Beverly et al v. Chicago State University Board of Trustees et al

Filing 51

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 1/13/2015.Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PHILIP BEVERLY and ROBERT
BIONAZ,
Plaintiffs,
v.
WAYNE WATSON, PATRICK CAGE,
and JANELLE CARTER,
Defendants.

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Case No. 14 C 4970
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
The defendants’ motion to dismiss for lack of subject matter jurisdiction [36] is denied.
I. BACKGROUND
Plaintiffs Phillip Beverly and Robert Bionaz are two professors at Chicago State
University (“CSU”). The defendants are Wayne Watson (CSU’s President), Patrick Cage
(CSU’s Vice President of Labor and Legal Affairs and CSU’s General Counsel), and Janelle
Carter (CSU’s Associate General Counsel).1 All three defendants were sued in their official and
individual capacities.
The plaintiffs are regular contributors to a blog called CSU Faculty Voice that criticizes
the administration at CSU (www.csufacultyvoice.blogspot.com). According to the plaintiffs, the
CSU Faculty Voice blog is not hosted on CSU’s servers. The plaintiffs assert that the defendants
violated their First Amendment rights by trying to shut down the blog and adopting a
“Cyberbullying Policy” that prohibits electronic communications that may have an “adverse
impact on the work environment of a CSU faculty member or employee.” (Complaint at ¶ 2.)

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The court previously dismissed the claims against CSU’s Board of Trustees.

The Cyberbullying Policy prohibits “deliberate or repeated conduct” that “harasses [or]
intimidates an individual . . . or has the effect of substantially disrupting the individual’s daily
life via the use of electronic information and communication devices; [] the use of information
and communication technologies to support a deliberate, repeated, and hostile course of conduct
that is intended to harm others; or [] intentional and repeated harm through the use of computers,
cell phones, and electronic devices.” (Dkt. 1, Page ID# 42.) The Cyberbullying Policy applies
to “electronic speech,” including “[e]xpressive conduct” in any form that is conveyed via any
means (e.g., tweets, blog postings, and text messages), regardless of whether it is associated with
CSU computers.
The plaintiffs also challenge CSU’s “Computer Usage Policy,” which requires electronic
communications, “including websites and blog posts on the university server,” to “adhere to the
University standards of conduct which prohibit any communication which tends to embarrass or
humiliate any member of the community.” (Id. at ¶ 24.) In addition, the plaintiffs allege that the
defendants wrongly asserted trademark claims relating to the CSU Faculty Voice blog to chill the
plaintiffs’ First Amendment expression. Specifically, the plaintiffs allege that the defendants
sought to prevent the plaintiffs from speaking by claiming, without basis, that the use of CSU’s
name and trademarks on the blog “caused confusion, diminished the University’s brand, and
implied CSU’s endorsement of the blog’s commentary.” (Id. at ¶ 25.)
The complaint also contains a few broadly worded allegations about retaliation against
plaintiff Beverly based on his criticism of CSU and its administration. (Id. at ¶¶ 37-40.)
Specifically, Beverly contends that CSU canceled his reservation for a room where he planned to
hold a meeting to discuss the repression of free speech at CSU. Beverly moved the meeting to a

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classroom space and some of the students from his public management class attended. CSU
initiated disciplinary hearings against Beverly based on his holding of class in an unauthorized
location. At an initial hearing on the disciplinary charges, CSU alleged that Beverly violated its
policy that forbids professors from imposing their personal beliefs on students. It appears that
the disciplinary charges against Beverly remain pending.
The complaint contains four counts:
1.

Count I – “Facial challenge to violation of right to free speech under the
plaintiffs’ First and Fourteenth Amendment rights (42 U.S.C. § 1983) –
(Computer Usage Policy) (all defendants)”

2.

Count II – “Violation of right to free speech under the plaintiffs’ First and
Fourteenth Amendment Rights (42 U.S.C. § 1983) – (Cyberbullying Policy) (all
defendants)”

3.

