Gay Lesbian Bisexual Alliance v. Pryor

United States Court of Appeals,

Eleventh Circuit.

No. 96-6143.

GAY LESBIAN BISEXUAL ALLIANCE, Plaintiff-Appellee,

v.

Bill PRYOR in his official capacity as Attorney General, of the
State of Alabama, Defendant-Appellant,

Frederick P. Whiddon, in his official capacity as President of
the University of South Alabama; Dale T. Adams, in his official
capacity as Dean of Students of the University of South Alabama,
Defendants.

April 29, 1997.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-93-T-1178-N), Myron H. Thompson, Chief
Judge.

Before DUBINA and BLACK, Circuit Judges, and O'KELLEY*, Senior
District Judge.

DUBINA, Circuit Judge:

Appellant Attorney General Bill Pryor1 ("the Attorney

General") appeals the district court's judgment that ALA.CODE, § 16-

1-28, (1995), violates the First Amendment to the United States

Constitution both facially and as applied to Appellee Gay and

Lesbian Bisexual Alliance ("GLBA"). Gay Lesbian Bisexual Alliance

v. Sessions, 917 F.Supp. 1548 (M.D.Ala.1996). Based upon our

review of the record, we affirm the judgment of the district court.

I. STATEMENT OF THE CASE

A. Background

*
Honorable William C. O'Kelley, Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
1
Bill Pryor became Alabama's Attorney General during the
course of this appeal and, by operation of law, is substituted as
a party pursuant to Federal Rule of Civil Procedure 25(d).
 Ala.Code § 16-1-28 provides:

(a) No public funds or public facilities shall be used by any
college or university to, directly or indirectly, sanction,
recognize, or support the activities or existence of any
organization or group that fosters or promotes a lifestyle or
actions prohibited by the sodomy and sexual misconduct laws of
§§ 13A-6-63 to 13A-6-65, inclusive.

(b) No organization or group that receives public funds or
uses public facilities, directly or indirectly, at any college
or university shall permit or encourage its members or
encourage other persons to engage in any such unlawful acts or
provide information or materials that explain how such acts
may be engaged in or performed.

(c) This section shall not be construed to be a prior
restraint of the first amendment protected speech. It shall
not apply to any organization or group whose activities are
limited solely to the political advocacy of a change in the
sodomy and sexual misconduct laws of this state.

The statutes referenced in part (a) criminalize sodomy or "deviate

sexual intercourse," which Alabama law defines as "[a]ny act of

sexual gratification between persons not married to each other

involving the sex organs of one person and the mouth or anus of

another." ALA.CODE § 13A-6-60(2) (1994).

The University of South Alabama ("USA") encourages a wide

variety of student activities on campus and has an established

procedure for the formation and registration of student

organizations. USA has over 100 registered student organizations.

These organizations are eligible for certain benefits, including

use of campus meeting rooms, on-campus banking services, and

funding from the USA Student Government Association ("SGA"). GLBA

is an officially recognized student organization whose purpose,

according to its constitution, is

to provide a foundation for unification for homosexual and
nonhomosexual people of the student population, in order to
draw support to further our efforts in educating all members
of the university community on the fears and dangers of
 homophobia and to provide a support system for the University
of South Alabama's homosexual students.

Gay Lesbian Bisexual Alliance, 917 F.Supp. at 1551 n. 18.

This case arises from two incidents. First, the district

court found that USA effectively denied on-campus banking

privileges to GLBA. Following the passage of § 16-1-28, GLBA

requested an on-campus bank account to avoid commercial banking

fees. Dean Adams of USA advised GLBA that in light of § 16-1-28,

USA could freeze GLBA funds placed in an on-campus account. GLBA

therefore opened an account off-campus with a commercial bank.

