McGlone v. Cheek et al

Filing 28

MEMORANDUM AND ORDER finding that UT's campus access and sponsorship policies are fully consistent with the Constitution and the case law interpreting it. Plaintiff John McGlone has failed to state a claim upon which relief can be granted and has not satisfied the four prerequisites to obtain injunctive relief. Accordingly, it is hereby ORDERED that Plaintiff's Motion for a Preliminary Injunction 7 is DENIED, Defendants' Motion to Dismiss 18 is GRANTED, and this case is DISMISSED. Signed by District Judge Thomas W Phillips on February 15, 2012. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JOHN MCGLONE,
Plaintiff,
v.
JIMMY G. CHEEK, in his official capacity
as Chancellor of the University of Tennessee
at Knoxville, et al.,
Defendants.

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No. 3:11-cv-405
(Phillips)

MEMORANDUM AND ORDER

I.

Introduction
This matter is before the Court on Plaintiff John McGlone’s Motion for a Preliminary

Injunction [Doc. 7] and Defendants’ Motion to Dismiss [Doc. 18]. For the reasons set forth in this
Memorandum and Order, Plaintiff’s Motion for a Preliminary Injunction is DENIED and
Defendants’ Motion to Dismiss is GRANTED.

II.

Statement of the Facts
This civil rights action challenges access and speech policies at the University of

Tennessee at Knoxville that impose a sponsorship requirement on speakers wishing to express their
beliefs on campus. In ruling on the instant motions, the Court accepts as true McGlone’s averments
as to the facts. The Court is not required to hold an evidentiary hearing on a motion for a preliminary
injunction if, as here, the defendants do not dispute the material facts presented by the plaintiff, and
if the issues before the Court are primarily questions of law. Certified Restoration Dry Cleaning
Network, LLC v. Tenke Corp., 511 F.3d 535, 552-53 (6th Cir. 2007).

A.

The Parties
Plaintiff John McGlone is a resident of Breeding, Kentucky. [Compl., Doc. 1, ¶ 8.]

McGlone is a committed Christian, and his religious beliefs require him to share his religious faith
with others. Id. ¶ 12; [McGlone Aff., Doc. 7, Attach 1, ¶ 2.] In order to satisfy this duty, McGlone
regularly travels to public universities and speaks in outdoor spaces on campuses where he has
access to college students: the segment of the population he believes is best suited to “shape the
future.” [Compl. ¶ 13.] His stated purpose is to expose students to the teachings of Christianity in
a respectful, yet peaceful, manner. Id. ¶ 17.
McGlone shares his religious beliefs with students through dialogue, distribution of
literature, and display of signs. Id. ¶ 14; [McGlone Aff. ¶ 4.] He conducts these activities as an
individual and as part of small groups. [Compl. ¶ 14.] McGlone does not ask for money or ask
anyone to join any organization. Id. ¶ 15. He states that he is not violent, never harasses anyone, and
does not try to force anyone to listen to him or accept his literature. Id. ¶ 16. He also does not litter,
use sound amplification devices, or create any disturbance or vehicle or foot traffic congestion
concerns. Id.; see also [McGlone Aff. ¶¶ 4-9.]
The University of Tennessee at Knoxville (“UT”) is located in Knoxville, Tennessee
and is the flagship public university of the state of Tennessee. [Compl. ¶ 18.] It enrolls roughly
27,000 students and employs roughly 8,161 faculty members. Id. ¶ 19. Its campus spreads over 560
acres and contains approximately 236 buildings. Id. UT’s campus contains sidewalks, park areas,
grassy knolls, amphitheaters, and pedestrian malls, all of which are open to the general public. Id.
¶ 22. Outside areas on UT’s campus particularly relevant to this action include the pedestrian

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walkway on Andy Holt Avenue, the amphitheater near the Humanities and Social Sciences Building,
and Circle Park. Id. These open areas on UT’s campus attract many visitors each year. Id. ¶ 21.
Defendant Jimmy Cheek is Chancellor of UT and “oversees all aspects of the
university . . . includ[ing] oversight of policies that regulate and control expression.” Id. ¶ 9.
Defendant Maxine Davis is Dean of Student Affairs and “is responsible for interpreting and
administrating regulations that pertain to expressive activities on the UT campus, including the
sponsorship requirement imposed on outside speakers.” Id. ¶ 10. Defendant Angi Smith is Associate
Dean of Students and “is responsible for administrating regulations that pertain to activities on the
UT campus, including the sponsorship requirement imposed on outside speakers.” Id. ¶ 11.
B.

Relevant UT Policies
Several UT policies are directly relevant to the claims at issue in this case. The first

university policy, entitled “Access to University Property,” was adopted by the UT Board of
Trustees in 1970, and was promulgated under the rulemaking provisions of the Tennessee Uniform
Administrative Procedures Act, Tenn. Code Ann. § 4-5-101, et seq. The policy reads:
1720-1-2-.01 RESTRICTIONS. The University’s campuses and facilities shall be
restricted to students, faculty, staff, guests, and invitees except on such occasions
when all or part of the campuses, buildings, stadia, and other facilities are open to the
general public.
[Mot. for Prelim. Inj., Doc. 7, Attach. 5.] The second policy, entitled “Access to Campus” can be
found in the university’s student handbook, “Hilltopics.” The policy provides in part:
The university’s campuses and facilities shall be restricted to students, faculty, staff,
administrators, guest-visitors and invitees except on such occasions when all or part
of the campuses, buildings, stadia, and other facilities are open to the general public.
[Mot. to Dismiss, Doc. 18, Attach. 1, at 2.] The handbook defines “guest-visitor” as “[a] person
invited by a university student or employee to visit the campus at a specific time, place, and
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occasion.” Id. at 1. The handbook excludes from the definition of “university grounds” all “[c]ampus
streets and adjoining sidewalks maintained by the City of Knoxville.” Id. at 2. Finally, a separate
subsection of the handbook’s general policies, entitled “Freedom of Expression and Speech,” reads:
The University of Tennessee considers freedom of inquiry and discussion essential
to educational development and recognizes the right of students to engage in
discussion, to exchange thoughts and opinions, and speak freely on any subject in
accord with the guarantees of our state and national constitutions. Additionally, the
university endeavors to develop in students a realization that citizens not only have
the right but the obligation to inform themselves regarding issues and problems of
the day, to formulate stands regarding these issues and problems, and to give
expression to their views. . . . The University of Tennessee takes pride in the f act
that its campus is open to free discussion and examination of views, with the
condition that such discussion be accompanied by peaceful methods and under
peaceful conditions consistent with the scholarly nature of an academic community.
To these ends, registered student organizations on campus may freely select, without
prior restraints, persons they wish to invite as guest speakers. There are no
restrictions to control the point of view expressed by speakers other than those
imposed by local, state, and federal laws. Any person sponsored by a registered
campus organization is free to speak. . . .
Any student group inviting a speaker must register the name of the speaker, the date
and time of the appearance, and such pertinent information as will facilitate adequate
physical preparations and adequate publicity for the event with the Office of the
Dean of Students. Officers and program chairpersons of all registered organizations
are advised that reasonable notice will be necessary to handle requests for facilities
and security. The criterion for a negative decision will be a demonstrable inability
to make such physical arrangements. The events scheduling procedure will not be
used as a device for a prior restraint of speakers. When a negative decision on a
particular speaker must be made, the sponsoring organization is free to seek a more
suitable date. It shall be the responsibility of the Dean of Students to consider and
dispose of procedural complaints.
Id. at 3.

