Rock for Life-UMBC v. Hrabowski

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1892

ROCK FOR LIFE-UMBC, an unincorporated student association,
for itself and its individual members; OLIVIA RICKER,
individually and as an officer of Rock for Life-UMBC;
MIGUEL MENDEZ, individually and as an officer of Rock for
Life-UMBC,

Plaintiffs - Appellants,

v.

FREEMAN A. HRABOWSKI, individually and in his capacity as
President of University of Maryland, Baltimore County;
CHARLES J. FEY, in his individual capacity as former Vice
President of Student Affairs at University of Maryland,
Baltimore County; NANCY L. YOUNG, individually and in her
official capacity as Interim Vice President of Student
Affairs at the University of Maryland, Baltimore County; LEE
A. CALIZO, individually and in her official capacity as
Acting Director of Student Life at University of Maryland,
Baltimore County; JOSEPH REIGER, individually and in his
official capacity as Executive Director of the Commons at
University of Maryland, Baltimore County; ERIC ENGLER,
individually and in his official capacity as Acting Director
of the Commons at University of Maryland, Baltimore County;
LYNNE SCHAEFER, individually and in her official capacity as
Vice President of Administration and Finance at the
University of Maryland, Baltimore County; ANTONIO WILLIAMS,
individually and in his official capacity as Chief of Police
for the University of Maryland, Baltimore County Police
Department,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cv-00811-JFM)
Argued: September 21, 2010 Decided: December 16, 2010

Before NIEMEYER and KING, Circuit Judges, and Robert J. CONRAD,
Jr., Chief United States District Judge for the Western District
of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Conrad wrote the
opinion, in which Judge Niemeyer joined. Judge King wrote a
separate opinion concurring in part, dissenting in part, and
concurring in the judgment.

ARGUED: David Austin French, ALLIANCE DEFENSE FUND, Columbia,
Tennessee, for Appellants. Sally Lotz Swann, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: Joseph J. Martins, Travis C. Barham,
ALLIANCE DEFENSE FUND, Columbia, Tennessee; Steven L. Tiedemann,
JPB ENTERPRISES, INC., Columbia, Maryland, for Appellants.
Douglas F. Gansler, Attorney General, Anne L. Donahue, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
CONRAD, Chief District Judge:

Rock for Life-UMBC, a registered student organization at

the University of Maryland, Baltimore County (“UMBC”) and two of

its former student-members appeal an award of summary judgment

and judgment on the pleadings to the defendants, UMBC officials,

on several First Amendment claims brought under 42 U.S.C. §

1983. For the reasons that follow, we affirm.

I.

UMBC is a public honors university located in Baltimore,

Maryland, with an enrollment of approximately 13,000

undergraduate and graduate students. Rock for Life is a

registered student organization at UMBC with a stated mission

“to defend the right of the unborn and to awake consciousness

and awareness in the UMBC community about the catastrophic

effects of abortion for all persons involved and our moral duty

to stop its practice.” Joint Appendix (“JA”) 17. 1 In April 2007,

Rock for Life submitted a request to UMBC to reserve non-

1
At oral argument, counsel for the defendants informed the
Court that Rock for Life is as of recently no longer a
registered student organization at UMBC. Because the evidence
supporting this factual development was not made clear, nor is
Rock for Life’s current status at UMBC material to a number of
its claims, we assume for purposes of this decision that Rock
for Life continues to operate as a registered student
organization.

3
academic campus space in order to display a series of posters

known as the Genocide Awareness Project (the “GAP display”). The

display is described by its sponsor, the Center for Bio-Ethical

Reform, as

a traveling photo-mural exhibit which compares the
contemporary genocide of abortion to historically
recognized forms of genocide. It visits university
campuses around the country to show as many students
as possible what abortion actually does to unborn
children and get them to think about abortion in a
broader historical context.

Id. at 253, 254-55. There are twenty-four different GAP posters,

and each comes in a six-foot by thirteen-foot “standard” or

four-foot by eight-foot “mini-GAP” display size.

At the time of Rock for Life’s initial request, UMBC

operated under a facilities use policy designed to provide

recognized student organizations with access to academic and

non-academic university property. UMBC evaluated requests based

on “room appropriateness,” and it reserved the right to deny any

request “dependent upon circumstances.” Id. at 234. The policy

also stated that “[s]cheduling may move an event to a different

location without notice. UMBC is not responsible for any costs

incurred by a user resulting from a change in location.” Id. at

235.

Rock for Life initially sought permission to present the

GAP display at the University Center Plaza, a facility located
4
at the center of several academic buildings on the western side

of campus. The request was first sent to Lee Calizo, director of

student life, for approval. On April 24th, Calizo emailed then-

acting Rock for Life president Alex Vernet to inform him that

she had viewed a website associated with GAP and was concerned

that placing “7 ft tall by 22 ft wide” signs in front of the

Plaza entrance would restrict access to the building. Id. at

824. In fact, Rock for Life only planned to display four-foot by

eight-foot “mini-GAP” signs. However, it does not appear that

Rock for Life brought this discrepancy to Calizo’s or any other

UMBC official’s attention during their subsequent negotiations.

As word spread of Rock for Life’s request to show the GAP

display, UMBC officials discussed how best to handle the

controversial nature of the event. The plaintiffs allege Chris

Tkacik, UMBC’s in-house counsel, stated that students might feel

“emotionally harassed” by the display, and UMBC had a right to

prevent such harassment. The plaintiffs contend this alleged

comment implicated two additional UMBC speech policies then in

place. The first is former Article V, Paragraph B(2)(f) of the

Code of Student Conduct, which prohibited “physical or emotional

harassment,” although this term was not further defined. Id. at

62. The second is UMBC’s prohibition against sexual harassment,

defined as

5
 unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual
nature when:

(1) Such conduct has the purpose or effect of
unreasonably interfering with an individual’s academic
or work performance, or of creating an intimidating,
hostile, or offensive educational or working
environment; or
(2) Submission to such conduct is made either
explicitly or implicitly a term or condition of
employment or for participation in a UMBC-sponsored
educational program or activity; or

(3) Submission to or rejection of such conduct by
an individual is used as the basis for academic or
employment decisions.

JA 51. A violation of either provision subjects a student to a

range of possible disciplinary measures, including suspension

and expulsion from the university.

