John McGlone v. Robert Bell, et al
OPINION filed: We REVERSE the district court's finding that Appellant does not have standing to pursue his claims; REVERSE the district court's grant of Defendants' motion to dismiss and REMAND for further proceedings consistent with this opinion; and VACATE the district court's denial of McGlone's motion for preliminary injunction and REMAND for further proceedings consistent with this opinion, decision not for publication pursuant to local rule 206. Danny J. Boggs and Eric L. Clay, Circuit Judges and Arthur J. Tarnow, (authoring) U.S. District Judge for the Eastern District of MI. [10-6055, 10-6169]
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0435n.06
Nos. 10-6055, 10-6169
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Apr 23, 2012
Plaintiff - Appellant,
LEONARD GREEN, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
ROBERT BELL, et al.,
Defendants - Appellees.
BEFORE: BOGGS and CLAY, Circuit Judges; TARNOW,* District Judge.
TARNOW, District Judge. Appellant is an evangelical Christian who wishes to speak on
the campus of Tennessee Technological University (TTU) about his religion. TTU requires nonaffiliated individuals and groups to obtain permission before speaking on certain parts of the campus.
TTU employs a fourteen business day advance notice period for all applications. Appellant
attempted to speak on TTU’s campus. When he was denied the opportunity to speak anywhere
except the north patio and was removed from campus, Appellant brought an as-applied and facial
challenge to TTU’s policy in the district court.
Appellant filed a motion for preliminary injunction, and Appellees filed a motion to dismiss.
The district court held that Appellant did not suffer an injury in fact and therefore, did not have
standing to bring the suit. It held that the campus use policy is content-neutral and narrowly tailored.
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.
The district court further granted Appellees’ motion to dismiss and denied Appellant’s motion for
Because Appellant has suffered an injury in fact, has standing, and TTU’s policy is not
narrowly tailored, we REVERSE the district court’s finding that Appellant does not have standing
to pursue his claims; REVERSE the district court’s grant of Defendants’ motion to dismiss and
REMAND for further proceedings consistent with this opinion; and VACATE the district court’s
denial of McGlone’s motion for preliminary injunction and REMAND for further proceedings
consistent with this opinion.
The following facts come from the district court’s Memorandum and Order granting
Defendants’ Motion to Dismiss and denying Plaintiff’s Motion for Preliminary Injunction. The
district court accepted as true Plaintiff’s version of the facts. R. 29, at 1-2; Appellant’s Br., at 13.
Plaintiff McGlone is a professing evangelical Christian who resides in
Breeding, Kentucky. As a tenet of his faith, he conveys his beliefs and convictions
to others in public. He does this orally, either in small groups or in one-on-one
conversations and through distribution of literature and display of signs. Plaintiff
often discusses issues of the day from his religious perspective. To share his faith,
the plaintiff frequently visits public universities and expresses his religious beliefs
with students and others found on campus. Plaintiff’s message relates to the hope
that he believes Jesus Christ offers for humanity. In plaintiff’s view, there is no
better place to share his faith than on a college campus.
The plaintiff makes no attempt to solicit funds or membership in any
organization. He does not try to harass anyone or encourage violence, and he
expresses himself in a peaceful manner. He claims that he does not try to force
anyone to listen to him or to accept the literature he distributes; he seeks only to share
his beliefs and to engage other persons in respectful conversation and rational
dialogue about the teachings and benefits of Christianity. Tennessee Technological
University (“TTU”) is a public university located in Cookeville, Tennessee. The
TTU campus blends in with the City of Cookeville; other than a few signs, there are
no demarcations signifying where TTU ends and the City of Cookeville begins.
Various city streets run around and through the TTU campus. The city streets that
run through campus include University Drive, Dixie Avenue, North Willow Avenue,
and North Peachtree Avenue. TTU’s campus is bounded by 12th Street to the north,
a railroad to the east, Pine and North Franklin Avenues to the west, and various
residences, commercial establishments, and public streets to the south. The
sidewalks on the perimeter of the TTU campus and on streets running through
campus are indistinguishable from City of Cookeville sidewalks. There are no fences
or barricades on the perimeter of the campus to prevent members of the general
public from gaining access to the campus. The TTU campus is open to the public at
large, and individuals not associated with the university have free access onto the
grounds. The campus contains many open, accessible areas on the grounds,
including sidewalks, park areas with benches and tables, pedestrian malls, and other
On April 6, 2009, the plaintiff called TTU to learn how he could express his
religious views on campus. He spoke with Susan Henry in the Student Information
Office, and she told him to stop by the office when he wanted to speak.1
The next day, on April 7, 2009, Mr. McGlone and his friend, Shawn Holes,
visited the TTU campus for the specific purpose of expressing a Christian message
to students by conversation, literature distribution, and display of signs. McGlone
wished to speak in any open, outside area of the campus where students could be
found, including but not limited to, the south patio/plaza area outside the University
Center, Sherlock Park, the Main Quad near South Hall, and the sidewalks along 12th
Street, Dixie Avenue, North Willow Avenue, North Peachtree Avenue, and 7th
Street. (Docket Nos. 2-2 through 2-14, Exs. B through O.)
