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 parties’ cross-motions for summary 

judgment. (Docs. 97, 100). The parties have filed briefs and evidentiary materials 

in support of their respective positions, (Docs. 98-99, 101-04, 106-08, 110-11), 

and the motions are ripe for resolution. After careful consideration, the Court 

concludes that both motions are due to be granted in part and denied in part.

1

BACKGROUND

According to the amended complaint, (Doc. 29), the plaintiff is a student 

organization at the University of South Alabama (“the University”), located in 

Mobile, Alabama. The plaintiff seeks to promote its pro-life message through 

flyers, signs, peaceful demonstrations and other means. In October 2013 and 

again in February 2014, the plaintiff sought permission to place a “cemetery of 

 1 In addition to their 30-page brief, (Doc. 98), the defendants filed an eight-page 

motion containing assertions of fact and legal argument. (Doc. 97). This is an improper 

skirting of the District’s 30-page limitation on the length of principal briefs. Civil Local 

Rule 7(e). See, e.g., State Farm Fire & Casualty Co. v. Richardson, 2008 WL 4531765 

at *1 n.1 (S.D. Ala. 2008) (“The 30-page briefing limitation ... would be meaningless if a 

party could disaggregate the fact and law portions of its brief into two different filings.”). 

“Like its sister courts, the Court will not countenance any attempt to avoid the page limit 

requirement of the Local Rules.” FNB Bank v. Park National Corp., 2013 WL 68427788 

at *1 n.1 (S.D. Ala. 2013) (internal quotes omitted). 

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innocents” at various campus locations, including an area between an academic 

building (“Shelby Hall”) and two intersecting public roads (“Old Shell Road” and 

“University Boulevard”). Permission to use such locations was denied by 

University officials. The plaintiff ultimately utilized an area around the student 

center (“the Speech Zone”) that the University’s policy (“the First Policy”) 

identified as the only campus location permitted to be used for student speech. In 

August 2014, the University adopted another policy (“the Second Policy”), which 

expands the locations that can be used for student speech but which continues to 

prohibit such speech within an area (“the Perimeter”) that includes most spaces 

between the street side of campus buildings and the public sidewalks paralleling 

Old Shell Road and University Boulevard. (Id. at 4, 11, 13-20). 

The amended complaint names as defendants, in their individual and 

official capacities: (1) the University’s president, Tony Waldrop; (2) its vicepresident for student affairs, John Smith; (3) its assistant vice-president for student 

affairs and dean of students, Michael Mitchell; and (4) the dean of its college of 

engineering, John Steadman. (Doc. 29 at 1).

Count One of the amended complaint alleges that the First and Second 

Policies violate the plaintiff’s First Amendment rights of free speech. Count Two 

alleges that the First and Second Policies violate the plaintiff’s due process rights, 

while Count Three alleges the policies violate the plaintiff’s equal protection 

rights. The amended complaint seeks as relief: (1) a declaration that the Policies 

violate the plaintiff’s constitutional rights; (2) an injunction against enforcement of 

the Policies and associated practices; (3) an award of nominal damages against the 

defendants individually; and (4) attorney’s fees and costs. (Doc. 29 at 26-38).

The Court granted the defendants’ motion to dismiss the amended 

complaint’s requests for declaratory and injunctive relief with respect to the First 

Policy, on the grounds of mootness. (Doc. 49 at 3-10, 29). The Court also 

granted, on the grounds of qualified immunity, the motion to dismiss the amended 

complaint’s demand for nominal damages against the individual defendants, 

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except to the extent the demand is based on alleged viewpoint discrimination in 

violation of the First Amendment by Mitchell and Steadman in denying 

permission (under the First Policy) to use what is now the Perimeter for a 

cemetery of innocents. (Id. at 13-27, 29). The parties’ cross-motions seek 

summary judgment in their favor as to all claims remaining after these rulings.2

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial 

burden to show the district court, by reference to materials on file, that there are no 

genuine issues of material fact that should be decided at trial.” Clark v. Coats & 

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

 2 The plaintiff’s motion nominally seeks judgment in the plaintiff’s favor “on all 

remaining causes of action,” including the due process and equal protection claims 

regarding the Second Policy. (Doc. 100 at 1-2). The plaintiff’s briefing in support of its 

motion, however, addresses the Second Policy only with respect to its First Amendment 

aspect. (Docs. 101, 110). The plaintiff’s brief in opposition to the defendants’ motion 

for summary judgment addresses the due process and equal protection claims in a single 

page. (Doc. 106 at 37). The defendants do not argue that the plaintiff’s laconic briefing 

of itself precludes summary judgment in the plaintiff’s favor, and the Court will not do so 

on their behalf. 

Even though the plaintiff’s demand for nominal damages in connection with the 

Second Policy has already been dismissed, (Doc. 49 at 25-26, 29), the plaintiff’s motion 

for summary judgment seeks such an award. (Doc. 100 at 2). The plaintiff has since 

“withdraw[n] its damages request.” (Doc. 110 at 20). 

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“When the moving party has the burden of proof at trial, that party must 

show affirmatively the absence of a genuine issue of material fact: it must support 

its motion with credible evidence ... that would entitle it to a directed verdict if not 

controverted at trial. [citation omitted] In other words, the moving party must 

show that, on all the essential elements of its case on which it bears the burden of 

proof, no reasonable jury could find for the nonmoving party.” United States v. 

Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) 

(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 

(11th Cir. 1993).

“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord 

Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608. 

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving 

party fails to make ‘a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof,’ the moving party is entitled to 

summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a 

party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

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There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.3 Accordingly, the Court limits its review to the 

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[t]here is no burden upon the district court to distill 

every potential argument that could be made based upon the materials before it on 

summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced.

I. Second Policy.

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 Perimeter to expressive activity is the 

plaintiff’s sole challenge to the Second Policy. (Doc. 29 at 27-30, 33, 36). As 

noted, the amended complaint alleges that the Second Policy violates the 

plaintiff’s free speech, due process and equal protection rights. (Id. at 26-37). 

 3 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

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A. Free Speech.

“[T]he 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 

v. Grube, 631 F.3d 1218, 1230 (11th Cir. 2011). 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. For both traditional and designated public fora, “a time, place, and 

manner restriction can be placed ... only if it is content neutral, narrowly tailored 

to achieve a significant government interest, and leaves open ample alternative 

channels of communication.” Id. at 1231 (internal quotes omitted). In contrast, 

“[a]ny restrictions made on expressive activity in a limited public forum only must 

be reasonable and viewpoint neutral.” Id.

4

 

 4 The Supreme Court has recently defined a “traditional public forum” as a place, 

“such as a street or a park, which has immemorially been held in trust for the use of the 

public and, time out of mind, has been used for purposes of assembly, communicating 

thoughts between citizens, and discussing public questions.” Walker v. Sons of 

Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015) (internal quotes omitted). The 

Walker Court described a “designated public forum” as one “which exists where 

government property that has not traditionally been regarded as a public forum is 

intentionally opened up for that purpose.” Id. (internal quotes omitted). The Walker 

Court depicted a “limited public forum” as “exist[ing] where a government has reserved a 

forum for certain groups or for the discussion of certain topics.” Id. (internal quotes 

omitted). The Walker Court also identified a fourth type of forum – a “nonpublic forum, 

which exists where the government is acting as proprietor, managing its internal 

operations.” Id. at 2251 (internal quotes omitted). 

The Supreme Court has at other times used different or overlapping terminology 

to describe the same sorts of fora. In Arkansas Educational Television Commission v. 

Forbes, 523 U.S. 666 (1998), for example, the Court listed the types of fora as traditional 

public forum, designated public forum, nonpublic forum (what Walker and other cases 

call a limited public forum) and non-forum. Id. at 677. The Supreme Court has 

sometimes used “limited public forum” to indicate a forum that is a designated public 

forum as to some and not a public forum as to others. See Cornelius v. NAACP Legal 

Defense and Educational Fund, Inc., 473 U.S. 788, 811 (1985); see also International 

Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677 (1992) (“The second 

category of public property is the designated public forum, whether of a limited or 

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1. Traditional public forum.

In support of its motion for preliminary injunction, the plaintiff argued that 

the Perimeter constitutes a traditional public forum, that is, one of the “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). For a 

number of reasons – including the Bloedorn Court’s pronouncement that “a statefunded university is not a traditional public forum,” id. at 1232 – the Court 

concluded that the plaintiff had not shown a substantial likelihood of prevailing on 

its argument that the Perimeter is a traditional public forum. (Doc. 55 at 3-11). 

The plaintiff does not on the present motions argue that the Perimeter is or could 

be a traditional public forum. To the uncertain extent the plaintiff has not 

abandoned such an argument, the Court holds, for reasons expressed in its order 

denying preliminary injunctive relief, that the Perimeter is not a traditional public 

forum.

2. Designated public forum. 

The plaintiff asserts that the Perimeter is a designated public forum. “We 

have held that a government entity may create a ‘designated public forum’ if 

government property that has not traditionally been regarded as a public forum is 

intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 

U.S. 460, 470 (2009). “Designated public fora ... are created by purposeful 

governmental action.” Arkansas Educational Television Commission v. Forbes, 

523 U.S. 666, 677 (1998). “The government does not create [i.e., designate] a 

public forum by inaction or by permitting limited discourse, but only by 

 

unlimited character – property that the State has opened for expressive activity by part or 

all of the public.”). The parties, and the Court, employ the Walker labels.

 

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intentionally opening a nontraditional forum for public discourse.” Cornelius v. 

NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802 (1985). 

“Public discourse” in this context means “‘indiscriminate use.’” Hazelwood 

School District v. Kuhlmeier, 484 U.S. 260, 267 (1988) (quoting Perry Education 

Association v. Perry Local Educators’ Association, 460 U.S. 37, 47 (1983))

(“Perry”). The government must make the property at issue “generally available”’ 

or “generally open.” Forbes, 523 U.S. at 678-79. “A designated public forum is 

not created when the government allows selective access for individual speakers 

rather than general access for a class of speakers.” Id. at 679. Thus, “the 

government does not create a designated public forum when it does no more than 

reserve eligibility for access to the forum to a particular class of speakers, whose 

members must then, as individuals, obtain permission.” Id. (internal quotes 

omitted). 

It is thus the intent of the government to designate a forum as generally 

open for public discourse that matters, and the question becomes whether the 

plaintiff has sufficient evidence of such an intent to at least raise a genuine issue of 

material fact. “[T]he [Supreme] Court has looked to the policy and practice of the 

government to ascertain whether it intended to designate a place not traditionally 

open to assembly and debate as a public forum.” Cornelius, 473 U.S. at 802. 

“The Court has also examined the nature of the property and its compatibility with 

expressive activity to discern the government’s intent.” Id; accord Walker v. Sons 

of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015).5 

The Second Policy explicitly limits expressive activity by non-University 

sponsored individuals and groups (i.e., the general public) to the Speech Zone. 

(Doc. 29-10 at 3). The plaintiff does not suggest that the University nevertheless 

has a practice of permitting the general public to engage in expressive activity 

within the Perimeter. Indeed, the plaintiff does not contest that, as to the general 

 5 The plaintiff agrees that these are the governing factors. (Doc. 101 at 24, 27).

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public, the Perimeter is a limited public forum. Instead, the plaintiff argues that 

the Perimeter is a limited public forum as to the general public but a designated 

public forum as to students and student organizations.

As it did in opposing the defendants’ motion to dismiss, the plaintiff relies 

on Bloedorn for the proposition that the same location can be simultaneously a 

designated public forum as to some and a limited public forum as to others. While 

admitting that Bloedorn does not contain any such statement,

6 the plaintiff insists 

that “[i]t makes no sense to say outdoor areas of campus are limited public fora 

because they are reserved for students, only then to say they are also limited 

public fora for those students.” (Doc. 106 at 25 (emphasis in original)). Without 

endorsing the plaintiff’s reasoning, the Court accepts that the Perimeter could 

theoretically be a designated public forum as to students despite being a limited 

public forum as to the general public.7

a. Policy.

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

activity by students (as well as by employees and outsiders). A clearer expression 

of intent not to make the Perimeter generally open for student discourse is difficult 

 6 Far from it. “To create a designated public forum, the government must 

intentionally open up a location or communication channel for use by the public at 

large.” 631 F.3d at 1231 (emphasis added). “The University has limited these areas 

[sidewalks, pedestrian mall and rotunda] only for use by a discrete group of people – the 

[university] community; its students, faculty, and employees; and their sponsored guests. 

... This is precisely the definition of a limited public forum.” Id. at 1232 (emphasis 

added).

7 See Forbes, 523 U.S. at 678 (1998) (“The government is free to open additional 

properties for expressive use by the general public or by a particular class of speakers, 

thereby creating designated public fora.”); Lee, 505 U.S. at 677 (a “designated public 

forum” is one “that the State has opened for expressive activity by part or all of the 

public.”); Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (applying the standard of 

review applicable to designated public fora when a university “created a forum generally 

open for use by student groups”).

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to imagine. Rather than confront this formidable obstacle, the plaintiff repairs to 

the student handbook, which states that the University “is a community of scholars 

in which the ideals of freedom of inquiry, freedom of thought, freedom of 

expression and freedom of the individual are sustained” and (under the heading of 

“security policies and procedures”) that access to University facilities is generally 

limited to University “affiliates” such as student groups. (Doc. 103-22 at 53, 78-

79; Doc. 101 at 25). The plaintiff also selectively quotes from the Second Policy 

to show that its purpose “is to promote the free exchange of ideas” and 

accommodate “the rights of students ... to speak on campus.” (Doc. 29-10 at 1; 

Doc. 101 at 25). But the very most these glittering generalities could establish is a 

University policy to permit student expressive activity except where it is 

prohibited; they do not remotely undermine the clarity and efficacy of the Second 

Policy’s ban on expressive activity in the Perimeter.8

The plaintiff argues that the Second Policy is, if not irrelevant, at least 

inconsequential because it is only a self-justifying attempt to say that what is 

clearly a designated public forum is not. (Doc. 101 at 26; Doc. 106 at 25-26; Doc. 