Count III – “As-applied Violation of plaintiffs’ right to free speech under the First
and Fourteenth Amendments (42 U.S.C. § 1983) (individual defendants).” This
count challenges the individual defendants’ alleged efforts to shut down the CSU
Faculty Voice blog or “sanction” the plaintiffs for views expressed in the blog.

4.

Count IV – The plaintiffs request declaratory judgment based on the prior three
counts.

The defendants have filed a motion to dismiss for lack of subject matter jurisdiction.2
According to the defendants, they have never enforced the Computer Usage Policy or the
Cyberbullying Policy against the plaintiffs and there is no reasonable probability that these
policies will ever be enforced against the plaintiffs. In the plaintiffs’ response to the motion to

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The defendants state that the “only issue” presently before the court is whether the
plaintiffs have standing to pursue their claims. (Dkt. 49 at Page ID# 348.) They nevertheless
also briefly argue that the plaintiffs’ complaint fails to state a claim for retaliation. (Id. at
Page ID# 347-48.) This argument should have been framed as a motion to dismiss pursuant to
Rule 12(b)(6) and analyzed under the standards applicable to Rule 12(b)(6) motions. The court
declines to reach it because it is buried in a motion to dismiss for lack of subject matter
jurisdiction and is entangled in arguments about standing.
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dismiss, as well as their motion for a preliminary injunction, they allege that contrary to the
defendants’ contention that there is no present case or controversy, the defendants attempted to
shut down the CSU Faculty Voice blog and engaged in retaliation based on their protected
speech. In addition, the plaintiffs assert that the defendants’ activities have chilled their
expressive activities.
II. LEGAL STANDARD
When considering a motion to dismiss for lack of subject matter jurisdiction, the court
accepts the complaint’s well pleaded factual allegations as true and draws all reasonable
inferences in the plaintiffs’ favor. Ctr. for Dermatology and Skin Cancer, Ltd. v. Burwell, 770
F.3d 586, 588-89 (7th Cir. 2014) (citing Iddir v. I.N.S., 301 F.3d 492, 496 (7th Cir. 2002)).
Plaintiffs facing a 12(b)(1) motion to dismiss, however, bear the burden of establishing that
jurisdiction is proper. Id. Because the defendants have challenged facial jurisdiction, the court
is limited to the allegations in the plaintiffs’ complaint. See Leveski v. ITT Educational Serv.,
Inc., 719 F.3d 818, 827 (7th Cir. 2013) (holding that “because [the defendant] raised a factual
(instead of a facial) challenge to jurisdiction, we are not bound to accept as true the allegations
of the complaint which tend to establish jurisdiction”) (internal quotations omitted); Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009) (“Facial challenges
require only that the court look to the complaint and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction”).
III. ANALYSIS
The defendants argue that this case must be dismissed because the plaintiffs lack standing
to pursue their claims. Relatedly, the defendants argue that the plaintiffs’ claims are not ripe.

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Standing is “an essential and unchanging part of the case-or-controversy requirement of Article
III” of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
“As a jurisdictional requirement, the plaintiff bears the burden of establishing standing.” Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). To establish standing,
a plaintiff must prove that: (1) he suffered a concrete and particularized injury that is actual or
imminent; (2) the injury is fairly traceable to the defendant’s actions; and (3) it is likely that the
injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61.
In turn, ripeness requires “an actual dispute between parties with adverse legal interests.”
See Kawasaki Heavy Indus., Ltd. v. Bombardier Recreational Prods., Inc., 660 F.3d 988, 999
(7th Cir. 2011); see also Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (internal
quotations omitted) (holding that to determine if there is an actual controversy between the
parties, the court must consider “whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”). “The
difference between an abstract question calling for an advisory opinion and a ripe ‘case or
controversy’ is one of degree, not discernible by any precise test.” Wisconsin. Envtl. Decade,
Inc. v. State Bar of Wisconsin, 747 F.2d 407, 410 (7th Cir. 1984).
A.

