effort to suppress expression merely because public officials oppose the speaker’s view.” Per ry , 460 U.S. at 46; see also Lamb’s Chapel v. Center Moriches Union Free S ch. Dist. , 508 U.S. 384, 394 (1993) (stating control over access to nonpub lic forum can be based on subject matter and speaker identity so long as t he distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral); United States v. Kokinda , 497 U.S. 720, 732 (1990) (stating const itutionality of regulation must be c onsidered in light of the nature and function of the foru m involved). Here, we

### -14-

find that the suppression was unreasonable both in light of the purpos e served by the forum and because of its viewpoint-based discrimination.

The disp lay case was designated for precisely the type of activit y for which the Kohns and Professors Burnham and M archese were using it. It

was intended to inform students, faculty and community members of events in and in terests of the history department. The University was no t obligated to create the display case, nor did it have to open the case for use by history department faculty and students. However, once it chose to open the case, it was prevented from unreasonabl y distinguishing among the types of speech it would allow within the forum. See , e.g. , Lamb’s Chapel , 508 U.S. at 392-93; Widmar v. Vincent , 454 U.S. 263, 267 (1981). Since th e purpose of the case was the dissemination of inf ormation about the history department, the suppression of exactly that type of information was simply not reasonable. We recog nize that UMD “may legally preserve the property under it s control for the use to which it is dedicated.” Lamb’s Chapel , 508 U.S. at 390. However, as the Supreme Court has stated:

“[A]lthough a speaker may be excluded from a nonpub lic forum if he wishes to address a topic not encompassed withinthe purpose of the fo rum . . . or if he is not a member of the class o f speakers for whose especial benefit the forum was created . . . , the government viola tes the First Amendment when it denies ac cess to a speaker solely to suppress the point of view h e espouses on an otherwise includible subject.”

Id. at 394 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. , 473 U.S. 788, 806 (1985)).

### Althoughdifficult to tell from the record, the objection s 13 

### of Karon, Macleod and Ianni may have been substantially directe d toward the display of the weapons on the campus and, perhaps, not sim plytoward history department curriculum or Burnham’s an d Marchese’s teaching methodology. Suppression on these more limited grou nds, however, would be unconstitutional in light of th e purpos es served by the display case, as discussed above

. Additionally, we do not discern how generalized concerns over the display of weapons in any way advance Ianni’s rights of supp ression or attenuate Burnham and March ese’s free speech privileges in this case. The fact that the professors’ history-based message h appened to fall victim to Ianni’s parochial point of view on exhibitin g weapons makes the censorship no less pernicious and no mor e acc eptable, especially given the fact that the purpose of th e display was carefully explaine d to Ianni in advance of his action.
-15- Th e suppression of this particular speech was also viewpoint-base d discrimination. As the Supreme Court has noted, in determining whether th e governm ent may legitimately exclude a class of speech to preserve th e limits of a forum,

we have observed a distinction between, on the one hand , con tent discrimination, which may be permissible if i t preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed i mpermissible when d irected against speech otherwise within the forum’ s limitations.

Rosenberger v. Rector and Visitors , 115 S. Ct. 2510, 2517 (1995) (citing Perry , 460 U.S. at 46). As Rosenberger illustrates, what occurred here wa s impermissible. The photographs of Professors Burnham and Marches e expres sed the plaintiffs’ view that the study of history necessaril y involves a study of military history, including the use of militar y
wea pons. Because other persons on the UMD campus objected to thi s viewpoint, or, at least, to allowing this viewpoint to be expressed in thi s particular way, Ianni suppressed the speech to placa te the complainants. 13 To put it simply, the photographs were removed because a handful o f individuals apparently objected to the plaintiffs’ views on the

### W e by no means hold that government has no control ove r 14 

### speechin the workplace or the schoolhouse. We envision man y instances when speech, or proposed speech, is beyond the “speaker identity” or “content” designation of the forum and in suc h instances the speech may be re gulated. See Lamb’s Chapel , 508 U.S. at 394; Rosenberger , 115 S. Ct . at 2517. This is not such a case, however.

Inthis regard, we note that Chancellor Ianni himself stated , 15 

### at a meeting with the history faculty, that if the plaintiff s brough t a lawsuit alleging a violation of their First Amendmen t rights, “they might have a good case.”
-16- pos session and the use of military-type weapons and especially to thei r exhibition on campus even in an historical context. Freedom of expression , even in a nonpublic forum, may be regulated only for a constitutionall y valid reason; there was no such reason in this case. 14

B. Reasonable Public Official

Ianni further claims that at the time the photographs wer e suppressed, a reasonably objective chancellor of a large public university would not have known that the conduct violated the plaintiffs ’ constitutional rights. We again disagree. 15

As a basic matter, the Supreme Court stated in 1969 “[i]t can hardly be argued that either students or teachers shed their constitutional right s to freedom of speech or expression at the schoolhouse gate.” Tinker , 393 U.S. at 506. Indeed, a year earlier, the idea t hat a faculty member could be com pelled to relinquish First Amendment rights in connection wit h employment at a publi c school was “unequivocally rejected” by the Supreme Court. Pickering v. Board of Educ. , 391 U.S. 563, 568 (1968).