110 at 17). The Court accepts that, as the plaintiff’s authority states, “consistent 

practice can on occasion overcome a bare statement of intent to the contrary.” 

Stewart v. District of Columbia Armory Board, 863 F.2d 1013, 1017 (D.C. Cir. 

1988). As discussed in Part I.A.2.b, however, the plaintiff has failed to show a 

consistent or even sporadic practice by the University of authorizing, contrary to 

its formal policy, indiscriminate use of the Perimeter for general student discourse. 

 8 The plaintiff stresses that courts in other jurisdictions have considered multiple 

policies in determining whether a designated public forum had been established. (Doc. 

110 at 17 & n.6). The Court does not doubt that such an exercise is appropriate; it rules 

only that the effort is futile in this case, given the policies at issue. None of the plaintiff’s 

cases remotely support the proposition that a policy as specific and unequivocal as the 

Second Policy can be neutralized and thus disregarded by resort to other policies as 

general and vague as those on which the plaintiff seizes. 

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Reliance on the Second Policy as reflecting an intent not to create a 

designated public forum is not, as the plaintiff contends, an exercise in “circular 

reasoning.” What the Fifth Circuit described as circular reasoning was the 

proposition that a government unit with a “general policy of open access” could 

cause its property to “cease to be a designated public forum” by the simple 

expedient of “adopt[ing] a[n] ... exceptional regulation” imposing a “specific 

restriction on speech” without “depart[ing] from [its] consistent practice” of 

allowing open access, such that “[t]he restriction would disprove any intent to 

create a designated public forum, and the failure to create a public forum would 

justify the restriction of speech.” Hays County Guardian v. Supple, 969 F.2d 111, 

117 (5th Cir. 1992).9 Here, the University does not have a general policy of open 

access to the Perimeter, and it does not suggest that a limited exception to such a 

policy negates the designated public forum status flowing from the policy. 

Instead, the University has an express policy of denying access to the Perimeter 

for student speech. This clear expression of intent is precisely what the Cornelius

analysis requires the Court to weigh against an intent to create a designated public 

forum.

b. Practice. 

The Court agrees with the plaintiff, (Doc. 106 at 27), that “[a] policy 

purporting to keep a forum closed (or open to expression only on certain subjects) 

is no policy at all for purposes of public forum analysis if, in practice, it is not 

enforced or if exceptions are haphazardly permitted.” Hopper v. City of Pasco, 

241 F.3d 1067, 1076 (9th Cir. 2001). The plaintiff identifies a number of instances 

over the past five years which, it says, reflect a widespread practice of allowing 

 9 This was also the situation discussed in OSU Student Alliance v. Ray, 699 F.3d 

1053, 1063 (9th Cir. 2012), on which the plaintiff also relies.

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open-ended student expressive activity within the Perimeter. The Court considers 

these in turn.10

i. College of Engineering cookout.

In February 2014, the College of Engineering held a cookout in the 

Perimeter, complete with flag football, tug-of-war and a jousting ring. (Doc. 103-

8 at 2). It is uncontroverted that these were “College of Engineering events,” 

(Doc. 108-5 at 2; Doc. 108-6 at 66), and the plaintiff admits it was the University 

itself that used the Perimeter for the cookout. (Doc. 101 at 13). 

“When the government speaks, it is not barred by the Free Speech Clause 

from determining the content of what it says.” Walker, 135 S. Ct. at 2245. There 

may be other constitutional or statutory limits on the government’s ability to 

express itself, id. at 2246, and the First Amendment could be implicated if the 

government sought to compel private persons to convey its speech, id., but the 

plaintiff does not contend that any such possibility or provision is in play here. 

Assuming without deciding that holding a cookout is expressive activity in any 

constitutionally meaningful sense, such expressive activity was that of the 

University itself and thus irrelevant to whether the University has opened the 

Perimeter to general student discourse.

ii. September 11 memorial.

In September 2011, the Department of Air Force Studies, the Department 

of Military Science, and Student Affairs hosted a commemorative ceremony at the 

flagpole in front of the administration building. (Doc. 103-11 at 2). It is 

uncontroverted that the hosts are all part of the University, and the plaintiff admits 

that the event constituted the University’s own use of the Perimeter. (Doc. 101 at 

 10 Some of these episodes occurred before the Second Policy was adopted in 

August 2014. Because the defendants do not argue that these more remote incidents are 

irrelevant to the inquiry, the Court considers them.

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13). As with the College of Engineering cookout, the flagpole ceremony 

constituted the University’s speech and so contributes nothing to the plaintiff’s 

argument that the University has by practice opened the Perimeter to general 

student discourse. 

iii. Signs advertising intramural sports.

The plaintiff states that banners advertising intramural sports have appeared 

from time to time at a particular intersection within the Perimeter. (Doc. 101 at 

14). It is uncontroverted that intramural sports are sponsored by the University 

and that the signs advertising them were placed by the University. (Doc. 99-6 at 

4). Since the signs constitute the University’s own speech, they do not bolster the 

plaintiff’s case. 

iv. Signs promoting tobacco-free campus.

The plaintiff submits pictures of yard signs within the Perimeter notifying 

readers that the University “is going tobacco free August 1, 2015” and 

encouraging them to “be Jag healthy!” (Doc. 103-18). It is uncontroverted that 

these signs were placed by the University to promote the University’s no-tobacco 

policy. (Doc. 99-1 at 16; Doc. 99-6 at 4). Again, this is speech by the University 

itself and so cannot indicate the University has generally opened the Perimeter to 

student discourse. 

v. ROTC training. 

The plaintiff has submitted photographs of what it says are “ROTC cadets 

conduct[ing] military exercises” in the Perimeter. (Doc. 101 at 14; Doc. 103-15). 

The photographs confirm that the group was engaged in a training exercise, pure 

and simple. 

“We cannot accept the view that an apparently limitless variety of conduct 

can be labeled ‘speech’ whenever the person engaging in the conduct intends 

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thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968). 

Even when the American flag – the “very purpose [of which] is to serve as a 

symbol of our country” – is involved, the Supreme Court does not “automatically

conclud[e]” that the conduct is expressive. Texas v. Johnson, 491 U.S. 397, 405 

(1989). “Instead, in characterizing such action for First Amendment purposes, we 

have considered the context in which it occurred.” Id. And when “[t]he 

expressive component of ... actions is not created by the conduct itself but by the 

speech that accompanies it[,] [t]he fact that such explanatory speech is necessary 

is strong evidence that the conduct at issue ... is not so inherently expressive that 

it warrants protection under O’Brien.” Rumsfeld v. Forum for Academic and 

Institutional Rights, Inc., 547 U.S. 47, 66 (2006).

The plaintiff offers no evidence that the cadets intended by their conduct to 

“express an idea” to begin with. Even had it done so, practicing military 

maneuvers is simply part of what ROTC cadets do, and in that context it carries no 

more inherent expressive content for purposes of First Amendment analysis than 

does a surgeon’s wielding of a scalpel or a student’s walking to class. Any 

expressive content would have to conveyed, as in Rumsfeld, by explanatory 

speech, and the plaintiff identifies none. 

In short, the cadets’ military exercise does not constitute expressive activity 

for First Amendment purposes and so is irrelevant to the plaintiff’s effort to 

establish the Perimeter as a designated public forum for such purposes. 

vi. Homecoming campaign sign.

The plaintiff has evidence that, in October 2015, a “sheet sign” seeking 

support for a homecoming queen candidate hung for three days within the 

Perimeter before the candidate removed it. (Doc. 106-1 at 4-5, 7-8). It is 

uncontroverted that the candidate did not seek or obtain permission to hang the 

sign, and it is uncontroverted that defendant Mitchell, who is responsible for 

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implementing and enforcing the Second Policy, did not see the sign or know it was 

there. (Doc. 111-1 at 3-4). 

As noted, a designated public forum arises only when the government 

“intentionally open[s] a nontraditional forum for public discourse.” Cornelius, 

473 U.S. at 802. The plaintiff has not explained, and the Court cannot fathom, 

how a brief, unknown, unauthorized episode of expressive activity in violation of 

explicit policy could suggest in the slightest that a government has intentionally 

opened its property for public discourse. 

vii. Other cookouts.

The plaintiff has evidence that the Society of Women Engineers (“SWE”),

a student organization, along with the College of Engineering, hosted a “welcome 

back cookout” in August 2013 and again in August 2015. (Docs. 103-12, -13).11 

The plaintiff also has evidence that, in August 2014, Gulf Region Intelligent 

Transportation Systems (“GRITS”), another student organization, hosted a 

cookout that was co-sponsored by the College of Engineering. (Doc. 103-14; Doc. 

108-5 at 3).12

The plaintiff contends that, because SWE and GRITS co-sponsored these 

cookouts, their expressive content constitutes student speech. Though 

unsupported by citation to authority, the assertion is plausible, and the defendants 

have done nothing to undermine it. Instead, the defendants deny there was any 

expressive activity in connection with the cookouts, (Doc. 107 at 14, 21), but they 

 11 The defendants have evidence that the College of Engineering organized the 

events, paid for the food, and supplied the grills, tables and tents. (Doc. 108-5 at 2-3).

12 The plaintiff does not deny that the University was a sponsor of these events. 

(Doc. 110 at 12). While the defendants deny that SWE or GRITS co-sponsored the 

cookouts, (Doc. 107 at 8), the plaintiff’s evidence creates a genuine issue of fact. The 

defendants appear to believe that “hosting” and “sponsoring” an event are two materially 

different concepts, (Doc. 108-5 at 3), but without explanation – which they do not 

provide – the Court cannot indulge that assumption. 

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cite nothing that would compel such a conclusion. The plaintiff identifies the 

message conveyed by these events as one of welcoming students and employees to 

campus, promoting the organizations, and soliciting new members, (Doc. 110 at 

12), and the record excerpts it cites would support that construction. For present 

purposes, the Court therefore assumes that the University has, once a year for 

three years, allowed a student engineering organization to promote itself and 

solicit new members at a cookout held within the Perimeter. 

viii. Another September 11 memorial.

The plaintiff has evidence that, in September 2010, the Student 

Government Association (“SGA”), along with the Dean of Students’ office and the 

Army/Air Force ROTC, “invite[d] the campus community to commemorate the 

events of September 11, 2001 by joining us for a brief ceremony” at the flagpole 

outside the administration building. (Doc. 103-16). Without any citation to the 

record, the defendants insist that this event was “University-sponsored [and] not 

student organization expressive activit[y].” (Doc. 107 at 8). In light of the 

plaintiff’s evidence, the Court cannot indulge the defendants’ ipse dixit.

ix. Relay for Life signs.

Finally, the plaintiff has evidence that, in March 2015, Colleges Against 

Cancer (“CAC”), a student organization, placed three yard signs within the 

Perimeter advertising its Relay for Life event, which signs remained in place until 

sometime in June 2015. (Doc. 103-20; Doc. 103-25 at 4; Doc. 106-1 at 2). The 

signs provide visual directions to the event and some sponsor (Walmart) 

information. The most visible portions of the signs say, “Join us in the Fight 

Against Cancer,” “RELAY FOR LIFE,” “American Cancer Society,” and 

“Celebrate. Remember. Fight Back.” (Doc. 103-20). 

It is uncontroverted that CAC sought permission to place small directional 

signs to the event when there was a late change in its on-campus venue; that 

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Rachael Bolden in the Office of Student Activities granted permission but under 

the assumption they would not be placed in the Perimeter; that she later saw one of 

the signs in the Perimeter but did not seek to have it removed because it was a 

short time before the event and because its purpose was to direct participants to the 

event; that she did not realize the signs remained in place long after the March 20 

event; that the ordinary practice is for event-related signs anywhere on campus to 

be removed by event organizers upon the conclusion of the event, failing which 

the University grounds department is to remove them; and that no one was ever 

warned or sanctioned for placing the signs in the Perimeter. (Doc. 104-24 at 2; 

Doc. 106-2 at 3; Doc. 108-10 at 3; Doc. 111-2 at 3). 

Contrary to the defendants’ suggestion, this evidence does not prove that 

the signs “went undetected by University officials.” (Doc. 111 at 11). That 

Bolden did not notice the signs’ continued presence cannot demonstrate that 

Mitchell and other University officials did not notice; indeed, the long time the 

signs remained in place (between two and three months), with at least two of them 

on a major artery into campus, of itself supports an inference that the University 

knew the signs were there.

x. Summary and analysis.

The plaintiff has evidence of the following relevant student speech or 

expressive activity in the Perimeter: (1) co-sponsorship by the SGA of a 9-11 

commemorative ceremony in 2010; (2) co-sponsorship by two engineering 

organizations of three welcome-back cookouts, one each in 2013, 2014 and 2015; 

and (3) placement of several yard signs advertising an anti-cancer event in MarchJune 2015. The question becomes whether these episodes indicate that the 

University has generally opened the Perimeter to student discourse.

As noted, “[t]he government does not create a public forum ... by 

permitting limited discourse,” Cornelius, 473 U.S. at 802, and “[a] designated 

public forum is not created when the government allows selective access for 

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individual speakers rather than general access for a class of speakers.” Forbes, 

523 U.S. at 679. At best, the plaintiff can identify only five occurrences of student 

speech in the Perimeter in as many years, an infrequency that does not suggest the 

University has purposefully opened that area to “indiscriminate use” as a public 

forum.

