Cydney A. Crue, John M. McKinn Debbie A. Reese, Brenda M. Farnell, Frederick E. Hoxie, Stephen Kaufman, and Philip W. Phillips v. Michael Aiken

MANION, Circuit Judge,

dissenting.

The plaintiffs, faculty members at the University of Illinois, are among a number of people, in and outside the University, who have for years objected to the use of Chief Illiniwek as part of the cheer-leading effort at athletic events, particularly football games. As the court notes, this symbol is, among other things, labeled a mockery of Indian customs and white people’s culture. Criticism by faculty, students, and anyone else at the University who cared was unrestricted and included protests, demonstrations, radio and television interviews, letters to editors and articles published in many venues. To the plaintiffs, this was not enough. They wanted to write to potential athletic recruits for University teams and discourage attendance because of the offensive use of the Chief. But when the NCAA issued a guarded warning that direct contact with potential recruits by University officials could violate NCAA regulations, the University reacted. Chancellor Aiken issued the e-mail that stated in part:

... [T]he NCAA regulates the timing, nature and frequency of contacts between any University employee and prospective athletes. It is the responsibility of the coaches and administration in the Division of Intercollegiate Athletics to recruit the best student athletes to participate in varsity sports at the University of Illinois. No contacts are permitted with prospective student athletes, including high school and junior college students, by University students, employees or others associated with the University without express authorization of the Director of Athletics or his desig-nee.
The University faces potentially serious sanctions for violation of NCAA or Big Ten rules. All members of the University community are expected to abide by these rules, and certainly any intentional violations will not be condoned.... *682Questions about the rules should be addressed to Mr. Vince lile, Assistant Director for Compliance ....

The district court ruled that this was an unconstitutional prior restraint on speech and issued a temporary restraining order. Chancellor Aiken retracted the directive, but the damage was done. The court awarded $1,000 damages to each plaintiff plus attorney’s fees.

I.

On appeal, the critical question before us is which balancing test applies to the Chancellor’s directive regarding speech by state employees: the balancing test derived from Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (Pickering/Connick), or the strict scrutiny approach of United States v. National Treasury Employees Union, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (NTEU). We need to offer clear guidance as to when the heightened scrutiny of NTEU does and does not apply. Instead the court treats all prior restraints alike without balancing the governmental interests at issue. In effect the court creates a new rule of law pronouncing that NTEU applies to all “broad prohibitions” on government employee speech. Such “broad prohibitions” are defined as involving a “large number” of potential plaintiffs concerning a matter of “significant importance.” ■ For these and the following reasons, I respectfully dissent.

II.

As an initial matter, both the district court and this court summarily conclude that the e-mail is a prior restraint. The prior restraint label, however, has a significantly different meaning when applied to the speech of governmental employees (as is the case here) than when applied to nongovernmental employees. It is clear that “the State’s interests as an employer in regulating the speech of its employees ‘differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.’ ” Connick, 461 U.S. at 140, 103 S.Ct. 1684 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). While this circuit has not squarely addressed the variations or gradations of pri- or restraints in the government employee context after NTEU, it is well settled that traditional prior restraint analysis is inappropriate where the government acts under its special authority as an employer. See, e.g., Weaver v. United States Information Agency, 87 F.3d 1429, 1440 (D.C.Cir.1996). In fact, “courts have uniformly assessed prior restraints in the setting of government employment by standards less demanding than those used for traditional prior restraints.” Id. at 1443.

Calling the e-mail a “preclearance directive,” even if an accurate label, does not establish that the e-mail constitutes a prior restraint subject to the heightened scrutiny of NTEU in the context of government employment. The distinction between a relatively mild preclearance directive and a broad general prohibition on speech in the employment context — i.e., a full-fledged prior restraint — is significant. We have yet to address in a published opinion whether NTEU applies in eases of pre-clearance directives and we have applied NTEU in only one reported case involving a sweeping, general ban (or prior restraint) on speech. See Milwaukee Police Assoc. v. Jones, 192 F.3d 742, 750 (7th Cir.1999).

Jones amplifies the differences between a preclearance directive and a more sweeping general ban. Jones addresses a ban on “all communication before it occurs.” Id. at 749. The Police Chief of *683Milwaukee issued an order to all police department employees, stating that if any employee made a verbal or written complaint against another employee, the complaint had to remain confidential. Id. at 744-45. In fact, the Chiefs directive forbade complaining members from discussing the matter with their lawyer and/or union representative. Id. at 745. The ban emphasized that complaining officers “are to be instructed not to discuss the matter with anyone.” Id. (emphasis added).