During a meeting between UMBC, Rock for Life, and the

Leadership Institute, 2 Rock for Life presented UMBC with a letter

requesting a uniformed police presence during the GAP display

due to “numerous unprovoked physical attacks from pro-abortion

students” during previous exhibitions. Id. at 270. Further, it

was Rock for Life’s position that the First Amendment required

UMBC to pay the cost of this security measure. The parties,

however, never reached a definite agreement on whether police

should be assigned to the event, and if so, who should pay for

the costs.

2
The Leadership Institute is a non-profit organization that
assisted Rock for Life in bringing the GAP display to UMBC.

6
 On April 25th, 2007, Calizo informed Rock for Life that the

GAP display would not be allowed at the University Center Plaza,

but could be held at the Commons Terrace instead. The Commons

Terrace is a patio area adjacent to the Commons, described as

the “hub of student life on campus,” and its positioning within

the campus makes it a “congestion point” between residence halls

and other campus buildings. Id. at 835, 1356. Rock for Life

found the Terrace to be a desirable location and agreed to this

compromise. However, Joseph Reiger, Executive Director of the

Commons, soon expressed concern that the Terrace was also an

inappropriate place for the GAP display. He described steps on

the Terrace as hazardous because they are not in a “known sight

line.” (JA 1356). He further stated that like Calizo, he

understood the GAP display to include about twelve five-foot by

thirteen-foot signs. Based on these circumstances, Reiger

thought the Terrace was an unsuitable venue for three reasons:

(1) the GAP signs were too much of a “visual barrier” for that

location; (2) the GAP display would not leave adequate space for

pedestrians wishing to access the Commons through the Terrace

entrance; and (3) the area would become too congested if

students had to “flee” from a violent altercation resulting from

the display. Id. at 1363. Reiger further stated that his concern

about violence arose because of Rock for Life’s letter

7
requesting security, not his past experience with the group or

UMBC’s student body.

Based largely on Reiger’s recommendation, Charles Fey, Vice

President of Student Affairs, decided to move the GAP display

once more from the Commons Terrace to the North Lawn, an open

space between the Commons, residence halls and main library.

Rock for Life members were informed of this decision by Eric

Engler, acting director of the Commons, on the morning of April

30th as they attempted to set up the GAP display on the Commons

Terrace. Rock for Life then moved the display to the North Lawn,

where it was held without a police presence and without

incident. The plaintiffs contend that surveillance footage from

that day indicates the North Lawn saw less foot traffic than the

Terrace, and thus fewer students were able to view the GAP

display and its message.

In November 2007, Rock for Life made a second attempt to

reserve the Commons Terrace for an exhibition of the GAP

display. UMBC responded that as before, the GAP display would be

permitted only on the North Lawn. Rock for Life decided not to

hold the event.

The plaintiffs later filed suit under 42 U.S.C. § 1983 in

the District of Maryland, alleging that UMBC had violated their

right to free expression through the enforcement of its sexual

harassment policy, its policy prohibiting emotional harassment

8
and, most directly, its facilities use policy. Calizo, Reiger,

Engler and Fey were named in both their individual and official

capacities, as were Freeman Hrabowski, President of UMBC, Nancy

Young, successor to Fey as Vice President of Student Affairs,

Lynne Schaeffer, Vice President of Administration and Finance

and Antonio Williams, University Chief of Police. 3 The complaint

sought permanent injunctive relief against enforcement of all

three policies as well as nominal and punitive damages. UMBC

later agreed, however, to partially address the plaintiffs’

claims by striking “emotional harassment” from the list of

prohibitions in its code of conduct and replacing it with

“failure to cease repetitive unwanted behavior directed toward a

particular individual or individuals.” JA 81. UMBC also revised

its facilities use policy by adding specific criteria for

denying or moving an event, but the sexual harassment policy

remained unchanged. After the facilities use policy was revised,

Rock for Life made a third request in October 2008 to reserve

the Commons Terrace for an exhibition of the GAP display. UMBC

3
The district court held that Hrabowski, Young, Schaeffer,
and Williams were immune from liability because the plaintiffs
failed to present any evidence of their personal or supervisory
involvement in the state action giving rise to this lawsuit. See
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (only a
supervisor who exhibits “deliberate indifference to or tacit
authorization of” a subordinate’s constitutional violations may
be held responsible under § 1983). The plaintiffs do not
challenge this finding on appeal.

9
granted this request, and the GAP display was held on the

Commons Terrace without incident.

In light of these developments, the plaintiffs filed an

amended complaint withdrawing their claims for injunctive relief

against enforcement of UMBC’s code of conduct and facilities use

policy. The amended complaint alleged five causes of action

under § 1983, better expressed in terms of the speech policies

they challenged: (1) First Amendment and Due Process claims

against UMBC’s sexual harassment policy, seeking injunctive

relief as well as monetary damages; and (2) First Amendment, Due

Process and Equal Protection claims against UMBC’s code of

conduct and facilities use policy, seeking monetary damages

only.

Finding that the plaintiffs lacked standing to assert

claims for injunctive relief against the code of conduct and

sexual harassment policy, the district court granted judgment on

the pleadings to the defendants on those claims under Federal

Rule of Civil Procedure 12(c). Rock for Life-UMBC v. Hrabowski,

594 F. Supp. 2d 598 (D. Md. 2009) (hereafter “Rock for Life I”).

After discovery, the parties filed cross-motions for summary

judgment on the plaintiffs’ remaining claims. The district court

awarded judgment to the defendants, finding that the plaintiffs’

facial challenge to the former facilities use policy was moot,

and the policy had been applied without regard to content as a

10
reasonable time, place, and manner regulation of their speech.

Rock for Life-UMBC v. Hrabowski, 643 F. Supp. 2d 729 (D. Md.

2009) (hereafter “Rock for Life II”).

The plaintiffs timely appealed the district court’s orders

granting judgment on the pleadings and summary judgment to their

First Amendment claims only. We have jurisdiction pursuant to 28

U.S.C. § 1291.

II.

We review a district court’s decision to grant judgment on

the pleadings under Rule 12(c) de novo. Independence News, Inc.

v. City of Charlotte, 568 F.3d 148, 154 (4th Cir. 2009). “In

reviewing an award of judgment on the pleadings, we assume the

facts alleged in the relevant pleadings to be true, and we draw

all reasonable inferences therefrom.” Volvo Const. Equip. N.

Am., Inc., v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir.

2004).

We also review an award of summary judgment de novo under

the same standard applied by the district court. See Canal Ins.

Co. v. Distrib. Servs., Inc., 320 F.3d 488, 491 (4th Cir. 2003).