Nor does the subject matter of these isolated occurrences suggest the 

University has opened the Perimeter to general student discourse (designated 

public forum) as opposed to “the discussion of certain subjects” (limited public 

forum). Summum, 555 U.S. at 470; accord Walker, 135 S. Ct. at 2250. Three of 

the five instances were mere social gatherings of engineering students seeking to 

bond with professors and other engineering students, and the other two addressed 

eminently non-controversial topics.13 It is uncontroverted that the University’s 

restriction on speech in the Perimeter is based in part on a desire to avoid being 

perceived by the Mobile community (which the Perimeter faces) as taking sides on 

any controversial political or social issue,

14 and the plaintiff has no evidence that 

the University has ever permitted student speech in the Perimeter on any 

controversial matter of any kind.15 Without such evidence, the most the plaintiff 

can show is that by practice the University has opened the Perimeter only to the 

“discussion of certain [i.e., non-controversial] subjects.” Since the government 

can (if it honors viewpoint neutrality) restrict speech in order to avoid controversy 

 13 The plaintiff has not suggested the existence of a vigorous pro-cancer lobby. 

And while the root causes of, and blame for, the September 11 attacks may provoke 

disagreement, the tragedy of the lives lost that day does not. The 2011 flagpole event 

was limited to “remember[ing] and honor[ing] the lives lost ... on 9/11,” (Doc. 103-11 at 

2), and the plaintiff has identified no evidence that the 2010 event had a different focus. 

14 (Doc. 98 at 14; Doc. 99-5 at 27-28; Doc. 99-8 at 30-32; Doc. 99-9 at 71-72). 

As discussed in Part I.A.3.a.iii, infra, the plaintiff’s only efforts to draw this evidence into 

question fail to do so. 

15 Even could the 2010 commemoration of 9-11 be considered controversial, the 

plaintiff’s own authority confirms that “[o]ne or more instances of erratic enforcement of 

a policy does not itself defeat the government’s intent not to create a public forum.” 

Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65, 78 (1st Cir. 2004).

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in a limited public forum but not in a designated public forum, Cornelius, 473 U.S. 

at 811, the University’s desire to avoid controversial speech in the Perimeter, and 

the plaintiff’s inability to produce evidence the University has permitted 

controversial speech there, demonstrate that it has not by practice evinced an 

intent to open the Perimeter to general student discourse. 

In United States v. Kokinda, 497 U.S. 720 (1990), “individuals or groups 

ha[d] been permitted to leaflet, speak, and picket on postal premises, ... but a 

regulation prohibiting disruption ... and a practice of allowing some speech 

activities on postal property do not add up to the dedication of postal property to 

speech activities.” Id. at 730 (plurality opinion). This history reflected only 

“selective access,” which “does not transform government property into a public 

forum.” Id. (internal quotes omitted). Thus, the postal premises remained a 

limited public forum, and the government’s ban on solicitation on postal premises 

was reviewable only for reasonableness. Id. 

Kokinda thus establishes that a practice of permitting some controversial 

speech (picketing almost by definition involves a controversial issue) is 

insufficient to reflect that the government has opened the forum to other 

controversial speech (solicitation, which would include solicitation for 

controversial causes). Here, the plaintiff has not even shown a practice of 

permitting some forms of controversial speech in the Perimeter, so its case is 

weaker than that ruled legally inadequate in Kokinda. Certainly the plaintiff has 

not attempted to explain how its position (that a few, infrequent instances of bland 

student speech on non-controversial matters demonstrates the University 

purposely opened the Perimeter to unlimited student speech on any and all

matters) can be reconciled with Kokinda.

16 

 16 While it is a four-Justice plurality opinion, the Eleventh Circuit has employed 

this portion of Kokinda without reservation. Sentinel Communications Co. v. Watts, 936 

F.2d 1189, 1204 (11th Cir. 1991). The Bloedorn Court also relied on Kokinda for the 

proposition that “[i]t is immaterial that, inevitably, some expressive conduct may occur in 

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In short, while the University’s practice may suggest an intent to permit the 

discussion of certain subjects, such an intent reflects only a limited public forum;

the University’s practice does not support a reasonable inference that the 

University intended to create a designated public forum by opening the Perimeter 

to general student discourse.

c. Nature of the property.

The plaintiff identifies three ways in which the nature of the Perimeter 

suggests it is a designated public forum: (1) it is part of a college campus; (2) it 

resembles a public park (a traditional public forum), with expansive lawns, 

sidewalks and picnic benches; and (3) its outer border is a public sidewalk – a 

traditional public forum – with no physical barrier between the two. (Doc. 101 at 

26-27). 

As the plaintiff acknowledges, “[t]he physical characteristics of the 

property alone cannot dictate forum analysis.” Bloedorn, 631 F.3d at 1233. As 

the plaintiff does not acknowledge, the nature of the property is relevant only to 

the extent it helps “discern the government’s intent” to create a designated public 

forum. Cornelius, 473 U.S. at 802; accord Sentinel Communications Co. v. Watts, 

936 F.2d 1189, 1202 (11th Cir. 1991) (“[T]he touchstone for determining whether 

property is a designated public forum is government intent in establishing and 

maintaining the property,” with the nature of the property relevant “[i]n attempting 

to divine whether the government has intended to designate” a public forum). 

The Supreme Court in Cornelius cited only two cases as reflecting its 

historical consideration of the nature of the property in its investigation of the 

government’s intent. In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 

(1975), the municipal auditorium and theater “were designed for and dedicated to 

expressive activities,” 473 U.S. at 803; the plaintiff has shown neither regarding 

 

the forum.” 631 F.3d at 1233. The Court has been given no reason to believe Kokinda

does not accurately represent the state of governing law. 

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the Perimeter. In Widmar v. Vincent, 454 U.S. 263 (1981), the university’s policy 

“evidenced a clear intent to create a public forum,” with that clear intent merely 

corroborated by the observation that “a university campus, at least as to its 

students, possesses many of the characteristics of a traditional public forum.” 473 

U.S. at 802-03. Here, as discussed in Parts I.A.2.a-b, the University’s policy 

evidences a clear intent not to create a public forum, and its practice evidences at 

most an intent to permit limited discourse (i.e., a limited public forum). The 

plaintiff does not invoke the nature of the Perimeter to bolster a showing of intent 

to create a designated public forum as reflected by policy and/or practice, but to 

compensate for the complete absence of such a showing. In effect, the plaintiff 

argues that, because the nature of the Perimeter would make it a plausible public 

forum, the University must have intended to designate it a public forum despite 

University policy and practice to the contrary. Since, as the plaintiff concedes, the 

nature of the property cannot alone determine the nature of the forum, Bloedorn, 

631 F.3d at 1233, its position is untenable.17

Even disregarding the inherent futility of its effort, the plaintiff has not 

shown that the nature of the Perimeter indicates the University intended to 

designate it as a public forum. The plaintiff first proposes that “the free 

expression of diverse viewpoints is part and parcel of the higher learning for 

which” a university campus is created. (Doc. 101 at 26). No doubt, but this 

hardly suggests that every square inch of a campus is or ought to be a designated 

public forum for student speech. The plaintiff itself quotes Bloedorn for the 

proposition that “[a] university campus will surely contain a wide variety of fora 

on its grounds,” 631 F.3d at 1232, so it is both unnecessary and unlikely that an 

 17 The plaintiff similarly concedes that policy and practice (or “traditional use”) is 

“the most significant factor” in the analysis, (Doc. 106 at 26), signifying its recognition 

that the nature of the property (and its compatibility with expressive activity) cannot 

trump clear policy and practice.

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entire campus will be a designated public forum.18 Because the Second Policy 

renders much of the campus a designated public forum,19 it is plain the plaintiff’s 

choice is not between speaking in the Perimeter or not speaking at all.

As for the Perimeter’s “park-like” feel, the plaintiff in Sentinel argued that 

interstate rest areas were designated public fora because their “topographical 

features ... frequently resemble those found in city parks, e.g. grassy areas, 

restrooms, water fountains, parking areas, picnic benches.” 936 F.2d at 1203-04. 

The Eleventh Circuit rejected the contention, noting that a property’s physical 

characteristics cannot alone render it a designated public forum and further noting 

evidence that the government intended these features to promote traveler rest and 

thus traveler safety. Id. at 1204 & n.15. Here, it is uncontroverted that the 

University has expended substantial sums on the Perimeter for the purpose of 

making it aesthetically pleasing to the campus community, to the broader 

community, and to prospective students and their parents. (Doc. 98 at 14; Doc. 

99-8 at 28-29; Doc. 99-9 at 68-69).20 As in Sentinel, the Perimeter’s park-like 

features were developed, not to promote First Amendment activity, but to serve 

 18 As the Bloedorn Court also noted, “the fact that a University may make a 

discrete location on a sprawling campus available for public discourse does not compel 

the conclusion that it must open the doors of all of its facilities for public discourse.” 631 

F.3d at 1230.

19 “[A]ll areas of the University campus are open for expressive activities except” 

the Perimeter, areas within 100 feet of academic and residential buildings, the basketball 

arena and its grounds, Moulton Tower, Alumni Plaza, and the University’s hospitals, 

clinics and associated grounds. (Doc. 29-10 at 3-4). It is not clear how much space is 

encompassed within these areas, but the plaintiff admits the campus contains 

approximately 1,224 acres, (Doc. 29 at 9), or almost two square miles, and the excluded 

areas clearly comprise only a fraction of this expanse. The plaintiff admits that the 

Second Policy “allows students to speak in many areas of the campus.” (Id. at 20).

20 The plaintiff questions whether protecting the aesthetics of the Perimeter is a 

valid reason for prohibiting student speech there, but it has raised no challenge to the 

defendants’ evidence that aesthetics drove the development of the Perimeter’s park-like 

features.

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other interests, and they therefore do not suggest an intent to open the Perimeter to

general student discourse.

Finally, the plaintiff finds it “[a]bsur[d]” to imagine that students have full 

First Amendment protection while standing on the traditional public forum of the 

public sidewalk bordering campus “but lose it all” by taking a single step from that

sidewalk into the Perimeter. (Doc. 106 at 28). It can hardly be an absurdity, 

however, that fora have geographical boundaries or that different kinds of fora 

may abut. Neither the Supreme Court nor the Eleventh Circuit shares the 

plaintiff’s incredulity regarding the commonplace of adjoining government 

properties constituting different fora for First Amendment purposes. See Kokinda, 

497 U.S. at 723, 730 (public sidewalk was traditional public forum, but sidewalk 

on adjoining post office property was limited public forum); United States v. 

Gilbert, 130 F.3d 1458, 1460-61 (11th Cir. 1997) (courthouse plaza was a 

designated public forum on one side of a row of planters and a non-public forum 

on the other). 

d. Compatibility with expressive activity.

The plaintiff cites a Fifth Circuit case for the proposition that “a university 

campus is clearly an appropriate place for communication of views on issues of 

political and social significance.” Justice for All v. Faulkner, 410 F.3d 760, 769 

(5th Cir. 2005) (internal quotes omitted). The plaintiff also points to the speech 

discussed in Parts I.A.2.b.i-ix, as reflecting the compatibility of the Perimeter with 

expressive activity. (Doc. 101 at 19). The defendants argue this historical speech 

is irrelevant to the compatibility analysis because it “was only conducted by the 

University and its departments.” (Doc. 107 at 18). As discussed in Part I.A.2.b, 

some of this speech was in fact student speech, but it would seem the 

compatibility of a forum with some student speech does not necessarily reflect its 

compatibility with all forms of student speech. Nevertheless, the Court will 

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assume without deciding that the Perimeter may be compatible with student 

speech in general, including speech on controversial political and social issues. 

e. Summary and analysis.

The question is whether the plaintiff’s evidence either establishes that the 

Perimeter is a designated public forum or at least creates a genuine issue of 

material fact in that regard. The Perimeter cannot be a designated public forum 

unless the University purposefully and intentionally opened the Perimeter to 

general student discourse. The University’s intent is determined by evaluating its 

policy concerning student speech in the Perimeter, its practice concerning student 

speech in the Perimeter, the nature of the Perimeter, and the Perimeter’s 

compatibility with general student discourse therein. 

The Second Policy expressly closes the Perimeter to general student 

discourse. The University in practice has on rare occasions permitted limited 

student discourse within the Perimeter on certain academic subjects and noncontroversial social subjects but has never authorized student expressive activity 

there on any divisive social or political issue. The Perimeter may be compatible 

with such speech, but its nature does not indicate that the University intended to 

make it a designated public forum, especially given that the University has 

expressly made other portions of campus designated public fora and that it had 

other reasons for establishing the Perimeter.

Where, as here, the uncontroverted facts reflect that the government’s 

policy and practice are patently inconsistent with an intent to establish a 

designated public forum, the mere compatibility of the property with expressive 

activity, and its mere similitude with such fora, cannot demonstrate that the 

government intended to create such a forum. The Perimeter thus is not a 

designated public forum but is at best a limited public forum.21

 21 The plaintiff insists that “[e]very other court to examine the question has ruled 

that the generally accessible, outdoor areas of a public university campus represent a 

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3. Limited public forum.

“Control over access to a nonpublic [limited public] forum can be based on 

subject matter and speaker identity so long as the distinctions drawn are 

reasonable in light of the purpose served by the forum and are viewpoint neutral.” 