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C.

The Events
From 2008 to August 2010, McGlone visited the outside areas on UT’s campus five

times to express his religious beliefs. [Compl. ¶ 27.] He usually would use the open-air amphitheater
located on the pedestrian parkway to express his beliefs. Id. ¶ 29. On his first visit, McGlone showed
up, expressed his beliefs, and left without incident. Id. ¶ 28. On subsequent visits, McGlone
contacted UT officials as a courtesy prior to arriving to alert them to his presence. Id. McGlone did
not obtain sponsorship during these visits, and UT officials never indicated any problem with
McGlone’s expression on campus and never tried to stop him from speaking. Id. ¶¶ 28, 30.
On August 25, 2010, McGlone called UT and left a voice message informing UT
officials of his intention to express his beliefs on campus the following day. Id. ¶ 31. Later that day,
Defendants Davis and Smith returned McGlone’s phone call, and Davis introduced Smith as the
person in charge of the solicitation process for the campus, which included a wide variety of
activities, including sharing information on campus. Id. ¶¶ 32, 33. Smith explained to McGlone that
he would not be permitted to use the amphitheater or other open areas on campus for his expressive
purposes unless he first obtained university-affiliated sponsorship. Id. ¶ 35. McGlone stated that he
believed such a prohibition was unconstitutional, but he nevertheless requested sponsorship to speak
in the amphitheater and on the pedestrian walkway. Id. ¶ 37. Davis and Smith declined to sponsor
McGlone. Id. ¶ 38. McGlone asked Davis to provide contact information for UT’s legal counsel. Id.
McGlone contacted University Assistant General Counsel Matthew Scoggins, who
confirmed to McGlone that, under university policy, speakers not affiliated with the university must
be sponsored by students, faculty, or staff in order to speak on campus. Id. ¶ 42. Scoggins emailed
McGlone links to the two written university policies requiring such sponsorship: the “Access to

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University Property” policy, and the “Access to Campus” policy. Id. ¶ 47; [Mot. for Prelim. Inj.,
Attach. 4.] During a telephone conversation on September 9, 2010, Scoggins reaffirmed to McGlone
that the policies required McGlone to secure sponsorship from a student organization or faculty or
staff member prior to speaking on campus. [Compl. ¶¶ 52-53.]
On April 13, 2011, McGlone emailed ten Christian-based student organizations and
requested sponsorship so that he could speak on campus. Id. ¶ 55; [Mot. for Prelim. Inj., Attach. 7.]
None of the groups responded to his solicitation for sponsorship. [Compl. ¶ 56.] Having been denied
sponsorship from Davis, Smith, and the ten student organizations, McGlone concluded that it was
futile to try to comply with the sponsorship requirement. Id. ¶¶ 55-56.
On June 6, 2011, McGlone’s counsel wrote to the university asking that McGlone
be permitted to speak on campus without complying with the university’s sponsorship requirement,
which McGlone and his counsel believed to be unconstitutional. Id. ¶ 59; [Mot. for Prelim. Inj.,
Attach. 8.] By letter on June 17, 2011, the Associate General Counsel of the Tennessee Board of
Regents reaffirmed that the outside speaker sponsorship requirement required McGlone to obtain
sponsorship from the students, faculty, or staff before engaging in public speaking on campus.
[Compl. ¶ 60]; [Mot. for Prelim. Inj., Attach. 9.] The letter also stated that McGlone was free to
speak to students on the streets and sidewalks bisecting UT’s campus, where the sponsorship
requirement did not apply. [Mot. for Prelim. Inj., Attach 9, at 3.]
Since interacting with Davis, Smith, and Scoggins on August 25, 2010, and for fear
of arrest, McGlone has not returned to the UT campus for the purpose of expressing his viewpoints.
Id. ¶ 67. McGlone’s email to the student organizations on April 13, 2011 was his last attempt to
obtain sponsorship. Id. ¶ 58. UT’s sponsorship requirement remains in place. Id. ¶ 62. McGlone

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states that, if not for the UT sponsorship policies and the actions of Defendants enforcing these
policies, McGlone would immediately return to UT to share his message with its students. Id. ¶ 67.

III.

Statement of the Case
On August 23, 2011, Plaintiff John McGlone filed suit in this Court under 42 U.S.C.

§ 1983 and § 1988 against Jimmy G. Cheek, in his official capacity as Chancellor of the University
of Tennessee at Knoxville; Dr. Maxine Davis, individually and in her official capacity as Dean of
Students at the University of Tennessee at Knoxville; and Angi Smith, individually and in her
official capacity as Associate Dean of Students at the University of Tennessee at Knoxville. [Compl.
¶ 2.] This Court has jurisdiction over McGlone’s claims pursuant to 28 U.S.C. §§ 1331 and 1343.
This Court has jurisdiction over McGlone’s requests for declaratory relief pursuant to 28 U.S.C. §§
2201 and 2202. Pursuant to 28 U.S.C. § 1391(b), venue is proper in the Eastern District of
Tennessee because Defendants reside in this district and all claims arise out of this district.
McGlone claims that UT’s campus access and sponsorship policies, which restrict
the use of the campus to “students, faculty, staff, guests, and invitees,” and which require speakers
not affiliated with the university to be invited by a student organization or faculty or staff member
prior to speaking on campus, violate the First and Fourteenth Amendments of the United States
Constitution. In his first cause of action—violation of the Free Speech Clause of the First
Amendment—McGlone alleges that his religious speech is protected speech under the First
Amendment and that UT’s policy and practices, and the enforcement thereof, are vague and
overbroad; restrain constitutionally protected speech in advance of its expression, without
appropriate guidelines or standards to guide the discretion of officials charged with enforcing the

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policy; chill the free speech and free exercise of religion of McGlone and 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 of communication. Id. ¶ 72.
In his second cause of action—violation of the Due Process Clause of the Fourteenth
Amendment—McGlone alleges that Defendants’ policies are vague and lack sufficient objective
standards to curtail the discretion of officials, affording defendants ample opportunity to enforce the
policies in an ad hoc, arbitrary, and discriminatory manner. Id. ¶ 75. McGlone contends that UT’s
sponsorship requirement is “hopelessly vague, empowering university officials and student groups
with unlimited discretion to grant/deny speech requests for any conceivable reason.” [Resp. in Opp’n
to Mot. to Dismiss, Doc. 24, at 3.]
As compensation for their purported deprivation of his fundamental constitutional
rights to free expression and due process, McGlone seeks injunctive and declaratory relief and
nominal damages against Defendants. [Compl., Prayer for Relief, §§ A-G.]
On August 24, 2011, McGlone filed a Motion for a Preliminary Injunction, asking
the Court to enjoin Defendants and their agents, servants, employees, attorneys, and all persons and
entities in active concert or participation with them, directly or indirectly, from using the UT
sponsorship policy to prevent McGlone from engaging in his desired and constitutionally protected
speech activities. [Mot. for Prelim. Inj., at 1.] In the absence of a preliminary injunction, McGlone
asserts that he will suffer irreparable injury in the loss of his rights and freedoms guaranteed by the
United States Constitution. Id.
On September 30, 2011, Defendants moved to dismiss this action under Rule 12
(b)(6) of the Federal Rules of Civil Procedure, on the grounds that the Complaint fails to state a