### S ome circuits have been slightly more charitable on thi s 16 

### timing issue. In Lintz v. Skipski , 25 F.3d 304 (6th Cir. 1994) , the Sixth Circuit stated: “[S]tate officials must have some time to adjust to and learn about judge-made law as it evolves . . . . This [the Sixth] and other circuits have struggled to decide ho w long after a decision state of ficials have to become familiar with ‘the law .’” Id. at 306. Lintz then cited an extensive list o f cases allowing from twelve days to five months.
-17- Applying these long established tenets to this case, we note th at our earli er quotation from Rosenberger , 115 S. Ct. at 2517, links it s observations on viewpoint discrimination within a nonpublic forum to Perry , 460 U.S. at 46, a teacher speech case decided by the Supreme Court in 1983

. Sim ilarly, the language proscribing viewpoint discrimination found i n Lamb’s Chapel , 508 U.S. at 394, quotes directly from Cornelius , 473 U.S. at 806, a 1985 decision. In addition, Widmar ’s holding prohibitin g unreasonable discrimi nation among “types of expression” within a specific forum, clearly made in the context of an analysis of the purpose of th e particular forum, was available as early as 1981. Widmar , 454 U.S. at 265

- 67, 277.

Judge Heaney, writing for a panel of this court, recently noted that

onc e a controlling opinion has been decided, a constitutional right ha s been clearly established. See Waddell v. Forney , 108 F.3d 889, 893 (8th 1 6 Cir

. 1997). And, admittedly, “[t]he contours of the right must b e sufficientlyclear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 64 0 (1987). But, as note d by Judge McMillian in his opinion for the court in Hayes v. Long , 72 F.3d 70, 73 (8th Cir. 1995), “[t]his court has taken a broad view of what co nstitutes ‘clearly established law’ for the purposes of a qu alified immunity inquiry.” More particularly, he stated, wit h regard to “clearly established” law, that:

### The record establishes, as noted, that the history departmen t 17 

### contacted the law department of the University for an opinion o n the propriety of the display. One may only presume that Cha ncellor Ianni had equal or superior resources at his disposal if he ha d questions about the contours of these well-defined constitutional rights.
-18- “In order to determine whether a right is clearly established, it is not necessary that the Supreme Court has directl y addressed the issue, nor does the precise action or omission in question need to have been held unlawful. In the absence o f bindi ng precedent, a court should look to all availabl e decisi onal law including decisions of state courts, othe r circuits and district courts. . . .”

Id. at 73-74 (quoting Norfleet v. Arkansas Dep’t of Human Servs. , 989 F.2d 289, 291 (8th Cir. 1993)).

Here, of course, we have long establ ished, binding precedent totally supportive of plaintiffs’ claims. The Supreme Court and this court have both clearly and dire ctly spoken on the subject on numerous occasions and in years long prior to the 1992 censorship by Ianni. Accordingly , Chancellor Ianni’s “not clearly established” claim must be rejected. 17

C. PickeringBalancing Argument

Final ly, Chancellor Ianni seizes upon the two incidents involvin g threa ts to Ms. Featherman and Ms. Trolander in an attempt to interjec t First Amendment prece dent not applicable to this dispute. We reject this endeavor.

Ianni contends that the plaintiffs’ rights to express this part icular speech must additionally be balanced against UMD ’s right to suppress it in the name of workplace efficiency and harmony. He

### -19-

urges this court to invoke a line of employee discipline and termination

cases to summarily dispose of any violation of constitutional rights. See , e.g . , Pickering , 391 U.S. 563 (teacher discharged for writing letter t o newspaper criticizingschool board and school superintendent); Connick v. Myers , 461 U.S. 138 (1983) (assistant district attorney discharged fo r distributing questionnaire concerning office mor ale, policy and confidence in supervisors). We decline to do so here.

The Supreme Court, in Pickering , hel d that in an employee discipline
case, a court must determine whether the employee’s speech was on matter of public concern, and if so, whether the employee’s interest in tha t speech is outweighed by the governmental employer’s interest in promoting the efficiency and ef fectiveness of the services it performs. Pickering , 391 U.S. at 568. In conjunction with his argument in favor of thi s balanci ng requirement, Ianni also advances the theory that governmen t empl oyers must always be granted qualified immunity under suc h circumstan ces. We not only find that the Pickering balancing test i s inapposite under these facts, but we also disagree with Ianni’s analysis of qualified immunity law.

The Pickeringstandard applies to de terminations of whether a public employer has properly discharged or disciplined an employee for engaging in speech

. Waters v. Churchill , 511 U.S. 661, 668 (1994); Rankin v

. McPherson , 483 U.S. 378, 384 (1987); Kincade v. City of Blue Springs , 64 F.3d 389, 395 (8th Cir. 1995), cert. denied , 116 S. Ct. 1565 (1996). In this case, it is argued that there is no adverse employment action (unless the censorship itself

### The speech at issue in Pickering and Connick was directl y 18 

### crit ical of the efficiency and operations of the employers ’ businesses. Here the speech essentially supported Universit y operations and extolled the capabilities and interests of certain faculty members. Moreover, the photographs of Burnham and M archese were n ot presumptively divisive, even in the ambiance of th e th reats on campus, nor were they shown to have been a palpabl e threat to workplace morale, efficiency or harmony. Compare Tindle , 56 F.3d at 969 (police officer suspended for attending Fraterna l Order of Police party wearing blackened face, bib overalls, black curly wig and carrying watermelon).
-20- serves that purpose), against which the plaintiffs’ free speech right s might be balanced. Indeed, the district court found: 18

The gravamen of the complaint is not whether the photograph s were th e basis for adverse employment action; rather, th e gravamen of the complain t is whether the ideas conveyed in the pho tographs fall within any of the exceptions to the genera l rule “that under our Constitution, the public expression o f ide as may not be prohibited merely because the ideas ar e themselves offensive to some of the hearers.”