 

designated public forum for its students.” (Doc. 101 at 24 n.7). The Court has performed 

no independent, exhaustive search, but it has reviewed the cases cited by the plaintiff, 

none of which involve a policy and practice of not opening such areas (or a portion of 

them) to general student discourse. On the contrary, all three appellate cases the plaintiff 

cites found a designated public forum based on written government policy affirmatively 

opening the forum to student expression. See OSU Student Alliance, 699 F.3d at 1063 

(“Through this rule, the state has intentionally dedicated campus property to expressive 

conduct, thereby creating a designated public forum.”) (internal quotes omitted); Justice 

For All, 410 F.3d at 769 (“The Institutional Rules ... clearly evince an intent to maintain 

the Austin campus as a designated forum for student expression .... In sum, we hold that 

the University, through its own policies, has designated the outdoor open areas of its 

campus generally accessible to students – such as plazas and sidewalks – as public 

forums for student speech.”); Hays County Guardian, 969 F.2d at 116 (“The clear 

implication of the Operating Letter is that the University intends its outdoor grounds to be 

a forum for student distribution of literature.”). Several of the trial court decisions the 

plaintiff cites were decided on similar grounds. Only one or two arguably ruled parts of 

campus a designated public forum without finding support in policy and/or practice, and 

they are so plainly at war with the analysis dictated by Cornelius that they cannot entice 

the Court to follow them. 

Equally puzzling – and unavailing – is the plaintiff’s insistence that Bloedorn

itself establishes that “the open, outdoor areas of campus represent ... a designated public 

forum for students.” (Doc. 110 at 15). The plaintiff does not suggest the Eleventh 

Circuit made any such pronouncement, and it could scarcely have so held, given that the 

plaintiff in Bloedorn was not a student but a campus outsider. It is difficult to believe the 

panel even harbored a suspicion that outdoor campus areas automatically constitute 

designated public fora for student expression, given its recognition that “a school creates 

a designated public forum only when school authorities have by policy or practice opened 

those facilities for indiscriminate use by the general public.” 631 F.3d at 1231 (internal 

quotes omitted, emphasis added). Ignoring these difficulties, the plaintiff argues that, by 

citing a Fourth Circuit case which may suggest that a college campus is a designated 

public forum for students, the Bloedorn Court adopted this proposition as Eleventh 

Circuit law. It is far from clear that American Civil Liberties Union v. Mote, 423 F.3d 

438 (4th Cir. 2005), supports the proposition the plaintiff attributes it to it. In any event, 

controlling precedent is not established so casually. The Bloedorn panel merely cited 

Mote without comment and only in support of its holding that various outdoor areas of 

Georgia Southern University were limited (not designated) public fora. 631 F.3d at 1232. 

 

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Cornelius, 473 U.S. at 806; accord Perry, 460 U.S. at 49. This proposition is 

“black-letter law.” Davenport v. Washington Education Association, 551 U.S. 

177, 189 (2007). The plaintiff acknowledges this is the standard applicable to 

limited public fora, (Doc. 101 at 23 n.6; Doc. 106 at 20, 29), but argues the 

restrictions on student speech in the Perimeter fail both prongs.22

 

a. Reasonableness.

“The Government’s decision to restrict access to a nonpublic [limited 

public] forum need only be reasonable; it need not be the most reasonable or the 

only reasonable limitation. In contrast to a public forum, a finding of strict 

incompatibility between the nature of the speech ... and the functioning of the 

nonpublic [limited public] forum is not mandated.” Cornelius, 473 U.S. at 808 

(emphasis in original). “The reasonableness of the Government’s restriction of 

access to a nonpublic [limited public] forum must be assessed in the light of the 

purpose of the forum and all the surrounding circumstances.” Id. at 809.

The plaintiff’s arguments against reasonableness take several forms: (1) 

the University has no legitimate interest at stake; (2) the University’s interest is 

not at risk; (3) the University did not genuinely act for the purpose of avoiding 

 22 The defendants insist that the plaintiff “may not now argue that the Second 

Policy is unreasonable or discriminates on the basis of viewpoint,” on the grounds that 

the plaintiff “has never alleged, including in its prior briefing, any facts demonstrating 

that the Second Policy is unreasonable or discriminates on the basis of viewpoint.” (Doc. 

98 at 26). The amended complaint, however, explicitly alleges that the Second Policy is 

an unreasonable restriction on speech and that it grants the defendants unbridled 

discretion to engage in viewpoint discrimination. (Doc. 29 at 27-28, 30). The plaintiff 

thus is not improperly “amending its complaint through argument at the summary 

judgment phase,” as the defendants wrongly claim. (Doc. 98 at 26). To the extent the 

defendants suggest the plaintiff was required to plead additional facts in support of these 

allegations, the amended complaint contains far more than enough factual material to 

render the assertions of unreasonableness and viewpoint discrimination plausible under 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To the extent they suggest the 

plaintiff was required to assert such facts in support of its motion for preliminary 

injunction, or in opposition to their motion to dismiss, they have cited no authority for the 

facially improbable proposition that a party is barred from presenting facts in support of 

one motion that it failed to present on a previous motion. 

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such a risk; and (4) the University’s response does not adequately correspond to 

the risk. The Court addresses these in turn.

i. Legitimate interest.

The University advances several justifications for restricting student speech 

in the Perimeter: (1) maintaining a visually attractive campus periphery; (2) 

promoting traffic safety; (3) promoting its image as an educational institution in 

the community; and (4) maintaining an apolitical or neutral viewpoint and 

avoiding the appearance of favoring or endorsing a particular viewpoint. (Doc. 

107 at 24; Doc. 111 at 12-13). Because it is dispositive, the Court focuses on the 

last of these.23

The defendant has presented evidence of its interest in avoiding the public 

appearance of endorsement or partiality on divisive political and social issues. 

(Doc. 98 at 14; Doc. 99-5 at 27-28; Doc. 99-8 at 30-32; Doc. 99-9 at 71-72). 

“[A]voiding the appearance of political favoritism is a valid justification for 

limiting speech in a nonpublic forum.” Cornelius, 473 U.S. at 809. The plaintiff 

asserts that Cornelius is inapposite because it involves “a very different forum.” 

(Doc. 110 at 20). Both the exceptionless phrasing of the Supreme Court’s 

pronouncement and the wide range of settings in which the principle has been 

applied,24 however, confirm that it extends to the Perimeter.

 23 The plaintiff, (Doc. 101 at 31), complains that “[l]isteners’ reaction to speech is 

not a content-neutral basis for regulation.” Forsyth County v. Nationalist Movement, 505 

U.S. 123, 134 (1992). Fine, but “content discrimination ... may be permissible if it 

preserves the purposes of that limited forum,” Rosenberger, 515 U.S. at 829, which is the 

issue addressed in text and resolved favorably to the defendants. Subject-matter 

discrimination is not merely permissible in a limited public forum but “inherent and 

inescapable in the process of limiting a nonpublic [limited public] forum to activities 

compatible with the intended purpose of the property.” Perry, 460 U.S. at 49. Indeed, 

the plaintiff concedes that “[r]estrictions on speech in limited public forums need only be 

reasonable and viewpoint neutral,” not content neutral. (Doc. 41 at 26 n.9). 

 

24 See Cornelius, 473 U.S. at 791 (charitable fund-raising drive in the federal 

workplace); Del Gallo v. Parent, 557 F.3d 58, 62, 73 (1st Cir. 2009) (campaigning for 

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Undeterred, the plaintiff says that, “on public university campuses 

throughout this country, ... free speech is of critical importance because it is the 

lifeblood of academic freedom.” DeJohn v. Temple University, 537 F.3d 301, 314 

(3rd Cir. 2008). Therefore, the plaintiff concludes, the University can have no 

legitimate interest in restricting student speech in order to maintain a perception of 

neutrality in the public eye. (Doc. 106 at 31). The defendants, however, have 

presented evidence that the concept of university neutrality as a means of 

promoting the open discussion of ideas dates to Renaissance Europe and “has been 

strongly endorsed by American universities.” (Doc. 99-8 at 30-31). The plaintiff 

has neither countered this evidence nor attempted to explain away the facial 

plausibility of its premise that the free exchange of ideas is enhanced when the 

government does not place its imprimatur on one set of ideas. See Coalition for 

the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1318 

(11th Cir. 2000) (“ CAMP”) (even in the context of a traditional public forum, “[t]o 

demonstrate the significance of its interest, the [defendant] is not required to 

present detailed evidence but is entitled to advance its interests by arguments 

based on appeals to common sense and logic.”) (internal quotes omitted). 

In short, maintaining the appearance of neutrality on divisive political 

issues is a legitimate University interest. Since the plaintiff has not even 

suggested that what is true about avoiding the appearance of favoritism on 

political issues is any less true with respect to social issues (to the doubtful extent 

any significant social issue could fail in a democracy to be also a political issue), 

the University’s interest extends there as well.

 

election on post office property); Preminger v. Principi, 422 F.3d 815, 819, 825 (9th Cir. 

2005) (voter registration drive for veterans at VA facility); Berner v. Delahanty, 129 F.3d 

20, 22, 26-27 (1st Cir. 1997) (lawyer wearing political button in courtroom). In support 

of the quoted proposition, moreover, the Cornelius Court relied on Lehman v. City of 

Shaker Heights, 418 U.S. 298 (1974), which held that a municipality that sold advertising 

space on its rapid transit system could appropriately refuse to accept “political or public 

issue advertising” in order to avoid, inter alia, “the appearance of favoritism.” Id. at 301, 

304 (plurality opinion).

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ii. Risk to legitimate interest.

The plaintiff is probably correct that preventing speech on divisive issues in 

order to avoid the appearance of endorsement of, or partiality towards, a particular 

viewpoint may be unreasonable if there is no realistic danger of such an 

appearance. (Doc. 106 at 32). But the plaintiff has failed to explain how such a 

danger is absent here. The only free speech case on which it relies involved 

employee postings on “[t]he interior walls [and bulletin boards] of the offices” of a 

state agency, places the public never visited. Tucker v. Department of Education, 

97 F.3d 1204, 1214-15 (9th Cir. 1996). And while it may be that “[r]easonable 

persons are not likely to consider all of the information posted on bulletin boards 

or walls in government buildings to be government-sponsored or endorsed,” id. at 

1215, this case does not involve such quiet, hidden speech. Instead, it involves 

outdoor speech in the University’s front yard, the area most readily associated 

with the University by the general public and the area most exposed to direct 

observation by the general public.

25

The Tucker Court acknowledged, 97 F.3d at 1215, that a risk of perceived 

endorsement existed in Monterey County Democratic Central Committee v. United 

States Postal Service, 812 F.2d 1194 (9th Cir. 1987), where a partisan organization 

sought to register voters on a post office sidewalk – the facility’s front yard. Id. at 

1195, 1199. Just so here, the passing public could easily understand that student 

speech in the Perimeter on a controversial issue was endorsed or at least approved 

by the University, thereby stripping the University of its aura of neutrality.26

 25 Indeed, this is precisely why the plaintiff wants to speak there – so it can most 

effectively reach the non-campus community. (Doc. 29 at 14, 16, 24).

26 The plaintiff also cites Knights of the Ku Klux Klan v. East Baton Rouge Parish 

School Board, 578 F.2d 1122 (5th Cir. 1978), but that case did not involve the 

reasonableness of a restriction on speech in a limited public forum, and it did not address 

public perception of the government’s endorsement or approval of private speech. 

Instead, the case involved a viewpoint-based exclusion of a particular speaker from a 

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30

After briefing on the instant motion was concluded, the Eleventh Circuit 

noted in a free speech case that “government property is often closely identified in 

the public mind with the government unit that owns the land.” Mech v. School 

Board, 806 F.3d 1070, 1076 (11th Cir. 2015) (internal quotes omitted). The Mech

Court found such a potential association where the speech at issue was hung on 

school fences, and it used this association as part of its rationale for concluding 

that “observers reasonably believe the government has endorsed the message.” Id. 

Mech further supports the proposition that the University could reasonably believe 

that authorizing student speech in the Perimeter concerning divisive issues risked 

public perception that it endorsed or approved of the viewpoints there expressed. 

Its free speech jurisprudence exhausted, the plaintiff turns to the 

Establishment Clause. (Doc. 101 at 33; Doc. 110 at 20). “We think that 

secondary school students are mature enough and are likely to understand that a 

school does not endorse or support student speech that it merely permits on a 

nondiscriminatory basis.” Board of Education v. Mergens ex rel. Mergens, 496 

U.S. 226, 250 (1990) (plurality opinion). The plaintiff assumes that this 

proposition can be imported wholesale into the free speech context and applied to 

the citizenry at large. The Court is not so sanguine. 

First, the Establishment Clause prohibits the government from endorsing 

religion, and high school students exposed to civics classes can be expected to 

realize this; thus, they are unlikely to assume that the school has endorsed student 

religious speech, contrary to the Constitution. But, at least in general, nothing 

prevents the University from lawfully endorsing a viewpoint expressed on a 

subject of political or social significance, so students’ expression of such views 

cannot so easily be assumed to lack the University’s approval.

 

designated public forum, and it addressed the government’s actual and legal relationship 

to the speaker’s speech, not the public’s perception of that relationship. Id. at 1124-25, 

1127-28.

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Second, the relevant audience in Mergens was a student body freshly 

conversant with First Amendment concepts. Here, in contrast, the relevant 

audience is the general public passing by the University campus. While this group 

will include persons with a similar understanding of the relevant concepts, it will 

also include persons never adequately exposed to them and those whose grasp of 

them has faded.27

In Rosenberger v. Rector and Visitors of the University of Virginia, 515 

U.S. 819 (1995), the other Supreme Court Establishment Clause case cited by the 

plaintiff, the Court ruled that the defendant’s concern that a speaker’s religious 

orientation might be attributed to the defendant was “not plausible” where the 

defendant “has taken pains to disassociate itself from the private speech involved 

in this case.” Id. at 841. This focus on the defendant’s efforts to distance itself 

from the speaker seems hardly to support the proposition that students or even 

adults can be assumed not to confuse private religious speech with government 

speech or endorsement. 