In sum, Jones addresses an actual prohibition of speech in totality, including mere discussion of the matter. Jones did not involve a simple prepublication review of speech. Cf. Weaver, 87 F.3d at 1443 (holding valid under Pickering and NTEU a prepublication review of speech). In contrast to the broad, sweeping (and total) ban on speech at issue in Jones, the e-mail at issue here merely applied to a narrow band of speech by University employees directed only at potential student athletes who were currently in high school or junior college. It is undisputed that the email is viewpoint- and content-neutral, see Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and is not intended to censor any certain message, whether it be in favor of or against the Chief. See Ap-pellee’s brief, p. 19 (“[T]he Preclearance Directive applies without regard to the content of the communication, if the student is selected because of his or her participation in athletics.”).

The e-mail does not purport to prohibit the right to leaflet, make speeches, write letters to the editor, or freely debate/discuss the merits or demerits of the Chief in any forum. Instead, the plain language of the e-mail merely reminds potential speakers of the time restrictions imposed by the NCAA rules on contacting prospective student athletes. It also cautions that intentional violations of these rules will not be condoned. This is a prototypical prepublication review calling for a dialogue between potential speakers and the University in order to assess the appropriate manner and timing for the speech. The D.C. Circuit has upheld a similar directive requiring a dialogue with the government before publication. See Weaver, 87 F.3d at 1431, 1435. Accordingly, the email should not receive the heightened scrutiny of NTEU, which Jones properly reserves for sweeping, general bans on all communications.

Even if the preclearance directive were properly labeled as a full-fledged prior restraint in the government employee context, not all prior restraints on speech are analyzed under the same test. Jones, 192 F.3d at 749. Prior restraint analyses applicable to private sector plaintiffs do not apply when the plaintiffs are government employees. Id; Weaver, 87 F.3d at 1440 (“There is certainly no logical reason to think that the existence of some element of prior restraint should remove a restriction on employee speech from the usual Pickering approach.”). Here, however, the court departs from the traditional balancing test applied to government employees and instead applies the heightened scrutiny of NTEU. This application more closely resembles the test for prior restraints involving private sector plaintiffs. In choosing the NTEU heightened scrutiny test, the court reasons: (1) “NTEU applies when a prior restraint is placed on employee speech”; (2) the Preclearance Directive “is a broad prohibition on speech on a matter of significant importance1 and public con*684cern”; and (3) the preclearance directive applied to “44,000 members of the university community.” Ante at 677, 679.

These reasons do not suffice. The court even acknowledges the oversimplified nature of its conclusion that NTEU applies to all prior restraints and that Pickering/ Connick applies to instances of speech that have already taken place. Not only is the before-and-after distinction an oversimplification, but, as Jones makes clear, it is a misstatement of law. See Jones, 192 F.3d at 749; see also NTEU, 513 U.S. at 480, 115 S.Ct. 1003 (O’Connor, J., concurring/dissenting) (“[RJeliance on the ex ante/ex post distinction is not a substitute for the case-by-case application of Pickering.”).

And while the speech clearly involves a matter of public concern, the Directive is not so clearly a broad prohibition. The court’s claim that the e-mail applies to 44,000 students, faculty, and staff of the University ignores NTEU’s critical distinction concerning the scope of the speech prohibited by the government. The 44,000 number may accurately reflect the entire population of the University of Illinois, but this case involves far fewer potential speakers: only those plaintiffs employed by the University.

Even so, the fact that there were nearly two million potential speakers at issue in NTEU, 513 U.S. at 481-82, 115 S.Ct. 1003 (O’Connor, J. concurring/dissenting), was not the determining factor in the Court’s decision to apply strict scrutiny. Nor should the 44,000 number, or a much smaller number, be dispositive here. In addition to focusing on the number of potential plaintiffs, NTEU emphasized the “sweeping statutory impediment to speech,” which the opinion characterized as a “wholesale deterrent to a broad category of expression by a massive number of potential speakers.” Id. at 467, 115 S.Ct. 1003 (emphasis added) (footnote omitted). The emphasis should not be on numbers, but rather on the degree to which speech is deterred and the avenues of speech left open to the plaintiffs. NTEU, 513 U.S. at 467 n. 11,115 S.Ct. 1003.