Upon arriving at the TTU campus, McGlone and Holes went to the University
Center to meet with Ms. Henry. They noticed a few students on the south patio
outside the University Center (Docket No. 2-1, Ex. B) and immediately started
talking to them before checking in with Ms. Henry. The south patio has several
tables and chairs and flows into a large plaza area. (Docket Nos. 2-2 & 2-3, Exs. C
& D.) Students gather in this area, which resembles a pedestrian mall.
After a few minutes, McGlone went inside the University Center to find Ms.
Henry, while Holes stayed outside and talked with students. Ms. Henry was not
present that day, so McGlone spoke with Mark Ochsenbein, Director of Student
Activities. Mr. Ochsenbein said that McGlone could speak on the north patio.
(Docket No. 2-15, Ex. P.) McGlone asked if he could use the south patio/plaza
instead, there being more students and tables and chairs in that area. Ochsenbein
declined McGlone’s request and told him that the north patio was his only option.
It is not clear why Ms. Henry did not mention to Mr. McGlone that there was a written policy
applicable to such requests.
McGlone asked to see the written policy limiting expressive activity to the north
patio. Ochsenbein became agitated and said that if McGlone did not use the north
patio he would call the university police and have him arrested.
McGlone went outside to inform Holes of Ochsenbein’s comments. Holes
agreed that the north patio was inadequate for their expressive activities, as there
were few students and no tables and chairs. McGlone went back inside the
University Center and spoke to Ed Boucher, Dean of Student Affairs. McGlone
explained why he and Holes did not want to use the north patio, and he asserted that
their use of the south patio/plaza area would in no way cause a disruption. Dean
Boucher said that he would check university policy and get back to McGlone.
McGlone then returned to the south patio outside the University Center,
where he and Holes, without permission, continued to distribute tracts and engage
others in conversation. A few minutes later, TTU police officer Michael Lambert
approached and informed McGlone and Holes that they had to stop their activities
and leave campus or they would be arrested for trespass. McGlone and Holes left the
The following day, on April 8, 2009, at approximately 9:00 a.m., McGlone
telephoned Dean Boucher to find out whether he could speak on campus. Dean
Boucher said that plaintiff could speak, but he needed to follow TTU’s campus use
policy. (Docket No. 2-19, Ex. T.) According to Dean Boucher, the policy required
plaintiff to submit a written application before speaking (Docket No. 2-20, Ex. U)
and to submit that application in person at least 14 business days prior to speaking.
The policy, entitled “Use of Campus Property And Facilities,” states that its
purpose “is to provide a uniform basis upon which the institutions and area
vocational-technical schools governed by the Tennessee Board of Regents can
regulate the use of campus property and facilities by affiliated and non-affiliated
groups, organizations and individuals.” (Docket No. 2- 19 at 1, 0240-1-1.01.) The
policy also provides that it
is intended to provide a system of regulations calculated to promote
the orderly conduct of activities on campus property and in campus
facilities: to prevent interruption of or interference with normal
missions, processes and functions of the institutions and schools; to
promote an educational rather than commercial atmosphere on
campus; to prevent commercial exploitation of students; to preserve
residential tranquility and to prevent use of campus property and
facilities contrary to federal, state, or local law or regulation, or
policies or regulations of the Tennessee Board of Regents, or the
institution and schools.
(Id.) The policy further provides that the campuses and facilities of the institutions
and schools are restricted to students, faculty, staff and guests of the institutions or
schools, except when part or all of the campuses, its buildings or facilities are open
to the general public for a designated time and purpose or “when use by nonaffiliated groups, organizations or individuals has been granted or approved pursuant
to the provisions of this policy or the policy of the individual institution or school.”
(Id. at 1, 0240-1-1.02(2)(a).) The policy specifically states that “[n]on- affiliated
groups, organizations and individuals may utilize campus property and facilities on
a temporary basis for the purpose of religious worship or evangelical activities
subject to the specified registration requirements and procedures.” (Id. at 5, 0240-11.04.)
The policy requires all non-affiliated individuals, groups, or organizations
desiring use of campus property or facilities or desiring to distribute literature on
campus to submit a written application for registration of the proposed activity at
least fourteen (14) days in advance (excluding weekends and holidays) to the
appropriate official at the institution or school. (Id. at 2, 0240-1-1.02(4)(b).) In the
event an applicant misses the 14-day advance notice deadline, “the President of the
institution or director of the area school, or his or her designee, may approve
applications for registration filed at a later time upon such official’s determination
that the use of property requested can be reasonably accommodated and that adequate
cause exists for late filing of the application for registration.” (Id.) Approval of a
late application is within the sole discretion of the President, the director of the area
school, or his or her designee. Applications must be submitted on a designated form.