Summary judgment shall be granted “if the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

11
Fed. R. Civ. P. 56(c). When ruling on a summary judgment motion,

a court must view the evidence and any inferences from the

evidence in the light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

“‘Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no

genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct. 2658,

2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S.

574, 587 (1986)).

Because the plaintiffs’ § 1983 claims seek to recover

damages, they must establish not only that the defendants

deprived them of a constitutional right, but also that the

defendants, state actors sued in their individual capacities,

are undeserving of qualified immunity. See Harlow v. Fitzgerald,

457 U.S. 800, 808-09 (1982). Whether a government official is

deserving of qualified immunity from personal liability is a

two-pronged inquiry that requires us to determine: (1) whether

the official violated a constitutional right; and if so (2)

whether the right was “clearly established” at the time of its

violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Recently

the Supreme Court overruled Saucier in part to hold that the

traditional two-step inquiry into qualified immunity is not

mandatory; “the district courts and the courts of appeals should

be permitted to exercise their sound discretion in deciding

12
which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan, 129 S. Ct. 808,

813, 818 (2009). In this case, the district court addressed step

one of the inquiry and, after concluding that the plaintiffs

failed to present sufficient evidence of a constitutional

violation, found it unnecessary to address step two.

III.

We begin with the district court’s conclusion that the

plaintiffs lack standing to challenge UMBC’s sexual harassment

policy and code of conduct. “[S]tanding jurisprudence contains

two strands: Article III standing, which enforces the

Constitution’s case-or-controversy requirement . . . and

prudential standing, which embodies judicially self-imposed

limits on the exercise of federal jurisdiction.” Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Article III

standing requires a plaintiff to show: (1) injury-in-fact; (2) a

causal connection or traceability; and (3) redressability. Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The

injury-in-fact criteria contemplates that the alleged injury-in-

fact is both “concrete and particularized and actual or

imminent.” Id. at 560. The term “particularized” means that

“the injury must affect the plaintiff in a personal and

13
individual way.” Id. at 560 n.1. In addition, “there must be a

causal connection between the injury and the conduct complained

of . . . .” Id. at 560. Stated differently, the injury must be

“fairly traceable” to action by the defendant. Id. Finally, “it

must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Id. at 561

(internal quotation marks omitted).

A regulation that burdens speech creates a justiciable

injury if on its face it restricts expressive activity by the

class to which the plaintiff belongs, or if its presence

otherwise tends to chill the plaintiff’s exercise of First

Amendment rights. N.C. Right to Life, Inc. v. Bartlett, 168 F.3d

705, 710 (4th Cir. 1999). However, fears of enforcement that are

“imaginary” or “wholly speculative” are insufficient to confer

standing. Babbitt v. United Farm Workers Nat’l Union, 442 U.S.

289, 302 (1979). To establish a plaintiff’s standing under

Article III, the challenged regulation must present a credible

threat of enforcement against the party bringing suit. N.C.

Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir.

1999). A plaintiff must establish such a threat with respect to

each of the provisions it seeks to challenge, as standing

regarding one aspect of a policy cannot be bootstrapped into

standing as to the rest. See Covenant Media of S.C., LLC v.

City of N. Charleston, 493 F.3d 421, 429-30 (4th Cir. 2007).

14
 A.

The plaintiffs argue that their standing to challenge

UMBC’s sexual harassment policy is rooted in its

unconstitutional overbreadth. However, while the overbreadth

doctrine permits a plaintiff to “challenge a statute on its face

because it also threatens others not before the court[,]” Bd. of

Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574

(1987); accord Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973),

it does not circumvent the requirement that a plaintiff suffer

an individual injury from the existence of the contested

provision to begin with. Burke v. City of Charlestown, 139 F.3d

401, 405 n.2 (4th Cir. 1998); Gilles v. Torgersen, 71 F.3d 497,

501 (4th Cir. 1995) (citing Sec’y of Md. v. Joseph H. Munson

Co., Inc., 467 U.S. 947, 958 (1984)). To demonstrate a credible

threat that a sexual harassment policy is likely to be enforced

in the future, a history of threatened or actual enforcement of

the policy against the plaintiff or other similarly-situated

parties will often suffice. See Lopez v. Candaele, --- F.3d ----

, 2010 WL 3607033, at *6 (9th Cir. Sept. 17, 2010); Booher v.

Bd. of Regents, No. 2:96cv135, 1998 U.S. Dist. LEXIS 11404, at

*19-20 (E.D. Ky. July 21, 1998); Doe v. Univ. of Michigan, 721

F. Supp. 852, 859-60 (E.D. Mich. 1989).

The plaintiffs cite the recent Third Circuit decision

McCauley v. University of the Virgin Islands, --- F.3d ----,

15
2010 WL 3239471 (3d Cir. Aug. 18, 2010), for the proposition

that Broadrick and its progeny confer standing to challenge

speech regulations absent evidence of a chilling effect to the

particular speaker before the court. See id. at *3 (holding that

a plaintiff had standing to challenge a university’s sexual

harassment policy despite the fact that he failed to assert that

“his speech . . . was chilled by the Code.”). Broadrick,

however, cannot be read so broadly. While the overbreadth

doctrine relaxes prudential limitations on standing that would

normally prevent a plaintiff from vindicating the constitutional

rights of other speakers, it does not dispense with the

“obligat[ion] as an initial matter to allege a distinct and

palpable injury as required by Article III.” Burke, 139 F.3d at

405 n.2; accord Canatella v. State of California, 304 F.3d 843,

854 & n.14 (9th Cir. 2002) (Broadrick relaxes prudential, but

not Article III, standing requirements).

Upon review of the facts alleged in the plaintiffs’ amended

complaint, nothing suggests that the plaintiffs face a credible

threat of disciplinary action under UMBC’s sexual harassment

policy. As the district court noted, no aspect of the GAP

display is readily applicable to the policy’s definition of

“sexual harassment,” which is limited to “unwelcome sexual

advances, requests for sexual favors, and other verbal or

physical conduct of a sexual nature . . . .” Although the GAP

16
display seeks to convey a message related to abortion, which

necessarily touches upon issues related to gender and

reproduction, this type of speech is simply not “conduct of a

sexual nature” covered by the policy. Moreover, the plaintiffs

do not allege facts suggesting that UMBC officials ever

threatened to punish their speech as sexual harassment. Even if

Tkacik expressed concern, as the amended complaint alleges, that

students would feel “emotionally harassed” by the GAP

demonstration, he did not express concern that students would

feel sexually harassed, nor is there any suggestion that

disciplinary enforcement of the sexual harassment policy was

discussed at any point. More to the point, Rock for Life has now

shown the GAP display on campus twice and has not faced

threatened or actual disciplinary action for sexual harassment.