Second, USA denied funding to GLBA based on § 16-1-28. The

district court based this conclusion on three events. In the fall

of 1992, GLBA requested funds to purchase posters publicizing

"World AIDS Day" activities. Dean Adams refused to fund GLBA until

he received an opinion from the Attorney General on § 16-1-28's

application. In an effort to accommodate GLBA without violating §

16-1-28, Dean Adams instructed the SGA to buy the World AIDS Day

posters. In the winter of 1993, GLBA requested funds to bring a

guest speaker to campus. Dean Adams instructed the SGA to table

the request because USA could not fund GLBA until it received an

opinion from the Attorney General interpreting § 16-1-28. In the

spring of 1993, GLBA again requested funds for a speaker. This

time the SGA approved the request. However, Dean Adams refused to

approve final payment of this money. In July 1993, the Attorney

General issued a letter opinion stating that GLBA could not receive

funds. The Attorney General's opinion did not specify how or why

GLBA violated § 16-1-28. It is clear from the record that USA

officials made efforts to accommodate GLBA without violating § 16-
1-28. However, it is also clear that USA officials felt compelled,

by virtue of § 16-1-28, to deny funding to GLBA on the three

occasions mentioned above.

B. Procedural History

GLBA filed suit against the Attorney General and two USA

officials alleging that § 16-1-28, on its face and as applied to

it, constituted impermissible viewpoint discrimination in violation

of the First Amendment. GLBA also raised Equal Protection Clause

and First Amendment vagueness challenges to the statute. The

parties submitted the case for final resolution on a joint written

record, supplemented by briefs and oral argument. The district

court held that § 16-1-28 violated the First Amendment both on its

face and as applied to GLBA. The district court did not reach the

equal protection or vagueness claims. Only the Attorney General

appealed.

II. ISSUES

A. Whether the district court's factual findings are clearly
erroneous.

B. Whether § 16-1-28 violates the First Amendment as applied to
GLBA.

C. Whether § 16-1-28 violates the First Amendment on its face.

III. STANDARDS OF REVIEW

The constitutionality of a statute is a question of law

subject to de novo review. United States v. Harden, 37 F.3d 595,

602 (11th Cir.1994). We review the district court's underlying

factual findings for clear error. FED.R.CIV.P. 52(a); Anderson v.

Blue Cross/Blue Shield of Ala., 907 F.2d 1072, 1075 (11th

Cir.1990).
 IV. DISCUSSION

A. The District Court's Factual Findings

The evidence is undisputed because the parties submitted this

case on a joint written record. Nevertheless, the Attorney General

argues that the district court mischaracterized some of the

evidence. If evidence is capable of different reasonable

interpretations, however, findings based on one of them are not

clearly erroneous. L & C Marine Transport, Ltd. v. Ward, 755 F.2d

1457, 1461 (11th Cir.1985). We have examined the record and

conclude that, on balance, the district court's findings are not

clearly erroneous. However, one of the district court's findings

requires some discussion.

The district court found that USA engaged in an improper

investigation into the personal lives of GLBA group members. In

July 1993, the Attorney General released a letter opinion regarding

the application of § 16-1-28 to GLBA. The Attorney General

concluded, without analysis or explanation, that GLBA could not

receive funds from the SGA. Because the Attorney General provided

no guidance on the meaning of "fostering" or "promoting," USA

established a fact-finding committee to determine if GLBA violated

§ 16-1-28 by fostering or promoting actions prohibited by the

sodomy or sexual misconduct laws. The district court characterized

this action as "intrusive and highly personal." Gay Lesbian

Bisexual Alliance, 917 F.Supp. at 1552.

The Attorney General correctly points out that the committee

actually never began an investigation due to GLBA's filing of this

lawsuit. The district court therefore mischaracterized the
fact-finding committee. The committee could not have been

"intrusive and highly personal" because it had yet to begin its

work. We conclude that this finding of the district court is

clearly erroneous but we do not consider the proposed work of the

fact-finding committee material to this appeal. Despite our

disagreement with the district court on this point, the remaining

factual findings are based on a reasonable interpretation of the

facts and are not clearly erroneous.

B. Whether § 16-1-28 Violates The First Amendment As Applied To
GLBA.

1. § 16-1-28 Implicates First Amendment Protected Speech

Appellant argues that the expression affected by § 16-1-28 is

not constitutionally protected speech because the statute only

outlaws speech advocating violation of the sodomy or sexual

misconduct laws. We disagree. It is well-established that the

First Amendment protects advocacy to violate a law. Brandenburg v.