The policy permits officials to deny applications for use of campus property
in nine (9) specific circumstances: (1) where the requested use would cause
substantial disruption or interference with the normal activities of the institution or
school conducted in the course of its lawful mission, processes and functions; (2) the
requested use would be contrary to federal, state, or local law or regulation, or
policies or regulations of the Tennessee Board of Regents, or the institution or
school; (3) the applicant or sponsor failed to provide accurate and complete
information on the application for registration; (4) the applicant or sponsor has been
responsible for policy violations during previous registered use of campus property
or facilities; (5) approval for the use of property or facilities has previously been
given to another group, organization or individual for the time(s) and location(s)
requested; (6) use of the property or facilities requested would be impossible due to
the set-up time and/or take down time required for other previously scheduled
activities at the requested location immediately before and/or after the requested use,
or due to other extenuating circumstances; (7) the activity is of such nature or
duration that it cannot reasonably be accommodated in the particular area for which
application is made, provided that in such event, an alternative on campus site, if
available for the activity, may be proposed by the institution or school; (8) the
activity creates or would create a danger, or dangerous condition impacting on the
health, safety, and welfare of others; and (9) such use conflicts or would conflict with
existing contractual obligations of the institution or school. If an application is
denied for a reason stated in paragraphs (1), (2), (4), (7), (8), or (9), the applicant has
a right to appeal the denial to the President or area school director or his or her
designee. (Id. at 4, 0240-1-1.03(e).)
Plaintiff McGlone, believing this policy burdensome on speech, requested to
talk to Dean Boucher about his concern in person. McGlone did not complete the
application required by the policy, and Dean Boucher refused to meet with him.
Later on April 8, 2009, McGlone met with Holes, and they decided not to
return to TTU’s campus because they did not want to submit an application and wait
for 14 days. Instead, they went to a location that they thought was off TTU’s
campus, about 150 feet north of the intersection of Dixie Avenue and 9th Street.
(Docket Nos. 2-17 & 2-18, Exs. R & S.) This area looked to them like a city
sidewalk, and they claim that they believed it to be a city sidewalk. Upon arrival, they
began talking to people, displaying signs, and distributing literature. Approximately
15 minutes after their arrival, Dean Boucher approached McGlone and Holes and
advised them that they could not speak on that sidewalk without university
permission because the sidewalk was on university property.
McGlone has not returned to TTU’s campus since this incident, he says for
fear of arrest. He asserts that TTU’s campus use policy serves to chill and deter his
expression and that many of the provisions adversely affect his speech. TTU requires
him, as an individual speaker or as part of a small group, to apply in person and to
supply 14 business days advance notice of his desire to speak. The plaintiff claims
that this requirement affects his message because he does not necessarily know where
he will be 14 business days in advance. Weather could dictate a sudden change in
schedule. Also, he often likes to speak to the issues of the day, which requires him
to be spontaneous. He claims that the notice requirement eliminates spontaneity and
that he sees no good reason for this requirement.
The TTU application requires any outside speaker to identify a program title
and purpose, state whether literature will be distributed, and state whether the speaker
qualifies as an assembly, political or religious. The plaintiff claims that these
requests deter him because he does not want to divulge personal information like this
just to share his beliefs. He is afraid that the information will be used to discriminate
Based on the language of the campus use policy, TTU specifically allows
individuals unaffiliated with the university, like the plaintiff, to speak on campus, but
the policy does not specify where the plaintiff can speak or how long he can speak.
The plaintiff believes that TTU officials used this “open-ended discretion” to
discriminate against him and his particular message by placing him in an isolated
area like the north patio, “where no one ever goes.” If not for the campus use policy
and the actions of the defendants, the plaintiff claims that he would immediately
return to TTU to share his message.
On June 23, 2009, counsel for the plaintiff sent a six-page letter to TTU
President Dr. Robert Bell, Dean Boucher, and Police Chief Gay Shepherd, outlining
the legal reasons why plaintiff believed his First Amendment rights had been
violated. (Docket No. 2-21.) On July 22, 2009, an Associate General Counsel with
the Tennessee Board of Regents sent a responsive letter to plaintiff’s counsel.
(Docket No. 2-22.) The letter stated in part:
As you appear to be aware, TTU may impose reasonable time, place
and manner restrictions pertaining to the property under its control.
TTU may restrict access to its property and facilities in a manner
consistent with its pedagogical mission in order to prevent
interruption of or interference with normal missions, processes and
functions of the institution. To that end, TTU has in place a policy
and process which it consistently applies in a viewpoint-neutral
manner allowing affiliated and non-affiliated groups, organizations
and individuals the ability to request use of campus property and
facilities. Courts have consistently held as constitutional, policies and
practices similar to those in place at TTU. TTU welcomes freedom
of expression and speech on its campus. If Mr. McGlone wishes to
utilize the TTU campus to share his religious beliefs with students
and staff, and to distribute literature, he must first follow the
appropriate procedure and fill out an application not later than 14
days prior to the date of his requested use. Should he fail to do so, he
will be denied access to the campus.
