IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STUDENTS FOR LIFE USA, etc., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0157-WS-B

 )

TONY G. WALDROP, etc., et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the plaintiff’s motion for preliminary 

injunction. (Doc. 44). The parties have filed briefs and evidentiary materials in 

support of their respective positions, (Docs. 45, 47, 48), and the motion is ripe for 

resolution.

The background of this action has been set forth in the Court’s order 

granting in part the defendant’s motion to dismiss. (Doc. 49). The plaintiff 

student organization at the University of South Alabama (“the University”) 

challenges, on First Amendment, due process and equal protection grounds, two 

policies of the University addressing expressive activity. By the instant motion, 

the plaintiff seeks to enjoin the defendants from enforcing the First Policy and 

Section I(B)(1)(b) of the Second Policy. (Doc. 44 at 1). The Court has dismissed 

as moot “all claims for declaratory or injunctive relief with respect to the First 

Policy.” (Doc. 49). Accordingly, the motion for preliminary injunction is due to 

be denied as to the First Policy.1

 1 In support of the instant motion, the plaintiff has submitted the declaration of its 

president to the effect that, when she attended a student organization leadership day in 

September 2014, she “did not hear anyone who works at the university mention the 

existence of the Second Policy.” (Doc. 44-1 at 3). The plaintiff asserts that this proves 

the University “is still operating under the First Policy,” (Doc. 45 at 9 n.1), such that its 

challenge to the First Policy is not moot. (Id. at 12). (cont’d)

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The Second Policy provides in pertinent part as follows:

For USA students or employees, all areas of the University 

campus are open for expressive activities, except for the following:

• Areas between the street side of University buildings and

facilities on the periphery of campus from the portal of 

North Drive to the corner of campus at Old Shell Road and

University Boulevard and to the portal of Stadium Drive and

the public sidewalks ....

(Doc. 29-10 at 3-4). This closing of the campus perimeter (“the Perimeter”) to 

expressive activity is the plaintiff’s sole challenge to the Second Policy. (Doc. 29 

at 24-25; Doc. 45 at 10, 13, 19, 23, 28-29, 30; Doc. 48 at 9-11). 

“A preliminary injunction is an extraordinary and drastic remedy not to be 

granted unless the movant clearly establishes the burden of persuasion as to the 

four requisites.” American Civil Liberties Union of Florida, Inc. v. Miami-Dade 

County School Board, 557 F.3d 1177, 1198 (11th Cir. 2009) (internal quotes 

omitted). As the plaintiff acknowledges, (Doc. 45 at 13), “[a] district court may 

grant [preliminary] injunctive relief only if the moving party shows that: (1) it has 

a substantial likelihood of success on the merits; (2) irreparable injury will be 

suffered unless the injunction issues; (3) the threatened injury to the movant 

outweighs whatever damage the proposed injunction may cause the opposing 

party; and (4) if issued, the injunction would not be adverse to the public interest.” 

 

Because the plaintiff did not present this evidence in opposition to the defendant’s 

motion to dismiss on grounds of mootness, it comes too late to be considered. At any 

rate, the plaintiff cites no authority for the facially illogical notion that the failure to 

mention a policy at a meeting proves the policy does not exist. Had the administration 

discussed the First Policy at the meeting (at least, had it done so without then explaining 

that the First Policy had been superseded by the Second), the plaintiff might have 

something, but there is no such evidence. Instead, the plaintiff argues that the mere 

failure to discuss University policy concerning expressive activity means the policy in 

force is the First Policy rather than the Second. That simply does not follow. 

In its reply brief, the plaintiff reasserts certain arguments concerning mootness 

that the Court fully considered and soundly rejected on motion to dismiss. (Doc. 48 at 

12-14). Those arguments remain invalid for the reasons set forth in the Court’s previous 

order. 

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Id. (internal quotes omitted). “Failure to show any of the four factors is fatal, and 

the most common failure is not showing a substantial likelihood of success on the 

merits.” Id.; accord Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) (“If 

[the plaintiff] is unable to show a substantial likelihood of success on the merits, 

we need not consider the other requirements.”). 