NTEU involved a broad congressional prohibition on speech that prevented nearly two million federal employees (including lower-level employees) from accepting any compensation for making speeches or writing articles, even if the speech or article were totally unconnected to the employee’s official duties. Id. at 457, 115 S.Ct. 1003. The ban went so far as to prohibit a mail handler from receiving compensation for giving a speech on the Quaker religion and an aerospace engineer from being compensated for lecturing on black history. Id. at 461, 115 S.Ct. 1003. To be sure, NTEU involved plaintiffs seeking compensation “for their expressive activities in their capacity as citizens, not as government employees.” Id. at 465, 115 S.Ct. 1003 (emphasis added). The ban at issue applied to “off-hour speech bearing no nexus to Government employment — speech that by definition does not relate to ‘internal office affairs’ or the employee’s status as an employee.” Id. at 480, 115 S.Ct. 1003 (O’Con-nor, J., concurring/dissenting) (citing Con-nick, 461 U.S. at 149, 103 S.Ct. 1684).

In stark contrast, the preclearance directive in this case did not purport to limit the plaintiffs’ right to give speeches concerning the Chief controversy, to write letters to the editor, participate in demonstrations, etc. The e-mail left open a wide variety of unfettered speech opportunities for the plaintiffs, which the plaintiffs frequently used. Instead of fully availing themselves of the many alternative speech *685opportunities, the plaintiffs intended to make their employee status an integral component of their speech. Specifically, they intended to write letters to potential student athletes on University letterhead to discourage attendance at the University. The preclearance directive applies solely to the plaintiffs’ acts in their government employee capacity, as opposed to the plaintiffs’ acts as citizens. The NCAA warning was directed at contacts with potential recruits by school officials. NTEU does not establish a right for government employee speakers to elevate the influence of their speech by emphasizing their official government position. In sum, the ban at issue in NTEU is vastly different than Chancellor Aiken’s e-mail because the prohibition in NTEU involved a significantly greater number of potential speakers; it involved a whole-sale deterrent to a broad category of expression; and it applied both to the plaintiffs capacity as government employees and as public citizens.

It is true that the prior restraint context imposes problems not present in the typical Pickeñng/Connick analysis which involves a post hoc disciplinary decision. See Jones, 192 F.3d at 750. In addition, this case is different than the typical application of Pickeñng/Connick because the plaintiffs have not suffered any adverse employment action often at issue in the application of Pickering/Connick. See, e.g., Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Regardless, there is no authority for applying NTEU to all cases of prior restraints. See Jones, 192 F.3d at 749. Applying the heightened standard of NTEU to restrictions on employee speech is the exception, not the rule.2 See, e.g., Belcher v. City of McAlester, 324 F.3d 1203, 1206 n. 3 (10th Cir.2003) (rejecting request to apply NTEU to prior restraint because the restraint was narrow and left open ample alternate channels of communication). Likewise, this case is far removed from the facts of NTEU. The Pickeñng/Connick balancing test is appropriate because the e-mail leaves open many alternate venues for the plaintiffs to communicate their message. In fact, we have previously applied Pickering/Connick and rejected an invitation to apply NTEU to prohibitions that are not a “blanket restriction on speech” where “alternate venues” are left open for the plaintiffs’ communication. See Messman v. Helmke, 133 F.3d 1042, 1047 (7th Cir.1998).

Under Pickeñng/Connick, the proper analysis requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Connick, 461 U.S. at 140, 103 S.Ct. 1684 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). The government’s interest when acting as a mere sovereign is subordinate, but the government’s interest as an employer is a “significant one.” Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). In conducting this balance, the Supreme Court cautions that we are to give substantial weight to government employers’ reasonable predictions of disruption, even when the speech involved was on a matter of public concern. Id. at 673-74, 114 S.Ct. *6861878. In fact, the Supreme Court has deferred to reasonable predictions of disruption by upholding a congressional ban on Executive Branch employees from taking an active part in political campaigns or political management. Public Workers v. Mitchell, 330 U.S. 75, 99, 67 S.Ct. 556, 91 L.Ed. 754 (1947).

The plaintiffs’ depositions reveal that the purpose behind the letter-writing campaign was to encourage potential student athletes not to attend the University. We have consistently permitted government employers to take proactive steps when facing obvious acts of disruption by employees. See Sullivan v. Ramirez, 360 F.3d 692, 701 (7th Cir.2004) (balancing “the potential disruptiveness” of the speech); Greer v. Amesqua, 212 F.3d 358, 372 (7th Cir.2000); Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir.1994). The Illinois legislature has declared national athletic competition “essential” to the state’s schools and their finances. 110 ILCS 25/2(c). Damage to recruiting or other aspects of the athletics program is damage to the University’s bottom line.3 See Messman, 133 F.3d at 1047; cf. Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir.1999) (upholding defendants’ predictions of disruption that state employee’s “refusal to promote the proposed change would result in negative publicity and decreased morale, in turn impairing ... profitability.”).