The plaintiff offers no case employing Mergens or its rationale in the free 

speech context or to an audience consisting of the general public. For the reasons 

stated above, the Court concludes that it does not apply to the present case. 

iii. Motivation for response. 

The plaintiff assumes rather than establishes that the government must have 

acted specifically for the purpose of protecting or advancing the legitimate interest 

it claims. Without adopting that assumption, the Court indulges it for present 

purposes. As noted in Part I.A.2.b.x, the defendants have presented evidence that 

the University’s restriction on student speech in the Perimeter is based in part on 

its desire to avoid the appearance of endorsing or approving of any particular 

viewpoint on any controversial political or social issue. 

 27 Media reports concerning the unfamiliarity of many American adults with even 

the most basic First Amendment concepts appear with dismaying frequency.

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The plaintiff unpersuasively suggests the University does not truly care 

about fostering a public perception of neutrality because “[p]ublic universities 

often take controversial positions” in litigation. (Doc. 101 at 33 & n.12). But 

universities, like every individual and like all other artificial entities, have interests 

– and thus opinions – with which others may disagree, and they can scarcely be 

expected to remain publicly neutral on issues affecting their interests. Under the 

plaintiff’s reasoning, an umpire could not credibly claim to care about the 

appearance of impartiality in officiating if he publicly expressed opinions on

zoning issues in his neighborhood. 

In a related vein, the plaintiff argues the University does not really value a 

public perception of its neutrality on divisive political and social issues because 

the Perimeter does not extend to the entirety of the campus’s border with the 

community. (Doc. 101 at 33-34). The western reach of the Perimeter ends at 

Stadium Drive, (Doc. 29-10 at 3), which leaves students free to engage in 

expressive activity along Old Shell Road immediately west of Stadium Drive, in 

front of the student recreation center. Similarly, the northern reach of the 

Perimeter ends at USA North Drive, though the campus continues north of that 

point. The defendants acknowledge that student speech west of Stadium Drive 

and north of USA North Drive could be publicly perceived as endorsed or 

approved by the University, but they say the risk is lower in these locations. (Doc. 

104-4 at 53, 55-56; Doc. 104-5 at 45). The Court agrees with that assessment. 

Speech between the rec center and Old Shell Road occurs on the western fringe of 

campus, by a specifically student building and far from the academic, 

administrative and athletic structures east of Stadium Drive. Speech north of USA 

North Drive occurs in an undeveloped and largely wooded area, likewise separated 

from the heart of campus. The exclusion of these areas from the Perimeter does 

not support a reasonable inference that the University does not genuinely care 

about sustaining a public perception of its neutrality. 

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iv. Correlation between risk and response. 

In a traditional or designated public forum, the restriction on speech must 

be “narrowly tailored” to serve a significant government interest, which requires a 

“reasonable fit” between means and ends. CAMP, 219 F.3d at 1316, 1318. The 

plaintiff proposes that this “reasonable fit” standard be applied in the context of a 

limited public forum, for the purpose of showing that the restriction on student 

speech in the Perimeter is unreasonably under-inclusive (since it excludes the 

border area west of Stadium Drive). (Doc. 101 at 32-33). But the very point of 

forum analysis is to ensure that more lenient standards prevail when considering 

limited public fora. As the Ninth Circuit has said, “[r]easonableness is not the 

legal equivalent of narrow tailoring ....” Flint v. Dennison, 488 F.3d 816, 834-35 

(9th Cir. 2007). At any rate, the purpose of the “reasonable fit” analysis is to 

ensure that speech restrictions do not sweep overbroadly, CAMP at 1318, not – as 

the plaintiff seeks to employ it – to show that a restriction does not extend far 

enough. Even if, as the plaintiff asserts, a speech restriction is unreasonable when 

“the fit between means and ends is loose or nonexistent,” (Doc. 106 at 25), that is 

a far lower standard than “narrow tailoring,” and it is one the Second Policy easily 

hurdles.28

The plaintiff, (Doc. 106 at 35), acknowledges that “[t]he government need 

not choose the least restrictive alternative when regulating speech in a nonpublic 

forum.” Tucker, 97 F.3d at 1216. But, it says, the government’s “failure to select 

... simple available alternatives suggests that the ban it has enacted is not 

reasonable.” Id. (internal quotes omitted). The plaintiff believes the University 

 28 The plaintiff argues the Second Policy is even more unreasonably underinclusive because it fails to preclude student speech in the interior of campus. (Doc. 106 

at 33 & n.17). The plaintiff thus finds itself in the curious position of insisting that the 

University should have more thoroughly restricted student speech. But it was plainly 

reasonable for the University to balance student speech against its interest in an 

appearance of neutrality differently in the interior than in the campus border with the 

outside community, where the public exposure enhances the risk of public misperception 

that the University endorses or approves the viewpoints expressed there.

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34

could have protected its interest in the public perception of its neutrality by “an 

equal access policy,” by “signs identifying the speaker,” and/or by the Second 

Policy’s statement that it (the policy) does not represent the University’s 

endorsement or approval of any speech. (Doc. 106 at 35). 

The plaintiff does not explain how its proposals would address the risk of a 

public perception of University partiality. Take the plaintiff’s situation as an 

example. If the plaintiff held a cemetery-of-innocents event at the corner of Old 

Shell Road and University Boulevard, how would the average citizen passing by

the display know (or remember) that the University would, if asked, allow a prochoice student group to stage a similar event, and what is the likelihood he or she 

would reflect on that bit of fuzzy memory and extrapolate that the University thus 

does not endorse the plaintiff’s message? A sign identifying the plaintiff would do 

nothing to dispel the risk, because the risk is not that the public would believe the 

University is speaking but that it would believe the University endorses or 

approves the speaker’s message, delivered from the University’s front yard. And 

certainly the average citizen is not privy to the Second Policy, which is but an 

internal document – one that in any event only denies endorsement or approval 

flowing from the policy itself. 

Finally, the plaintiff characterizes the Second Policy as imposing a 

“complete ban on First Amendment activities” that is per se unconstitutional even 

in a limited public forum under Board of Airport Commissioners v. Jews for Jesus, 

Inc., 482 U.S. 569 (1987). (Doc. 106 at 30; Doc. 110 at 19). The policy at issue 

in Jews for Jesus, however, extended to the entire “Central Terminal Area” of Los

Angeles International Airport, id. at 570-71 – a vast area encompassing most 

locations where the non-employee public might be found. Here, in contrast, the 

Perimeter takes in only part of the southern and eastern borders of campus, leaving 

large amounts of the campus beyond its reach. The plaintiff cites no authority for 

the proposition that a government is powerless to preclude First Amendment 

expression in any sliver of its property. 

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At any rate, the plaintiff’s own evidence proves there is in fact no 

“complete ban on First Amendment activities” on the perimeter of campus, since 

the perimeter west of Stadium Drive and north of USA North Drive remains fully 

open for that purpose. Even in the Perimeter itself, some student speech occurs. 

In addition to the student speech discussed in Part I.A.2.b, the plaintiff 

acknowledges that speech such as game-related signs at a pick-up football game in 

the Perimeter is permitted. (Doc. 101 at 23). The ban in Jews for Jesus, in 

contrast, was truly complete because it extended even to “talking and reading.” 

482 U.S. at 575.

Having disposed of the plaintiff’s arguments, the Court turns to a 

“surrounding circumstance” that reinforces the reasonableness of the University’s 

decision to close the Perimeter to student speech. “[W]hen access barriers are 

viewpoint neutral, our decisions have counted it significant that other available 

avenues for the group to exercise its First Amendment rights lessen the burden 

created by those barriers.” Christian Legal Society v. Martinez, 561 U.S. 661, 690 

(2010). Thus, “the reasonableness of the limitations on [the plaintiff’s] access to 

the school mail system is also supported by the substantial alternative channels 

that remain open for union-teacher communication to take place,” resulting in “no 

showing here that [the plaintiff’s] ability to communicate with teachers is 

seriously impinged by the restricted access to the internal mail system.” Perry, 

460 U.S. at 53.

Barring student speech in the Perimeter plainly leaves students and student 

groups “substantial alternative channels” for reaching their target audience. To the 

extent the target audience is the campus community, large portions of the interior 

of campus constitute designated public fora for students, including along the 

University’s major roadways. To the extent the target audience is the outside 

community, the area along Old Shell Road west of Stadium Drive, and the area 

along University Boulevard north of USA North Drive, remain designated public 

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fora as well.29 And of course the public sidewalk all along Old Shell Road and 

University Boulevard is a traditional public forum.30 The plaintiff prefers to speak 

in the Perimeter, especially at the highly visible corner of Old Shell and 

University, but “[t]he First Amendment does not demand unrestricted access to a 

nonpublic forum merely because use of that forum may be the most efficient 

means of delivering the speaker’s message.” Cornelius, 473 U.S. at 809.31

In summary, the University’s restriction of student speech in the Perimeter 

is reasonable in light of the purpose of the Perimeter and the surrounding 

circumstances. 

b. Viewpoint Neutrality.

“The existence of reasonable grounds for limiting access to a nonpublic 

[limited public] forum, however, will not save a regulation that is in reality a 

façade for viewpoint-based discrimination.” Cornelius, 473 U.S. at 811. 

“Although a speaker may be excluded from a nonpublic [limited public] forum if 

he wishes to address a topic not encompassed within the purpose of the forum, ... 

 29 The plaintiff’s suggestion that, since the University will allow speech in these 

areas – located along major thoroughfares and directly adjacent to the Perimeter the 

plaintiff is desperate to use – they must be “too remote” to be effective, (Doc. 101 at 38), 

does not pass its own “laugh test.” (Id. at 9).

30 The plaintiff sniffs that the availability of the public sidewalk is irrelevant 

because it is not the University’s property. (Doc. 106 at 36). The Court must disagree. 

“[I]t is a mark of favor of the statute’s reasonableness that the barred activity can be 

undertaken in an adjacent forum – the sidewalk running along” the border of the 

Supreme Court property. Hodge v. Talkin, 799 F.3d 1145, 1169 (D.C. Cir. 2015), 

petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016). 

31 The plaintiff, (Doc. 106 at 36), cites Schneider v. New Jersey, 308 U.S. 147 

(1939), for the proposition that “one is not to have the exercise of his liberty of 

expression in appropriate places abridged on the plea that it may be exercised in some 

other place.” Id. at 163. Schneider, however, involved a traditional public forum – city 

streets. Id. at 162. It thus does not trump the Supreme Court cases cited in text that make 

the availability of alternative channels of communication a circumstance weighing in 

favor of the reasonableness of a restriction on speech in a limited public forum. 

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the government violates the First Amendment when it denies access to a speaker 

solely to suppress the point of view he espouses on an otherwise includible 

subject.” Id. at 806. Thus, for example, when the subject matter of “child rearing 

and family values” had not been “placed off limits to any and all speakers,” denial 

of permission to speak on these issues because “the presentation would have been 

from a religious perspective” constituted viewpoint discrimination. Lamb’s 

Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 393 (1993).

i. Speech within the Perimeter.

As discussed in Part I.A.2.a, the University’s formal policy excludes all 

student expressive activity from the Perimeter. It therefore eliminates the 

possibility of viewpoint discrimination, since all viewpoints are banned. See 

Bloedorn, 631 F.3d at 1235 (“There is no record evidence suggesting ... that the 

ban on outside, non-sponsored speakers in these areas is viewpoint-based; it 

applies equally to all outside, non-sponsored speakers.”). The plaintiff’s 

arguments regarding viewpoint discrimination, however, extend beyond the 

written policy to the University’s historical practice of allowing some student 

speech in the Perimeter.

32

 32 Without argument or authority, the plaintiff posits that the Second Policy is 

viewpoint-biased because it does not apply to speech by the University, leaving the 

University free to express whatever viewpoints it likes. (Doc. 101 at 28). As noted in 

Part I.A.2.b.i, “[t]he Free Speech Clause ... does not regulate government speech.” 

Summum, 555 U.S. at 467. “A government entity ... is entitled to say what it wishes ... 

and to select the views that it wants to express.” Id. at 467-68 (internal quotes omitted). 

“It is the very business of government to favor and disfavor points of view,” and “it is not 

easy to imagine how government could function if it lacked this freedom.” Id. at 468 

(internal quotes omitted). The Second Policy cannot be viewpoint-biased in any 

constitutionally meaningful sense simply because it preserves the University’s legal right 

to express its viewpoint in the Perimeter while denying students and others permission to 

express theirs.

The plaintiff also argues that the asserted “lack of fit” between the University’s 

desired end (a public perception of its neutrality) and its means (closing the Perimeter to 

student speech but leaving the campus border open to student speech west of Stadium 

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As discussed in Part I.A.2.b, the plaintiff has evidence that, over the past 

five years, the University: has, on three occasions, allowed an organization of 

engineering students to promote itself and recruit new members; has allowed a 

student organization to participate in a one-time commemoration of the 9-11 

victims; and has allowed a student group’s yard signs for an anti-cancer fundraiser 

to remain in place for over two months. The plaintiff draws from this history that 

the University retains discretion to co-sponsor expressive events with students and 

student groups and to grant exceptions to the no-speech policy nominally 

governing the Perimeter. The plaintiff asserts both that this practice has resulted 

in viewpoint discrimination in the past and that the lack of adequate standards 

controlling the discretion to allow student speech in the Perimeter creates an 

impermissible risk of viewpoint discrimination in the future. (Doc. 101 at 22, 28-

30; Doc. 106 at 22-23).33

As to its first argument, the plaintiff has not addressed how closely related 

the permitted speech and the prohibited speech must be before a case can be made 

for historical viewpoint discrimination. The Court therefore is unprepared to rule

that, for example, allowing student speech opposing cancer while prohibiting 

student speech opposing abortion amounts to viewpoint discrimination under 

applicable law.