With respect to the plaintiff’s First Amendment claim, “the Supreme Court 

has broadly discerned three distinct (although not airtight) categories of 

government property for First Amendment purposes: traditional public fora, 

designated public fora, and limited public fora.” Bloedorn, 631 F.3d at 1230. 

Identifying which is at issue is important, because “the degree of scrutiny we place 

on a government’s restraint of speech is largely governed by the kind of forum the 

government is attempting to regulate.” Id. 

“Traditional public fora are public areas such as streets and parks that, since 

time out of mind, have been used for purposes of assembly, communicating 

thoughts between citizens, and discussing public questions.” Bloedorn, 631 F.3d 

at 1231 (internal quotes omitted). “A designated public forum is government 

property that has not traditionally been regarded as a public forum but that has 

been intentionally opened up for that purpose. ... To create a designated public 

forum, the government must intentionally open up a location ... for use by the 

public at large.” Id. (internal quotes omitted). “Just as with a traditional public 

forum, a time, place, and manner restriction can be placed on a designated public 

forum only if it is content neutral, narrowly tailored to achieve a significant 

government interest, and leaves open ample alternative channels of 

communication.” Id. (internal quotes omitted). Access to any other kind of forum 

(limited public forum or nonpublic forum) is subject to greater restriction. Id. 

As noted, the Second Policy explicitly closes the Perimeter to expressive 

activity, and the plaintiff wisely makes no argument that, in the face of this clear 

language, the Perimeter could be a designated public forum. Nor does the plaintiff 

assert that, even if the Perimeter is a limited public forum or a nonpublic forum, 

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the Second Policy’s closure of the Perimeter to expressive activity violates the 

First Amendment under the more relaxed standards applicable to such fora. 

Instead, the plaintiff argues exclusively that the Perimeter is a traditional public 

forum, the closure of which fails the strict scrutiny analysis applicable to such 

fora. (Doc. 45 at 15-16; Doc. 48 at 6, 9-11). Therefore, unless the plaintiff has 

shown a substantial likelihood of success in demonstrating that the Perimeter is a 

traditional public forum, it has not shown a substantial likelihood of success on the 

merits of its First Amendment claim. 

The Perimeter, as described by the plaintiff, is a “park-like area with lawns, 

picnic benches, and trees next to the public sidewalks on Old Shell Road and 

University Boulevard.” (Doc. 45 at 16). The plaintiff argues that the Perimeter is 

a traditional public forum because of these “physical characteristics” and because 

“students can socialize there.” (Doc. 48 at 11).

The plaintiff cites a number of authorities, but they generally stand only for 

the proposition that, under the facts presented, a portion of a campus had been 

affirmatively opened up by the institution as a designated public forum. Because 

the plaintiff cannot demonstrate that the University has opened up the Perimeter as 

a designated public forum, and because the plaintiff makes no argument that the 

University has done so, these authorities are inapposite. 

As for traditional public fora, the plaintiff asserts that “[t]he Supreme Court 

has determined that the outdoor areas of a public university campus, at least for 

students, are a traditional public forum.” (Doc. 48 at 9). The cases on which the 

plaintiff relies for this proposition, however, do not support it. The Court in 

Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 

(1985), stated that “a university campus, at least as to its students, possesses many 

of the characteristics of a traditional public forum,” id. at 803, (emphasis added),

but it did not say that any part of a college campus is a traditional public forum. 

Nor could it have done so, since Cornelius did not involve campus speech but a 

“charity drive aimed at federal employees.” Id. at 791. 

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The Cornelius Court relied on Widmar v. Vincent, 454 U.S. 263 (1981), 

which the plaintiff also cites. Widmar “present[ed] the question whether a state 

university, which makes its facilities generally available for the activities of 

registered student groups, may close its facilities to a registered student group 

desiring to use the facilities for religious worship and religious discussion.” Id. at 

264-65. The question was not whether a public forum existed – it did, because 

“the University has created [i.e., designated] a forum generally open for use by 

student groups,” id. at 267 – but whether, having created the forum, the university 

could discriminate against religious groups in the use of the forum. Nevertheless, 

the Court noted that it “has recognized that the campus of a public university, at 

least for its students, possesses many of the characteristics of a public forum.” Id. 

at 267 n.5. As with the similar quote from Cornelius, this statement falls far short 

of a determination that the outdoor areas of campus are a traditional public forum.2 