Although the plaintiffs claim a chilling effect to their speech,

they were unable at oral argument to name any form of expressive

activity that Rock for Life or its members wish to engage in,

but refrain from in fear of violating UMBC’s sexual harassment

policy. We hold, therefore, that the plaintiffs have not

demonstrated a credible threat of enforcement under UMBC’s

sexual harassment policy and are without standing to challenge

its constitutionality.

17
 B.

Tkacik’s alleged comment had more relevance to UMBC’s code

of conduct, which prohibited “emotional harassment” until that

phrase was excised from the code during the course of this

litigation. As a result, the plaintiffs concede that the code of

conduct is no longer unconstitutionally vague or overbroad.

Nevertheless, the plaintiffs assert standing to sue for monetary

damages on the theory that Tkacik’s mention of the phrase caused

them to chill their own speech.

We have recognized that an actual chilling of protected

speech is a discrete infringement of First Amendment rights that

gives rise to a claim under § 1983 for at least nominal damages.

See Reyes v. City of Lynchburg, 300 F.3d 449, 453 (4th Cir.

2002). However, the plaintiffs may not assert claims for damages

against a speech policy that was never actually applied to them.

In order to establish their standing to challenge UMBC’s code of

conduct, the plaintiffs must first demonstrate an injury-in-fact

through the application of that provision. Covenant Media of

S.C., LLC v. City of North Charleston, 493 F.3d 421, 429-30 (4th

Cir. 2007) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

230 (1990)). While the plaintiffs claim that the code of conduct

caused them to chill their own speech, “[a]llegations of a

subjective ‘chill’ are not an adequate substitute for a claim of

specific present objective harm . . . .” Laird v. Tatum, 408

18
U.S. 1, 13-14 (1972). “[F]or purposes of standing, subjective

chill requires some specific action on the part of the defendant

in order for the litigant to demonstrate an injury-in-fact.”

Morrison v. Board of Educ., 521 F.3d 602, 609 (6th Cir. 2008).

In this case, UMBC never undertook a “concrete act” to

investigate or sanction the plaintiffs for violation of the code

of conduct. Id. at 610. Nor can the plaintiffs characterize the

defendants’ decision to move the GAP display to the North Lawn

as a non-disciplinary enforcement of the code. If the defendants

considered the display to be emotional harassment, then it was

equally so on either the North Lawn or the Commons Terrace. Any

subjective fear of disciplinary measures that the plaintiffs

might have felt never materialized into an actual, objective

harm. Nor is there a credible threat of enforcement in the

future, as the sexual harassment policy has been revised so that

it now prohibits specific conduct the plaintiffs have never

sought to engage in. The plaintiffs’ mere allegations of a

chilling effect, absent any substantiating action taken by UMBC,

cannot establish their standing to challenge the

constitutionality of a now-defunct speech regulation.

IV.

Unlike UMBC’s sexual harassment policy and its code of

conduct, UMBC actually applied its facilities use policy to

19
regulate the plaintiffs’ speech. As such, they have standing to

challenge its constitutionality. The plaintiffs assert a facial

challenge to the policy, alleging that its “dependent upon

circumstances” and “move without notice” provisions failed to

create “narrow, objective, and definite standards to guide the

licensing authority,” Green v. City of Raleigh, 523 F.3d 293,

300 (4th Cir. 2008) (quoting Forsyth Cnty. v. Nationalist

Movement, 505 U.S. 123, 131 (1992)), as well as an as-applied

challenge to the defendants’ decision to remove the GAP display

from the Commons Terrace.

A.

Citing our decision in Valero Terrestrial Corp. v. Paige,

211 F.3d 112 (4th Cir. 2000), the district court held that the

plaintiffs’ facial challenge to the facilities use policy was

moot in light of its permanent revisions, which the plaintiffs

concede are sufficient to render the policy facially

constitutional. Rock for Life II, 643 F. Supp. 2d at 740-41. In

Valero, which addressed the mootness of a plaintiff’s claim for

injunctive relief against enforcement of several state

regulatory statutes, we held that “statutory changes that

discontinue a challenged practice are ‘usually enough to render

a case moot, even if the legislature possesses the power to

reenact the statute after the lawsuit is dismissed.’” 211 F.3d

at 116 (quoting Native Village of Noatak v. Blatchford, 38 F.3d

20
1505, 1510 (9th Cir. 1994)). Valero, however, is inapposite to a

claim brought under § 1983 to recover damages—either

compensatory or nominal—resulting from a prior suppression of

speech. In this context, we have held that even permanent

remedial measures will not moot the claim. See Covenant Media,

493 F.3d at 429 n.4 (citing Henson v. Honor Comm. of the Univ.

of Va., 719 F.2d 69, 72 n.5 (4th Cir. 1983)); Reyes, 300 F.3d at

453. But while the plaintiffs’ cause of action for damages

remains live, their claim that the policy was facially

unconstitutional is moot.

We addressed a similar issue in Reyes, where a plaintiff

sought to recover nominal damages after being charged with

violating a subsequently repealed parade ordinance, arguing

among other things that the ordinance was facially overbroad.

300 F.3d at 452. We found the plaintiff’s overbreadth challenge

to the ordinance mooted by its repeal, observing that “the

repealed parade ordinance cannot now, if it ever did, reach any

amount of constitutionally protected conduct. The question of

overbreadth does not present a live case or controversy for this

court.” Id. at 453 (footnote omitted). We reached this result

because a facial challenge premised on overbreadth is

necessarily forward-thinking: it petitions the court to

invalidate an overbroad speech regulation because it has the

potential to support “a substantial number of impermissible

21
applications . . . .” New York v. Ferber, 458 U.S. 747, 771

(1982). When a facially overbroad regulation is subsequently

narrowed within constitutional boundaries, the inherent threat

of content-based discrimination becomes null.

Here, the plaintiffs allege the former facilities use

policy was facially unconstitutional because it delegated

“unbridled discretion” to UMBC to grant or deny requests. App.