On March 29, 2010, McGlone filed suit in this court under 42 U.S.C. § 1983
against Dr. Bell, in his official capacity as President of TTU, and against Dean
Boucher, Ochsenbein, and Officer Lambert in their official and individual capacities,
seeking declaratory and injunctive relief and nominal damages. In his first cause of
action for violation of the Free Speech Clause of the First Amendment, plaintiff
alleged that his religious speech is protected speech under the First Amendment and
that TTU’s policy and practices, and enforcement thereof, including but not limited
to TTU’s campus use policy, are vague and overbroad; restrain constitutionallyprotected speech in advance of its expression, without appropriate guidelines or
standards to guide the discretion of officials charged with enforcing the policy; chill
the free speech and free exercise of religion of plaintiff and of other third-party
citizens; allow the exercise of unbridled discretion; are not narrowly tailored to
achieve any legitimate government purpose; and fail to leave open alternative
avenues for expression. He also alleged that defendants have no compelling or
legitimate reason to justify their “censorship” of the religious viewpoints sought to
be expressed by plaintiff.
In the second cause of action, for violation of the Due Process Clause of the
Fourteenth Amendment, plaintiff alleged that defendants’ policies are vague and lack
sufficient objective standards to curtail the discretion of officials and that this allows
defendants ample opportunity to enforce the policies in an ad hoc, arbitrary, and
discriminatory manner. Plaintiff alleged that defendants have no compelling or
legitimate reason to justify their vague policies.
In the motion for a preliminary injunction, plaintiff asks the court to enjoin
the defendants and their agents, servants, employees, attorneys, and all persons and
entities in active concert or participation with them, directly or indirectly, from
applying the TTU campus use policy on its face and from applying the campus use
policy to prevent plaintiff from engaging in his desired and constitutionally protected
speech activities. In the absence of a preliminary injunction, plaintiff asserts that he
will suffer irreparable injury in the loss of his rights and freedoms guaranteed by the
United States Constitution.
R. 29, Mem., at 2-11.
The district court found that Plaintiff lacked standing to bring the claim and dismissed the
Complaint with prejudice. Id. at 17. The district court reasoned that since Plaintiff’s claim was
nothing more than a subjective “chill” of his First Amendment rights, it was insufficient to confer
standing. Id. at 14 (citing Morrison v. Bd. of Educ., 521 F.3d 602, 608 (6th Cir. 2008)).
Consequently, the district court also denied the motion for preliminary injunction and dismissed all
Defendants in their individual and official capacities. Id. at 18-20; R. 30, Order; R. 35, Order. The
court also found that the campus use policy is content-neutral, narrowly tailored to serve significant
government interests, and left ample alternative channels for communication. R. 29, Mem., at 15-17.
STANDARD OF REVIEW
This consolidated appeal arises from the district court’s orders granting Defendants’ motion
to dismiss and motion for judgment on the pleadings.2 “Motions for judgment on the pleadings
under Federal Rule of Civil Procedure12(c) are analyzed under the same de novo standard as motions
to dismiss pursuant to Rule 12(b)(6).” Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295
(6th Cir. 2008) (internal citation omitted). “For purposes of a motion for judgment on the pleadings,
all well-pleaded material allegations of the pleadings of the opposing party must be taken as true,
and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.”
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citations and
quotations omitted). A motion to dismiss for failure to state a claim is disfavored, especially when
one’s civil rights are at stake. Nuchols v. Berrong, 141 F. App’x 451, 453 (6th Cir. 2005)
(unpublished); see Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976).
A dismissal for lack of standing is also reviewed de novo. Prime Media, Inc. v. City of
Brentwood, 485 F.3d 343, 348 (6th Cir. 2007) (internal citation omitted).
In general we review a district court’s denial of a motion for preliminary injunction for abuse
of discretion. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). When reviewing a
preliminary injunction with First Amendment implications, however, the review is de novo. Cnty.
Sec. Agency v. Ohio Dep’t of Commerce, 296 F.3d 477, 485 (6th Cir. 2002) (internal citation
Defendants filed an untimely motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), as it was filed after Defendants’ Answer. The district court, using its discretion to address
substance over form, treated Defendants’ motion to dismiss as a 12(c) motion for judgment on the
pleadings. R. 35, Order, at 1-2 (citing Satkowiak v. Bay Cnty. Sheriff’s Dep’t, 47 F. App’x 376, 377
n.1 (6th Cir. 2002)).
omitted). No deference is afforded to the district court. See Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 499 (1984).
The district court held that McGlone did not have standing. In the alternative, it held that
TTU’s policy was a content-neutral, time, place, and manner regulation warranting dismissal of the
complaint. Both prongs–standing and dismissal–will be discussed below.
The district court found that “plaintiff did not submit proof of any concrete and particularized
harm that is actual and imminent, and he alleges nothing more than a subjective ‘chill’ of his First
Amendment rights.” R. 29, Mem., at 14. Upon a de novo review of the record, we find that the
district court erred in making such a determination. McGlone has satisfied the constitutional and
prudential standing requirements to bring his First Amendment claims for the reasons stated below.