As to the plaintiff’s second argument, regimes that leave the decision on 

who may speak to the “unbridled discretion of a government official” are 

 

Drive) supports an inference that the University is acting to suppress particular 

viewpoints. (Doc. 106 at 32-33). A “lack of fit” argument might make sense if the 

University were excluding certain kinds of speech while permitting other kinds of speech 

containing the same objectionable characteristic – which is what the plaintiff’s cited 

authorities involved. But the asserted disconnect here concerns the location of speech, 

not the content of speech, so it cannot suggest a motive of squelching some viewpoints in 

favor of others.

33 The Court has already rejected the defendants’ suggestions that, as to all but the 

Relay for Life episode, there was no expressive activity and that, to the extent there was, 

it was exclusively the University’s expressive activity. See Parts I.A.2.b.vii-viii, supra.

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“unconstitutional, because without standards governing the exercise of discretion, 

a government official may decide who may speak and who may not based upon 

the content of the speech or viewpoint of the speaker.” City of Lakewood v. Plain 

Dealer Publishing Co., 486 U.S. 750, 763-64 (1988). “To avoid unbridled 

discretion, the permit requirements should contain narrowly drawn, reasonable and 

definite standards to guide the official’s decision.” Bloedorn, 631 F.3d at 1236. 

“The [unbridled discretion] doctrine requires that the limits the [defendant] claims 

are implicit in its law be made explicit by textual incorporation, binding judicial or 

administrative construction, or well-established practice.” City of Lakewood, 486 

U.S. at 770.34 

The defendants argue that the “unbridled discretion” principle obtains only 

in the context of traditional and designated public fora. (Doc. 111 at 12). They 

overlook Sentinel, which applied the doctrine in the context of a limited public 

forum. 936 F.2d at 1197-1200, 1204; see also Children First Foundation, Inc. v. 

Fiala, 790 F.3d 328, 343-44 (2nd Cir.) (“We thus join our sister circuits that have, 

over time, been coalescing around the conclusion that the unbridled discretion 

doctrine applies in the context of nonpublic forums.”) (citing Sentinel and cases 

from the Fourth, Seventh, Ninth and Federal Circuits), vacated on other grounds, 

611 Fed. Appx. 741 (2nd Cir. 2015). The Court accordingly concludes that the 

doctrine applies to the limited public forum of the Perimeter.

The plaintiff states that the defendants “have unlimited discretion to set 

aside the Perimeter speech ban by co-sponsoring an event or for speech related to 

events they deem ‘non-expressive,’” as well as by “simply declar[ing] that there 

are extenuating circumstances.” (Doc. 101 at 30; Doc. 106 at 23; Doc. 110 at 13). 

The evidence of the defendants’ historical departures from the no-speech policy

tends to support the proposition that they have discretion to make such exceptions 

 34 A “well-established practice” is indicated, at least, when the government has 

“specifically drawn reasonable and definite standards ... and applied those standards 

consistently.” Bloedorn, 631 F.3d at 1237. 

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to the policy.35 However, because the plaintiff fails to cite any evidence to support 

the proposition that this apparent discretion is not governed by standards of the 

kind described in City of Lakewood and elsewhere, it has not met its initial burden 

on motion for summary judgment. 

For their part, the defendants fail to identify any evidence showing that 

their discretion to allow exceptions to the no-speech policy is subject to the 

limitations required by law as a guard against viewpoint discrimination. Instead, 

they say that their historical exceptions were based only on the identity of the 

speaker, not the speaker’s viewpoint, and that the plaintiff has “no evidence that 

the Second Policy’s application would vary based on a student group’s 

viewpoint.” (Doc. 111 at 12). As a threshold matter, the defendants cite no 

evidence to show that they relied on speaker identity to the exclusion of speaker 

viewpoint. The thrust of the unbridled discretion doctrine, moreover, is that such 

discretion of itself raises an unacceptable risk of viewpoint discrimination; there is 

no burden on the plaintiff to prove that the government has exercised, or will 

exercise, its unbridled discretion in a viewpoint-biased manner.36

 35 The defendants do not deny that the potential for viewpoint discrimination 

which the unbridled discretion doctrine addresses may be established by departures from 

a viewpoint-neutral formal policy. See CAMP, 451 F.3d at 1280 (“[T]he government 

exemption [from its festivals ordinance, which exemption applied to co-sponsored 

events] leaves unbridled discretion in the hands of the city to determine which speech and 

speakers ... to endorse or suppress.”); Bloedorn, 631 F.3d at 1235 (policy was viewpoint 

neutral when it applied to all outside, non-sponsored speakers and there was no “record 

evidence even remotely suggesting that the University has ever made any exception to 

this policy”).

36 Forsyth County, 505 U.S. at 133 n.10 (“[T]he success of a facial challenge on 

the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests 

not on whether the administrator has exercised his discretion in a content-based manner, 

but whether there is anything in the ordinance preventing him from doing so.”); City of 

Lakewood, 486 U.S. at 770 (the presumption that the decisionmaker “will act in good 

faith and adhere to standards absent from the ordinance’s face ... is the very presumption 

that the doctrine forbidding unbridled discretion disallows”).

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ii. Boundary of the Perimeter.

The plaintiff also invokes the unbridled-discretion doctrine with respect to 

the inner boundary of the Perimeter. (Doc. 101 at 30-31; Doc. 106 at 23-24). The 

Second Policy defines the outer boundary of the Perimeter as the edge of the 

public sidewalks, and it defines the side boundaries as the portal of North Drive 

and the portal of Stadium Drive. These are clear boundaries, and the plaintiff does 

not object to them. The inner boundary, however, is defined as “the street side of 

University buildings and facilities on the periphery of campus.” (Doc. 29-10 at 3). 

It is uncontroverted that the terms “facilities” and “periphery” are not defined, that 

no map or diagram depicts the inner boundary, and that no signs physically mark 

it. (Doc. 101 at 30; Doc. 104-1 at 165, 169). It is also uncontroverted that 

buildings and other structures, parking lots and other paved areas, fields and other 

grassy or wooded areas are found throughout the campus and at greatly differing 

distances from the public sidewalks. (Doc. 102-6).

 “Even if a particular restriction or condition is an otherwise permissible 

content-neutral regulation of the time, place, or manner of speech, it is 

unconstitutional if a government official has unbridled discretion to apply it.” 

Bourgeois v. Peters, 387 F.3d 1303, 1317 (11th Cir. 2004); accord Bloedorn, 631 

F.3d at 1236; Burk v. Augusta-Richmond County, 365 F.3d 1247, 1256 (11th Cir. 

2004). Thus, for example, “University officials may not exercise unbridled 

discretion in determining the location of an outside, non-sponsored speaker’s 

expressive activity.” Bloedorn, 631 F.3d at 1237. The Second Policy’s 

identification of the Perimeter’s inner boundary is a regulation of the place where 

student speech may permissibly occur, since speech is forbidden inside that 

boundary and permitted outside it. Except as addressed in Part I.A.3.b.i, supra, 

the defendants do not deny that the unbridled-discretion doctrine applies to the 

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boundary issue, (Doc. 107 at 21-23; Doc. 111 at 12),37 and the Court concludes 

that it does apply.

As the plaintiffs acknowledge by silence, what constitutes a “building” is 

clear enough; what constitutes a “facility,” however, is murky. At one point along 

University Boulevard, the closest structure to the public sidewalk is a replica of 

the Tholos of Delphi, an open-air Greek ruin. Is it a “facility” for purposes of the 

Second Policy and thus beyond the Perimeter? Waldrop and Smith say it is, while 

Mitchell says it is not. (Doc. 103-23 at 2; Doc. 104-2 at 35-37; Doc. 104-4 at 75-

76). And what of parking lots? In as many as nine places, the man-made object 

closest to the public sidewalk is a parking lot. (Doc. 106-2). Are these lots 

“facilities,” outside the no-speech zone of the Perimeter? Waldrop and Smith say 

they are, but Mitchell says (with considerable internal inconsistency) that they are 

within the Perimeter even though he considers them to be facilities; moreover, the 

University’s campus map, which identifies “facilities,” does not identify parking 

lots as facilities. (Doc. 102-6; Doc. 104-1 at 186-87; Doc. 104-2 at 23; Doc. 104-4 

at 68-69). In yet another area, the nearest man-made object to the public sidewalk 

is the Baptist Student Center (“BSC”), which is not University property. Does the 

Perimeter stop at the BSC (because it is a “building”) or continue past it into the 

interior of campus (because it is not a “University building”)? Mitchell has no 

idea. (Doc. 104-1 at 161).

As one might expect, there are gaps between buildings and facilities 

fronting Old Shell Road and University Boulevard (which are wider if parking lots 

are not facilities). Where is the inner boundary of the Perimeter in these gaps? 

Does it extend as far into the interior of campus as necessary to reach the first

building or facility on a line perpendicular to the public sidewalk (which can be 

several hundred yards from the sidewalk)? Is it a diagonal line from the street-side 

corner of one building or facility on the undefined “periphery of campus” to the 

 37 Most of the defendants’ discussion of the boundary issue is presented as a 

response to the plaintiffs’ vagueness challenge under the Due Process Clause.

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next? Is there no Perimeter at all in these gaps (on the theory that, in these spaces, 

there is no building or facility “on the periphery of campus”)? And how to treat 

the roads that enter the campus from Old Shell Road and University Boulevard? 

Does the Perimeter bisect them or stop at their edge? And if it bisects the roads, 

where does it do so?

The problem here is not just that the University officials charged with 

understanding and enforcing the Second Policy don’t know what it means; the 

more serious concern is that, by the uncontroverted evidence, there is no 

authoritative source to which they can turn to resolve such questions – they have 

only the ambiguous language of the Second Policy and however they choose to 

interpret it. (Doc. 104-1 at 129, 155, 165, 169). What that means is that the 

officials’ discretion as to where to mark the boundary of the Perimeter – and thus 

the boundary of where student speech may and may not occur – is not subject to 

narrowly drawn, reasonable and definite standards. 

The defendants, (Doc. 107 at 21), counter that “perfect clarity and precise 

guidance have never been required even of regulations that restrict expressive 

activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). No doubt, but 

this case involves not the unavoidable, irreducible minimum of imprecision 

inherent in language itself but yawning caverns of confusion left by careless 

employment of this most exquisite means of human communication. Rules with 

similarly loose language have been held to leave officials with unconstitutionally 

broad discretion.38 So then also does the Second Policy.

 38 See, e.g., Burk, 365 F.3d at 1256 (where ordinance required an indemnification 

agreement “in a form satisfactory to” the city attorney but “g[ave] no guidance regarding 

what should be considered ‘satisfactory,’” the requirement was “standardless” and thus 

unconstitutional); United States v. Frandsden, 212 F.3d 1231, 1240 (11th Cir. 2000) 

(where regulation required official to issue a permit “without unreasonable delay” but did 

not “provide ... any guidance as to what is considered ‘unreasonable,’” the regulation 

was unconstitutional “because it fails adequately to confine the time within which the 

decision maker must act”). 

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44

The defendants correctly note that the Second Policy is unambiguous as to 

the inner boundary of the Perimeter at the corner of Old Shell and University: it is 

the façade of Shelby Hall. (Doc. 107 at 22). The plaintiff does not disagree. 

(Doc. 110 at 13-14). But the plaintiff does dispute the defendants’ assertion, (Doc. 

107 at 22), that this is the only area relevant to its’ viewpoint discrimination 

challenge. “Recognizing the explicit protection accorded speech and the press in 

the text of the First Amendment, our cases have long held that when a licensing 

statute allegedly vests unbridled discretion in a government official over whether 

to permit or deny expressive activity, one who is subject to the law may challenge 

it facially without the necessity of first applying for, and being denied, a license.” 

City of Lakewood, 486 U.S. at 755. Because the plaintiff challenges the 

defendants’ unbridled discretion to define the inner boundary of the Perimeter – a 

boundary to which the plaintiff is subject – it is immaterial that the plaintiff has 

never sought permission to engage in expressive activity in the Perimeter’s grey 

areas.

39

Finally, the defendants repeat their complaint that the plaintiff lacks 

evidence they ever have construed, or ever would construe, the Perimeter’s inner 

boundary differently depending on the speaker or the speaker’s viewpoint. (Doc. 

107 at 22). As discussed in Part I.A.3.b.i, this is not a relevant consideration. 

Although the Second Policy improperly invests the defendants with 

unbridled discretion to define the inner boundary of the Perimeter, it does not do 

 39 Assuming for present purposes that it is incumbent on the plaintiff to show that 

it desires to speak in areas that may or may not be within the Perimeter depending on 

how its inner boundary is defined, it has done so. The defendants, (Doc. 107 at 22), have 

directed the Court to the declaration of the plaintiff’s co-president, who states that the 

plaintiff desires to speak, inter alia, between University Boulevard and the Visual Arts 

Building and the Instructional Laboratory Building. (Doc. 44-1 at 3-4). The Visual Arts 

Complex is separated from University Boulevard by a parking lot, and there is a gap 

between the Visual Arts Complex and the Instructional Laboratory Building. (Doc. 102-

6). As discussed in text, whether a parking lot is a facility (and thus outside the 

Perimeter), and whether and to what extent a gap between buildings is within the 

Perimeter, is subject to the unbridled discretion of University officials.

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45

so throughout the entire length of the Perimeter. As noted, the Second Policy is 

perfectly clear that the Perimeter ends when it reaches the façade of a campus 

building, and the plaintiff asserts no ambiguity in the meaning of “building.” 