Have the Plaintiffs Sufficiently Alleged an Actual or Imminent Injury That is
Concrete and Particularized Inquiry (Standing) and the Existence of an Actual
Dispute (Ripeness)?
The court begins by considering if the plaintiffs have alleged an actual or imminent

injury that is concrete and particularized (standing). This inquiry overlaps with the requirement
that a plaintiff allege sufficient facts to show that there is an actual dispute (ripeness). The

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court’s consideration of these standards starts and ends with the plaintiffs’ allegations about the
cease and desist letter sent to Beverly regarding the CSU Faculty Voice blog.3
According to the plaintiffs, the defendants collectively attempted to chill their First
Amendment right to free speech by sending a cease and desist letter demanding that they shut
down the blog. In that letter, in addition to assertions about the use of CSU’s trademarks, Cage
states that “the lack of civility and professionalism expressed on the blog violates the
University’s values and policies requiring civility and professionalism.” (Dkt. 1-1 at Page ID#
23.) The plaintiffs stress that this letter is dated one business day after a post appeared on the
blog contending that a senior CSU administrator (Angela Henderson, CSU’s Interim Provost and
Senior Vice President for Academic Affairs) had partially falsified her resume. The plaintiffs
allege that they fear discipline under the Computer Usage Policy for publishing the CSU Faculty
Voice, even though that the blog is not hosted in CSU’s servers. They also allege that the
Computer Usage Policy is improperly vague and overbroad. Finally, they allege that they fear
discipline under CSU’s Cyberbullying Policy.
In contrast, the defendants contend that the reference to civility in the cease and desist
letter does not show that CSU threatened the plaintiffs with legal action based on the Computer
Usage or Cyberbullying Policies. The court disagrees. At this stage in the proceedings, the
court must draw all reasonable inferences in the plaintiffs’ favor. Ctr. for Dermatology and Skin
Cancer, Ltd., 770 F.3d at 588-89. The references to civility do not appear to be related to the
claims of trademark infringement raised elsewhere in the cease and desist letter. It is eminently

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There are a total of three letters from the defendants regarding the blog. For present
purposes, the court will confine its discussion to the first letter from Cage.
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reasonable to read the letter as a demand to shut down the CSU Faculty Voice blog based on its
alleged failure to meet CSU on-line civility standards. It is also eminently reasonable to
conclude that those civility standards are the ones memorialized in CSU’s Computer Usage
Policy, which requires electronic communications to “adhere to the University standards of
conduct which prohibit any communication which tends to embarrass or humiliate any member
of the community.” (Dkt. 1 at ¶ 24.) The same goes for the Cyberbullying Policy, which could
be read as prohibiting a series of negative blog posts.
The defendants assert that the inference that they were relying on the Computer Usage or
Cyberbullying Policies is obviously wrong because the plaintiffs specifically allege that the blog
is not hosted on a CSU server.4 According to the allegations in the complaint, however, CSU’s
Computer Usage Policy states that it “includ[es] websites and blog posts on the university
server.” (Id.; Dkt. 1-1 at Page ID# 26.) It is not explicitly limited to Internet websites and blog
posts hosted on CSU’s server. That is a possible interpretation of the policy but the court cannot
make findings of fact at this stage of the proceedings. Similarly, the Cyberbullying Policy is not
limited to communications made using CSU’s computer equipment. Thus, the allegation that the
blog is hosted on a non-CSU server does not negate the inference that the defendants were
threatening the plaintiffs based on the Computer Usage and Cyberbullying Policies.
Discovery may belie the plaintiffs’ allegations. At this stage in the proceedings,
however, the court must construe the plaintiffs’ allegations in their favor. It thus declines to
ignore the fact that a letter ostensibly about alleged trademark violations contains assertions

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With respect to the parties’ arguments about the meaning of the cease and desist letter,
the court notes that if the defendants, in fact, have no intention of ever enforcing the Computer
Usage or Cyberbullying Policies against the plaintiffs, this case is ripe for settlement discussions.
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about the tone and content of the CSU Faculty Voice blog. Accordingly, the court finds that the
plaintiffs’ allegations satisfy the actual or imminent injury requirement for both standing and
ripeness. This means that the plaintiffs have satisfied the single-element test for ripeness. See
Kawasaki Heavy Indus., Ltd., 660 F.3d at 999. The court turns to the remaining two elements
necessary to establish standing: a traceable injury and redressability.
B.