Standing to pursue a claim is a threshold question in every federal case. Warth v. Seldin, 422,
U.S. 490, 498 (1975). “The burden of establishing standing is on the party seeking federal court
action.” Rosen v. Tenn. Comm’r of Fin. & Admin., 288 F.3d 918, 927 (6th Cir. 2002) (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff must meet Article III and
prudential standing requirements to proceed with his case. Wuliger v. Mfrs. Life Ins. Co., 567 F.3d
787, 793 (6th Cir. 2009).
To establish Article III, constitutional standing, a plaintiff must show:
(1) it has suffered an injury in fact that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Id. (quoting Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir. 2004)). To
establish prudential standing requirements
(1) a plaintiff must assert his own legal rights and interests, without resting the claim
on the rights or interests of third parties; (2) the claim must not be a ‘generalized
grievance’ shared by a large class of citizens; and (3) in statutory cases, the plaintiff’s
claim must fall within the ‘zone of interests’ regulated by the statute in question.
Id. (quoting Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999)).
Most factors as to standing are clearly met by McGlone, as there are limited factual disputes
in this case. The alleged injury is fairly traceable to Appellees, as TTU’s policy was created and
enforced by the school and its officials. His alleged injury will be redressed by a favorable decision.
He is asserting his own legal rights and interests; he is the one who wants to speak on campus. Since
it is personal to him, it is not a “generalized grievance” and it falls with the zone of interests
regulated by the statute—his right to free speech. The only factor as to standing that is in dispute
is whether McGlone has suffered an injury in fact, which is discussed in detail below.
Injury in Fact
Plaintiff is challenging four aspects of the TTU campus use policy:
1) the provision which requires individuals and small groups to obtain permission before
speaking on campus fourteen business days in advance (R. 2-19, Ex. T, at § 2(4)(b));
2) the provision requiring speakers to disclose personal information, including the content of
their message, before speaking on campus (R. 2-19, Ex. T, at § 2(4)(b); R. 2-20, Ex. U,
3) the waiver provision which allows TTU officials to waive or enforce the advance notice
requirement ((R. 2-19, Ex. T, at § 2(4)(b)); and
4) the absence of a provision limiting the discretion of the TTU officials’ choice of where and
how long a speaker may speak on campus (R. 2-19, Ex. T). Appellant’s Br., at 14.
“It is well-settled that a chilling effect on one’s constitutional rights constitutes a present injury
in fact.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1076 (6th Cir. 1994)
(internal citation omitted). To show the existence of an objective chill, a plaintiff must show that
he has an “intention to engage in a course of conduct arguably affected with a constitutional interest,
but proscribed by a statute, and there exists a credible threat of prosecution thereunder . . .” Babbitt
v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); accord Planned Parenthood Ass’n
of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1394-96 (6th Cir. 1987). Plaintiffs may have
standing even if they have never been prosecuted or threatened with prosecution. Doe v. Bolton, 410
U.S. 179, 188 (1973).
Plaintiff is not required to “first expose himself to actual arrest or prosecution to be entitled
to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v.
Thompson, 415 U.S. 452, 459 (1974); see also Planned Parenthood, 822 F.2d at 1395-96. With
regard to a plaintiff’s First Amendment rights, the Supreme Court has 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
City of Lakewood v. Plain Dealer Publ’n Co., 486 U.S. 750, 755-56 (1988); see also East Brooks
Books, Inc.v. Shelby Cnty. Tenn., 588 F.3d 369 (6th Cir. 2009) (finding that plaintiff had standing
based on the suppression of his future protected speech even where his license was not actually
The district court accepted Appellees’ argument that because McGlone did not apply for a
permit, he did not suffer an injury in fact. Appellees rely heavily on the Sixth Circuit case of
Morrison v. Board of Education and claim that McGlone has only shown a subjective chill of his
First Amendment rights. See Morrison v. Bd. of Educ., 521 F.3d 602 (6th Cir. 2008).
In Morrison, we held that subjective chill alone is insufficient to establish standing. Morrison,
521 F.3d at 608. Morrison was a high school student and Christian who believed that his religion
required him to tell homosexual students that their sexual orientation was a sin. Id. at 605. His high
school had a written policy prohibiting students from making potentially harassing or derogating
statements to students based on their sexual orientation. Morrison alleged that the written policy
chilled his speech because he was scared of being punished. Id. After filing his lawsuit, the school
board changed the policy to permit anti-homosexual speech unless it was “sufficiently severe or
pervasive that it adversely affects a student’s education or creates a climate of hostility or
intimidation for that student, both from the perspective of an objective educator and from the
perspective of the student at whom the harassment is directed.” Id. at 607.
The Court held that Morrison did not have standing. Id. at 608. The Court reasoned that “the
record [was] silent as to whether the school district threatened to punish or would have punished
Morrison for protected speech in violation of its policy.” Id. The Court declined to find standing
where Morrison’s claim was based solely on apprehension and without any specific action by the
Board that supported his fear that punishment would result. Morrison’s reliance on the written
policy by itself was held to be insufficient. Id.