Indeed, Widmar is significant chiefly because it confirms that “[a] 

university differs in significant respects from public forums such as streets or 

parks or even municipal theaters.” Id. (emphasis added). Because its “mission is 

education,” a university has “authority to impose reasonable regulations 

compatible with that mission upon the use of its campus and facilities.” Id. “We 

have not held, for example, that a campus must make all of its facilities equally 

available to students and nonstudents alike, or that a university must grant free 

access to all of its grounds or buildings.” Id. (emphasis added). In context, 

Widmar more nearly states that the outdoor portions of a college campus are not a 

traditional public forum.

 2 As support for its statement that a public university campus, as to its students, 

possesses many characteristics of a public forum, the Widmar Court cited generally to 

Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), and Cox v. Louisiana, 379 

U.S. 536 (1965). Mosley involved picketing on a public sidewalk (a traditional public 

forum) adjacent to a public high school, while Cox involved a demonstration by college 

students on a public sidewalk across from the county courthouse. It is not clear what in 

these opinions supports the proposition for which they were cited.

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The plaintiff next cites Hays County Guardian v. Supple, 969 F.2d 111 (5th 

Cir. 1982), for the proposition that “[t]he campus’s function as the site of a 

community of full-time residents makes it ‘a place where people may enjoy the 

open air or the company of friends and neighbors in a relaxed environment,’ 

[citation omitted], and suggests an intended role more akin to a public street or 

park than a non-public forum.” Id. at 117 (quoting Heffron v. International 

Society for Krishna Consciousness, 452 U.S. 640, 651 (1981)). Hays County, 

however, did not rule that all or any part of the campus was a traditional public 

forum; instead, it held – based on the university’s written policies – that portions 

of campus were designated public fora. 969 F.2d at 116-17.

Moreover, the principle for which the plaintiff cites Hays County is not 

well supported therein. While the Fifth Circuit cited the same portion of Widmar

as does the plaintiff herein, it ignored the remaining portions, quoted above, that 

undermine any effort to use Widmar as authority for considering any part of a 

college campus a traditional public forum. And although Heffron described a 

public street as a place where people can enjoy fresh air and conversation in a 

relaxed environment, it does not and cannot follow that any public outdoor 

location where people can talk and relax is therefore a traditional public forum. 

Thus, for example, the plaza outside the federal courthouse in Atlanta, though 

clearly appropriate for fresh air and conversation, is not a traditional public forum. 

United States v. Gilbert, 920 F.2d 978, 984 (11th Cir. 1991).

Finally, the plaintiff relies on Roberts v. Haragan, 346 F. Supp. 2d 853 

(N.D. Tex. 2004). The Roberts Court formed the “preliminary assumption” that, 

“to the extent the campus has park areas, sidewalks, streets, or other similar 

common areas, these areas are public forums, at least for the University’s 

students.” Id. at 861. The Court believed these areas “might be referred to as 

traditional public forums,” although it hedged that they might more properly be 

termed designated public fora – at least if one ignored the established definition of 

the term and found the designation to inhere in the act of designing a campus that 

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included features resembling streets and parks. Id. at 861 n.8. Alone among the 

authorities cited by the plaintiff, Roberts arguably stands for the proposition that 

park-like areas of a campus are traditional public fora. 

The Court, however, does not find Roberts persuasive. For its unique 

ruling, Roberts relied on the same snippets from Widmar and Hays County that the 

Court has addressed above and found wanting. 346 F. Supp. 2d at 861. In 

addition, the Roberts Court relied on the unremarkable proposition that a college 

campus – in the present case, one covering almost two square miles – “‘contains a 

variety of fora.’” Id. (quoting Alabama Student Party v. Student Government 

Association, 867 F.2d 1344, 1354 (11th Cir. 1989) (Tjoflat, J., dissenting)). And 

surely it does,3 but the mere inability to assign a single label to an entire campus

fails to establish that any part of the campus fits within the narrow definition of a 

traditional public forum.

As its final ground of support, Roberts noted the Supreme Court’s 

statement that, “[i]n cases where the principal function of the property would be 

disrupted by expressive activity, the Court is particularly reluctant to hold that the 

government intended to designate a public forum.” Cornelius, 473 U.S. at 804. 