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claim upon which relief may be granted. [Mot. to Dismiss, at 1]; see also Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1946-47 (2009); Bell Atlantic Corp. v . Twombly, 550 U.S. 544, 570 (2007). Defendants
state that UT’s sponsorship policy is consistent with the First Amendment, and that the Defendants’
enforcement of the policy did not violate any of McGlone’s constitutional rights. Id. Defendants also
move to dismiss any claims for monetary damages against them in their official capacities because
such claims are barred by the Eleventh Amendment, and move to dismiss the claims for damages
against Defendants Davis and Smith in their individual capacities on the grounds that such claims
are barred by the doctrine of qualified immunity. Id.

IV.

Analysis
A.

Motion to Dismiss
A motion to dismiss should not be granted if the Complaint “contain[s] sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129
S. Ct. at 1949 (quoting Twombly, 550 U.S. at 550). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. When considering a motion to dismiss, the Court must
construe the complaint in a plight most favorable to the plaintiff, accept all well-pled factual
allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in
support of those allegations that would entitle him to relief. Gilles v. Garland (“Garland”), 281 Fed.
App’x 501, 503 (6th Cir. 2008). The complaint must contain either direct or inferential allegations
respecting all of the material elements to sustain a recovery under some viable legal theory. Iqbal,
129 S. Ct. at 1944; Garland, 281 Fed. App’x at 503.

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1.

Failure to State a Claim

Because McGlone’s Complaint divides his causes of action into “Freedom of Speech”
and “Due Process Clause” claims, the Court will address his claims accordingly. However, the Court
acknowledges that “where a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not
the more generalized notion of substantive due process, must be the guide for analyzing these
claims.’” Thaddeus-X v. Ball, 175 F.3d 378, 386 (6th Cir. 1999) (citing Albright v. Oliver, 510 U.S.
266, 273 (1992)). McGlone’s Fourteenth Amendment claim is based on the same allegations as the
purported violations of his First Amendment rights: that Defendants’ access and sponsorship policies
are vague and lack sufficient objective standards to curtail the discretion of officials. Accordingly,
though McGlone’s claims are categorized as either “Free Speech” or “Due Process” for purposes
of this Memorandum and Order, First Amendment jurisprudence will be the guide for analyzing both
claims. See id.
a.

Free Speech

Plaintiff charges that the UT sponsorship policy causes harm because it is an
unconstitutional time, place, and manner restriction of and has a chilling effect on free speech.
The First Amendment prohibits the government from “abridging the freedom of
speech.” U.S. Const. amend. I. There is “no doubt that the First Amendment rights of speech and
association extend to the campuses of state universities.” Garland, 281 Fed. App’x at 508 (quoting
Kincaid v. Gibson, 236 F.3d 342, 347 (6th Cir. 2001) (en banc)). However, the “First Amendment
does not guarantee access to property simply because it is owned or controlled by the government.”
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (quoting U.S. Postal

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Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981)); see also Miller v. City of
Cincinnati (“Cincinnati”), 622 F.3d 534, 533 (6th Cir. 2010) (“Simply because the government may
own a piece of property, however, does not mean that the property is open to all types of expressive
activity at all times.” ). It is well settled that “[t]he State, no less than a private owner of property,
has power to preserve the property under its control for the use to which it is lawfully dedicated.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985) (citing Perry
Educ. Ass’n, 460 U.S. at 46).
“To determine the constitutionality of a government restriction on speech on publicly
owned property, we consider three questions: (1) whether the speech is protected under the First
Amendment; (2) what type of forum is at issue and, therefore, what constitutional standard applies;
and (3) whether the restriction on speech in question satisfies the constitutional standard for the
forum.” Cincinnati, 622 F.3d at 533 (citing S.H.A.R.K. v. Metro Parks Serving Summit Cnty., 499
F.3d 553, 559 (6th Cir. 2007)). Because there is no question that McGlone’s religious speech is
expressive activity protected under the First Amendment, see, e.g., Heffron v. Int’l Soc’y for Krishna
Consciousness, 452 U.S. 640, 647 (1981) (oral and written dissemination of religious viewpoint are
protected speech), the Court will consider what type of forum is at issue and whether UT’s
restrictions on speech satisfy the constitutional standard for that forum.
i.

Forum Analysis

The appropriate standard of scrutiny for a regulation of protected expression on
government-owned property is determined by the nature of the forum. Pleasant Grove v. Summum,
129 S. Ct. 1125, 1132 (2009). There are four recognized types of forum: the traditional public forum,
the designated public forum, the limited public forum, and the nonpublic forum. Id. Traditional

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public fora include streets, sidewalks, parks, and other areas “ which by long tradition or by
government fiat ha[s] been devoted to assembly and debate.” Perry Educ. Ass’n, 460 U.S. at 45. In
such areas, the “rights of the State to limit expressive activity are sharply circumscribed.” Id.
Restrictions on speech in traditional public fora receive strict scrutiny: the government may enforce
content-based restrictions only if they are narrowly drawn to serve a compelling governmental
interest, and may enforce content-neutral regulations only if they are narrowly tailored to serve a
significant government interest, and leave open ample alternative channels of communication.” Id.
at 45-46.
A designated public forum is a piece of public property that is not a traditional
location of public debate or assembly, but which the government “opens . . . to the public at large,
treating as if it were a traditional public forum.” Cincinnati, 622 F.3d at 534. If the government
opens a designated forum to the public for speech, it is bound by the same standards that apply in
a traditional public forum. Kincaid, 236 F.3d at 348 (citing Perry, 460 U.S. at 46).
A limited public forum is one that is “limited to use by certain groups or dedicated
solely to the discussion of certain subjects.” Cincinnati, 622 F.3d at 534-35 (citing Summum, 129
S. Ct. at 1132). Recently, in Miller v. City of Cincinnati, the Sixth Circuit found that a city created
a limited public forum when it opened its city hall building to private groups only if they obtained
sponsorship from a city official or city department. Cincinnati, 622 F.3d at 535 (“[B]y opening the
interior spaces of Cincinnati’s city hall to private groups under [a sponsorship regulation], the City
has not created a traditional public forum because the regulation does not make City Hall’s interior
space as open to public discourse as a sidewalk or park. Nor does the regulation allow the City to
treat that space as a designated public forum.”). In a limited public forum, the government need not