Burnham , mem. op. at 10 (quoting Street v. New York , 394 U.S. 576, 59 2 (1969)). We need not decide whether an adverse employment action can b e fashioned from the evidence, however, because Ianni has factually failed to put the Pickering balancing test in play. See , e.g. , Kincade , 64 F.3d at 398. As this court recently observed, “it is critical to determin e whether the defendants [employers] have put the Pickering balancing test at is sue by producing evidence that the speech activity had an advers e effect on the efficiency of the . . . employer’s operations.” Grantham v. Trickey , 21 F.3d 289, 294 (8th Cir. 1994). As the district court found, “[t]his is not an employment case where there is a threatened disruption to the efficient deli very of services.” Burnham , mem. op. at 9; see also Pickering , 391 U.S. at 570 (noting

### -21-

that “no evidence to support [professional damage to the school board and superintendent] was introduced at the hearing” a nd rejecting the workplace disruption argument of the board.)

As in our Kincade decision, we find that Ianni has failed to carr y his bur den on this prong of the Pickering rationale. Ianni has made n o factual showing that the suppressed conduct “substantially” interfere d with t he efficiency of the workplace or UMD’s educational mission

. Kin cade , 64 F.3d at 398. “In our system, undifferentiated fear o r apprehension of disturbance is not enough to ove rcome the right to freedom of expression." Tinker , 393 U.S. at 508. It is simply unreasonable, as a matter of law, to a ssert that a photograph of a cardboard laurel-wreath bedecked faculty member holding a Roman short sw ord, as part of an elevenperson faculty display, somehow exacerbated an unestablished ambiance of fear on the UMD campus.

And, even if the Pickering balancing test were somehow applicable , which it is not, Ianni’s defense would fail. As stated earlier, th e Picker ing balancing test requires a court to determine whether th e employee’s speech inv olves a matter of public concern and, if so, how the employee’s rights in the speech balance against the occurrence of workplac e disrupt ion. Both of these questions are issues of law for the court t o decide. Kincade , 64 F.3d at 395. To dete rmine whether the speech at issue here involves a matter o f public concern, we ex amine the “content, form and context” of the speech, given the rec ord as a whole. Connick , 461 U.S. at 147-48. To b e considered speech on a matter of public concern, the discourse must relate to a “matter of political, social, or other concern to the community.” Id

. at 146; see also Kincade , 64 F.3d at 396. That definition includes many types of

### -22-

speech, excluding mainly speech relating merely to internal offic e grievances. Connick , 461 U.S. at 148-49; see also Cox v. Dardanelle Pub. Sch. Dist. , 790 F.2d 668, 672 (8th Cir. 1986).

The histo ry exhibit, displayed for public viewing, was intended, at least, to inform the University and surrounding community of the views and specialties of the history department and its faculty. As such, the speec h involved more than a mere internal office grievance. See , e.g. , Cox , 790 F.2d at 673 (stating “educational theories and practices employed by schoo l administrators is clearly a question of public concern . . . [h]ow we teac h the young, what we te ach them, and the environment in which we teach them

are of the most central concern to every community in the nation”). See also Lewis v. Harrison Sch. Dist. No. 1 , 805 F.2 d 310, 314 (8th Cir. 1986) (ho lding speech involving proposed transfer of teacher was on matter o f public concern due to large turnout at meeting regarding transfer an d teacher interest in the subject); Roberts v. Van Buren Pub. Schs. , 773 F.2 d 949, 955 (8th Cir. 1985) (holding speech involving content of rule s governing fifth grade field trip was on matter of public concern due t o parental dissatisfaction with and interest in the subject). Admittedly, the speech at issue here is not of the utmost public concern when compared with an assassination attempt against the President, as in Rankin . 483 U.S. at 381. However, when balancing an employee’s interest agains t an employer’s interest, the constitutional standard take s proportionality into account. “[T]he closer the employee’s speech reflect s
on matters of public concern, the greater must be the employer’s showing that the speech is likely to be disruptive before it may be punished. ” Jeffries v. Harleston , 52 F.3d 9, 13 (2d Cir.), cert. denied , 116 S. Ct. 173 (1995). The converse is also true. When weighed against the meager evidence of workplace disruption, the plaintiffs’ speech

### -23-

clearly addresses matters of public concern within the meaning of th e Pickering test. See supra n.3.

Our next consideration is whether UMD’s interest in suppressing the speech, to purportedly control workplace disruption, outweighs th e plaintiffs’ First Ame ndment rights in the display. See , e.g. , Barnard v. Jackson County, Missouri , 43 F.3d 1218, 1224 (8t h Cir.) (stating pertinent considerations for Pickering balancing test are “whether the employee’ s speech has a detrimental impact on working relationships where persona l loyaltyor confidence is necessary, and whether the speech impedes th e efficient operation of the governmental entity’s function”), cert. denied , 116 S. Ct. 53 (1995). The government employer must make a substantia l showing that the speech is, in fact, disruptive before the speech may be punished. Waters , 51 1 U.S. at 673. We recognize that the government, as

an employer, has broader powers in suppressing free speech than th e government as a sovereign. Indeed, we have given some deference to a n employer’s predictions of workplace disruption. Id. However, we hav e
never granted any deference to a government supervisor’s bald assertions of harm based on conclusory hearsay and rank speculation. As state d above, the procedural posture of this case requires us to view the facts in the light most fav orable to the nonmoving party, i.e., the plaintiffs. In so doing, we note that both Burnham and Marchese, by affidavit , expre sslydispute that a “climate of fear and violence” existed on th e campus, stating that campus life continued as normal, no classes wer e suspended or schedules altered and not a single act of violence occurred on UMD premises. Even if we were to attempt to balance the plaintiffs’ free speec h rights against the purported disruption of the pedagogical tasks of UMD, it is cle ar that the impact of the speech on UMD’s mission is totall y unproven and unaddressed except in the most