The Roberts Court extrapolated from this statement – which on its face addresses 

only designated public fora – “an equally useful definition of what characterizes a 

traditional public forum, viz., government property whose principal function 

would not be disrupted by expressive activity.” 346 F. Supp. 2d at 859 n.6. The 

definition of a traditional public forum, however, has been expressly provided by 

the Supreme Court, and the Roberts Court offered no justification for enlarging 

that definition to cover property which falls outside the Supreme Court’s 

definition so long as the principal function of the property would not be disrupted 

by expressive activity. 

 3 Because “[a] modern university contains a variety of fora,” including various 

buildings, sports venues and open areas, “labeling the campus as one single type of forum 

is an impossible, futile task.” Bowman v. White, 444 F.3d 967, 977 (8th Cir. 2006); 

accord Bloedorn v. Grube, 631 F.3d at 1232.

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“Traditional public fora are those places which ‘by long tradition or by 

government fiat have been devoted to assembly and debate.’” Cornelius, 473 U.S. 

at 802 (quoting Perry Education Association v. Perry Local Educators’ 

Association, 460 U.S. 37, 45 (1985)). Streets and parks are traditional public fora, 

because they “‘have immemorially been held in trust for the use of the public and, 

time out of mind, have been used for purposes of assembly, communicating 

thoughts between citizens, and discussing public questions.’” Perry, 460 U.S. at 

45 (quoting Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 

(1939) (opinion of Roberts, J.)). Public sidewalks are also a traditional public 

forum, because they “traditionally have been held open to the public for 

expressive activities.” United States v. Grace, 461 U.S. 171, 177, 179 (1983).

There are several key notions embedded in the definition of a traditional 

public forum. First is that “‘a traditional public forum is property that has as a 

principal purpose ... the free exchange of ideas.’” International Society for 

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (quoting Cornelius, 

473 U.S. at 800).

Second is the necessity of a longstanding, traditional use of the property for 

public expressive activity. “The Court has rejected the view that traditional public 

forum status extends beyond its historic confines ....” Arkansas Educational 

Television Commission v. Forbes, 523 U.S. 666, 678 (1998). “The doctrines 

surrounding traditional public forums may not be extended to situations where 

such a history is lacking.” United States v. American Library Association, Inc., 

539 U.S. 194, 206 (2003). For example, “[t]he notion that federal military 

reservations, like municipal streets and parks, have traditionally served as a place 

for free public assembly and communication of thoughts by private citizens is thus 

historically and constitutionally false.” Greer v. Spock, 424 U.S. 828, 838 (1976). 

Third, “[t]he mere physical characteristics of the property cannot dictate 

forum analysis.” United States v. Kokinda, 497 U.S. 720, 727 (1990) (plurality 

opinion). Instead, the “location and purpose of a publicly owned [property] is 

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critical to determining whether [it] constitutes a public forum. Id. at 728. Thus, a 

post office sidewalk that was “not distinguishable” in appearance from a nearby 

city sidewalk nevertheless was not a traditional public forum because it was not 

designed for use by the general public but only by those engaged in postal 

business. Id.

The plaintiff has not come to grips with these requirements. Instead, it 

seems to believe that, if a grassy area on the edge of campus has trees and 

benches, and students are permitted to socialize there, the area is perforce a 

traditional public forum. But even if it be assumed that the Perimeter looks 

somewhat like a park (though it has not been declared one), its “mere physical 

characteristics” cannot render it a traditional public forum any more than could the 

appearance of the sidewalk in Kokinda. Nor does use of the Perimeter for 

“socializing” establish its purpose as one of assembly, public debate and the free 

exchange of ideas. And even had the plaintiff offered evidence that a principal 

purpose of the Perimeter is expressive activity, it has done nothing to show that 

the republic boasts a long tradition of using the grassy border areas of public 

college campuses for such purposes. 

The Eighth Circuit in Bowman v. White, 444 F.3d 967 (8th Cir. 2006), noted 

that the physical characteristics of certain open spaces on campus might on their 

own suggest they were traditional public fora but, in light of the educational 

mission of a university, “streets, sidewalks, and other open areas that might 

otherwise be traditional public fora may be treated differently when they fall 

within the boundaries of the University’s vast campus.” Id. at 978. The Court 

concluded the open areas at issue were not traditional public fora but designated 

public fora. The plaintiff does not address Bowman. 