Likewise, the Second Policy clearly terminates the Perimeter when it reaches the 

edge of a “facility,” and while it is unclear whether a parking lot or the Tholos of 

Delphi is a facility, it is uncontroverted under the plaintiff’s own evidence that 

athletic fields and the marching band’s practice field are facilities for purposes of 

the Second Policy. (Doc. 102-6; Doc. 104-1 at 165; Doc. 104-2 at 23; Doc. 104-3 

at 78). The plaintiff makes no argument to the contrary. Accordingly, the plaintiff 

is entitled to summary judgment only with respect to certain areas. The Court 

identifies the following as the areas as to which the Second Policy does not

delegate unbridled discretion and as to which the plaintiff is not entitled to 

summary judgment.

From the public sidewalk paralleling Old Shell Road, north to:

• the south edge of the parking lot south of Stanky Field, the soccer 

fields, and the softball/soccer fieldhouse (85, 79 and 104, 

respectively, on the campus map (Doc. 102-6));

• the south edge of the softball field and marching band drill field (101 

and 62, respectively, on the campus map);

• the south edge of the parking lot east of the drill field;

• the north edge of the small natural area east of the parking lot and 

west of Mitchell Center Drive;

• the south edge of the parking lot east of Mitchell Center Drive;

• the south edge of the BSC property (6 on the campus map);

• the south edge of the psychology clinic and associated parking lot 

east of the BSC property (76 on the campus map);

• the south edge of the parking lot east of Jaguar Drive;

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46

• the south edge of the structure (electrical substation?) east of the 

parking lot and west of Shelby Hall; and

• the south edge of Shelby Hall (106 on the campus map).

From the public sidewalk paralleling University Boulevard, west to:

• the east edge of Shelby Hall;

• the east edge of the parking lot north of Shelby Hall;

• the east edge of Laidlaw Performing Arts Center (73 on the campus 

map);

• the triangles north and south of USA South Drive bordered by South 

Drive, University Boulevard, and the access lanes to and from South 

Drive;

• the east edge of the parking lot east of the Tholos of Delphi replica 

(25 on the campus map);

• the east edge of Administration Court (the semi-circular drive east of 

the F.P. Whiddon Administration Building (1 on the campus map));

• the east edge of the Instructional Lab Building (“IBL”) (including 

portico) (60 on the campus map);

• the east edge of the parking lot north of the IBL; 

• the east edge of Alpha Hall East (2 on the campus map) and the 

small, unnamed building immediately south of Alpha Hall East;

• the east edge of the Allied Health and Nursing Building (“AHNB”) 

(107 on the campus map) and the parking lot or other paved area 

immediately south of AHNB; and

• the triangle south of USA North Drive bordered by North Drive, 

University Boulevard an access lane from North Drive.

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B. Due Process.

The plaintiff’s only surviving due process challenge is that the Second 

Policy is impermissibly vague with respect to the inner boundary of the Perimeter. 

(Doc. 29 at 33; Doc. 49 at 26-27, 29; Doc. 55 at 11 n.4). 

The defendants note that a vagueness challenge is available only when the 

plaintiff “alleges a constitutional harm.” Indigo Room, Inc. v. City of Fort Myers, 

710 F.3d 1294, 1301 (11th Cir. 2013) (internal quotes omitted). The plaintiff must 

either have been prosecuted for violating the challenged rule or have been “chilled 

from engaging in constitutionally protected activity.” Id. (internal quotes 

omitted). The plaintiff has not been prosecuted, and the defendants assert the 

plaintiff “has not been deprived of [its] constitutionally protected free speech 

interest.” (Doc. 98 at 27). In light of the discussion in Part I.A.3.b.ii, that is a 

difficult proposition to defend, but it not the relevant proposition to begin with; the 

question is whether the plaintiff’s exercise of its First Amendment rights has been 

“chilled” by the allegedly vague policy. Plainly it has. The plaintiff’s copresident declares that the plaintiff has desired to engage in speech between 

University Boulevard and the Visual Arts Complex and the Instructional Lab 

Building but that, due to the Second Policy and its provision for sanctioning 

violators,40 it has refrained from doing so. (Doc. 44-1 at 3-4).41 Speech is chilled 

when one refrains from speaking rather than risk prosecution. Indigo Room, 710 

F.3d at 1301.

“If one of the two constitutional harms delineated above is implicated, the 

court looks to whether the ordinance forbids or requires the doing of an act in 

terms so vague that men of common intelligence must necessarily guess at its 

 40 (Doc. 29-10 at 8 (“Students and student organizations operating in violation of 

these regulations will be subject to disciplinary action under the Student Code of 

Conduct.”)).

41 As explained in note 39, supra, these are areas that may or may not be within 

the Perimeter, depending on how the Second Policy is construed.

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48

meaning and differ as to its application.” Indigo Room, 710 F.3d at 1301 (internal 

quotes omitted). It would seem obvious from the discussion in Part I.A.3.b.ii that 

the Second Policy requires persons of common intelligence to guess at the location 

of the Perimeter’s inner boundary at many points: Does a “facility” include a 

parking lot? Where must a building or facility be to be “on the periphery of 

campus”? Where is the edge of the Perimeter when there is no building or facility 

“on the periphery”? Where is the edge of the Perimeter in between buildings and 

facilities on the periphery? Is there even a Perimeter at all in such gaps?

The defendants repeat their reminder that “perfect clarity” is not required, 

(Doc. 107 at 22), to which the Court repeats its observation: true but nonresponsive. There is not merely some theoretical, epistemological uncertainty 

about the inner boundary of the Perimeter that linguistics experts might debate but 

not ordinary humans; there is instead a congeries of real-world ambiguities, with 

real-world consequences for guessing wrong. The defendants also ignore what the 

plaintiff, (Doc. 106 at 27), pointed out: “The degree of vagueness that the 

Constitution tolerates ... depends in part on the nature of the enactment,” and 

“perhaps the most important factor affecting the clarity that the Constitution 

demands of a law is whether it threatens to inhibit the exercise of constitutionally

protected rights.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 

455 U.S. 489, 499 (1982). “If, for example, the law interferes with the right of 

free speech or of association, a more stringent vagueness test should apply.” Id. 

The defendants’ proposal to apply a deferential standard in a free speech context 

runs contrary to this directive. 

The defendants next suggest that “‘the language of the ordinance itself must 

be vague.’” (Doc. 98 at 27 (quoting Diversified Numismatics, Inc. v. City of 

Orlando, 949 F.2d 382, 387 (11th Cir. 1991)). To the uncertain extent the 

defendants mean to suggest the Court cannot look beyond the four corners of the 

Second Policy in assessing its vagueness or clarity, the Court rejects the 

suggestion. Language is neither used nor applied in a vacuum, so a court must 

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49

certainly consider to some extent the context – here including at least the physical 

features of the campus, which the Second Policy attempts to carve into Perimeter 

and non-Perimeter by using terms labeling those features and their location.

42

Nor does Diversified Numismatics support the defendants’ position. When 

the Eleventh Circuit stated that the language of the ordinance “itself” must be 

vague, it was not rejecting all consideration of context but only the plaintiff’s 

suggestion that discriminatory enforcement of the ordinance necessarily reflected 

its vagueness. 949 F.2d at 387. The panel could hardly have meant that context 

must be ignored, since it cited Mid-Fla Coin Exchange, Inc. v. Griffin, 529 F. 

Supp. 1006 (M.D. Fla. 1981), as an example of a case “pointing to ... specific 

aspects of the wording of [an] ordinance that are insufficiently definite.” 949 F.2d 

at 387 & n.24. The Mid-Fla Court, in turn, relied on information from other 

sources concerning the various real-world uses of gold, platinum and silver – that 

is, context – in finding vague a Florida statute regulating the secondhand precious 

metal industry. 529 F. Supp. at 1028-29.

43

The plaintiff attacks the Second Policy both facially and as applied. “A 

facial challenge, as distinguished from an as-applied challenge, seeks to invalidate 

a statute or regulation itself.” Indigo Room, 710 F.3d at 1302. The defendants 

argue the plaintiff cannot maintain a facial challenge. (Doc. 98 at 27-28). 

“[F]acial vagueness occurs when a statute is utterly devoid of a standard of 

conduct so that it simply has no core and cannot be validly applied to any 

 42 “The applicable standard [of vagueness] is not one of wholly consistent 

academic definition of abstract terms. It is, rather, the practical criterion of fair notice to 

those to whom the statute is directed. The particular context is all important.” American 

Communications Association v. Douds, 339 U.S. 382, 413 (1950). 

43 As the defendants note, the Indigo Room Court quoted the “language of the 

ordinance itself” portion of Diversified Numismatics. 710 F.3d at 1302. But in Indigo 

Room, unlike here, the key terms (“alcoholic beverage establishment” and “bona fide 

restaurant”) were themselves defined by the ordinance, and the plaintiff’s argument was 

the purely hypothetical one – fanciful, given the terms’ definitions – that a minor might 

theoretically enter the former by accident while thinking it was the latter. Id.

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conduct.” Indigo Room, 710 F.3d at 1302 (internal quotes omitted). “Conversely, 

if persons of reasonable intelligence can derive a core meaning from a statute, then 

the enactment may validly be applied to conduct within that meaning and the 

possibility of a valid application necessarily precludes facial invalidity.” Id. 

(internal quotes omitted). As discussed in Part I.A.3.b.ii, the Second Policy 

unambiguously establishes the Perimeter’s inner boundary in various places –

including at the corner of University Boulevard and Old Shell Road (i.e., the 

eastern and southern façades of Shelby Hall).44 The plaintiff’s only response is the 

misdirected one that it “desires to speak throughout the Perimeter.” (Doc. 106 at 

37). The defendants are thus correct that the plaintiff’s facial challenge must fail. 

The plaintiff is thus confined to an as-applied challenge. The defendants 

argue the plaintiff cannot pursue such a challenge because its “proposed conduct” 

– that is, “where it seeks to speak” – is within the unambiguous core of the 

Perimeter. (Doc. 98 at 28; Doc. 111 at 14). However, and as discussed in note 39, 

supra, the plaintiff has uncontroverted evidence that it wishes to speak in an area 

that is outside the Perimeter if parking lots are facilities and inside the Perimeter if 

they are not, as well as in an adjoining area that may be completely or partially 

outside the Perimeter depending on how gaps between buildings and facilities are 

treated.

In summary, the plaintiff is entitled to summary judgment on its due 

process claim to the extent it challenges the vagueness of the Perimeter’s inner 

boundary, except in those areas listed in Part I.A.3.b.ii.

 44 The inner boundary is likewise clear in those other locations in the Court’s 

listing as to which its northern or western boundary is identified as a building or field. 

And while the inner boundary is not clear where, for example, a parking lot is the manmade object closest to the public sidewalk, it is clear that the boundary reaches at least to 

the southern or eastern end of such parking lots. 

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C. Equal Protection.

The plaintiff’s only surviving equal protection challenge is that, under the 

Second Policy, the defendants permit similarly situated students and student 

organizations to speak in the Perimeter while denying the plaintiff permission to 

do so. (Doc. 29 at 34-37; Doc. 49 at 29). 

The critical threshold question is the level of scrutiny to be applied to this 

claim. The plaintiff says the difference in treatment “is subject to strict scrutiny as 

[the Second Policy] infringes on fundamental First Amendment rights.” (Doc. 106 

at 37). The defendant says that rational-basis review applies. (Doc. 98 at 29).

In Perry, the Supreme Court ruled that an interschool mail system was a 

nonpublic (i.e., limited public) forum, that the differential access provided two 

unions (“PEA” and “PLEA”) was reasonable, and that there was “no indication 

that the school board intended to discourage one viewpoint and advance another.” 

460 U.S. at 49-50. The Court then addressed the plaintiff’s equal protection claim:

As we have explained above, PLEA did not have a First 

Amendment or other right of access to the interschool mail system. 

The grant of such access to PEA, therefore, does not burden a 

fundamental right of the PLEA. Thus, the decision to grant such 

privileges to the PEA need not be tested by the strict scrutiny applied 

when government action impinges upon a fundamental right protected 

by the Constitution. ... The school district’s policy need only rationally 

further a legitimate state purpose. 

Perry, 460 U.S. at 54. As discussed in Part I.A.2, the Perimeter is a limited public 

forum. As discussed in Part I.A.3.a, the restriction on student speech in the 

Perimeter is reasonable, and as discussed in Part I.A.3.b.i, the plaintiff has failed 

to show that the differential access afforded the Society of Women Engineers to 

co-sponsor a cookout and Colleges Against Cancer to place yard signs45

constituted viewpoint discrimination.

 45 These are the only instances of authorized student speech within the Perimeter 

since adoption of the Second Policy.

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But this case differs from Perry in one potentially important respect. 

Unlike in Perry, here it remains open to the plaintiff to show that the defendants 

have unbridled discretion to allow exceptions to the no-speech policy, which

discretion would introduce a constitutionally unacceptable risk (though no 

certainty) of future viewpoint discrimination. See Part I.A.3.b.i, supra. The 

parties have not addressed which standard of review obtains under such 

circumstances, and the Court declines to explore the issue unassisted.

II. First Policy.

The parties seek summary judgment as to the plaintiff’s claim for nominal 

damages against defendants Steadman and Mitchell in their individual capacities, 

on the grounds they engaged in viewpoint discrimination in violation of the First 

Amendment when the plaintiff was denied permission to use what is now the 

Perimeter for a cemetery of innocents in February 2014.46 

 46 The plaintiff appears to believe this claim is broader than it actually is. First, 

the plaintiff continues to request declaratory relief, (Doc. 100 at 1), but all claims for 

declaratory or injunctive relief respecting the First Policy have been dismissed on the 

grounds of mootness. (Doc. 49 at 3-10, 29). 