The government interest here goes beyond the obvious interest in effective recruiting. Compliance with NCAA regulations concerning the quantity and timing of contacts between representatives of the University and prospective student athletes is critical to the University. For even “secondary,” “isolated,” or “inadvertent” violations with “minimal” effects, the NCAA wields an arsenal of stiff sanctions, including terminating the school’s recruitment of a particular athlete, imposing ineligibility on an athlete, requiring a school to forfeit a game in which an impermissi-bly contacted athlete played, and fines. See NCAA Bylaws 19.02.2.1; 19.6.1. The University had been sanctioned three times for major rules violations shortly before the tenure of Chancellor Aiken and it is undisputed that Chancellor Aiken was concerned that the plaintiffs’ letter-writing campaign could violate NCAA recruiting rules.

NCAA rules strictly limit recruiting activities by “institutional staff’ which includes “faculty members.” NCAA Bylaw 13.1.2.3(a). The NCAA rules apply to “general correspondence related to athletics.” NCAA Bylaw 13.4.1. In order to be certain that the prospective faculty contacts were subject to NCAA rules, Chancellor Aiken questioned NCAA and Big Ten Conference officials before sending the e-mail. In response, NCAA rules expert Denise O’Meally explained in an email that NCAA regulations apply when “an institution either identifies and contacts a group of prospective students *687based on their athletics ability or contacts prospective students to discuss their athletics participation.” Before sending the e-mail, Chancellor Aiken also conferred with various University officials and .with in-house and outside counsel before concluding that the letter-writing campaign potentially fell within NCAA restrictions.

The plaintiffs’ attorneys later obtained a letter from the NCAA stating that the letter-writing campaign would not likely result in sanctions provided that the University “either was unaware of the correspondence or acted reasonably to preclude it from being sent.” Regardless, the constitutional inquiry is not whether the school would have faced sanctions due to the letters. The plaintiffs’ attempt to question the likelihood of sanctions is an especially unhelpful inquiry in reviewing plaintiffs’ motion for summary judgment, because all disputed issues of fact must be resolved in favor of Chancellor Aiken. Instead, the test is whether the e-mail was reasonably necessary to prevent anticipated harms. See NTEU, 513 U.S. at 475, 115 S.Ct. 1003; Myers v. Hasara, 226 F.3d 821, 826 (7th Cir.2000) (balancing the government interest based on the facts reasonably known to the government employer). As stated above, the e-mail served to caution employees that, due to NCAA regulations, a dialogue was necessary before the contacts with student athletes could be made. Even under the plaintiffs’ view of the regulations, the University could face sanctions if it did not act reasonably to preclude from being sent a communication in violation of the rules. The e-mail was a reasonable response and is entitled to the deference normally given to government predictions of harm used to justify restrictions on employee speech. See Waters, 511 U.S. at 673, 114 S.Ct. 1878. The careful investigation and advice sought by Chancellor Aiken establishes that the email was not written out of mere conjecture or speculative fear. Cf. NTEU at 475, 115 S.Ct. 1003 (citing Turner Broadcasting System v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)).

Turning to the plaintiffs’ interest, the balancing test, again, considers the plaintiffs’ interest as a citizen in commenting upon matters of public concern. The plaintiffs’ interests, as citizens, are not impacted by the e-mail, only their interests in commenting as government employees. Connick, 461 U.S. at 140, 103 S.Ct. 1684. As a citizen, the plaintiffs remained free to hold news conferences, write letters to the editor, deliver public speeches, engage in rallies or protests, or speak publicly in any other way concerning the Chief controversy. In fact, the record is replete with examples of plaintiffs appearing on radio and TV regarding the Chief, writing newspaper articles, addressing the board of trustees, and participating in anti-Chief marches and demonstrations. An enormous category of speech remains open to the plaintiffs, not to mention the availability of anonymous speech. See McIntyre v. Ohio Elections Commission, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (extolling the United States’ respected tradition of anonymity in the advocacy of political causes).

This is simply not a case where the University is attempting to suppress the plaintiffs’ message, which happens to be against the Chief. At issue here is the plaintiffs’ demand that they be permitted to use their status as University professors or employees to magnify the impact of their speech by directly contacting and discouraging potential athletes. The court complied by granting to the plaintiffs an extended right to communicate in their capacity as government employees in a time, place, and manner of their own choosing. The court does not consider the many alternative modes of communication *688left open to the plaintiffs and whether such alternatives were adequate when balanced against the University’s concern for violating NCAA regulations. Myers v. Hasara, 226 F.3d 821, 828 (7th Cir.2000) (citing Coady v. Steil, 187 F.3d 727, 731 (7th Cir.1999)). The plaintiffs were already using numerous venues to communicate their message in ways less disruptive to the University, but still communicating with anyone willing to read or listen. The First Amendment does not require the University to eliminate the time requirements of the NCAA regulations and allow University employees the imprimatur of official positions to communicate to prospective student athletes.