Even more damaging to the plaintiff is the Eleventh Circuit’s 

pronouncement that “a state-funded university is not a traditional public forum 

....” Bloedorn, 631 F.3d at 1232. The sidewalks and pedestrian mall at issue in 

Bloedorn “physically resemble[d] municipal sidewalks and public parks,” yet the 

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Court ruled they were but limited public fora, because “the purpose of a university 

is strikingly different from that of a public park,” and “[i]ts essential function is 

not to provide a forum for general public expression and assembly.” Id. at 1232-

34.

The plaintiff argues that Bloedorn is inapposite because it involved a 

citizen seeking access, not a student. The plaintiff, relying on Widmar’s statement 

that “the campus of a public university, at least for its students, possesses many of 

the characteristics of a public forum,” 454 U.S. at 267 n.5, believes that the same 

property can simultaneously be a traditional public forum as to some (such as 

students) and something other than a traditional public forum as to others. (Doc. 

48 at 9). But since, as already noted, Widmar did not state that a college campus is 

a traditional public forum, it also did not say that a college campus is a traditional 

public forum “at least for its students.” The question is always “whether 

government property may be utilized for an expressive purpose by the general 

public.” Bloedorn, 631 F.3d at 1230 (emphasis added). This is so not only for 

traditional public fora but for designated public fora as well, which are fora 

opened “for use by the public at large.” Id. at 1231 (citing Cornelius, 473 U.S. at 

802); see also Miller v. City of Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010) (“The 

government creates a designated public forum when it opens a piece of public 

property to the public at large, treating [it] as if it were a traditional public 

forum.”) (emphasis added); Campbell v. St. Tammany’s School Board, 206 F.3d 

482, 486 (5th Cir. 2000) (“Although a school is not a traditional public forum, a 

district may designate it as such by indiscriminately permitting use by the public 

at large for assembly and speech.”), vacated on other grounds, 533 U.S. 913 

(2001). 

For the reasons set forth above, the Court concludes the plaintiff has not 

demonstrated a substantial likelihood of showing that the Perimeter is a traditional 

public forum. Therefore, the plaintiff has not shown a substantial likelihood of 

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prevailing on the merits of its First Amendment claim. Absent such a likelihood, 

it cannot obtain a preliminary injunction under its First Amendment claim.

The plaintiff claims the Second Policy violates the Due Process Clause 

because it “does not clearly define the boundaries of the [Perimeter] between 

buildings or near athletic fields.” (Doc. 45 at 25).4 The plaintiff asserts the 

Second Policy violates the Equal Protection Clause because it prohibits expressive 

activity in the Perimeter but permits students to socialize there. (Id. at 26). Each 

of these arguments receives a single page or less of briefing, and each relies solely 

on glittering generalities that do not address the situation here presented. That is 

far too cursory a treatment to demonstrate a substantial likelihood of prevailing on 

the merits.5 Moreover, the plaintiff has not addressed the other three requirements 

for injunctive relief at all.6 The plaintiff therefore cannot obtain an injunction on 

the strength of these claims. 

For the reasons set forth above, the plaintiff’s motion for preliminary 

injunction is denied.

DONE and ORDERED this 27th day of February, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 4 The plaintiff also asserts the Second Policy is unconstitutionally overbroad, 

(Doc. 45 at 24-25), but the amended complaint on its face limits the plaintiff’s due 

process challenge to one of vagueness, not overbreadth. (Doc. 29 at 32-34).

5 The plaintiff expressly ties the success of its equal protection claim to the 

success of its First Amendment claim. (Doc. 45 at 34). Since the latter claim will not 

support injunctive relief, by the terms of the plaintiff’s argument neither will the former.

As for the vagueness claim, it does not appear the plaintiff has any present 

intention of engaging in expressive activity between buildings or near athletic fields, 

(Doc. 44-1 at 4), so it seems unlikely this claim is even ripe. 

6 The plaintiff expressly limits its discussion of these requirements to its First 

Amendment claim. (Doc. 45 at 34-37). 

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