Br. at 55. This, too, is a facial challenge premised on

overbreadth. See Forsyth, 505 U.S. at 129 (“[T]he Court has

permitted a party to challenge an ordinance under the

overbreadth doctrine in cases where every application creates an

impermissible risk of suppression of ideas, such as an ordinance

that delegates overly broad discretion to the

decisionmaker[.]”). The injury alleged by the plaintiffs is not

that Rock for Life’s request was actually denied based on the

content of its speech, for “[f]acial attacks on the discretion

granted a decisionmaker are not dependent on the facts

surrounding any particular permit decision.” Id. at 133 n.10

(citing Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,

770 (1988)). Rather, it is an assertion by the plaintiffs that

the facilities use policy granted UMBC such broad discretion

that it created a potential chilling effect on all protected

expression on campus, including their own. Id. at 129. If the

policy was indeed facially overbroad, UMBC’s permanent revisions

22
cured this defect and removed any threat of content-based

enforcement in the future. The justiciable issue that remains

before us is not whether Rock for Life’s permit was denied

pursuant to a facilities use policy that gave UMBC unduly broad

discretion, i.e., a policy that could have been applied

unconstitutionally, but whether impermissible content-based

discrimination did in fact occur. Because the facilities use

policy no longer poses an inherent threat of content-based

discrimination, the plaintiffs’ facial challenge to the policy

is moot notwithstanding the fact that it seeks the recovery of

damages rather than injunctive relief.

B.

Turning to the plaintiffs’ as-applied challenge, the

district court correctly determined that the facilities use

policy regulated access to a limited public forum, and an

“internal standard” applied because the policy was designed to

provide access to recognized student organizations such as Rock

for Life. Rock for Life II, 643 F. Supp. 2d at 744-45. Under

this standard, content-neutral regulations of speech are

permissible if they are “limited to ‘reasonable restrictions on

time, place, or manner . . . [,] provided the restrictions . . .

are narrowly tailored to serve a significant government

interest, and . . . leave open ample alternative channels for

communication of the information.’” Warren v. Fairfax Cnty., 196

23
F.3d 186, 193 (4th Cir. 1999) (en banc) (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989)). A narrowly tailored

regulation of speech “need not be the least restrictive or least

intrusive means of” effectuating the government’s interests,

Ward, 491 U.S. at 798, but it may not “burden substantially more

speech than is necessary to further [those] . . . interests.”

Id. at 799. To be sure, “the First Amendment does not guarantee

the right to communicate one’s views at all times and places or

in any manner that may be desired.” Heffron v. Int’l Society for

Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). However,

the plaintiffs contend that whether the facilities use policy

was applied in a content-neutral manner is a question of fact

for the jury. We agree, although the question is a much narrower

one than the plaintiffs suggest.

The defendants’ stated reasons for moving the GAP display

because of its size and shape are content-neutral criteria for

time, place and manner restrictions, see Am. Legion v. City of

Durham, 239 F.3d 601, 608 (4th Cir. 2001) (“Size . . . is not a

content criterion.”), and the plaintiffs fail to demonstrate

sufficient evidence that these stated reasons were pretext. The

defendants believed the size and shape of the signs would have

created a visual barrier obscuring steps and slopes on the

Commons Terrace, which Calizo characterized as an “oddly shaped

area.” JA 715. They developed this concern after their own

24
internet research about the GAP project led them to believe that

Rock for Life planned to display a row of approximately twelve

six-foot by thirteen-foot GAP signs. In fact, Rock for Life’s

display only included eight four-foot by eight-foot “mini-GAP”

signs, which could be arranged in any shape to accommodate floor

space limitations. However, whether the defendants’ decision was

motivated by the content of the GAP display depends on the

circumstances as the defendants believed them to be, not as they

actually were. The emails exchanged between the parties should

have alerted the plaintiffs to this mistake and the defendants’

resulting concerns for visibility and safety. The plaintiffs

never attempted to correct this misunderstanding during the

challenged enforcement of the facilities use policy, nor have

the plaintiffs otherwise shown that the defendants arrived at

their conclusions about the GAP signs in bad faith. Although the

plaintiffs have presented sufficient evidence that the

defendants were mistaken about the size of the GAP signs, this

is not evidence relevant to the issue before us: whether their

decision was motivated by the content of the plaintiffs’ speech

rather than its manner of presentation.

The plaintiffs also suggest that the defendants’ above-

stated logistical concerns are pretext for content-based

discrimination because numerous other events that posed similar

concerns were permitted on the Commons Terrace. We note that

25
“[o]nce a limited or designated public forum is established the

government can not exclude entities of a similar character to

those generally allowed.” ACLU v. Mote, 423 F.3d 438, 443 (4th

Cir. 2005). From 2003 to 2008, a number of events with varying

attendance have been held on the Terrace during normal school

hours. 4 But of these events, none were shown to include large

signs similar to those UMBC believed it was dealing with. Thus,

there is a content-neutral basis to distinguish these other

events from the GAP display.

A different matter is presented by the defendants’ stated

reason that they moved the GAP display to provide adequate space

for students to flee in the event of a violent altercation. This

concern was raised by UMBC in response to a request from Rock

for Life to provide a police presence at the GAP display, due to

“numerous unprovoked physical attacks” during prior exhibitions

at other campuses. The district court determined that the

4
These events include a free concert held from 1:00 p.m. to
2:00 p.m., attended by 50 people; an outdoor prayer service held
from 1:00 p.m. to 1:45 p.m., attended by 75 people; a student
involvement festival held from 11:00 a.m. to 2:00 p.m., attended
by 1,500 people; a study abroad fair held from 10:00 a.m. to
3:00 p.m., attended by 200 people; a “Bealtaine Barbeque” (a
Gaelic pagan festival) held from 12:00 p.m. to 2:00 p.m.,
attended by 25 people; a display erected by the sailing club
from 10:00 a.m. to 3:00 p.m.; a “Teeter Totter-a-thon”
fundraising event held for 24 hours, attended by 60
participants; and an environmental fair held from 2:00 p.m. to
10:00 p.m., attended by 50 people and featuring an electric car
placed at the South entrance of the Terrace. JA 1673-90.

26
defendants had not acquiesced to a “heckler’s veto” by moving

the GAP display because their concerns about crowd violence were

first raised by the plaintiffs. Rock for Life II, 643 F. Supp.