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allow persons to engage in every type of speech, Good News Club v. Milford Cent. Sch., 533 U.S.
98, 106 (2001), and may exclude a speaker who is not a member of the class for whose special
benefit the forum was created, Cornelius, 473 U.S. at 806. However, the State’s power to restrict
speech in a limited public forum is not without limits. If the Government reserves a limited public
forum to certain groups or certain purposes, a restriction on free speech therein will be upheld so
long as it does not discriminate based on viewpoint and is reasonable in light of the purpose served
by the forum. Good News Club, 533 U.S. at 106-07.
Finally, a nonpublic forum is publicly owned property that is not by tradition or
governmental designation a forum for public communication. Cincinnati, 622 F.3d at 535 (citing
Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007)). The government may regulate speech in a
nonpublic forum “‘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.’” Id. (quoting
Cornelius, 473 U.S. at 802).
Though public universities “possess[] many of the characteristics of a [traditional]
public forum, such as open sidewalks,” they differ in significant respects insofar as public
universities’ purpose, or mission, is “education and the search for knowledge—to serve as a ‘special
type of enclave’ devoted to higher education.” Bowman v. White, 444 F.3d 967, 978 (8th Cir. 2006)
(citing United States v. Grace, 461 U.S. 171, 180 (1983)). See also Widmar v. Vincent, 454 U.S.
263, 274 n.5 (1981); Gilles v. Blanchard, 477 F.3d 466, 470 (7th Cir. 2007) (“Public property is
property, and the law of trespass protects public property, as it protects private property, from
uninvited guests.”)). As such, and for purposes of a forum analysis, “First Amendment rights must
be analyzed ‘in light of the special characteristics of the school environment.’” Widmar, 454 U.S.

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at 268 n.5 (citing Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 506 (1969)). In light
of schools’ educational mission, the Supreme Court has upheld “a university’s authority to impose
reasonable regulations compatible with that mission upon the use of its campus and facilities.” Id.
This guidance leads lower courts to the conclusion that open areas on public university campuses
are limited public fora, and that restrictions on speech therein are permissible as long as such
restrictions do not discriminate based on viewpoint and are reasonable in light of the universities’
educational mission. See, e.g., Bloedorn v. Grube, 631 F.3d 1218, 1232-33 (finding that a
university’s sidewalks, pedestrian mall, and rotunda fell into the category of a limited public forum);
Garland, 281 Fed. App’x at 511 (rejecting the notion that open areas on a public university campus
are traditional public fora); Bowman, 444 F.3d at 977 (finding that although on-campus open areas
had “the physical characteristics of streets, sidewalks, and parks, and are open for public passage,”
the areas were not traditional public fora); ACLU Student Chapter-Univ. of Md., College Park v.
Mote, 423 F.3d 438, 443-44 (4th Cir. 2005) (concluding that the principals of Widmar dictate that
a college campus is a limited public forum); Miller, 501 F. Supp. 2d at 948; Gilles v. Hodge, 2007
WL 1202706, *3 (S.D. Ohio Apr. 20, 2007), rev’d on other grounds by Garland, 281 Fed. App’x
501; Bourgault v. Yudof, 316 F. Supp. 2d 411, 418-20 (N.D. Tex. 2004) (noting that “no court has
found a university’s campus to be a traditional public forum”, and finding that because the university
had not opened its property to the general public, its campus was a limited public forum).
Like all public universities, UT’s mission is education, and UT is not required to treat
the open areas of its campus as traditional public fora. McGlone has not set forth any facts indicating
that UT dedicated any portion of its campus for use as a traditional or designated public forum. See
Cincinnati, 622 F.3d at 535. Quite the contrary: UT’s sponsorship policy requires speakers to obtain

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sponsorship from a student organization or faculty or staff member prior to speaking in the open
areas of UT’s campus. By enacting the campus access and sponsorship policies, UT exercised its
prerogative, consistent with its educational mission, to limit expressive activities in and around
campus and to open its grounds to some—but not all—speakers. See Mote, 423 F.3d at 444 (“There
is nothing in the record to indicate that until the policy at issue here was implemented, the campus
was anything but a non-public forum for members of the public not associated with the university.
By implementing its policy the University made the campus a limited public forum.”). Accordingly,
the Court finds that the open areas of UT’s campus are limited public fora, and UT may make
restrictions on speech therein, so long as the restrictions do not discriminate based on viewpoint and
are reasonable in light of the purpose served by the forum. Good News Club, 533 U.S. at 106.
ii.

Content-Neutral and Reasonableness Determination

McGlone has not offered any evidence, or even an allegation, that UT’s sponsorship
policy is not facially content-neutral. The policy requires a visitor to secure student sponsorship in
order to speak on campus, regardless of the subject of the visitor’s message or the visitor’s viewpoint
on that subject. The policy applies indiscriminately to all visitors who would conduct a speech on
campus. See Garland, 281 Fed. App’x at 511. Furthermore, there is nothing in the language of the
policy that encourages selective application of the policy by the Dean of Students; whether a speaker
has obtained sponsorship, and whether the university can make the “physical arrangements”
necessary to accommodate the speaker in light of time and space limitations, are the only criteria
upon which the university evaluates a request to speak on campus.
In addition, the pleadings are devoid of any evidence that the sponsorship policy
results in content or viewpoint discrimination as applied. McGlone’s argument is premised on the

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fact that if a student group of faculty or staff member disagrees with a speaker’s viewpoint, they will
not sponsor him. This premise does not rise to impermissible viewpoint discrimination. See
Bourgault, 316 F. Supp. At 420. There has been no allegation that “student organizations are only
permitted by [the university] if they hold certain beliefs, or that students would be prohibited from
forming organizations because of their viewpoint on a particular topic.” Id. at 420-21; see also
Miller, 501 F. Supp. 2d at 949-50 (finding that a plaintiff’s First Amendment challenge to a
sponsorship policy was unlikely to succeed on the merits, based in part on the fact that “[t]here is
no allegation that [university] officials restrict the student organizations based upon content of
prospective speech”). Nor does McGlone claim that UT discriminates based on viewpoint in
permitting people to become members of the UT community, or that the school has a history of
selective sponsorship or discrimination against certain subjects or viewpoints.
Viewpoint neutrality requires not just that a government entity refrain from explicit
viewpoint discrimination, but also that it provide adequate safeguard to protect against the improper
exclusion of viewpoints. See Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000). The Court
extensively addresses this subject in Part IV.A.2, finding that UT has done just that. By permitting
an outsider to speak on campus so long as he or she obtains sponsorship from one student
organization, faculty, or staff member, UT allows sponsorship to be obtained from any of its 17,000
students and 8,161 faculty and staff members, who undoubtedly hold a vast spectrum of viewpoints.
In addition, “Hilltopics” contains a number of safeguards against violation of First Amendment
rights. It provides that “[t]here are no restrictions to control the point of view expressed by speakers
other than those imposed by local, state, and federal laws. Any person sponsored . . . is free to
speak.” [Mot. to Dismiss, Attach. 1, at 3.] It also orders that the event-scheduling process is not to

