NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0710n.06
No. 12-5306
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J OHN MCGL ONE, Plaintiff-Appellant,

v.

J I MMY G. CHEEK, in his officia l capa city as Chance llor of the University of Tenne ssee at Knoxvi lle; M A X I

N E D A V I S, in d ividua lly and in her officia l capa city as Dea n of Students at the University of Tenne ssee at Knoxvi lle ; and ANGI S M I T H, individually and in her officia l capa city as Associate Dea

n of Students at the University of Tenne ssee a t Knox ville, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TENNESSEE

Be fore : MARTI

N and ROGERS, Circuit J udg es; TARNOW, District J udg e. *
BOYCE F . MARTIN, JR., Circui t J u dge. J ohn McGlone sued sever al University of
Tenne ssee at Knoxvi lle officia ls, alleg ing that the University ’s policy requiring persons unaff iliated with the University to obtain sponsorship in order to speak on campus violated his First Amendment rig ht to free speec h and his Four teenth Amendme nt rig ht to due proce ss. McGlone a lso moved to enjoin the University from enfor cing its sponsorship require ment. The University moved to dismiss the suit, and the district court g rante d the University ’s motion to dismiss and denied McG l o n e’s

The Honora

ble Arthur J

. Tarnow , United States District Court J udg e for the Easter n District * of Michig an, sitting by

desig nation.No. 12-5306

McGlone v. Chee k, et al. preliminary -injunction motion. McGlone appea ls the district c ourt’s judgme nt. For the following

rea sons, we REVERSE the district court judg ment and REMAND f or fur ther proc eeding s. I

. McGlone describe s himself as a committed Christian. I n keeping with his Christian faith, McGlone trave ls to public universities to share his relig ious beliefs with colleg e students. He targ ets outdoor space s on campuse s and shares hi s beliefs through dialogue , the di stribution of literatur e, and the display of signs. McGlone’ s messag e is that “all people need s al v at i o n b ecause of their rebe llion ag ainst God and God provides salvation to those who repe nt and believe in J esus Christ.” McGlone c laims that he “simply wants to expose students to the teaching of Christianity .”
I n 2008, McGlone beg an visiti ng the University of Tenne ssee at Knoxvi lle to eng ag e in expression of his relig ious beliefs. The Un i v er s i t y of Tenne ssee is a larg e instit ution, with approximately 27,000 students and 8,161 fac ulty members. Fr om 2008 until Aug ust 2010, McGlone visited the University ’s campus five times a nd succe ssfully expressed his r elig ious beliefs without

an y i n terfe renc e from the University

. He usually used an open-a ir amphitheater to express hi s beliefs. On Aug ust 25, 2010, McGlone called the University and left a voice messag e informing University officia ls of his intention to speak on campus the following day , as had been his prac tice for a ll prior visits wit h the exception of his first visit. Maxi ne Davis, the Dea

n of Student Affa irs, and Ang i Smit h, the Associate Dea n of Students,

returne d McGlone’ s call and explained that McGlone would not be permitted to use any open are a of campus for expressive purposes unless he had a University sponsor. McGlone reque sted sponsorship f

rom Dea ns Davis and Smit h, both of whom declined, and McGlone then asked Dea n - 2 -No. 12-5306

McGlone v. Chee k, et al. Davis for the contac t information of the University ’s leg al counsel. Dea n Davis g ave him the telephone number of Matthew Scog g ins, the University Assistant Gene ral Counsel. Soon there afte r, McGlone contacte d Scog g ins, who t ol d M cGlone that University policy require s that all speake rs who are not aff