Here, the district court imposes the requirement that McGlone apply for and be denied a permit
to speak before he is afforded standing. The law does not support such a result. Steffel v. Thompson,
415 U.S. 452, 459 (1974); see also Planned Parenthood, 822 F.2d at 1395-96.
McGlone’s intention to engage in expression regulated by TTU’s policy is sufficient to support
his assertion that the policy objectively chills his desired speech. Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979); accord Planned Parenthood, 822 F.2d at 1394-96. McGlone
has a desire to speak spontaneously on TTU’s campus in areas that are subject to the policy. The fact
that McGlone can speak freely on the north patio does not affect his standing to bring the instant
claim. See Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 607 (6th Cir.
2005) (allowing plaintiff to challenge notice/permit provision even though the city of Dearborn has
provided ample alternative means of communication such as the city hall and public parks).
This case is distinguishable from Morrison. Here, the record is not “silent” as to a threat of
punishment. McGlone is alleging more than the apprehension based on a written policy. McGlone
attempted to seek a waiver of the fourteen-day notice requirement by speaking in the south
patio/plaza area of the campus. He was denied the waiver and was told that he could only speak on
the north patio. Furthermore, he was approached by a campus police officer who threatened to arrest
him for trespass if he did not stop speaking and leave the campus. Appellees also sent a letter to
McGlone notifying him that he would not be allowed on campus if he did not first obtain permission.
We hold that McGlone has suffered an injury in fact that is concrete and particular. He was
not allowed to speak on campus and was not afforded a waiver. His First Amendment rights have
also been objectively chilled by the threat of arrest. The injury is actual, as it already occurred and
will imminently occur again if he violates the policy.
We hold that McGlone has standing to challenge the policy on its face and as-applied to him.
The district court erred in holding otherwise.
At the district court, Appellees filed a motion to dismiss for failure to state a claim and
Appellees also moved to dismiss defendants in their individual capacities based on immunity. R.
13, Defs.’ Mot. to Dismiss; R. 14, Defs.’ Mem. in Supp. of Mot. to Dismiss. The district court ruled
that TTU’s policy was a permissible, content-neutral, time, place, and manner restriction warranting
dismissal. The district court also dismissed the TTU officials in their individual capacities based on
qualified immunity. These decisions were erroneous.
Whether Appellant Brings a Claim for Which Relief Can Be Granted
This Court reviews a grant of a motion to dismiss for failure to state a claim de novo. HarbinBey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). “In determining whether a party has failed to state
a claim, we construe the complaint in the light most favorable to the non-moving party and accept
all factual allegations as true. Id. The complaint “need contain only ‘enough facts to state a claim
to relief that is plausible on its face.’” Paige v. Coyner, 614 F.3d 273, 277 (6th Cir. 2010) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Forum analysis is required to determine whether a restriction on speech violates the First
Amendment. Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 1985); Cornelius v. NAACP
Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797 (1995). We use a three-step process to
determine: 1) whether the expressive activity deserves protection; 2) the nature of the forum, and
3) whether the justifications for exclusion from the relevant forum satisfy the requisite standard.
Saieg v. City of Dearborn, 641 F.3d 727, 734-35 (6th Cir. 2011) (internal quotations and citations
omitted); Cornelius, 473 U.S. at 797.
Whether the Expressive Activity Is Protected
As to the first factor, McGlone’s desire to share his religious message through public speaking,
one-on-one conversation, distribution of literature, and display of signs is protected First Amendment
activity. See, e.g., Boos v. Barry, 485 U.S. 312, 318 (1988) (holding that the display of signs as
protected speech); Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 647 (1981)
(holding that written and oral dissemination of religious viewpoint are protected speech); Murdock
v. Com. of Pa., 319 U.S. 105, 108 (1943) (holding that the hand distribution of religious materials
are protected speech).
The Nature of the Forum
The district court declined to make a decision on whether the areas on TTU’s campus are
traditional public fora or designated public fora. R. 29, at 14, n.2 (“[T]he court need not resolve this
issue because the standard applicable to traditional public fora and designated public fora is the
same.”). We, however, hold that this issue is now ripe for review, as no facts are in dispute. The
issue is purely a question of law.
McGlone argues that the open areas on TTU’s campus are public fora. We agree. The
perimeter sidewalks along TTU’s campus are traditional public fora and all other open areas are
designated public fora.
There are three types of property for the purposes of forum designation: traditional, designated,
and nonpublic fora. Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 842 (6th Cir. 2000)
(internal citations omitted). “Traditional public fora, such as streets, sidewalks, and parks, are
‘places which by long tradition or by government fiat have been devoted to assembly and debate.’”
Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). In a
designated public forum, the government “intentionally open[s] a nontraditional public forum for
public discourse.” Id. (quoting Cornelius, 473 U.S. at 802).
Appellant would like to speak on the perimeter sidewalks along the side of the TTU campus.