2d at 746-47. However, regardless of who raises the issue,

“[l]isteners’ reaction to speech is not a content-neutral basis

for regulation.” Forsyth, 505 U.S. at 134. It is difficult if

not impossible to characterize UMBC’s heightened interest in

providing escape routes from the Commons Terrace as anything but

content-based. See Ovadal v. City of Madison, 416 F.3d 531, 537

(7th Cir. 2005) (a content-based restriction of speech is likely

when “every proffered justification” for the restriction is

“directly related to the reactions” of the audience). While an

interest in public safety is a content-neutral basis to regulate

speech, see Davenport v. City of Alexandria, 710 F.2d 148, 151

(4th Cir. 1983) (en banc), safety concerns arising from a

prediction of how listeners might react to speech cannot be

effectively de-coupled from speech content. Although, as the

district court noted, the defendants “should not be faulted for

taking seriously the concerns raised by [the plaintiffs],” Rock

for Life II, 643 F. Supp. 2d at 747, those concerns arose from

the content of the plaintiffs’ message.

Viewing the evidence in a light most favorable to the

plaintiffs, it appears the defendants were motivated by both

content-based and content-neutral reasons when they denied Rock

27
for Life access to the Commons Terrace. A content-based

restriction of speech withstands constitutional scrutiny only

when narrowly tailored and necessary to serve a compelling state

interest. Arkansas Educ. Television Comm’n v. Forbes, 523 U.S.

666, 677 (1998). Even were we to find UMBC’s interest in

protecting the safety of its students compelling, acquiescence

to a heckler’s veto would still fail under strict scrutiny, for

the defendants must employ the least restrictive means available

to further that interest. United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803, 813 (2000). Providing a security

presence at the Commons Terrace would have been a less

restrictive means of ensuring student safety. This is especially

true in light of the fact that the defendants decided to move

the event before the GAP display was even set up, permitting

them no opportunity to make an assessment of how students

actually reacted to the plaintiffs’ speech. The defendants could

not have been certain that any real threat of violence existed.

Given that Rock for Life has now held the GAP display twice on

campus without incident, it most likely did not.

Although Rock for Life was permitted to present the GAP

display on the North Lawn, where its message was heard by

students walking across campus, “[a] tax based on the content of

speech does not become more constitutional because it is a small

tax.” Forsyth, 505 U.S. at 136. The plaintiffs have therefore

28
demonstrated a violation of their First Amendment rights unless

the defendants could show, by a preponderance of evidence, that

absent any concerns of violence they would still have moved the

GAP display because of its size and shape. See Mt. Healthy City

School Dist. v. Doyle, 429 U.S. 274, 287 (1977) (a First

Amendment violation must be the “motivating factor” behind a

challenged state action; no constitutional violation occurs if

the government can show by a preponderance of the evidence that

it would have taken the same action for other, constitutionally

proper, reasons); see also Daker v. Ferrero, 506 F. Supp. 2d

1295, 1309 (N.D. Ga. 2007) (applying the Mt. Healthy “proximate

cause” framework to a prisoner’s First Amendment claim for

suppression of speech).

Because the plaintiffs have demonstrated a triable issue of

fact on their as-applied challenge to the facilities use policy,

we hold that the district court erred by awarding summary

judgment to the defendants at the first prong of the Saucier

test for qualified immunity.

V.

Although the district court erred in this regard, we may

nevertheless affirm summary judgment if we determine as a matter

of law that the plaintiffs fail to demonstrate a violation of a

constitutional right that was clearly established. This is a

29
“purely legal question . . . .” Siegert v. Gilley, 500 U.S. 226,

232 (1991). It requires the court to identify “the specific

right allegedly violated,” and then decide if “at the time of

the alleged violation the right was clearly established.”

Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). “The

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202. “To determine whether a

federal right was clearly established at the time of the

defendants’ alleged conduct, we focus not upon the right at its

most general or abstract level, but at the level of its

application to the specific conduct being challenged.” Jackson

v. Long, 102 F.3d 722, 728 (4th Cir. 1996) (internal quotation

marks omitted). We are advised to resolve the issue of qualified

immunity at the “earliest possible stage” of litigation.

Pearson, 129 S. Ct. at 815.

The plaintiffs argue that the we may not address the issue

of qualified immunity while material issues of fact remain

concerning the defendants’ conduct or their intent. Generally

speaking, “summary judgment on qualified immunity grounds is

improper as long as there remains any material factual dispute

regarding the actual conduct of the defendants.” Buonocore v.

Harris, 65 F.3d 347, 359-60 (4th Cir. 1995) (citing Pritchett,

30
973 F.2d at 313). In Jackson, however, we recognized that “[i]f

. . . resolution of the factual dispute is immaterial to whether

immunity is to be afforded,” we may address the question of

qualified immunity while fact issues remain outstanding. 102

F.3d at 727.

Here, the only issue of fact relevant to the plaintiffs’

as-applied challenge that would survive summary judgment is

whether the defendants’ violence-related safety concerns were

the proximate cause of their decision to remove the GAP display

from the Commons Terrace. While this is a fact issue relevant to

whether the plaintiffs have suffered a deprivation of their

First Amendment rights, it is one that we may resolve in their

favor for purposes of determining whether the defendants are

entitled to qualified immunity. The defendants maintain that

they became concerned about the potential for violence after

Rock for Life presented UMBC with a letter asking for security

and describing violent encounters on other campuses. The

plaintiffs have not shown this concern was exaggerated or

otherwise not sincerely held. 5 Assuming, then, that the

5
In briefing submitted to the district court, the
plaintiffs suggested that the defendants’ concern of violence
was not “real.” Doc. No. 60-1 at 37. The plaintiffs supported
this contention by showing that UMBC refused to pay for a
security presence at the GAP display. Id. However, whether UMBC
agreed to pay for security is a separate question from whether
it had concerns for student safety.

31
defendants made an impermissible content-based restriction of

the plaintiffs’ speech because they anticipated a hostile

reaction from listeners, we exercise our discretion under

Pearson to examine whether this violated a constitutional right

of the plaintiffs’ that was, at the time, clearly established.

“Historically, one of the most persistent and insidious

threats to first amendment rights has been that posed by the

‘heckler’s veto,’ imposed by the successful importuning of

government to curtail ‘offensive’ speech at peril of suffering

disruptions of public order.” Berger v. Battaglia, 779 F.2d 992,

1001 (4th Cir. 1985). Courts have recognized a heckler’s veto as

an impermissible form of content-based speech regulation for

over sixty years. See Terminiello v. City of Chicago, 337 U.S. 1

(1949). Repeatedly, courts have emphasized the state’s

responsibility to permit unpopular or controversial speech in

the midst of a hostile crowd reaction. See, e.g., Ovadal, 416

F.3d at 537; Smith v. Ross, 482 F.2d 33, 37 (6th Cir. 1973);

Grider v. Abramson, 994 F. Supp. 840, 845-46 (W.D. Ky. 1998),

cited in Cheryl A. Leanza, Heckler’s Veto Case Law as a Resource

for Democratic Discourse, 35 Hofstra L. Rev. 1305, 1311 n.49

(2007). In the abstract, at least, the impermissibility of a

heckler’s veto is clearly established by First Amendment

jurisprudence.