Ohio, 395 U.S. 444, 448-49, 89 S.Ct. 1827, 1830-31, 23 L.Ed.2d 430

(1969). That protection is limited in one important respect: The

First Amendment does not "permit a State to forbid or proscribe

advocacy of the use of force or of law violation except where such

advocacy is directed to inciting or producing imminent lawless

action and is likely to incite or produce such action." Id. at

447, 89 S.Ct. at 1829 (emphasis added); see also Healy v. James,

408 U.S. 169, 188-89, 92 S.Ct. 2338, 2350, 33 L.Ed.2d 266 (1972);

Noto v. United States, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 1520-

21, 6 L.Ed.2d 836 (1961).

The Attorney General argues that we should interpret § 16-1-

28 to fit within Brandenburg 's narrow exception to the general
rule that advocacy to violate the law is protected speech.

According to the Attorney General, speech that falls within

Brandenburg 's incitement of imminent lawless action exception is

not constitutionally protected. We have serious doubts about this

argument in light of R.A.V. v. City of St. Paul, Minnesota, 505

U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). R.A.V. involved

the constitutionality of St. Paul's hate speech ordinance.2 In

striking down the statute, Justice Scalia, writing for the Court,

rejected the notion that expressive activity could be devoid of

constitutional protection.

We have sometimes said that these categories of expression
[obscenity, defamation, fighting words] are not within the
area of constitutionally protected speech or that the
protection of the First Amendment does not extend to them.
Such statements must be taken in context ... What they mean
is that these areas of speech can, consistently with the First
Amendment, be regulated because of their constitutionally
proscribable content (obscenity, defamation, etc.)—not that
they are categories of speech entirely invisible to the
Constitution, so that they may be made the vehicles for
content discrimination unrelated to their distinctively
proscribable content.

Id. at 383-84, 112 S.Ct. at 2543. Thus, incitement of imminent

lawless action is not bereft of constitutional protection and

regulation of such speech must be related to its constitutionally

proscribable content. Nevertheless, we need not consider whether

2
The St. Paul Bias-Motivated Crime Ordinance provided:

Whoever places on public or private property a symbol,
object, appellation, characterization or graffiti,
including, but not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable grounds to
know arouses anger, alarm or resentment in others on
the basis of race, color, creed, religion or gender
commits disorderly conduct and shall be guilty of a
misdemeanor.

ST. PAUL, MINN., LEGIS.CODE § 292.02 (1990).
§ 16-1-28 appropriately regulates speech falling within the

Brandenburg exception, as the Attorney General suggests, because

the statute is not capable of such a narrow interpretation.

The Attorney General's proposed construction of § 16-1-28 is

an insupportable interpretation of the statute. The key language

from part (a) of the statute prohibits funding any group which

"fosters or promotes a lifestyle or actions prohibited by the

sodomy and sexual misconduct laws." The plain meaning of this

language is broad. The legislature used similarly broad language

in part (b), which prohibits funding any group that "encourage[s]

its members or encourage[s] other persons to engage in [sodomy] or

provide information or materials that explain how [sodomy] may be

engaged in or performed." It would be difficult indeed to

interpret this language as applying only to incitement of imminent

lawless action as the Attorney General suggests. The speech at

issue clearly implicates the First Amendment. Therefore, we

consider whether Alabama may enforce § 16-1-28 consistent with

constitutional principles.

2. § 16-1-28 Constitutes Viewpoint Discrimination

The government's power to restrict First Amendment activities

depends on "the nature of the relevant forum." Cornelius v. NAACP

Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439,

3448, 87 L.Ed.2d 567 (1985); Ethredge v. Hail, 56 F.3d 1324, 1326-

27 (11th Cir.1995). The Supreme Court has recognized three types

of forums: nonpublic forums, traditional public forums, and

limited public forums. See, e.g., Perry Educ. Assoc. v. Perry

Local Educators' Assoc., 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-55,
74 L.Ed.2d 794 (1983); Searcey v. Harris, 888 F.2d 1314, 1318-19

(11th Cir.1989). Nonpublic forums are areas that are not

traditionally public forums and that the government has not opened

for public use. Perry, 460 U.S. at 46, 103 S.Ct. at 955-56. For

example, military bases and prisons are nonpublic forums. The

government's power to regulate speech is strongest in these areas.