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be used “as a device for a prior restraint of speakers.” Id. Accordingly, the Court concludes that the
speech policy is content-neutral on its face and as applied.
Regarding the “reasonable relationship” requirement, many federal courts have found
sponsorship requirements a reasonable means by which public universities may restrict use of their
campuses for public speaking. See, e.g., Bloedorn, 631 F.3d at 1233-34 (finding that the plaintiff
was unlikely to succeed on the merits of his First Amendment challenge to a university policy under
which speakers who were not sponsored by a campus organization had to request a permit to initiate
a gathering on campus); Blanchard, 477 F.3d at 472-74 (“[A university] could use neutral criteria
for access, such as that an outsider must be invited to speak on campus by a faculty member or a
student group.”); Mote, 423 F.3d at 445 (affirming summary judgment in favor of a university which
designated one area of its campus for the distribution of literature and limited the rest of campus to
the university community and those who obtained sponsorship from a member of the university
community); Miller, 501 F. Supp. 2d at 948-49 (finding that plaintiff’s challenge was unlikely to
succeed on the merits because the student-sponsorship requirement “further[ed] [the university’s]
educational mission . . . because speech is thereby limited to matters in which at least one group of
students is interested”); Bourgault, 316 F. Supp. 2d at 420-21 (finding that the plaintiff was unlikely
to succeed on the merits of his First Amendment challenge to a policy requiring that off-campus
speakers be sponsored by student organizations). In fact, though McGlone argues that its reasoning
has been rejected and its holding therefore implicitly overruled, in Smith v. Ellington this Court
upheld as a “[r]easonable regulations of campus activities by university officials” the precise UT
policies at issue in this case. 334 F. Supp. 90, 93 (E.D. Tenn. 1971). Though his analysis in Gilles
v. Blanchard dispensed with the formulaic forum analysis employed by most courts, Judge Posner

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extolled the virtues of a sponsorship policy, which “by decentralizing the invitation process assures
nondiscrimination, and a reasonable diversity of viewpoints consistent with the university’s
autonomy and right of self-governance.” 477 F.3d at 474.
The Sixth Circuit’s recent holding in Gilles v. Garland, which the Court fully
considers infra in Part IV.A.1.b.i, does not dictate a finding that UT’s sponsorship policy was not
content neutral or that it did not have a reasonable relationship to UT’s educational mission. In its
First Amendment analysis in Garland, the Sixth Circuit detailed the aforementioned standards of
review, and noted that the plaintiff “has not alleged or otherwise demonstrated that the sponsorship
requirement is not content-neutral or not reasonably related to the university’s educational mission.”
281 Fed. App’x at 512. However, the court was compelled to vacate the district court’s order
dismissing the free speech claim in light of its other findings:
Nevertheless, inasmuch as we have concluded that plaintiff’s due process vagueness
challenge is not facially meritless and that further proceedings are warranted to
define the contours of the unwritten speech policy and its operation, we are loath to
conclude that plaintiff undoubtedly can prove no set of facts consistent with his
allegations that would entitle him to relief under his free speech claim. Because the
policy remains ill-defined, we are unwilling to conclude at this stage that plaintiff’s
claim necessarily must fail.
Id. The Sixth Circuit’s remand of the Free Speech claims in Garland was dependent on its finding
that the unwritten sponsorship policy was void for vagueness. The court in no way overruled or
rejected prior courts’ holdings regarding the reasonableness of university sponsorship policies; to
the contrary, the Court acknowledged that “analogous student sponsorship requirements have been
upheld as reasonable restrictions on speech.” Id. at 511 (citing Blanchard, 477 F.3d at 472-74;
Bowman, 444 F.3d at 980-81; Miller, 501 F. Supp. 2d at 948-49).

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UT’s purpose is education, and its sponsorship policy is reasonable in light of this
educational mission and UT’s significant interests in promoting the orderly conduct of activities on
campus, protecting the educational experience of the students, ensuring public safety, allowing for
coordination of use of limited space by multiple entities. The Court also notes that public
universities have limited resources and limited personnel, which they have an interest in reserving
for members of the university community. See Mote, 423 F.3d at 445. Unlike the unwritten policy
at issue in Garland, UT’s restriction is well delineated in UT’s official university policies and in its
student handbook. The policy also is tailored to serve UT’s significant interests because it only
limits on-campus speech by visitors to matters or subjects in which at least one group of students
is interested. See Miller, 501 F. Supp. 2d at 948-49. So long as one student organization or faculty
or staff member sponsors a speaker, and subject only to certain time and safety restrictions, that
speaker may speak on any subject and with any viewpoint without restriction from the university.
The policy also provides those speakers who are unable to obtain sponsorship ample opportunity to
convey their message to the UT community. Persons unable to obtain sponsorship are at liberty to
speak on the sidewalks and streets bisecting campus that are owned by the City of Knoxville, as such
areas are expressly excluded from the access and speech policies. “Hilltopics,” at 24.
UT’s sponsorship policy is content neutral on its face and as applied, and is
reasonable in light of the university’s educational mission. Accordingly, the Court holds that the
policy does not violate McGlone’s First Amendment rights.
b.

Due Process

McGlone’s due process challenge to UT’s sponsorship policy is two-pronged, based
on vagueness and overbreadth theories.

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i.

Vagueness

Due process requires a state enactment to be held void for vagueness if its
“prohibitive terms are not clearly defined such that a person of ordinary intelligence could readily
identify the applicable standard for inclusion and exclusion.” Grayned v. City of Rockford, 408 U.S.
104, 108 (1972).The absence of clear standards or objective criteria guiding the discretion of the
public official vested with the authority to enforce the enactment invites abuse by enabling the
official to administer the policy on the basis of impermissible factors. See Leonardson v. City of East
Lansing, 896 F.2d 190, 198 (6th Cir. 1990). The void-for-vagueness doctrine not only ensures that
laws provide “fair warning” of prescribed conduct, but it also protects citizens against the
impermissible delegation of basic policy matters “for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application.” United Food & Comm.
Workers Union Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 358-59 (6th Cir. 1998).
The doctrine “requires that the limits the [government] claims are implicit in its law be made explicit
by textual incorporation, binding judicial or administrative construction, or well-established
practice.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988). A statute or
policy is unconstitutionally vague and offends the First Amendment when it grants a public official
unbridled discretion such that the official’s decision to limit speech is not constrained by objective
criteria, but may rest on ambiguous and subjective reasons. United Food, 163 F.3d at 358-59.
In Smith v. Ellington, this Court upheld the same TU policy challenged in the instant
case in the face of First Amendment, vagueness, and overbreadth challenges. 334 F. Supp. at 90.
Regarding the plaintiff’s contention that the policy vested officials with “too great a discretion,” the
Court concluded that “[t]he language appears to be sufficiently clear to be understood by the