Appellant argues that the sidewalks should be characterized as traditional public fora. Sidewalks
have long been considered “prototypical” examples of traditional public fora. Schenck v. Pro-Choice
Network of W. New York, 519 U.S. 357, 377 (1997). The burden is on TTU to show that the
sidewalk is overwhelmingly specialized to negate its traditional forum status. Henderson v. Lujan,
964 F.2d 1179, 1182 (D.C. Cir. 1992).
Appellees have not attempted to dispute Plaintiff’s characterization of the perimeter sidewalks
as traditional public fora. McGlone argues that the sidewalks on TTU’s campus “look like, lie
adjacent to, and blend in with other city sidewalks.” Appellant’s Br., at 27. Where a private
“[s]idewalk blends into the urban grid, borders the road, and looks just like any public sidewalk” the
Court has characterized such a sidewalk as a traditional public forum. United Church of Christ v.
Gateway Econ. Dev. of Greater Cleveland, Inc., 383 F.3d 449 (6th Cir. 2004); see also United States
v. Grace, 461 U.S. 171, 180 (1983) (holding that the sidewalk serving as a perimeter to the Supreme
Court’s grounds is a traditional public forum where there is no separation, fence, or indication that
it is “some special type of enclave.”); see also Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000)
(finding that a university sidewalk that was physically indistinguishable from nearby city sidewalks
is a traditional public forum). Because the perimeter sidewalks at TTU blend into the urban grid and
are physically indistinguishable from public sidewalks, they constitute traditional public fora.
The parties and the district court agree that the remaining open areas of the TTU campus are
designated public fora. TTU’s written policy states “[t]he campuses and facilities of” TTU to “nonaffiliated groups, organizations or individuals” who have “been granted or approved pursuant to the
provisions of this policy . . . .” R. 2-19, Ex. T, Policy, § 2(2)(a). The other open areas at issue are
designated fora. See Putnam Pit, 221 F.3d at 842 (finding a designated public forum where the
government “intentionally open[s] a nontraditional public forum for public discourse”).
Whether the Justifications for Exclusion from the Relevant Forum Satisfy the
A prior restraint is any law “forbidding certain communications when issued in advance of the
time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993).
TTU’s policy requires unaffiliated speakers to “submit a written application for registration of the
proposed activity at least fourteen (14) days in advance (excluding weekends and holidays) . . .” R.
29, Ex. T. Because an unaffiliated speaker’s exercise of a First Amendment right depends on the
prior approval of a public official, the policy imposes a prior restraint. See Déjà Vu of Nashville, Inc.
v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001).
“Any system of prior restraints of expression [bears] a heavy presumption against its
constitutional validity, and a party who seeks to have such a restraint upheld thus carries a heavy
burden of showing justification for the imposition of such a restraint.” Cnty. Sec. Agency v. Ohio
Dep’t of Commerce, 296 F.3d at 477, 485 (6th Cir. 2002) (quoting New York Times Co. v. United
States, 403 U.S. 713, 714 (1971)). A prior restraint must be content-neutral, narrowly tailored to
serve a significant governmental interest, and leave open alternatives for communication. Forsyth
Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992). Furthermore, it must not delegate
overly broad licensing discretion to official decision-makers. Id.
TTU’s campus policy violates the First Amendment because the policy is not narrowly tailored
to any legitimate interest.
Appellant argues that 1) the fourteen business day advance notice requirement, 2) the
requirement that speakers obtain permission to engage in any form of expression, and 3) the
requirement that the speakers must disclose their identity and content of speech “burden substantially
more speech than is necessary to further the government’s legitimate interests.” Appellant’s Br., at
30 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989)).
Advance Notice Period and Permission to Engage in Expression
“Any notice period is a substantial inhibition on speech.” Dearborn, 418 F.3d at 605. “The
simple knowledge that one must inform the government of his desire to speak and must fill out
appropriate forms and comply with the applicable regulations discourages citizens from speaking
freely.” N.A.A.C.P. v. City of Richmond, 743 F.3d 1346, 1355 (9th Cir. 1984).
TTU’s fourteen business day notice period is much longer than other notice periods that have
been upheld. See Bowman v. White, 444 F.3d 967 (8th Cir. 2006) (upholding a three day advance
notice period)); see Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010) (upholding a seven day advance
notice period)). Appellees have not provided any explanation for the need of a fourteen business day
notice period. In fact, at oral argument, Appellees agreed that the period was unreasonable.
Appellees have not met their burden to show that the restriction is narrowly tailored to serve
a significant government interest. See N.A.A.C.P., 743 F.2d at 1356-57 (finding it insufficient to
“simply assert, without citation to authority, that 20 days notice” is narrowly tailored). We hold
that TTU’s notice period is unreasonable. See, e.g., City of Dearborn, 418 F.3d at 606-07
(invalidating a thirty-day advance notice requirement for events in parks, on streets, and in other
public areas); Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (invalidating a five-day
advance notice requirement for processions of ten or more persons on streets, sidewalks, and public
ways); Grossman v. City of Portland, 33 F.3d 1200, 1204-07 (9th Cir. 1994) (invalidating a sevenday advance notice requirement to demonstrate in a public park); Roberts v. Haragan, 346 F. Supp.
2d 853, 868-69 (N.D. Tex. 2004) (invalidating a two-day advance notice requirement for students
to speak in designated campus areas).