M.N.C. of Hinesville v. U.S. Dept. of Defense, 791 F.2d 1466, 1472

(11th Cir.1986). Traditional public forums are areas such as

streets and parks. Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954,

964, 83 L.Ed. 1423 (1939). The government's power to limit speech

is weakest in these areas. Perry, 460 U.S. at 45, 103 S.Ct. at

954-55. Limited public forums are those areas that the government

has created for use by the public as places for expressive

activity. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55. Although

the government is not required to create such forums, once it does

so the Constitution constrains its power to regulate speech within

the forum. M.N.C. of Hinesville, 791 F.2d at 1472.

The Supreme Court's recent decision in Rosenberger v. Rector

& Visitors of the Univ. of Virginia, --- U.S. ----, 115 S.Ct. 2510,

132 L.Ed.2d 700 (1995), makes clear that USA's system for funding

student groups created a limited public forum. Rosenberger

involved the University of Virginia's ("UVA") refusal to fund a

student newspaper with a Christian viewpoint. UVA's procedure for

funding student groups was very much like the procedure in place at

USA in this case. UVA allowed certain qualified student

organizations to submit bills from outside contractors to the

Student Activities Fund ("SAF"). The purpose of the SAF was to
support extracurricular activities related to the educational

purpose of UVA. The Student Council disbursed the funds subject to

review by a UVA faculty committee. UVA prohibited disbursements to

groups which "primarily promote[ ] or manifest[ ] a particular

belie[f] in or about a deity or an ultimate reality." Rosenberger,

--- U.S. at ---- - ----, 115 S.Ct. at 2514-15 (citations omitted).

Pursuant to this policy, UVA refused funding to a qualified student

organization which published a newspaper with a Christian

perspective. The Court held that UVA's action constituted

viewpoint discrimination in violation of the First Amendment.

Justice Kennedy, writing for the majority, explained that when

a university makes funds available to encourage student expression,

the university creates a limited public forum.

Once it has opened a limited forum, however, the State must
respect the lawful boundaries it has itself set. The state
may not exclude speech where its distinction is not reasonable
in light of the purpose served by the forum, nor may it
discriminate against speech on the basis of its viewpoint.

Id. at ----, 115 S.Ct. at 2517 (citations omitted). A university

may determine what subjects are appropriate for the forum, but the

university may not proscribe positions students choose to take on

those subjects. The Supreme Court discussed this important

distinction in Rosenberger and made clear that content

discrimination is permissible "if it preserves the purposes of the

limited forum." Id. Viewpoint discrimination, however, is

impermissible "when directed against speech that is otherwise

within the forum's limitations." Id. Thus, a university might

limit the funds it makes available for student activities to those

involving Shakespearean literature. Within such a framework,
however, the university could not deny funding to critical

interpretations of Shakespeare.

We recognize the malleability of the distinction between

content discrimination, which is permissible, and viewpoint

discrimination, which is not. See Robert C. Post, Subsidized

Speech, 106 YALE L.J. 151, 166 (1996). Yet Rosenberger makes clear

that government discrimination against speech because of its

message is presumptively unconstitutional, even in public forums

created by the state. Id. at ----, 115 S.Ct. at 2516. Justice

Kennedy wrote:

When the government targets not subject matter but particular
views taken by speakers on a subject, the violation of the
First Amendment is all the more blatant. Viewpoint
discrimination is thus an egregious form of content
discrimination. The government must abstain from regulating
speech when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the
restriction. These principles provide the framework
forbidding the State from exercising viewpoint discrimination,
even when the limited public forum is one of its own creation.

Id. (citations omitted).

Section 16-1-28 as applied to GLBA clearly runs afoul of the

above-quoted language from Rosenberger. USA's limited public forum

does not prohibit discussion of the sodomy or sexual misconduct

laws in general. Rather, based on § 16-1-28, USA prohibited

funding to GLBA based on the Attorney General's unsupported

assumption that GLBA fosters or promotes a violation of the sodomy

or sexual misconduct laws. The statute discriminates against one

particular viewpoint because state funding of groups which foster

or promote compliance with the sodomy or sexual misconduct laws

remains permissible. This is blatant viewpoint discrimination.

The Attorney General's feeble attempts to distinguish
Rosenberger are answered by Rosenberger itself. First, the

Attorney General argues that viewpoint discrimination analysis is

inappropriate in the context of state funding at the college level.