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ordinary person, particularly a University student. Id. at 93 (quoting Sellers v. Regents of the Univ.
of Cal., 432 F.2d 493 (9th Cir. 1970)). In addition, several other courts have upheld or defended
sponsorship requirements against vagueness challenges. Blanchard, 477 F.3d at 472; Miller, 501 F.
Supp. 2d at 949. In Blanchard, the Seventh Circuit upheld a policy at Vincennes University which
purported to require prior approval by the dean of students of all sales and solicitations on campus,
but which had the effect of permitting any student group to invite any speaker to speak on campus.
Id. at 468, 472-74 ((“[A university] could use neutral criteria for access, such as that an outsider
must be invited to speak on campus by a faculty member or a student group.”).
Similarly, in Gilles v. Miller, a district court in the Western District of Kentucky
declined to issue a permanent injunction against a Murray State University policy that provided:
“Any outside organization wishing to come on campus for the purpose of solicitation must be
sponsored by a registered MSU organization or university department.” Regarding the plaintiff’s
allegation of vagueness, the Miller court found that “[t]he prohibitive terms are clearly defined so
as a person of ordinary intelligence could readily define the standard for inclusion and exclusion.
All solicitation is prohibited unless invited by an MSU student organization or university
department.” Id. (citing Hodge, 2007 WL 1202706, at **8-9). However, Plaintiff insists that the
Sixth Circuit’s holding in Garland, which vacated the district court’s holding in Hodge, undermined
and “effectively overruled” the holdings of both Smith and Miller and mandates a finding that the
UT campus use policy at issue is unconstitutional.
McGlone’s argument that UT’s sponsorship policy is void for vagueness relies
heavily on the Sixth Circuit’s recent opinion in Gilles v. Garland. In Garland, the Sixth Circuit
vacated the holding of Gilles v. Hodge, in which the district court dismissed a due process claim

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against a university’s “policy and consistent practice” of permitting on-campus visitor speech only
when the visitor was invited to speak by the university or by a recognized student organization. 281
Fed. App’x 501. The undisputed facts indicated that the sponsorship requirement was unwritten and
did not emerge until over a month after the plaintiff was denied permission to speak on campus. Id.
at 506-07. The court was compelled by the plaintiff’s argument that the “standards guiding officials’
discretion can hardly be found to be sufficiently clear where the policy has not even been reduced
to writing” and where the policy emerged after the plaintiff was denied permission to speak. Id. The
court also noted that the facts, such as a campus security officer’s statement to the plaintiff that the
plaintiff’s speech was prohibited because it was not considered “legitimate business,” indicated that
the policy was “not well understood by university officials charged with the most immediate
responsibility for enforcing it.” Id. at 507 (emphasis in original). Finally, the court noted that the
policy contained “no standards by which student groups are to judge [speaker] requests . . . .
[N]either is there anything in the policy that guides discretion and restrains abuse.” Id. at
508.Though it noted that “proof of plaintiff’s free speech claim is improbable and recovery
unlikely,” the court concluded that the “unwritten ‘policy’ . . . appears to be devoid of standards and
is facially vulnerable to due process challenge.” Id.
The Garland court acknowledged that other student sponsorship requirements had
been upheld as reasonable restrictions on speech. Id. (citing Blanchard, 477 F.3d at 472-73;
Bowman, 444 F.3d at 980-81; Miller, 501 F. Supp. 2d at 948-49). In fact, rather than “directly
conflict[ing]” with and “effectively overrul[ing]” Miller, which McGlone insists was the effect of
Garland, the Sixth Circuit cited Miller with approval at least three times. Id. at 510, 511-12; [Reply
in Supp. of Mot. for Prelim. Inj., Doc. 23, at 2.] Though Garland vacated the lower court’s opinion

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in Hodge, it is evident that the Sixth Circuit had no intention of also overruling the Eastern District
of Kentucky’s similar line of reasoning in Miller. It is evident, therefore, that the facts of Hodge--namely the unwritten policy that emerged a month after the denial of speaking rights---mandated
reversal while the facts surrounding the written sponsorship policy in Miller did not. Along that
same line of reasoning, the Sixth Circuit distinguished the Hodge policy from that at issue
Blanchard, which was written, “well-established and fairly applied.” Garland, 281 Fed. App’x at
507-08 (citing Blanchard, 477 F.3d at 472).
McGlone also bases his due process argument on Miller v. City of Cincinnati. In
Cincinnati, a lobbying group was denied access to the lobby of Cincinnati’s city hall because the
group did not have sponsorship from a city council member or a city department, as required by the
city’s administrative regulations. 622 F.3d at 528-30. The Sixth Circuit enjoined the enforcement
of the city regulation, finding that the policy:
[G]ives complete discretion to council members and department heads to select
whom they will sponsor. The only direction provided is that the purpose of the
interior of city hall is to allow City officials “to exercise the rights and
responsibilities specified in the Charter of the City of Cincinnati.” Without further
specificity, this directive offers no meaningful guidance. We conclude that the
plaintiffs have established a substantial likelihood of success with regard to the
merits of their void-for-vagueness claim.
Id. at 540. In his reply brief in support of his Motion for a Preliminary Injunction, Plaintiff correctly
states that Cincinnati stands for the proposition that “Policies that make forum access dependent on
a government official’s unbounded discretion to grant ‘sponsorship’ are constitutionally invalid” as
void for vagueness. [Reply in Supp. of Mot. for Prelim. Inj., at 2.] Cincinnati did not mention any
of the university or student sponsorship cases on which the parties base their arguments. However,

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McGlone urges that the sponsorship requirement in Cincinnati is no different in language or in effect
from UT’s sponsorship requirement.
Cincinnati is inapplicable to the instant case. First, McGlone’s attempt to paint
Cincinnati as controlling ignores the plethora of case law highlighting the unique nature and mission
of a university campus and upholding universities’ right to limit the use of their campuses to those
for whose benefit it exists. See, e.g., Widmar, 454 U.S. at 268; Bloedorn, 631 F.3d at 1218; Garland,
281 Fed. App’x at 509-11; Bowman, 444 F.3d at 978; Mote, 423 F.3d at 444-45. More importantly,
Cincinnati involved a policy under which only government officials could decide who would be
granted access to the government facilities. Under UT’s campus access and sponsorship policies,
any member of the UT community may invite any speaker of his or her choosing to speak on
campus. That UT officials, including Deans Davis and Smith, are some of the many parties on
campus who may grant sponsorship does not amount to impermissible grant of unbridled discretion
to government officials. The Government Speech Doctrine acknowledges that the First Amendment
does not regulate government speech, and that the government is entitled “to say what it wishes and
to select the view that it wants to express.” Pleasant Grove, 129 S. Ct. at 1131 (citing Johanns v.
Livestock Marketing Ass’n, 544 U.S. 550, 553 (2005); Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819, 833 (1995)). So long as they do not have unbridled discretion to limit speech
on campus, UT officials are free under the Government Speech Doctrine to enter the campus’s
“marketplace of ideas” and invite a speaker to campus to express a certain message.
McGlone also relies on a third case, Child Evangelism Fellowship of Md., Inc. v.
Montgomery Cnty. Pub. Sch., 457 F.3d 376 (4th Cir. 2006), to support his notion that a school-wide
sponsorship requirement can allow unbridled discretion. However, the facts of that case provide no