Traceable Injury (Standing)
The defendants argue that the plaintiffs’ allegations fail to link their claimed injuries to

the defendants’ actions. The defendants’ lead example is their claim that the cease and desist
letter did not rest, at least in part, on the Computer Usage or Cyberbullying Policies because the
letter did not explicitly refer to those policies. The court rejects this argument, for the reasons
explained above.
The defendants also claim that the plaintiffs are merely speculating that the cease and
desist letter was based on CSU’s Computer Usage and Cyberbullying Policies and, therefore,
cannot meet the traceable injury requirement. It is true that a plaintiff’s speculation that a
defendant injured him is insufficient. See, e.g., Area Transp., Inc. v. Ettinger, 219 F.3d 671, 673
(7th Cir. 2000). The so-called speculation here, however, is the plaintiffs’ allegation that their
First Amendment rights were chilled due to CSU’s Computer Usage and Cyberbullying Policies.
According to the defendants, this claim has no factual basis because they never threatened to
enforce CSU’s Computer Usage and Cyberbullying Policies. As discussed above, since the court
must construe the plaintiffs’ allegations liberally, the court cannot accept this position at the
motion to dismiss stage.

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The defendants also allege that the plaintiffs’ claim that their First Amendment rights
were chilled is speculative because the plaintiffs do not specify what expressive speech they
have been prevented from making. “A ‘subjective chill’ [i.e., a subjective apprehension] on
one’s exercise of First Amendment rights is not, by itself, sufficient to support standing.”
Zamecnik v. Indian Prairie School Dist. No. 207 Bd. of Educ., No. 07 C 1586, 2009 WL 805654
(N.D. Ill. Mar. 24, 2009) (quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972)). “Instead, a
‘specific present objective harm or a threat of specific future harm’ is necessary to support
standing.” Id. (quoting Laird, 408 U.S. at 14). Here, the general tenor of the speech at issue is
not speculative: the plaintiffs clearly wish to continue to criticize CSU’s administration as they
have done in the past. Cf. id. at *6 (finding that the plaintiff did not have standing to pursue
claims based on speech when the record did not show what conduct the plaintiff wished to
engage in). Once the court accepts the plaintiffs’ reading of the letter (which it must do given
this case’s procedural posture), the link between the defendants’ actions and the alleged chilling
of the plaintiffs’ First Amendment rights is not speculative.
C.

Redressability (Standing)
With respect to redressability, the defendants argue that if the court rules in the plaintiffs’

favor, it “would have no impact on the trademark issues about which [p]laintiffs complain in this
lawsuit.” (Dkt. 49 at Page ID# 356). The plaintiffs, however, referred to the defendants’
assertions about trademark infringement to provide context for their claims. They do not seek
any relief regarding trademark claims, such as a declaratory judgment finding that their use of
CSU’s marks was proper. Instead, they seek relief based on a variety of First Amendment
theories. The defendants’ arguments about redressability are, therefore, unconvincing.

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IV. CONCLUSION
For the above reasons, the defendants’ motion to dismiss pursuant to Rule 12(b)(1) [36]
is denied. The parties shall appear on January 14, 2015, as previously scheduled, to discuss
scheduling for the plaintiffs’ motion for a preliminary injunction [42]. They shall also be
prepared to discuss whether settlement discussions before this court or the magistrate judge
would be helpful.

Date: January 13, 2015

/s/
Joan B. Gottschall
United States District Judge

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