32
 Our inquiry, however, is not meant to be performed in the

abstract. “Put simply, context matters.” Henry v. Purnell, ---

F.3d ---, 2010 WL 3720411, at *11 (4th Cir. Sept. 24, 2010). As

the United States Supreme Court has stated,

if the test of “clearly established law” were to be
applied at this level of generality, it would bear no
relationship to the “objective legal reasonableness”
that is the touchstone of Harlow. Plaintiffs would be
able to convert the rule of qualified immunity that
our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of
extremely abstract rights. Harlow would be transformed
from a guarantee of immunity into a rule of pleading.
Such an approach, in sum, would destroy “the balance
that our cases strike between the interests in
vindication of citizens’ constitutional rights and in
public officials’ effective performance of their
duties,” by making it impossible for officials
“reasonably [to] anticipate when their conduct may
give rise to liability for damages.”

Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Davis

v. Scherer, 468 U.S. 183, 195 (1984)). Our inquiry into whether

the defendants violated a clearly established right of the

plaintiffs’ not to be silenced by a heckler’s veto must account

for the fact that it was the plaintiffs who issued a warning of

crowd violence to the defendants in the first place. Although it

does not render the defendants’ conduct permissible under the

First Amendment, the letter bears upon context and the

circumstances as the defendants perceived them.

The plaintiffs’ letter warned that the GAP display had

encountered “numerous unprovoked physical attacks from pro-

33
abortion students on the first few campuses it visited . . . .”

JA 270. Public universities are taxed with a dual responsibility

to permit the free expression of ideas on campus while providing

for the safety and security of their students, see S.U.N.Y. v.

Fox, 492 U.S. 469, 475 (1989), and the plaintiffs’ security

concerns put these interests at odds. The proposed location for

the GAP display, the Commons Terrace, posed in the defendants’

minds an additional safety hazard in the event of crowd

violence. The plaintiffs’ apparent expectation that such

violence would occur must have left the defendants uniquely on

edge.

In hindsight, we think the defendants were required by the

First Amendment to address these additional safety concerns by

providing a security presence at the GAP display, or watching

the event closely to determine whether security was truly

necessary. However, “[t]he concern of the immunity inquiry is to

acknowledge that reasonable mistakes can be made as to the legal

constraints on particular [government] conduct.” Saucier, 533

U.S. at 205. Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). If the defendants secured

campus safety at too high a cost to the plaintiffs’ right to

free expression, we do not believe they should be made to pay

for this mistake from their own pockets.

34
 VI.

In summary, we conclude that all claims except the

plaintiffs’ as-applied challenge to UMBC’s facilities use policy

were properly dismissed on standing or mootness grounds.

Although the district court erred by holding that the plaintiffs

failed to demonstrate a triable issue of fact whether the

defendants regulated their speech based on its content, the

defendants are nevertheless entitled to qualified immunity from

42 U.S.C. § 1983 claims brought against them in their individual

capacities.

AFFIRMED

35
KING, Circuit Judge, concurring in part, dissenting in part, and
concurring in the judgment:

I write separately to confirm my concurrence in — and

admiration for — most of Judge Conrad’s well-crafted majority

opinion, with the exceptions of Parts IV.B and V. Although I

fully agree with the majority that the defendants are entitled

to qualified immunity on the plaintiffs’ as-applied challenge to

UMBC’s policy on facilities use, I would resolve that issue

solely on the first prong of the Saucier test. More

specifically, I would rule that the defendants are entitled to

qualified immunity because no constitutional violation has been

shown. I therefore dissent as to Part IV.B of the majority

opinion, which addresses the first prong of Saucier (the

constitutional violation prong), and have no reason to reach the

second prong of Saucier (the clearly established prong)

addressed in Part V of the majority opinion.

I.

The test formulated by the Supreme Court in Saucier v. Katz

required a two-pronged “order of battle” assessment of a

qualified immunity claim. See 533 U.S. 194, 201 (2001). After

Saucier was rendered in 2001, a reviewing court was obliged to

assess the two prongs in sequence, asking first whether the

plaintiff had sufficiently established a constitutional

36
violation. If the court’s answer on the first prong was “no,”

then it could not proceed to or address the second prong. But

if the answer was “yes,” then the court was obliged to decide

whether the violation was of a clearly established

constitutional right. In 2009, however, in Pearson v. Callahan,

the Supreme Court unanimously receded from Saucier’s mandatory

“order of battle,” deciding that a reviewing court was no longer

required to address the two prongs of the Saucier analysis in

sequence, but could exercise its “sound discretion” to decide

the proper order of assessment. See 129 S. Ct. 808, 813, 818

(2009).

The Pearson rule was in large measure predicated on the

Court’s recognition that “[a]dherence to Saucier’s two-step

protocol departs from the general rule of constitutional

avoidance.” 129 S. Ct. at 821 (citing, inter alia, Ashwander v.

TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The

Court will not pass upon a constitutional question although

properly presented by the record, if there is also present some

other ground upon which the case may be disposed of.”)). The

Pearson rule, however, also responded to another substantial and

valid concern that arose from Saucier’s mandatory sequence

protocol — that a defendant could suffer an adverse decision on

the constitutional violation prong, prevail on the clearly

established prong (and thus secure a favorable judgment), but

37
yet be unable to seek and secure appellate review on the adverse

constitutional violation ruling. Id. at 820.

A.