Disclosure of Identity and Content of Speech
As a general matter, anonymous speech is protected by the First Amendment. McIntyre v.
Ohio Elections Comm’n, 514 U.S. 334, 342 (1995); see also Buckley v. Am. Constitutional Law
Found., Inc., 525 U.S. 182, 199-200 (1999); Talley v. California, 362 U.S. 60, 64 (1960).
Registration requirements dissuade potential speakers by prohibiting anonymous speech. See
Watchtower Bible, 536 U.S. at 166; see also McIntyre, 514 U.S. at 341-42 (“[A speaker’s] decision
in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about
social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”); see also
Berger v. City of Seattle, 569 F.3d 1029, 1037-38 (9th Cir. 2009).
Appellant argues that TTU’s permit, which requires individuals and small groups to submit
information about their identity and about the program purpose is an unconstitutional restriction.
Appellant’s Br., at 38-40. TTU’s form asks for the “Program Purpose.” Id.; R. 2-20, Ex. U. The
form asks for the name and topic of the speaker. Id. It also requires an applicant to indicate whether
the speech is “political” or “religious.” Id.
Appellant argues that the only reason TTU requires such information is to discriminate on the
basis of content, specifically to deny applicants or raise security costs in anticipation of the concerns
about a given message. Appellant’s Br., at 39. Appellant argues that there is no reason for TTU to
inquire as to whether a message is “religious” or “political.” Id. Appellant claims that he is hesitant
to disclose such information and would like to engage in anonymous speech. Id. at 40.
Appellees do not address this argument directly. Appellees’ only response is that “[t]he
campus use application form to be completed by the individual or group seeking to utilize campus
property is also narrowly tailored to require only that amount of information necessary to serve the
significant interests of TTU in maintaining order and preventing interruption of its educational
mission.” Appellees’ Br., at 16.
Here, Appellees have failed to meet their burden in defending the policy. Appellees have not
specified the “significant interests,” nor have they elaborated on an “educational mission.” They
have not explained how the policy at issue maintains order or prevents interruption of an educational
mission. Appellees have failed to show that the policy is narrowly tailored. We reverse the district
court’s decision to grant dismissal as to this issue and remand for further proceedings consistent with
(iii) Whether the Policy Allows Unbridled Discretion
Appellant also argues that the campus use policy’s discretionary waiver policy is
unconstitutional. The policy identifies nine specific circumstances in which a permit may be denied.
R. 2-19, Ex. T, § 2(4)(d). The policy, however, allows officials to waive the fourteen business day
waiting period for any reason. In light of the invalidity of the notice period, as discussed supra, we
reverse the dismissal of this claim and remand for further proceedings consistent with this opinion.
The district court erroneously dismissed the TTU officials in their individual capacities based
on their qualified immunity. R. 29, Mem., at 20. Appellant has correctly and adequately addressed
this issue in its brief. Appellant’s Br., at 44-45, n.18. Appellant argues:
The qualified immunity inquiry asks two distinct questions: “(1) whether, considering
the allegations in a light most favorable to the party injured, a constitutional right has
been violated, and (2) whether that right was clearly established.” Dorsey v. Barber, 517
F.3d 389, 394 (6th Cir. 2008). For a right to be clearly established, the contours of the
right must be sufficiently clear that a reasonable officer would understand that what he
is doing violates that right. Harris v. City of Circleville, 583 F.3d 356, 366-67 (6th Cir.
2009). To make this assessment, this Court looks to decisions of the Supreme Court, its
own decisions, and finally to decisions of other circuits. Daugherty v. Campbell, 935
F.2d 780, 784 (6th Cir. 1991). There need not be a prior case directly on point for a law
to be clearly established; generalized statements of the law or a general constitutional
rule already identified in the decisional law are sufficient. Kennedy v. City of Cincinnati,
595 F.3d 327, 337 (6th Cir. 2010). As established herein, McGlone had a clearly
established right to engage in his desired expression free from the unconstitutional
requirements imposed by TTU. Therefore, the District Court’s ruling with respect to
qualified immunity should . . . be reversed.
Id. We agree. We reverse the district court’s decision to dismiss the TTU officials based on
When evaluating a motion for preliminary injunction, we must consider four factors:
“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant
would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would
cause substantial harm to others; and (4) whether the public interest would be served by issuance of
the injunction.” Bonnell, 241 F.3d at 809 (quoting Rock & Roll Hall of Fame v. Gentile Prods., 134
F.3d 749, 753 (6th Cir. 1998)).
In light of the above, we vacate the district court’s denial of McGlone’s preliminary injunction
motion and remand for further proceedings consistent with this opinion.
In summary, we REVERSE the district court’s finding that Appellant does not have standing
to pursue his claims; REVERSE the district court’s grant of Defendants’ motion to dismiss and
REMAND for further proceedings consistent with this opinion; and VACATE the district court’s
denial of McGlone’s motion for preliminary injunction and REMAND for further proceedings
consistent with this opinion.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?