iliated with the University rec eive sponsorship from “students, fac ulty , or st aff ” in order to speak on campus. Scog g ins t o l d M cGlone that the University had a policy limit ing its
campus to students, fac ulty , staff, and invitees and that “this policy was the source of the sponsorship require ment enfor ced by [t he University .]” Dea n Smit h called McGlone later that day and explained to McGlone that she had talked to Scog g ins and confirmed that in order for McGlone t o speak on campus, he neede d to be “sponsore d by a re g istered student org anization, staff, or f aculty .” Scog g ins emailed McGlone links to two written University pol i ci es: (1) the “Ac cess to University Property ” policy ; and (2) the University student handbook, which is called “Hilltopics.”
T h e “Access to University Property ” poli cy , or pol icy # 1720-1-2, which was promulgate d by t h e University Boa

rd of Trustee s in 1970 under the provisions of the Tenne ssee Uniform Administrative Procedur es Ac t, Tenn. Code Ann. § 4- 5-101, et seq ., rea ds: The University ’s campuse s and fac iliti es shall be restric ted to students, fac ulty , staff, g uests, and invitees except on such occa sions when all or par t o f t h e campuses, buildings, stadia, a

nd other fa cilities are ope n to the g ener al public. A section of the student handbook entitled “Ac cess to Campus” contains near ly identical lang uag e. The student handbook define s a g uest as “[a] person invited by a university student or employ ee to visit t he ca

mpus at a spec ific time, place , and occ asion.” The student handbook specific ally addre sses the University ’s sponsorship require ment in a section entitled “F ree dom of Expression and Speech,” which re ads:
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McGlone v. Chee k, et al. The University of Tenne ssee considers fre edom of inquiry and discussion essential to educational development and rec og nizes the rig ht of students to eng ag e in discussion, to exchang e thoughts and opinions, and speak fre el y o n any subject in acc ord with the g uara

ntees of our

state and na tional constituti ons. The policy

g oes on to state: To these ends, reg istered student org anizations on campus may fre ely selec t, without prior restra ints, persons they wi s h t o invite as g uest speake rs. There are no restric tions to control the point of view expressed by speake rs other than those imposed by local, state, and fede ral l aw s . Any person sponsored by a reg istered campus org anization is free to spea k. The Fr eedom- of-Expression p o l icy also say s that once a speake r rec eives sponsorship, no other student or University officia l has the power to revoke the sponsorship. I n an attempt to comply with the sponsorship require ment, as h e u n d er stood it, McGlone emailed ten Christian-based student
org anizations on April 13, 2011, reque sting sponsorship. None of the orga nizations responde d to McGlone’ s reque st. McGlone has not retur n ed to the University campus since failing to obtain sponsorship beca

use, ac cording to him, he was “de terre d by the proc ess.”
On J une 6, 2011, McGlone sent a letter, by way of his attorney , to Universi t y o ff i cials expressing his belief that the University ’s sponsorship require ment was unconstitutional. McGlone also asked f

or assura nces tha t he would be allowed to speak on c ampus without having to comply with the sponsorship require ment. Scog g ins responde d with a letter dated J une 17, 2011, in which he ar g ued that the Unive rsity ’s policy reg arding outside speake rs i s constitutional. The letter said that the University has limit ed “expressive activity ” in the are a wher e McGlone wanted to speak “to

a cer tain class of speake rs – students, fac ulty , staff, and their sponsored g uests.” The letter also said

t h at the Fr eedom- of-Expression policy found in the student handbook “explains the proce ss o f

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McGlone v. Chee k, et al. speake r sponsorship.” Scog g ins’s letter conclude d b y i n fo rm ing McGlone that he is welcome to speak on c ampus once he obtains sponsorship. McGlone filed suit ag ainst Da vis, Smit h, and University Chance llor J immy Cheek. He claimed that the University ’s sponsorship require ment was unconstitutionally vag ue, in violation of his First Amendment rig ht to fre e speec h as well as his Four teenth Amendment rig ht to Due Process. McGlone moved for a p reliminary injunction, and the University moved t o dismiss the complaint

on the g rounds that McGlone failed to state a claim upon which relief could be g rante d. The district court he ld that the sponsorship require ment was not vague , and it g rante d the Univer sity ’s motion to dismi ss and denied Mc Glone’s motion for a preliminary

injunction.
I I

. This Court revie ws a district court’s g rant of a motion to dismiss for failure to state a claim de novo. McG lone v. Bell , 681 F.3d 718, 731 (6th Cir. 2012) (citing Harbin-Bey v. Rutter , 420 F.3d 571, 575 (6th Cir. 2 0 0 5 ))