### Und erlying our holding today, in some respect, is th e 19 

### recognition of the professors’ academic freedom--“a special concern of the First Amendment.” University of California Regents v

. Bakke , 438 U.S. 265, 312 (1978). The content-based censorshi p whichoccurred here could easily have a stifling effect on th e “‘free play of the spirit which all teachers ought especially t o cultivate and practice.’” Key ishian v. Board of Regents , 385 U.S. 589, 601 (1967) (quoting Baggett v. Bullitt , 377 U.S. 360, 37 4 (1964)).
-24- conclusory fashion. There is simply no evidence that establishes a nexus between th e two photographs and an exacerbated climate of fear on th e campus or, more importantly, that establishes a relationship between the pho tographs and a decrease in the efficiency and effectiveness of UMD’ s educational mission.

In sum, then, upholding Ianni’s approach to the First Amendment would permit the suppression of too much speech on arbitrary and capriciou s grounds. Such a holding would presumably permit the suppression of Ms

. Featherman’s advocacy of gender and cultural diversity at UMD if Ianni fel t that such speech contributed to an inefficient and negative working and learni ng environment on the campus because of unlawful or vehemen t opposition to Featherman’s views. “Vigilance is n ecessary to ensure that 19 public employers do not use authority over emplo yees to silence discourse, not be cause it hampers public functions but simply because superior s disagree with the content of employees’ speech.” Rankin , 483 U.S. at 384.

Fina lly, we hold that Ianni’s failure to establish workplac e disrupt ionor, at least, to make a connection between the plaintiffs ’ speechand the workplace atmosphere, is fatal to his claim of qualifie d immunity under a Pickeringanalysis. Kincade is both directly on point an d directly contradictory to Ianni’s position. Kincade was discharged by Blu e Springs for exercising

### -25-

his free speech rights. Because Kincade’s speech, as here, touched on a matter of public concern, the Pickering balancing test was employed t o revie wthe district court’s denial of a motion for summary judgment o n qualified immunity grounds. After noting that the only evidence o f workplace disruption was conclusory statements t o that effect by the mayor and other city officials, Judge Hansen stated:

the Ap pellants [city officials] have merely asserted tha t Kincad e’s speech adversely affected the efficiency of th e City’s operations and substantially disrupted the wor k environment without presenting any specific evidenc e to support thi s assertion. They therefore have not put the Pickerin g balancing test at issue, and accordingly, we reject their claim that th ey are entitled to qualified immunity because fre e spe echquestions for public employees, as a matter of law , cannot be “clearly established.”

Kincad e , 64 F.3d at 398-99. This is precisely the factual and lega l situation we have in this case.

III. CONCLUSION

Th e district court correctly found that Ianni is not entitled t o qualified immunity fr om a suit seeking money damages for the violation of plaintiffs’ First Amendment rights. Accordingly, we affirm.

### -26-

McMILLIAN, Circuit Ju dge, with whom JOHN R. GIBSON, Circuit Judge, joins, dissenting.

We respec tfully dissent. In our original panel opinion, Burnham v. Ianni , 98 F.3d 1007 (8th Cir.), vacated , 98 F.3d1028 (1996), we fully set forth our analysis of this case. We therefore rest upon our original pane l opinion as providing the reasons why we believe Ianni should be afforded qualified immunity in the present case. The following is a response to th e majority opinion.

I.

We begin by noting the conspicuous a bsence from the majority opinion of certain undisputed material facts concerning the circumstances in which this controversy aros e -- facts which the majority has all but ignored by reducing them to a few obtuse sentences and a footnote. See supra at 6, 7 & n.5. By contrast , the district court appropriately devoted four full para graphs at the outset of its opinion to these crucial facts aptl y described by the district court as the "milieu" of the case. Burnham v. Ianni , 899 F. Supp. at 397. As the district court explained:

In June 1991, Sandra Featherman was app ointed to the post of vice chancellor for [UMD]. Shortly after her appointmen t was announced, Featherman began receiving threats. The threats were bizarre, graphic and frightening:
The do gs are howling, they want blood. There ar e footsteps crunching on the forest floor--it's the dee r hunters coming. They're after blood, t oo. It's the same dream over a nd over. The deer hunters stalking--getting closer and closer, never giving up the hunt, neve r putting down their rifles. Overwhelmed by their desir e to kill.

. . . .