However, Rosenberger involved state funding at the college level

and made clear that "ideologically driven attempts to suppress a

particular point of view are presumptively unconstitutional in

funding, as in other contexts." Id. at ----, 115 S.Ct. at 2517.

Second, the Attorney General argues that we should apply a

lower level of scrutiny to the statute because this case arises in

a university setting. Of course, Rosenberger involved a university

setting. Nevertheless, the Attorney General cites Bishop v.

Aronov, 926 F.2d 1066 (11th Cir.1991), where we applied a

middle-tier analysis to a First Amendment claim involving the

University of Alabama. Bishop is inapposite because it involved a

professor as the speaker. It is well-established that the

government may determine "what is and is not expressed when it is

the speaker or when it enlists private entities to convey its own

message." Rosenberger, --- U.S. at ----, 115 S.Ct. at 2518.

However, the government may not regulate expression based on

viewpoint when it creates a limited public forum for expression by

others. Id. at ---- - ----, 115 S.Ct. at 2518-19. In the present

case, USA did not engage in speech itself but created a forum for

student expression. The Attorney General's argument therefore

misses the mark. In fact, Rosenberger suggests that the dangers of

viewpoint discrimination are heightened in the university setting.

"For the University, by regulation, to cast disapproval on

particular viewpoints of its students risks the suppression of free
speech and creative inquiry in one of the vital centers for the

nation's intellectual life, its college and university campuses."

Id. at ----, 115 S.Ct. at 2520.

Simply put, Rosenberger is directly on point with regard to

both forum analysis and viewpoint discrimination. The district

court therefore properly concluded that § 16-1-28 as applied

violates GLBA's First Amendment rights.

C. Whether § 16-1-28 Violates The First Amendment On Its Face

The district court also ruled that § 16-1-28 violates the

First Amendment on its face. Facial invalidation of a statute is

strong medicine and courts should be cautious in utilizing this

drastic remedy. Generally, a statute should "be declared invalid

to the extent that it reaches too far, but otherwise left intact."

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct.

2794, 2802, 86 L.Ed.2d 394 (1985). "[T]he normal rule [is] that

partial, rather than facial, invalidation is the required course."

Id. Facial invalidation is therefore inappropriate unless the

court is convinced "that the identified overbreadth is incurable

and would taint all possible applications of the statute." Id.;

see also Secretary of State of Maryland v. Joseph H. Munson Co.,

467 U.S. 947, 964-65, 104 S.Ct. 2839, 2850-51, 81 L.Ed.2d 786

(1984).

Thus, the dispositive question is whether the statute is

capable of a narrowing interpretation that would render it

constitutionally permissible.

It has long been a tenet of First Amendment law that in
determining a facial challenge to a statute, if it be "readily
susceptible" to a narrowing construction that would make it
constitutional, it will be upheld. The key to application of
 this principle is that the statute must be "readily
susceptible" to the limitation; we will not rewrite a state
law to conform it to constitutional requirements.

Virginia v. American Booksellers Assn. Inc., 484 U.S. 383, 397, 108

S.Ct. 636, 645, 98 L.Ed.2d 782 (1988). The district court

concluded that the key language in the statute—"fosters or promotes

a lifestyle or actions prohibited by the sodomy or sexual

misconduct laws" and "encourage[s] its members or encourage[s]

other persons to engage in [sodomy] or provide information or

materials that explain how [sodomy] may be engaged in or

performed."—was overbroad and not susceptible to a narrowing

interpretation. We agree.

We would have to ignore the Supreme Court's instructions and

rewrite the statute for it to pass constitutional muster because

advocacy to violate the law is protected speech unless directed to

inciting or producing imminent lawless action. See Brandenburg v.

Ohio, 395 U.S. at 448, 89 S.Ct. at 1830. Therefore, § 16-1-28 is

invalid on its face unless it could be interpreted as applying only

to speech designed to incite or produce imminent lawless action.

Such an interpretation is inconsistent with the plain meaning of

the words of the statute. We agree with the district court that

the statute is not capable of a narrowing interpretation and is

therefore invalid on its face.

V. CONCLUSION

Section 16-1-28 on its face and as applied to GLBA results in

viewpoint discrimination in violation of the First Amendment.

Accordingly, we affirm the judgment of the district court.

AFFIRMED.