. I n order to survive a motion to dismiss for failure to state a claim, the plaintiff’s complaint must contain enoug h fac ts to state a claim to relief that is plausible on its fac e. Paige v. Coyner , 614 F.3d 273, 277 (6th Cir. 2010); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). We must construe the complaint in the light most favor able to the plaintiff and acc ept as true all fac tual alleg ations there in. In re Southeast W affles, LLC , 702 F.3d 8 5 0 , 8 5 6 (6 t h Cir. 2012) (citing Twombly , 550 U.S. at 570). McGlone arg ued that the University ’s sponsorship require ment is unconstitutionally vag ue beca use it g rants unbridled discretion to University officia ls and students in g ranting or deny ing sponsorship; howeve r, during oral arg ument, it beca me clea r that altera

tive g rounds for McGlone’ s - 5 -No. 12-5306

McGlone v. Chee k, et al.
vag ueness arg ument exis ted. The University contend s t h at its sponsorship require ment clea rly establishes that students, fac ulty , and sta ff h av e t he authority to g rant sponsorship and relies primarily on policy # 1720-1-2 for s upport. Howeve r, the Fr eedom- of-Expression policy , which, unlike poli cy # 1 7 2 0-1-2, expli citly discusses sponsorship, say s that student org anizations g rant sponsorship and makes no mention of individual students, fac ulty , or staff. This raises the question of whether the inconsistency betwee n the policies makes the University ’s sponsorship require ment unconstitutionally

vag ue. Gene rally , we do not consider sua sponte arg uments not prese nted or urge d by the parties; howeve r, “‘[e]x ceptional case s or particul ar circ umstances may prompt a revie wing court, wher e injusti ce might otherwise result or wher e public p o li c y r e q u ir e s , to consider questions neither presse d

nor passed upon below.’” Boals v. Gray , 77 5 F.2d 686, 691 (6th Cir. 1985) (quoting Nuelsen v. Sorensen , 293 F.3d 454, 462 (9th Cir. 1961)); see also United States v. Szymanski , 631 F.3d 794, 797 (6th Cir

. 2 0 1 1 ). Be cause the potential injusti ce at stake is the unconstitutional circ umvention of citizens’ First Amendment rig ht to fre e speec h, and beca use McGlone raised a vag ueness arg ument below, sua sponte r eview is a ppropriate

. “I t is a basic principle of due proce ss that an enac tment is void for vag ueness if its prohibitions are n o t cl ea rl y define d.” Grayne d v. C ity of Rock ford , 408 U.S. 104, 108 (1972). I n Ass’n of Cleveland Fire Fighters v. City of Cleveland , 502 F.3d 545, 551 (6th Cir. 2007), this Court said:
We have rec og nized that the vag ueness doctrine has two primary g oals: (1) to ensure fair notice to the citizenry and (2) to provide standards for enfor ceme nt [by officia ls]

. Wit h respe ct to the first g oal, the Supreme Court has stated that “[a] statute which - 6 -No. 12-5306