Even if the court were correct that NTEU applied to this case and that balance tipped in favor of the plaintiffs, qualified immunity applies to Chancellor Aiken. Assuming there were a constitutional violation, in order to remove the cloak of qualified immunity, the plaintiffs have the burden of proof to show that the law prohibiting Chancellor Aiken’s conduct was “clearly established.” Gregorich v. Lund, 54 F.3d 410, 413 (7th Cir.1995). The test for whether the law was clearly established must be conducted based on the specific facts of the case, and not at a high level of generality. See Greenberg v. Kmetko, 922 F.2d 382, 383-84 (7th Cir.1991).

Here, both Pickering/Connick and NTEU involve balancing tests and, unless there is “very closely analogous” case law, the balance struck by the official will not remove qualified immunity. See Grego-rich, 54 F.3d at 414. Plaintiffs have not identified any such closely analogous case law. The obvious proposition that prior restraints are disfavored is far too general to satisfy the plaintiffs’ burden. As set forth above, Chancellor Aiken did not act without caution. He consulted attorneys and relied upon advice by the NCAA before sending the e-mail. The court merely relies upon Jones to support its conclusion that the law was clearly established. As set forth above, Jones involved an actual prohibition on speech, unlike the prepub-lication review at issue here. Jones banned all speech concerning disciplinary matters and did not leave open any alternative channels of communication. In contrast, the e-mail at issue here did not purport to make discussions regarding the Chief confidential. The plaintiffs remained free to write letters to the editor, engage in protests, lead discussion, give public speeches, etc. The plaintiffs have not approached meeting their burden of showing “very closely analogous case law” and Chancellor Aiken is thus entitled to qualified immunity.

III.

The Pickering/Connick balancing test applies to Chancellor Aiken’s e-mail because it merely places time restrictions on a narrow band of communication by plaintiffs in their capacity as government employees. The e-mail is not a “wholesale deterrent to a broad category of expression by a massive number of potential speakers” and thus the test for applying the heightened scrutiny of NTEU is not met. Under the Pickering/Connick test, the government has an important interest in the efficiency of recruiting; in complying with NCAA time limitations regarding contacts with prospective student athletes; and in protecting prospective student athletes from intimidating, confusing, or burdensome communication. Moreover, the e-mail leaves open a wide variety of alternative communication, of which the plaintiffs have taken advantage. Finally, Chancellor Aiken is entitled to qualified immunity because the plaintiffs have failed to meet their burden of showing very *689closely analogous case law controlling the outcome of this case. I therefore DISSENT from the court’s decision and would vacate the district court’s judgment as to the plaintiffs’ request for declaratory relief and damages and grant Chancellor Aiken’s motion for summary judgment.

. It is undisputed that the plaintiffs’ speech involves a matter of public concern. Whether *684the speech is of "significant importance" or not should be of no concern to this court.

. There is no legal requirement that the speech actually be delivered before Pickering/Connick can be applied. That is, the government's interest can be weighed in anticipation of the potential effect, without having to wait and review the impact of the speech after the fact. See NTEU, 513 U.S. 454, 481, 115 S.Ct. 1003, 130 L.Ed.2d 964 (O'Connor, J. dissenting, concurring) (emphasizing that the ex ante/ex post distinction is not the determinative factor triggering NTEU heightened scrutiny).

. The court does not discuss the University's interest in effective recruiting and maintaining a sound bottom line. Our precedent emphasizes that “[efficiency and fiscal responsibility are powerful governmental interests.” Messman, 133 F.3d at 1047. The plaintiffs acknowledge the University’s actual interest in recruiting speech and that Chancellor Aiken "might constitutionally require pre-ap-proval of such contacts.” Nor does the court discuss the University’s interest in regulating the timing of potentially intimidating, confusing, or burdensome communication to impressionable teenage athletes who are entitled to privacy. Cf. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1541 (7th Cir.1996) (permitting principal to prescreen for speech that "materially interfere[d] with school procedures and intrudefd] into school affairs or the lives of others.”). Far from being "paternalistic” as the plaintiffs claim, such concerns are the basis for the NCAA rules limiting the number and timing of recruiting contacts to prospective student athletes.