### -27- Federm an (sic) no Duluth stay away, we will kidnap you , the FBI can't protect you. The deer hunters.

At the same time that Featherman was being threatened , forged memoranda bearingthe defendant's name, were circulated in and about the campus. The memoranda referred to an alleged plot to kidnap Featherma n and used the terms "Prince of Death" and "Deer Hunters." The forged document was circul ated through the mail to various departments and left in hallway s of various campus buildings.
Beg inning in March 1992, history Professor Judit h Troland er became the target of threats. The caption on th e flyers left in the hallways of various University building s was: "The Imperial Council of Deer Hunters Proclaim Open Season on J udy Trolander Lesbian Feminist Bitch." The memorandu m pur ported to reveal Professor Trolander's home address , addressed questions concerning the appropriate weapons an d prov ided the reader with potential locations from which t o car ryout an attack. Finally, the flyer proclaimed: "Ge t cracking you kill crazy buckaroos. Its [sic] OK to kill her, the Imperial Council rules UMD, the Commission on Women i s dis solved." The flyer specifically addressed Professo r Trolander, but its threat was targeted to all faculty members who cooperated with Vice Chancellor Ianni's efforts to develop a diversity program: "[a]ll faculty would be senten ced to death along with their pets, children and spouses."
Defenda nt undertook to calm the concerns of the facult y regardi ng these incidents. Despite his distribution of a memorandum in which he a ddressed the seriousness with which he was taking the threats and in which he reiterated hi s commitment to the diversity program, the fears of many in the campus were not alleviated. The investigation of t he origin of the threats continued and the threats continued to hang ove r the campus. It is this background against which the substance of this litigation arose.

Id.

### -28- Not only do we find it necessary to supply these critical facts, we also caution that there is no legal basis to ass ume as true facts "derived fromthe plaintiffs' pleadings" merely "[b]ecause discovery has not been conducted in this case." Supra at 2. In ruling on a motion for summary judgment, the question before the district court, and this court on appeal , is whether the record, when viewed in the light most favorable to th e non-moving party, sho ws that there is no genuine issue as to any material fact and that the moving party is entitled to ju dgment as a matter of law. Fed. R. Civ. P. 56(c) ; see, e.g. , Celotex Corp. v. Catrett , 477 U.S. 317, 322- 23 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-5 0 (1986); Get Away Club, Inc. v. Coleman , 969 F.2d664, 666 (8th Cir. 1992); St. Paul Fire & Marine Ins. Co. v. FDIC , 968 F.2d 695, 699 (8th Cir. 1992)

. Where discovery has n ot been conducted, the record created by the parties pursuant to Fed. R. Civ. P. 56 might not include the usual panoply o f discove red documents and deposition transcripts, but will include an y affidavits or other documents properly submitted in accordance with Fed. R. Civ. P. 5 6(e). If, upon reviewing the record in the light mos t favorable to the non-moving party, some material facts asserted in the non

moving party's pleadings remain genuinely disputed, there is no legal basi s to assume such facts as true merely because discovery has not bee n conducted. In the pr esent case, for example, the majority opinion states "[ p]laintiffs dispute that any milieu of concern existed and contend that the campus atmosphere, whatever it may have been, was not aggravated o r affect ed by the two photographs." Supra at 7 (emphasis added). Th e majority supplements the above-underscored statement by later noting that "both Burnham and Marchese, by affidavit, expressly dispute that a 'climat e of fear an d violence' existed on the campus, stating that campus lif e continued as normal , no classes were suspended or schedules altered and no t
a single ac t of violence occurred on the UMD premises." Id. at 23 (emphasis

### -29-

added). Presumably, the majority's assumptions that no milieu of concern exist ed at the time the photographs were removed, and that campus lif e continued as normal, have formed the basis for the majority's decision to virtuall yignore the facts set forth above. However, according t o undisput ed evidence in the record, less than two months before th e photographs were removed, anonymously-written fl yers were left in hallways of various UMD buildings on campus, and those fl yers stated the following:

She [Professor Trolander] will be a good target for shooting at lo ng range. The house has large windows and the terrain i s clear of obstacles in al l directions. Shooting from the beach or eve n from a boat in the bay or lake Superior is feasible

. A30 -60 rifle with 20X2 Bushnell scope would be a suitabl e weapon with dum-dum bull ets dipped in poison. Don't forget to put in a couple of click s in the crosshairs for windage as the wind is usually strong there. It is recommended that th e hunter shoot from behind the Surf and Sand Health Center, i f there is return fire from the house it will only ki ll 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 k ill her, the Imperial Counsel rules UMD, the commission on women i s dissolved. Also, all faculty members ordered to participate i n Featherman's administrative development project will b e sentenced to death along with their pets, children, and spouses if they comply with thes e orders. Any one who cooperates with Featherman will have their target information published.
The de er hunters need target information on Featherman, jus t mention where she lives in the faculty club and eve rything will be taken care of. Appellant's Appendix at 38. We certainly agree with the majority' s descriptionof the above-quoted death threat as "deranged." Supra at 6. However, viewing the record in the light most favorable to plaintiffs and applying the Rule 56 standard, we would also find

### -30-

plaint iffs' description of campus life as "normal" to be patentl y inaccurate. Even the district court stated, consistent with the Rule 56 standard, that, despite Ianni's efforts to assuage concerns on campus, "th e fears o f many in the campus community were not alleviated. Th e inve stigation of the origin of the threats continued and the threat s continued to hang over the campus." 899 F. Supp . at 397. As the district court concluded, "[i]t is this background against which the substance of this litigation arose." Id.

II.

We now turn to the legal issues presented by this case, beginnin g with a reminder of th e principles that underlie the doctrine of qualified immunity. In Anderso n v. Creighton , 483 U.S. at 638 (citations omitted), the Supreme Court explained:

Whengovernment officials abuse their offices, "action[s] for damages may offer the on ly realistic avenue for vindication of constitutional guarantees.” On the other hand, permittin g dam ages suits against government officials can entai l substan tial social costs, including the risk that fear o f per sonal monetary liability and harassing litigation wil l unduly inhibit officials in the discharge of their duties. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionar y functions with a qualifi ed immunity, shielding them from civil damages liability as long as their actions could reasonabl y have been thought consistent with the rights they are alleged to have violated.