McGlone v. Chee k, et al. either forbids or require s the doing of an act in terms so vag ue that men of common intelligenc e must nece ssarily g ues s at its meaning and differ as to its application, violates the first essential of due proce ss of law.” Connally v. Gen. Constr. Co. , 269 U.S. 385, 391 (1925). Wit h respe ct to the second g oal, the Supreme Court stated that “if arbitrary and dis crimi n at o ry enfor ceme nt is to be prevented, laws must provide expli cit standards for t hose who apply them. A vague law im permissibly deleg ates basic policy matters to [offic ials] for resolution on an ad hoc a nd subjective basis.” Grayne d v. City of Rockford , 408 U.S. 104, 108–09 (1972). Fur thermore , the principle of clar ity is espec ially demanding when First Amendment fre edoms are
at risk. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 499 (1982) (“[P] erha ps the most important fac tor aff ecting the clar ity that the Constit ution demands of a law is whether it thre atens to inhibit the exercise of constitutionally protec ted rig hts. I f, for example, the law interfe res with the rig ht of fre e speec h or of association, a more stringe nt vagueness test should apply .”); Smith v. Goguen , 415 U.S. 566, 573 (1974) (“Where a statute’s literal scope . . . is capa ble of rea ching expression sheltere d by the First Amendment, the [vague ness ] d o ct ri ne demands a
g rea ter de g ree of spec ificity than in other c ontext s.”). The University ’s sponsorship require ment raises both of the concer n s h i g hlighted in Cleveland Firefight ers . First, the policy forbids t he doing of an act in terms s o v agu e that people of ordinary intelligenc e g uess at its meaning and differ as to its application. Consist ently throug hout its repr esenta tions to McGlone and to this Court, the Un i v er s i ty has i nsisted that, toge ther, poli cy # 1 7 2 0

- 1

- 2 a

n d th e F r e e d o m- o f

- Ex pression polic y e s ta

b li s h th e U n iv e r s it

y ’ s s p o n s o r s h ip r e q

u ir e me n t. Policy # 1720-1-2 makes no ref ere nce to on-ca

mpus speake rs or sponsorship, but it say s that g uests

are allowed on campus, and the student handbook d ef i n es a g uest as “[a] person invited by a university student or employ ee to visit the campus at a specific time, place , and occa s i o n . ” The

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McGlone v. Chee k, et al. F r e e d o m- o f

-Expression policy say s that “[a]ny person sponsored b y a r e g is te r e d c a mp u s o r g a n iz a ti o n is fre e to speak” on campus. I nexpli cably , the University confla tes both policies and conclude s that the University ’s sponsorship require ment clea rly provides that students, fac ulty , and staff have the authority to gr ant sponsorship.
As a result of the inconsistency betwee n the two policies, it is unclea r to the ordinary person who has the authority to g rant sponsorship. Fur thermore, t h e re cord establishes that people of ordinary intelligenc e—Univer sity officia ls—have applied the policy differ ently

. For example, on Aug ust 25, 2010, Scog g ins told McGlone that he neede d to rec eive sponsorship from “students, fac ulty , or staff” in order to speak on campus and, on the very same day , Dea n Smit h told McGlone

t h at he neede d to rec eive sponsorship from “a reg istered student org anization, staff, or facu l t y . ” Presumably , Scog g ins’s explanation c omes from policy # 1720-1-2, a

nd one ca n only assume that
Dea n Smit h’s explanation is the result of an amalg amation of policy # 1720-1-2 and the Fr eedom- ofEx pression policy

. Acc epting as true the alleg ations in McGlone’ s complaint, a plausible vag ueness claim exist s beca

use the Unive rsity

policy fails to ensure fair notice to the citizenry

. Second, the University ’s sponsorship require ment opens t h e d o o r to arbitra ry and discriminatory enfor ceme nt. Be tween policy # 1720-1-2 and the Fr eedom- of-Expression policy , the sponsorship r equire ment does not c lear ly specify to whom the decision-making authority has been deleg ated conce rning sponsorships. Consequently , a University officia l could rely on the Fr eedomof-Expression policy and require a person who desire d to speak on campus to obtain sponsorship from a student org anization and fore close the option of obtaining s p o n sorship from an individual student. Such a decision b y a Uni versity officia l would sever ely limit a potential speake r’s - 8 -No. 12-5306