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basis for such a contention. In Child Evangelism Fellowship, the school policy at issue provided that
the Montgomery County Public School system “may approve . . . for distribution” flyers “from” or
“sponsored or endorsed by” five groups of “listed organizations.” Id. at 380. The MCPS also had
the power to withdraw approval of any flyer that it determined “undermine[s] the intent of this
policy.” Id. The court’s qualm with the policy was not with its grant of power to the “listed
organizations” to sponsor or endorse a flyer; rather, it was with the fact that “the policy imposes no
guidelines as to how MCPS should exercise [its] unlimited discretion” to approve or withdraw the
flyers. Id. at 387. Such power reserved “virtually unlimited discretion” to a government entity to
control access to speech. Id. The court called the MCPS’s bluff: “What MCPS cannot do is what it
has done here: assertedly limit access to certain purportedly neutral speakers but actually reserve
to itself unbridled discretion to permit or deny access to any speaker for any reason it chooses.” Id.
at 389. The holding of Child Evangelism Fellowship in fact supports the position advocated by UT,
which lawfully reserved discretion to tens of thousands of neutral speakers.
Like the policies in Blanchard and Miller, and unlike the unwritten and post hoc
“policy” in Garland, UT’s sponsorship requirement is not vague and does not give UT officials
unbridled discretion to restrict speech. The terms of the well-established, forty-year-old policy are
clearly defined so as a person of ordinary intelligence could readily define the standards for
inclusion and exclusion. See Miller, 501 F. Supp. 2d at 950. All outside visitors’ speech is prohibited
unless sponsored by a member of the UT community. If a member of the UT faculty, staff, or student
group sponsor a speaker, that speaker is permitted on campus, and if they do not sponsor the
speaker, that speaker is not permitted on campus. Further, the power bestowed upon students,

-25-

faculty, and staff members to grant sponsorship does not implicitly give any of those groups the
power to deny or revoke potential speakers’ sponsorship from another group.
Nothing in the policy permits UT officials to limit speech based on ambiguous or
subjective criteria. McGlone insists that the sponsorship policy confers “unbridled discretion” on
public officials, because the policy contains “no limitations or restrictions limiting the discretion of
a registered student organization, faculty, or staff in choosing whether to sponsor a particular
speaker.” (Compl. ¶ 51.) However, McGlone’s protestations about the lack of guiding criteria or
limitations on discretion ignore the fact that surrounding the access and sponsorship policies in the
UT student handbook are numerous safeguards against abuse, as well as specific guidelines and
procedures by which students are to discharge their authority to sponsor speakers and by which the
Dean of Students must plan for said speakers. First, the student handbook is replete with provisions
highlighting the importance of First Amendment rights on campus. The policy ensures that, so long
as a speaker is sponsored, “[t]here are no restrictions to control the point of view expressed by
speakers other than those imposed by local, state, and federal laws. Any person sponsored by a
registered campus organization is free to speak.” [Mot. to Dismiss, Attach. 1, at 3.] Second, it
contains procedural standards. It expressly instructs students to “register the name of the speaker,
the date and time of the appearance, and such pertinent information as will facilitate adequate
physical preparations and adequate publicity for the event with the Office of the Dean of Students.”
Id. It warns students that “reasonable notice” is necessary to arrange for on-campus speakers. Id.
Finally, the policy specifies that the Dean’s only criterion for a negative decision regarding a
sponsored visitor’s ability to speak is a “demonstrable inability to make such physical
arrangements.” Id. The handbook orders officials not to use the event-scheduling process “as a

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device for a prior restraint of speakers.” Id. Even a “negative decision” for scheduling purposes does
not foreclose a speaker’s ability to speak on campus; rather, the policy urges the sponsoring
organization to seek a more suitable date. Id. Such safeguards and standards prevent unbridled
discretion on the part of the officials overseeing the sponsorship process.
Finally, the pleadings contain no allegation that UT officials or other members of the
UT community have a history of denying sponsorship based on ambiguous or subjective reasons.
Despite the policy’s forty-year history, McGlone does not claim that the policy is not “wellestablished and fairly applied.” Garland, 281 Fed. App’x at 507-08.
The Court cannot conclude that a policy which grants to all members of the UT
community the ability to invite speakers to campus is unconstitutionally vague or confers “unbridled
discretion” on public officials. To the contrary, such a policy “decentraliz[es] the invitation process”
and “assures nondiscrimination, and a reasonable diversity of viewpoints consistent with the
university’s autonomy and right of self-governance.” Blanchard, 477 F.3d at 474. The Court finds
that McGlone has failed to plead sufficient facts to state a claim that UT’s policy is
unconstitutionally vague.
ii.

Overbreadth

Overbreadth analysis considers whether a regulation sweeps within its ambit
protected activities as well as unprotected ones. A policy is unconstitutionally overbroad when there
exists “‘a realistic danger that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the court.’” Leonardson v. City of E. Lansing, 896 F.2d
190, 195 (6th Cir. 1990) (quoting City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801
(1984)). “Underlying the overbreadth doctrine is the concern that an overbroad statute will ‘chill’

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the exercise of free speech and expression by causing ‘those who desire to engage in legally
protected expression . . . [to] refrain from doing so rather than risk prosecution or undertake to have
the law declared partially invalid.’” Hodge, 2007 WL 1202706, *9 (quoting Board of Airport
Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (internal citation omitted)). However, to
invalidate a law on overbreadth grounds, the “impermissible applications of the law” must be
“substantial when ‘judged in relation to [its] plainly legitimate sweep.’” City of Chicago v. Morales,
527 U.S. 41, 52 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973)). If a law does
not reach a substantial amount of constitutionally protected conduct, the overbreadth challenge must
fail.
UT’s sponsorship policy is not overbroad. As noted in the Court’s analysis above,
visitors to UT’s campus do not have an absolute constitutional right or entitlement to speak in the
open areas of campus; even as a public university, UT has the right to limit public speaking on its
campus by visitors. UT’s sponsorship policy is properly drafted and narrowly tailored to accomplish
this mission. Nothing in the pleadings indicates that the policy sweeps or has any implications
whatsoever outside of its lawful regulation of outside speakers’ ability to speak on campus. There
also is no evidence that the sponsorship policy has a deterrent or chilling effect on the persons for
whom the university’s limited public forum is dedicated: the members of the UT community.
Accordingly, McGlone has pleaded no facts that would support an overbreadth challenge to UT’s
sponsorship policy.
Finally, the Court notes that there it no merit to McGlone’s contention that the UT’s
sponsorship policy amounts to a heckler’s veto, or “an attempt by those who dislike a speaker to
create such a disturbance that the speaker must be silenced.” Gaughan v. City of Cleveland, 212 Fed.

-28-

App’x 405, 415 (6th Cir. 2007) (citing Ams. United for Separation of Church & State v. City of
Grand Rapids, 980 F.2d 1538, 1553 (6th Cir. 1992)). Because the pleadings in this case do not
establish that McGlone’s First Amendment or Due Process claims have facial plausibility, dismissal
for failure to state a claim under Rule 12(b)(6) is appropriate.
2.

Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 129 S. Ct 808, 815
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is both a defense to liability and
an entitlement not to stand trial or face other burdens of litigation. Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). The doctrine balances two important interests: (1) the need to hold public officials
accountable when they exercise power irresponsibly; and (2) the need to shield officials from
distraction and liability when they perform their duties reasonably. Pearson, 129 S. Ct at 815.
To determine if qualified immunity applies, the Court must decide whether the facts,
taken in the light most favorable to the plaintiff, make out a violation of a constitutional right, and
if so, whether the right at issue was “clearly established” at the time of Defendants’ alleged
misconduct. Saucier v. Katy, 533 U.S. 194, 202 (2001); Dorsey v. Barber, 517 F.3d 389, 394 (6th
Cir. 2008). A right is “clearly established” if “ it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted,” Saucier, 533 U.S. at 202, and “if there is
leading precedent from the Supreme Court, the Sixth Circuit, the district court itself, or other circuits
that is directly on point,” Risbridge v. Connelly, 275 F.3d 565, 569 (6th Cir. 2002). However, there
need not be a prior case directly on point for a law to be clearly established. Kennedy v. City of

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Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010). The Court exercises its sound discretion to decide
which of the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances of the particular case. Pearson, 129 S. Ct at 818. If no constitutional right would have
been violated even if the allegations were established, then no further inquiry is necessary. Saucier,
533 U.S. at 201.
In light of the Court’s finding above that McGlone has not shown a likelihood of
success on the merits of his free speech, overbreadth, and vagueness claims, the Court finds that
McGlone has not sufficiently alleged a violation of the First and Fourteenth Amendments. No
constitutional right would have been violated even if the allegations in the Complaint were
established, and no further inquiry is necessary. See Saucier, 533 U.S. at 201.
3.

Eleventh Amendment

Defendants also seek to dismiss McGlone’s claims to the extent that McGlone is
attempting to assert a § 1983 claim for money damages against them in their official capacities as
state employees. The Eleventh Amendment provides: “The Judicial power of the United States shall
not construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. Amend. 11. It precludes suits in federal court for monetary damages against state entities.
Underfer v. University of Toledo, 36 Fed. App’x 831, 834 (6th Cir. 2002) (citing Seminole Tribe of
Fla. v. Florida, 517 U.S. 44 (1996)). But see Stringfield v. Graham, 212 Fed. App’x 530, 535 (6th
Cir. 2007) (quoting Williams v. Commonswealther of Ky., 24 F.3d 1526, 1544 (6th Cir. 1994) (“The
Eleventh Amendment does not bar § 1983 actions brought against state officials in their official
capacities seeking prospective injunctive relief.”). Claims against public universities and university

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officials acting in their official capacities are considered actions against the state for purposes of the
Eleventh Amendment. Hafer v. Melo, 502 U.S. 21 (1991).
Plaintiff’s Complaint states: “Plaintiff John McGlone seeks injunctive relief,
declaratory relief, and nominal damages against Defendants Jimmy G. Cheek, in his official capacity
as Chancellor of University of Tennessee at Knoxville; Maxine Davis, individually and in her
official capacity as Dean of Student Affairs at University of Tennessee at Knoxville; and Angi
Smith, individually and in her official capacity as Associate Dean of Students at University of
Tennessee at Knoxville.” [Compl. ¶ 2.] Plaintiff’s Prayer for Relief requests “nominal damages
arising from the acts of the Defendants as an important vindication of his constitutional rights.” Id.
Prayer, § E. Nowhere in the Complaint does Plaintiff restrict this request for nominal monetary
damages to Defendants in their individual capacities. To the extent that McGlone sought to recover
any monetary damages against Defendants in their individual capacities, Defendant’s motion to
dismiss on Eleventh Amendment grounds is granted.
B.

Motion for a Preliminary Injunction
“A preliminary injunction is an extraordinary remedy designed to preserve the

relative positions of the parties until a trial on the merits can be held.” Bell, 2010 WL 3257551, at
*7 (citing Tenn. Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009)). Federal
district courts balance the following four factors to determine whether to order a preliminary
injunction: (1) whether the movant has established a substantial likelihood or probability of success
on the merits; (2) whether the movant will suffer irreparable harm without the injunction; (3)
whether issuance of the injunction would cause substantial harm to others; and (4) whether the

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public interest would be served by granting injunctive relief. Cincinnati, 622 F.3d at 533 (citing
Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)).
In the context of First Amendment violations, the “likelihood of success on the
merits” factor often is determinative, id. (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288
(6th Cir. 1998)), because the “loss of First Amendment freedoms, for even minimal periods of time,”
is presumed to constitute irreparable harm, Elrod v. Burns, 427 U.S. 347, 373 (1976)). To the extent
that a plaintiff demonstrates a substantial likelihood of success on the merits of his or her First
Amendment claim, the plaintiff also establishes the likelihood of irreparable harm as a result of a
loss of First Amendment rights. Connection Distrib. Co., 154 F.3d at 288. Conversely, “where there
is not been a showing of a likelihood of success on a First Amendment claim, a plaintiff cannot
establish irreparable harm.” Laborers’ Intern. Union of N.A., Local 534 v. Hodge, 2011 WL
5597261, *6 (S.D. Ohio Nov. 17, 2011) (citing Wappler v. Kleinsmith, 2009 WL 483223, *3 (W.D.
Mich. Feb. 24, 2009); Montgomery v. Carr, 848 F. Supp. 770, 777 (S.D. Ohio 1993)).
The reasoning that supports the Court’s finding that McGlone has failed to state a
claim upon which relief could be granted also supports findings that McGlone has not shown a
likelihood of success on the merits of his constitutional claims and, therefore, that McGlone has not
shown irreparable harm. Furthermore, because McGlone does not have a constitutional right to
speak without sponsorship on the open areas of UT’s campus, McGlone has not shown that granting
an injunction would not cause harm to Defendants or to the public interest. UT’s campus use policy
appears to be narrowly tailored to serve UT’s significant governmental interests in maintaining
order, preventing the interruption of its educational mission, ensuring public safety, and allowing
for coordination and use of limited space by multiple entities. It is in the interest of UT and the

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general public to enforce such a policy. Accordingly, the court holds that a preliminary injunction
will not issue, and Plaintiff’s motion therefor will be denied.

V.

Conclusion
For the reasons stated herein, the Court finds that UT’s campus access and

sponsorship policies are fully consistent with the Constitution and the case law interpreting it.
Plaintiff John McGlone has failed to state a claim upon which relief can be granted and has not
satisfied the four prerequisites to obtain injunctive relief. Accordingly, it is hereby ORDERED that
Plaintiff’s Motion for a Preliminary Injunction [Doc. 7] is DENIED, Defendants’ Motion to Dismiss
[Doc. 18] is GRANTED, and this case is DISMISSED.

IT IS SO ORDERED.

ENTER:
s/ Thomas W. Phillips
United States District Judge

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