The Court then went on to explain:

Som ewhat more concretely, whether an official protecte d by qualified immunity may be held personally liable for a n allege dlyunlawful official action generally turns on th e "objective legal reasonableness"

### -31- of the action, assessed in light of the legal rules that were "clearly established" at the time it was taken.

Id. a t 639 (citations omitted). In Anderson v. Creighton , the Suprem e Court also addressed the degree of generality versus specificity with whic h the relevant legal rule is to be defined for purposes of determinin g whether th e law was "clearly established" at the time of the relevan t
eve nts. Id. The Court explained that, in order for the concept of a "cle arlyestablished" law to comport with the "objective lega l

rea sonableness" standard set forth in Harlow v. Fitzgerald , 457 U.S. a t 819, "th e contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doin g violates that right." Anderson v. Creighton , 483 U.S. at 640. "This is not to say that an official action is protected by qualified immunit y unless the very action in question has previousl y been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulnes s must be apparent." Id. (citations omitted).

We believe, in the present case, that it could not have been ap parent to Ianni t hat the actions he took were unlawful in light of the pre

exist ing law. Indeed, "the parameters of the protection afforded to a university professor's academic speech were not clearly defined in May 199 2 and are not clearly defined today." Scallet v. Rosenblum , No. 96-1138 , 1997 WL 33077, at *2 (4th Cir. Jan. 29, 1997) (unpublished) (per curiam) ( Scallet ) (disposition reported in table at 106 F.3d 391), cert. denied , No. 96-1725 (U.S. June 23, 1997).

As we exp lained in our original panel opinion, the issue of whether the removal of the two photographs violated Burnham's and Marchese's First Amendment right to en gage in nonverbal expressive behavior is governed by the Pickering

- Connick

- Waters line of

### -32-

Supreme Court cases dealing with the First Amendment rights of publi c employees. The mere fact that the circumstances of this case are unique (at least in terms of the controversies that have actually been litigated in federal court) makes this no less an employment-related case. Thus, th e pertinent case law inexistence at the time Ianni removed the photographs from the display case included the Supreme Court's decisions in Connickan d Pickering , as well as a body of lower federal court decisions which ha d applied Connick and Pickering -- none of which were factually similar to the present case. Contraryto the majority's assertion, Kincade is not "directly o n poin t and directly contradictory to Ianni's position." Supra at 25

. Kincade is distinguishable because, in that case , this court held that the Pickering balancing test had not been put at issue. This court reasoned that the defendants, city officials, "ha[d] mere ly asserted that Kincade's speech adversely affected the efficiency of the City's operations an d substantially disrupted the work environment without presenting an y speci fic evidence to support this assertion ." Kincade , 64 F.3d at 39 8 (emphasis added) (cited supra at 25). By contrast, in the present case, Ianni presented specific evidence showing that the photographs were already having a disruptive effect on the work environment and that their continue d display in the history department display case had the potential to furthe r disrupt the work environment. Before Ianni ever made the decision to have the photographs removed, meetings were held, involving Karon, Ianni, the Kohns, Burnham, Marchese, and other faculty members in the histor y departm ent, at which the fate of the two photographs was specificall y addressed. It is cle ar from the record that feelings were strong on both sides: some individuals felt that the display of photographs of professors holding weapons was inappropriate in light of the campus-wide death threat s against Trolander and others; others felt

### -33-

adamantly opposed to removing the photographs for that reason. Se e 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 displayis our line in the sand, so be it"). With respect to one of the meetings, Karon stated:

Chancellor Larry Ianni and I [Karon] me t with the history department faculty on one occasion during the first few days of May. Department members offered a variety of reasons for not wanting to take the phot os down. Some said the request was an undue interference with the department, or an attempt to blame the depa rtment for the threats. Others said it was Jud y Trolander's fault. Professor Trolander expressed her concern that no one knew how upsetting the photos were to her.

Appellant's Appendix at 12 (Affidavit of Judith Karon, ¶ 13). We think it fair to say that Ianni, as the unlucky decisionmaker in this employment-relat ed controversy, was between a rock and a hard place. Regardless of whether he decided to have the photographs removed or left alone, it was reasonable for him to assume that some faculty members would be qu ite upset. In explaining his decision to remove the photographs , Ianni stated in his affidavit that the situationwith which he was dealing

was unique in his experience, that he tried suggesting to the histor y department faculty th at "it would be an act of collegiality to remove the photos" and they "should all be sympathetic to the effects of the agitatio n
on campus," and that, after the history department refused to accept his suggestion, he ordere d the photographs removed with the intent "to try to maintaina positive and efficient working and learning environmen t conduciv e to the mission of an academic institution." Id. at 7- 8 (Affidavit of Lawrenc e Ianni, ¶¶ 8-11). Ianni himself was not personally opposed

### -34-

to th e photographs. See Supplemental Appendix of Appellees at 3 7 (Affidavit of Albert Burnham, ¶ 4 ("Ianni stated that he personally sa w nothing wrong with th e pictures")). He had them removed because of their antagonistic effect.