McGlone v. Chee k, et al. sponsorship options considering that in J une of 2011 there wer e 395 reg istered student org anizations and approx imately 27,000 st u d ents. This appea rs t o be what happene d to McGlone. Dea n Smit h told him that he would have to obtain sponsorship from a s t u d en t o rganiz ation, and, g iven the lang uag e of the Fr eedom- of-Expression policy , McGlone rea sonably relied on Dea n Smit h’s
repr esenta tion of the sponsorship r equire ment. Whether or not the a d-hoc na ture of Dea n Smit h’s enfor ceme nt of the policy was arbitra ry or discriminatory , it was co n s t i t u t i o nally problematic. A plausible vag ueness claims exis ts beca use the University policy fails to provide a clea r standard for enfor ceme nt.
I n addition, vag ue laws cre ate the dang er of having a chilling eff ect on speec h. I n Grayne d , the Supreme Court war

ned that “[u] ncer

tain meaning s inevitably lead citizens to ‘steer far wider of the unlawful zone’

. . . than if the boundarie s of the forbidden are as wer e clea rly marke d.” Grayne d , 408 U.S. at 109 (quoting Baggett v. Bull itt , 377 U.S. 360, 372 (1964) ( citation omitted)); see also Scull v. Commonwealth of Va. ex. rel. Comm. on Law Reform and Racial Activities , 359 U.S. 344,
353 (1959) (“Cer

tainty is all the more essential when vagueness might induce individuals to fore g o their rig hts of speec h, press, and association for fea r of violating an unclea

r law.”)

. The uncer

tainty
reg arding who has the authority to g rant sponsorships could cause people to ref rain from attempting

to exercise their First Amendment rig ht to fre e speec h on the University ’s campus. McGlone, whose past experience included inconsistent enfor ceme nt of the sponsorship require ment and who rec eived inconsist e n t in

terpre tations of and conflicting information about the policy from University officia ls, has n ev er re turned to campus beca use he was “dete rre d by the proce ss.” I n addition to failing to

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McGlone v. Chee k, et al.

ensure fair not i ce t o the citi zenry and to set out a clear standard for enfor ceme nt, the University ’s
vag ue sponsorship re quirement thre atens to chill speec h.
I I I

. We revie w district court decisions reg arding preliminary injunctions with First Amendment implications de novo. Bays v. City of Fairborn , 668 F.3d 814, 819 ( 6th Cir. 2012). I n addre ssing

a motion for a preliminary injunction, a court should consider: (1) the likelihood that the movant will

succe ed on the merits; ( 2) whe ther the mova nt will suff

er irrepa rable harm without the injunction; (3) the probability that g ranting the injunction will cause substantial harm to others; and (4) whether the public interest will be advanc ed by issuing the injunction. Jones v. Caruso , 569 F.3d 258, 265 (6th Cir. 2009).
I n case s with First Amendment implications, the “likelihood of succe ss on the merits” fac tor is often deter

minative beca

use “issues of the public interest and harm to the respe ctive parties larg ely depend on the const it

u ti o n a li ty ” of the challeng ed enac tment. Hamilton’s Bogarts, Inc., v. Michigan , 501 F.3d 644, 649 (6th Cir. 2007) (quoting Nightclubs, Inc. v. City of Paducah , 202 F.3d 884, 888 (6th C i r. 2000)). We have alre ady established that McGlone has a plausible vag ueness claim.
Acc ording to the University , its sponsors hip require ment consists of two policies that are
contra dictory o n their fac e. The policy fails to specify clea rly to whom the decision-making authority has been deleg ated conce rning sponsorships, and there fore , its prohibitions are not clea rly define d. I t is likely that McGlone would succe ed on the merits of a vagueness challeng e, and he is there fore entitled to a pre liminary injunction.

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McGlone v. Chee k, et al. We REVERSE t he judg ment of the district cour t and REMAND with instructions to gr ant the pre liminary

injunction.

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