Second, the plaintiff seeks an award of nominal damages against Steadman and 

Mitchell, for the same conduct, under the Fourteenth Amendment. (Doc. 100 at 2). That 

portion of the plaintiff’s case, however, has been dismissed due to the plaintiff’s failure 

adequately to respond to the defendants’ qualified immunity argument. (Doc. 49 at 26-

27, 29). 

Finally, the plaintiff argues that this incident also reflects content discrimination. 

(Doc. 101 at 9, 14-16). That portion of the plaintiff’s First Amendment claim has been 

eliminated due to the plaintiff’s failure to show, in opposition to the defendants’ qualified 

immunity argument, that it was clearly established at the relevant time that the perimeter 

of campus was a traditional or designated public forum. (Doc. 49 at 23-24, 29). 

For its part, the defendants appear to believe this claim is narrower than it actually 

is. They suggest the Court eliminated the plaintiff’s First Amendment claim for nominal 

damages in connection with the October 2013 cemetery of innocents by its ruling on their 

motion to dismiss. (Doc. 107 at 9 n.16). In fact, the Court granted dismissal of “all 

claims for nominal damages not based on alleged viewpoint discrimination ... in denying 

permission to use the Perimeter for a cemetery of innocents.” (Doc. 49 at 29). There 

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A. Steadman.

In early 2014, the plaintiff submitted a request for approval of a cemetery 

of innocents at the corner of Old Shell Road and University Boulevard (“the 

Corner”). The plaintiff submitted the request to Steadman, as Dean of the College 

of Engineering. The defendants argue that Steadman cannot be liable for 

viewpoint discrimination because: (1) he did not deny the request; (2) he did not 

deny the request based on viewpoint discrimination; and (3) he did not have 

authority to deny the request. (Doc. 107 at 9-12).

There is evidence that Steadman denied the request. First, the request 

contains the handwritten notation, “NO per Dr. Steadman 2/3/14.” (Doc. 102-13 

at 1). Second, the plaintiff’s co-president was told by Steadman’s administrative 

assistant that Steadman “has indicated that location is not available.” (Doc. 102-

14 at 2). Third, when the plaintiff’s co-president asked why Steadman had 

“denied the request,” (id.), he did not deny having denied the request but instead 

said, “[a]s you know, your organization advocates for a position that involves 

political and social controversy.” (Id. at 1).47

 

were two such incidents, including the one in October 2013. (Doc. 29 at 15). The 

defendants note the opinion’s reference to clearly established law in February 2014, 

(Doc. 49 at 26), but the Court used that date only because the plaintiff’s brief focused on 

that incident. (Doc. 41 at 33). The law regarding viewpoint discrimination was clearly 

established long before October 2013, so neither the plaintiff’s focus on February 2014 

nor the Court’s mention of that date worked a dismissal as to the earlier incident. Since 

neither side has moved for summary judgment as to the October 2013 episode, the Court 

does not discuss it further, other than as it impacts the claim concerning the February 

2014 incident. 

 

47 The defendants, (Doc. 107 at 9), say that Steadman could not have denied 

permission to use the Corner, because in the same message he “suggest[ed] that [the 

plaintiff] contact [Mitchell] regarding any appropriate space for this activity.” (Doc. 102-

14 at 1). But there is nothing inherently inconsistent between denying permission to use 

one location and suggesting that Mitchell might approve a different, appropriate location. 

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There is also evidence that Steadman denied the request based on viewpoint 

discrimination.48 First, and as just noted, when Steadman was asked why he had 

denied the plaintiff’s request, he responded by pointing out that the plaintiff 

“advocates for a position that involves political and social controversy.” (Doc. 

102-14 at 1). By focusing on the plaintiff’s “position” (anti-abortion) rather than 

on the subject matter (abortion), Steadman’s response raises an inference that he 

considered the plaintiff’s viewpoint regarding abortion in denying permission.49 

Second, in addressing a similar request in late 2013, Steadman stated that the 

Speech Zone would be a more appropriate location “because of the controversial 

nature of the organization.” (Doc. 102-11 at 1). By focusing on the controversial 

nature of the plaintiff rather than on the controversial nature of abortion, 

Steadman’s response again supports an inference that he considered the plaintiff’s 

viewpoint regarding abortion. Cf. Child Evangelism Fellowship, Inc. v. Stafford 

Township School District, 386 F.3d 514, 527 (3rd Cir. 2014) (“To exclude a group 

simply because it is controversial or divisive is viewpoint discrimination.”).50

 48 As the parties agree, (Doc. 106 at 15; Doc. 111 at 2-3), viewpoint 

discrimination exists when “the motivating ideology or the opinion or perspective of the 

speaker is the rationale for the restriction.” Rosenberger, 515 U.S. at 829. 

49 Steadman admits the co-president told him the plaintiff was “against abortion.” 

(Doc. 99-7 at 16).

50 The defendants suggest, with no citation to relevant authority, that a plaintiff 

cannot prove viewpoint discrimination without showing that the defendant has treated (or 

at least would treat, if the occasion arose) some other viewpoint more favorably. (Doc. 

98 at 19; Doc. 111 at 4 n.11). According to Rosenberger (with which the defendants 

agree), the question is whether the speaker’s viewpoint was the rationale for restricting 

the speech. See note 48, supra. Here, Steadman twice verbalized that he relied on the 

plaintiff’s “position” (i.e., viewpoint) and “controversial nature” (i.e., opposition to 

abortion) as reasons for denying permission to use the Corner. It is difficult to imagine 

how a decisionmaker’s statement that he refused permission to speak due to the speaker’s 

viewpoint could fail to constitute adequate evidence that he refused permission to speak 

due to the speaker’s viewpoint unless accompanied by evidence that he had allowed, or 

would allow, some other viewpoint to be expressed. The implausibility of the 

defendants’ position, and their inability to cite any authority supporting it, persuade the 

Court to reject it. 

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Finally, there is evidence that Steadman had authority to deny permission to 

hold a cemetery of innocents at the Corner. First, Steadman did not deny having 

such authority but, under the plaintiff’s evidence, proceeded to deny permission. 

Second, Bolden – the self-described “clearinghouse” for campus speech issues, 

(Doc. 104:3 at 26) – told the plaintiff’s co-president that Steadman had the 

authority to approve or disapprove requests to use the exterior spaces of Shelby 

Hall for expressive activity. (Doc. 99-1 at 32-33).51

While there is evidence that Steadman, with authority to do so, denied the 

plaintiff permission to use the Corner for a cemetery of innocents, and while there 

is evidence that he did so based on the plaintiff’s anti-abortion viewpoint, there is 

also evidence that would support a contrary finding on each of these points. Thus, 

neither side is entitled to summary judgment as to Steadman.52

 

51 The defendants assume rather than demonstrate that Steadman cannot be liable 

unless he had “authority” to deny permission to use the Corner. They suggest that lack of 

actual, formal authority would destroy the necessary causal relation between his conduct 

and the deprivation of the plaintiff’s right to speak, (Doc. 107 at 11-12), but the cases 

they cite are far too general to demonstrate the correctness of their position. Surely they 

do not suggest, for example, that a law enforcement officer’s use of unconstitutionally 

excessive force would not be the cause of the citizen’s deprivation of life if policy, or his 

supervisor, did not authorize him to use such force.

52 Steadman has already been denied qualified immunity for this claim, since “it 

was clearly established in February 2014 that such viewpoint discrimination violates the 

First Amendment.” (Doc. 49 at 25-26). In a single sentence, Steadman suggests he 

nevertheless should receive such immunity because existing precedent did not give him 

fair warning that referring the plaintiff to Mitchell constituted viewpoint discrimination. 

(Doc. 98 at 19; Doc. 107 at 12). This argument misunderstands the source of Steadman’s 

liability. It is not Steadman’s suggestion that the plaintiff contact Mitchell that gives rise 

to liability but his decision (per the plaintiff’s evidence) to deny the plaintiff permission 

to use the Corner because of the plaintiff’s anti-abortion viewpoint. It was certainly 

clearly established in February 2014 that such viewpoint discrimination is 

unconstitutional even in a limited public forum. (Doc. 49 at 25-26).

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B. Mitchell.

The plaintiff does not assert that Mitchell engaged in independent 

viewpoint discrimination. Instead, the plaintiff argues that Mitchell is liable 

because he “affirmed” Steadman’s allegedly viewpoint-biased decision. (Doc. 

101 at 19). The plaintiff offers three theories of how liability attaches.

First, the plaintiff argues that Mitchell “ratified” Steadman’s viewpoint 

discrimination. (Doc. 101 at 19). According to the plaintiff’s sole authority, 

ratification requires that the superior had an opportunity to review the 

subordinate’s decision “and agreed with both the decision and the decision’s 

basis.” Salvato v. Miley, 790 F.3d 1286, 1296 (11th Cir. 2015) (internal quotes 

omitted). 

Steadman forwarded to Mitchell his explanation of why he denied the 

plaintiff permission to use the Corner. Mitchell responded, “[w]e have identified 

[the Speech Zone] as the appropriate location for any events or displays similar 

[to] the one mentioned here.” (Doc. 102-16 at 1). Mitchell did not acknowledge 

the reasons given by Steadman, much less express approval of them, and the 

plaintiff does not argue otherwise. Instead, the plaintiff insists that Mitchell 

ratified Steadman’s allegedly viewpoint-biased reasoning simply by failing to 

“distance himself” from that reasoning. (Doc. 101 at 20; Doc. 106 at 17; Doc. 110 

at 10). The plaintiff’s sole authority, however, does not articulate or support the 

proposition that failure to express disagreement with a subordinate’s reasons 

constitutes agreement with those reasons for purposes of ratification.

53 Without 

such support, the plaintiff cannot prevail on this theory.

Second, the plaintiff argues that Mitchell is liable under a “subordinate 

bias” theory. (Doc. 101 at 20). Under this theory, Steadman did not make the 

decision to deny permission to use the Corner but made only a recommendation of 

 53 In Salvato, the superior did not have a timely opportunity to review the 

subordinate’s decision to begin with. 790 F.3d at 1296.

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denial (based on viewpoint discrimination), which recommendation Mitchell 

“adopted.” (Id.). This theory, according to the plaintiff, spares it the burden of 

showing that Mitchell realized that Steadman was motivated by viewpoint bias 

and that Mitchell agreed with that bias. The problem is that, by the plaintiff’s sole 

authority, “subordinate bias” is a means of making the entity (here, the University) 

liable, not the individual (here, Mitchell) that accepted the tainted 

recommendation.54 

After the defendants pointed out this flaw, (Doc. 107 at 13), the plaintiff in 

reply cited several trial court cases for the proposition that “subordinate bias” (or 

“cat’s paw”) theory also supports “individual subordinate liability” under Section 

1983. (Doc. 110 at 10-11 (emphasis added, internal quotes omitted)). All this 

means, however, is that a cat’s paw superior’s acceptance of a subordinate’s 

tainted recommendation does not break the causal chain and thereby preclude the 

subordinate’s liability for his biased recommendation; it does not mean that the 

superior becomes liable for the subordinate’s bias. 

Finally, the plaintiff argues that “allegations of facts that demonstrate an 

immediate supervisor knew about the subordinate violating another’s federal 

constitutional right to free speech, and acquiescence in that violation, suffice to 

state free speech violations under the First ... Amendmen[t].” OSU Student 

Alliance v. Ray, 699 F.3d 1053, 1075 (9th Cir. 2012).

55 Assuming without 

deciding that this is a sound principle, it was announced by the Ninth Circuit, and 

the plaintiff has offered no case from the Supreme Court or the Eleventh Circuit 

echoing or adopting it. Thus, and as the defendants argue, (Doc. 111 at 6), for 

purposes of qualified immunity analysis the plaintiff has not met its burden of 

showing it is “clearly established” that a supervisor violates a plaintiff’s First 

 54 Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011).

55 Acquiescence in this context apparently means “d[oing] nothing.” Id. 

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Amendment rights when he knows of a subordinate’s violation and does nothing. 

(Doc. 49 at 19).56

CONCLUSION

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

judgment as to viewpoint discrimination under the First Amendment and 

vagueness under the Due Process Clause is granted in part. The Second Policy 

violates the plaintiff’s constitutional rights under these provisions to the extent it 

purports to establish, or permits officials to establish, an inner boundary of the 

Perimeter other than as listed in Part I.A.3.b.ii. In all other respects, the plaintiff’s 

motion for summary judgment is denied. 

For the reasons set forth above, the defendants’ motion for summary 

judgment as to viewpoint discrimination under the First Amendment and 

vagueness under the Due Process Clause is granted in part. The Second Policy 

does not violate the plaintiff’s constitutional rights under these provisions to the 

extent it purports to establish an inner boundary of the Perimeter as listed in Part 

I.A.3.b.ii. The defendants’ motion for summary judgment as to the claim against 

Mitchell for nominal damages is granted. The defendants’ motion for summary 

judgment as to the type of forum the Perimeter represents (limited public forum) is 

granted, as is the defendants’ motion for summary judgment as to the 

reasonableness of the restrictions on speech in the Perimeter.57 In all other 

respects, the defendants’ motion for summary judgment is denied.

The parties are ordered to confer regarding the wording of a judgment 

awarding declaratory and injunctive relief in accordance with this order and to file 

 56 The plaintiff has likewise failed to show it is clearly established by Supreme 

Court or Eleventh Circuit precedent that a superior’s liability for a subordinate’s First 

Amendment violation can be established under a cat’s paw theory. 

57 The Court makes these rulings pursuant to Fed. R. Civ. P. 56(g).

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a proposed judgment (or, in the case of good-faith disagreement, separate 

proposed judgments), on or before March 7, 2016.

DONE and ORDERED this 22nd day of February, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:14-cv-00157-WS-B Document 113 Filed 02/22/16 Page 59 of 59