Pla intiffs have not disputed the truthfulness of Ianni's state d

reason for removing the photographs, nor have plaintiffs alleged o r ident ified anything in the record to suggest that Ianni had any motiv e other than those which he described in his affid avit. Instead, plaintiffs maintainthat it was utterly irrational for Ianni to think that removing the photographs would serve his stated goal. Lo oking upon Ianni's actions withthe benefit of hindsight, the majority agrees with plaintiffs an d further concludes that Ianni's actions also violated clearly established First Amendment law as it existed in May of 1992. We disagree. As we h ave noted, even today the parameters of the First Amendmen t pr otectionafforded to university professors' academic speech is no t clearlydefined -- much less so at the time this controversy arose. See Scallet , 1997 WL 3307 7, at *2. Moreover, viewing the record in the light most favorable to plaintiffs does not dispel the fact that, no matter what

course of action Ianni had followed with respect to the two photographs, the end result would have been the dissatisfaction of some faculty members , and most likely disruption to the work environment -- at least insofar as those who had already taken sides were concerned. Faced with this highly

unusua l and unenviable predicament, Ianni chose to have the photograph s removed, in the hopes of maintaining a positive and efficient working and learning environment. In our opinion, it is not appropriate, given th e facts of this case, for this court to now decide the qualified immunit y issue on the basis of whether we think Ianni should have dismissed th e concerns expressed by

### -35-

Troland er, Karon, and others as irrational or unjustified; that was a matter with which Ianni, as the responsible school administrator, wa s forced to grapple at that time. The circumstances only permitted him to accommodate one side's interests or the other's, but not both. We believe that the Supreme Court has indicated, as a matter of substantive Firs t Amendment law, that it may not be appropriate for this court to second

guess Ianni's handlin g of this employment-related matter. As the Supreme Court stated in Waters , 511 U.S. at 675 (emphasis added):

Th e key to First Amendment analysis of governmen t employment decisions . . . is this: The government's interest in achieving its goals as effectively and efficiently a s possible is elevated from a relatively subordinate interes t when it acts as sovereig n to a significant one when it acts as emp loyer. The government cannot restrict the speech of th e public at large just in the name of efficiency. But where the gover nment is employing someone for the very purpose o f effectively achieving it s goals, such restrictions may well be appropriate.

We also r eiterate a point emphasized in our original panel opinion. In considering the we ight to be given Ianni's perceptions and predictions of di sruption, the law provides that the disruption need not have bee n actual, but may have been merely potential. Id. at 681 (holding, as a matter of law, that t he potential disruptiveness of the speech was enough to outweigh whatever First Amendment value it might have had); Tindle , 56 F.3d at 972 ("[a] showing of actual disruption is not always required in the balancing process under Pickering "); accord Jeffries , 52 F.3d at 1 3 (notin g that Waters stresses that actual disruption is not required)

. Notably, on this particular point, Kincade does not even mention Waters , let alone rely on that Supreme Court precedent. In light of Waters , its progeny, and our understanding of Ianni's predicament in this case, w e conclude that Ianni did not

### In ligh t of the complexities of the law with which we ar e 20 

### de aling, including the balancing process required by the Firs t Amen dment and the "clearly established" standard imposed by th e qualified immunity doctrine, we are not swayed by plaintiffs ' allegations that Ianni himself speculated that "if we [plaintiffs] sued him, he 'would not stand a chance,' or words to that effect." Supplemental Appendix of Appellees at 38 (Affidavit of Alber t Bu rnham, ¶ 8); see also id. at 40 (Affidavit of Richard Morri s (stating, for example, that "[w]hile I do not recall the exac t words used by Chancellor Ianni, I understood the import of hi s remarks to be that he believed that the censorship of th e photographs violated the legal rights of the persons involved.")).
-36- violat e Burnham's or Marchese's First Amendment right to engage i n nonverbal expressive conduct when he ordered the removal of the tw o photograph s from the display case; in any event, he certainly did no t violate their clearly establishedFirst Amendmen t rights. "In view of the difficultythat federal courts themselves have had in grappling with the concepts of academic freedom both as to the teacher and the educationa l institution, [Vice Ch ancellor Ianni, who is] not trained in the law could hardly be expected to recognize the contours of [Burnham's and Marchese's] rights." Scallet , 1997 WL 33077, at *2. We would therefore hold tha t Ianni is entitled to qualified immunity with res pect to the claims brought by Bur nham and Marchese based upon their alleged nonverbal expressiv e conduct. 20

Finally, we believe that our position is well-grounded in Eight h Circuit jurisprudence. In Grantham v. Trickey , 21 F.3d at 292-95, Judge Hansen, writing for a panel of this court, set forth a comprehensive and balanced historical analysis of Eighth Circuit case law dealin g specif icallywith the applicability of qualified immunity in the publi c employee speech context. In Grantham v. Trickey , id. at 295, this court affirmed the district court's grant of summary j udgment for the defendants

on the basis of qualified immunity upon determining that it was appropriat e under the

### A very similar view has been expr essed by our court in other 21 

### 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."
-37- circumstances of that case to follow the analysis of Bartlett v. Fisher , 972 F .2d 911 (8th Cir. 1992) (reversing the district court's denial o f summaryjudgment for the defendants on the basis of qualified immunity). In Bartlett v. Fisher , id. at 914, 916-17, Judge Loken also took care to recognize the historical and policy-based underpinnings of the qualified immunity doctrine in this area of First Amendment law. In reasoning that the defendants in that case were entitled to qualified immunity, Judg e Loken noted "[a]t least five circuits have concluded that, becaus e Pickering 's constitutional rule turns upon a fact-intensive balancing test , it can rarely be considered 'clearly established' for purposes of th e Harlow qualified immunity standard ." Id. at 916 ( emphasis added) (quoted 21 in Grantham v. Trickey , 21 F.3d at 293). We, to o, agree with this general statement of the law and think that the present