In this case, the majority’s ruling on Saucier’s first

prong — the constitutional violation question addressed in Part

IV.B — is patently incorrect. Before elaborating, however, I

must emphasize and address a more fundamental flaw in the

majority’s resolution of this appeal. Put simply, the

majority’s ruling on Saucier’s first prong constitutes

unnecessary dicta on a constitutional question, contravening the

principles spelled out in Pearson. Indeed, the majority

recognizes in Part V of its opinion (under Saucier’s second

prong) that the constitutional right it identifies in Part IV.B

is not clearly established. Under the Pearson rule, therefore,

the majority should not have addressed the merits of the

constitutional violation issue (under Saucier’s first prong)

absent some good reason, such as a compelling need to “promote[]

the development of constitutional precedent.” 129 S. Ct. at

818. In my view, no such compelling need or other good reason

is present here. Thus, the proper course for the majority was

simply to assume that a constitutional violation had occurred,

and then proceed to address the “clearly established” prong of

Saucier, granting qualified immunity and summary judgment on the

basis of its Part V ruling. In proceeding as it does, however,

38
the majority has departed from the post-Pearson settled

practice. See Walker v. Prince George’s Cnty., 575 F.3d 426,

429 (4th Cir. 2009) (O’Connor, J.) (“Here, we think it is plain

that [the] constitutional right . . . is not clearly

established. We thus decline to invest a substantial

expenditure of scarce judicial resources by engaging in the

essentially academic exercise of determining whether that right

exists at all.”). 1

To make matters worse, the majority’s unwarranted

constitutional discussion in Part IV.B will deny UMBC any

meaningful opportunity to seek or secure appellate review of the

adverse constitutional violation ruling made by the majority.

As the Supreme Court explained in Pearson, the “procedural

tangle” created by the Saucier rule “ar[ises] from the Court’s

settled refusal to entertain an appeal by a party on an issue as

to which he prevailed below, a practice that insulates from

review adverse merits decisions that are locked inside favorable

qualified immunity rulings.” Pearson, 129 S. Ct. at 820 n.2.

As Justice Alito explained for the unanimous Pearson Court, “the

1
Cf. Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597
F.3d 163, 169-70 (4th Cir. 2010) (“Because we believe this case
will clarify and elaborate upon our prior jurisprudence in
important and necessary ways, we will first address
[plaintiffs’] constitutional rights . . . prior to addressing
whether any such rights were clearly established at the time of
the alleged wrongdoing.”).

39
‘prevailing’ defendant [here, UMBC] faces an unenviable choice:

comply with the lower court’s advisory dictum without an

opportunity to seek appellate or certiorari review, or defy the

views of the lower court, adhere to practices that have been

declared illegal, and thus invite new suits and potential

punitive damages.” Id. at 820 (emphasis added).

B.

The majority’s Part IV.B assessment of the constitutional

violation question is not only “advisory dictum,” see Pearson,

129 S. Ct. at 820, but also (as previously noted) patently

incorrect. Simply put, the relevant facts fail to show a

constitutional violation, and I would therefore resolve this

case on Saucier’s first prong only. Unlike the majority’s

approach, such a resolution would not result in the “procedural

tangle” created by Saucier, where the constitutional violation

ruling is “insulate[d] from review” by the determination that

the asserted constitutional right was not clearly established.

See Pearson, 129 S. Ct. at 820 n.2.

Turning to the merits of the majority’s ruling on the

constitutional violation issue, the six words on which these

plaintiffs rely are much too thin a supporting reed for their

as-applied First Amendment challenge. Indeed, that challenge

hinges on a single line in an electronic Google Desktop notice,

reminding Mr. Tkacik, UMBC’s in-house counsel, of a meeting

40
scheduled with Mr. Vernet, the student president of Rock for

Life, on April 27, 2007. That line contains only these six

words: “re: controversial exhibit; Rock for Life.” J.A. 1622.

I reject the view that these words provide sufficient support

for a First Amendment violation.

As the district court correctly recognized, “reference to

the exhibit as controversial arose from Plaintiffs’ letter

alerting Defendants to the controversial nature of the display

and the need for security.” Rock for Life-UMBC v. Hrabowski,

643 F. Supp. 2d 729, 746 (D. Md. 2009). The letter to which

Judge Motz referred was first delivered by the plaintiffs to the

UMBC police department on April 19, 2007, and was faxed to Mr.

Tkacik in advance of the April 27 meeting. 2 The plaintiffs’

letter asserted that, “because [the Center for Bio-Ethical

Reform, one of Rock for Life’s ‘supporting organizations’]

suffered numerous unprovoked physical attacks from pro-abortion

students on the first few campuses it visited, [it] now

transport[s] and employ[s] [its] own crowd-control barricades.”

2
In this regard, the majority recognizes only that the
letter was given to Mr. Tkacik at the April 27, 2007 meeting.
See ante at 6. There is, however, more to the story. Although
Tkacik may have been provided with an additional copy of the
letter at the April 27 meeting, the record reflects that he
received the letter beforehand. Specifically, the letter was
provided to the UMBC police department on April 19, see J.A.
821, 1148, and it was faxed to Tkacik by the police department
on either April 24 or April 26, see id. at 1454, 1457.

41
J.A. 821. Put simply, I wholeheartedly agree with Judge Motz

that the “Defendants should not be faulted for taking seriously

the concerns raised by Plaintiffs.” Rock for Life-UMBC, 643 F.

Supp. 2d at 746-47.

By dismissing as irrelevant the fact that it was the

plaintiffs who first raised the security issue, the majority has

also created something akin to a “reverse heckler’s veto.”

Under the Part V ruling, an educational institution has no

choice but to address a student group’s security concerns. 3 But

in addressing those concerns, under the Part IV.B ruling the

institution risks being seen as engaging in a content-based

speech restriction — inevitably creating a jury question when

the institution asserts an alternative content-neutral reason

for its conduct. The educational institution is thereby faced

with a Hobson’s choice: (1) violate the First Amendment by not

addressing a student group’s security concerns; or (2) lose any

chance of prevailing on summary judgment by addressing such

concerns. By preventing an educational institution from

prevailing on summary judgment, the majority’s rule tramples on

3
Pursuant to Part V of the majority opinion, an educational
institution in this Circuit is now “required by the First
Amendment to address th[e] additional safety concerns by
providing a security presence . . . or watching the event
closely to determine whether security [is] truly necessary.”
Ante at 34.

42
the settled principle that the issue of qualified immunity

should be resolved “at the earliest possible stage of

litigation.” Pearson, 129 S. Ct. at 815. This result also

inappropriately impinges on an educational institution’s

manifest interest in the security of its students. See Healy v.

James, 408 U.S. 169, 184 (1972) (“[A] college has a legitimate

interest in preventing disruption on the campus.”).

II.

Consistent with the foregoing, I agree with the majority

that we should award qualified immunity to the defendants on the

as-applied First Amendment challenge to UMBC’s policy on

facilities use, but I would get there by a different route —

namely, by concluding that a First Amendment violation has not

been shown. Because there was no constitutional violation, I

would rely solely on Saucier’s first prong and award qualified

immunity to the defendants on that basis.

43