### We are by no means suggesting that qualified immunity wil l 22 

### prot ect public officials in every instance where the applicabl e constitutional standard involves a balancing test. As plaintiffs have pointed out, 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

. Hil l , 827 F.2d 270, 272-75 (8th Cir. 1987) (denying qualifie d immunityto defendants, school officials, who had constructivel y term inated elementary school teachers in retaliation for havin g written a letter to the state department of education complaining about violations of the federal statutory requirement tha t 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).
-38- case is not an exception. Even if we were to agree with the majority of 2 2 this en banc court that Ianni has violated plain tiffs' clearly established First Amendment rights, we would favor acknowled ging the above-quoted rule of law, which takes into account the tensions and subtleties that lie in this area of First Amendment jurisprudence, part icularly when superimposed with the doctrine of qualified immunity.

III.

We now turn to the forum-related arguments. Plaintiffs, includin g the Kohns , assert a violation of their First Amendment right to use th e displaycase as a means "to publicize some of the areas of expertise and inte rest of the History Department's faculty, while at the same tim e portrayi ng the faculty in an informal, somewhat humorous way." I n analyzing this claim, we agree with the district court's conclusion that the history department display case was a nonpublic forum. 899 F. Supp. at 403 (focusing on facts that the display case was under UMD's control,

### For example, nothing prevented pl aintiffs from replacing the 23 

### removed photographs with similar pictures of Burnham and Marchese withou t weapons, while continuing to publicize through writte n desc riptions their interests in American military and classica l history.
-39- 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 inf ormation about the department). Because the display

cas e was a nonpublic forum, the issue as to whether a First Amendmen t violation resulted from the removal of the two photographs turns on whethe r "the distinctions drawn [were] reasonable in light of the purpose served bythe forum and [were] viewpoint neutral." Cornelius , 473 U.S. at 806. 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 th e Government's restriction of access to a nonpublic forum must b e assessed in the light of the purpose of the forum and all the surrounding circumstances." Id. at 809. We believe that Ianni's decision to remove the two photographs w as not an unreasonable subject matter restriction in light of the purpose of the forum, which was to disseminate informatio n about the history department, and because his actions were narrowl y tailor ed and left open other channels through which Burnham's an d Marchese's interests in classical and American military history could stil l be publ icized. See Perry , 460 U.S. at 53 ("the reasonableness of th e 23 limitations . . . is also supported by the substantial alternative channel s that remain open"). Moreover, Ianni has demonstrated beyond any dispute that his removal of t he photographs had nothing whatsoever to do with any view point which the photographs may have expressed. Contrary to th e majori ty's conclusion, this was not "an effort to suppress expressio n merelybecause [Ianni] oppose[d] the speaker[s'] view[s]." Id. at 46

. Burnham himself alleg es that "Ianni stated that he personally saw nothing wrong with the

### -40-

pictures." Supplemen tal Appendix of Appellees at 37 (Affidavit of Albert Burnham , ¶ 4). Ianni was motivated solely by his desire to address th e poten tial disruptiveness of the photographs, which had already bee n foreshadowed by the diametrically opposed views expressed at the history department meetings.

The majority states that "[t]he photographs of Professors Burnh am and Marche se expressed the plaintiffs' view that the study of histor y necessarilyinvolves a study of military history, including the use o f military weapons." Supraat 15. There is absolutely nothing in the recor d stating or implying that Ianni or anyone else opposed such a view about th e study of history. The majority further states that Ianni had th e photographs removed " [b]ecause other persons on the UMD campus objected .

. . to al lowing this viewpoint to be expressed in this particular way. " Id. This is precisely the point that we have been making all along -

- Ianni was attempting to address the potential disruptiveness of th e photographs, not any viewpoint expressed by them. Moreover, his actions

were not unreasonable in light of the circumstances. Nothing in hi s actions prevented plaintiffs from expressing the above-described message throughother means -- which, in fact, they clearly could do through the exhibit's written descriptions of the professors ' academic interests. See Supplemental Appendix of Appellees at 30 (Affidavit of Ronald Marchese, ¶ 9 ("Pr ofessor Burnham listed U.S. Military History among his principa l interes ts")). We also think the reasonableness of Ianni's actions i s supported by the fact s that, after school resumed the following fall, the two photographs were posted in the student cente r and Ianni took no action at that time because "[t]he atmosphere was substantially calmer after the

summer break of 1992." Appellant's Appendix at 8 (Affidavit of Lawrence Ianni, ¶ 12).

### -41- In sum, w e would hold as a matter of law that Ianni did not violate pla intiffs’ First Amendment rights by regulating the use of the displa y
cas e. We most certainly believe that his actions did not violate an y clearly established First Amendment rights and, thus, he should be afforde d qualified immunity with respect to plaintiffs’ forum-related claims.

IV.

Ianni did not violate any of plainti ffs' First Amendment rights when he ordered the removal of the two photographs fr om the display case. More import antly, given the "background against which the substance of thi s litigati onarose," 899 F. Supp. at 397, and the lack of clarity in th e app licable law as it existed in May of 1992, Ianni should be afforde d quali fied immunity. He should be spared from having to further defen d himself in this litigation and from having to pay money damages to UM D histor yprofessors Albert Burnham and Ronald Marchese and former UM D students Michael Kohn and Louise Kohn.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.