Case: 09-30186 Document: 00511186922 Page: 1 Date Filed: 07/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2010
No. 09-30186 Lyle W. Cayce
Clerk
JEREMY SONNIER,
Plaintiff - Appellant
v.
JOHN CRAIN, Dr., in his official capacity as Interim President of
Southeastern Louisiana University; JIM MCHODGKINS, Individually and in
his official capacity as Assistant Vice President for Student Affairs at
Southeastern Louisiana University; THOMAS CARMICHAEL, Individually
and in his official capacity as Police Officer for University Police Department
at Southeastern Louisiana University,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GARWOOD, DAVIS, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
The appellant Jeremy Sonnier challenges the denial of a preliminary
injunction seeking to enjoin enforcement of the speech policy regulating the time,
place and manner, and other matters relating to speech by non-students on the
campus of Southeastern Louisiana University (“SLU”). Reviewing the district
court’s denial of a facial challenge to the regulation, for the following reasons, we
AFFIRM in part and REVERSE in part.
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I. FACTS
The appellant Sonnier and four other individuals not associated with SLU,
entered the SLU campus on November 19, 2007 to express a religious message
to students. Prior to his arrival, Sonnier did not seek a permit to speak as
required by the SLU speech policy. Defendant Thomas Carmichael, an SLU
police officer, asked Sonnier and the others to stop speaking until they obtained
permission to continue. Sonnier went to the office of Defendant Jim
McHodgkins, the Assistant Vice President of Student Affairs. McHodgkins
informed Sonnier that, pursuant to the SLU speech policy, a permit request
must be filed seven days before engaging in a public assembly or demonstration
on campus. Because Sonnier had not sought a permit seven days earlier,
McHodgkins told Sonnier he would be unable to obtain permission to speak on
the campus that day. Sonnier and the other individuals left SLU’s campus.
Since their departure, Sonnier has not filed an application to speak on SLU’s
campus and has not returned to the campus.
The SLU speech policy states generally that:
Southeastern Louisiana University recognizes that freedom
of speech and assembly are basic and essential to both intellectual
and social development. These freedoms, guaranteed by the First
and Fourteenth Amendments to the United States Constitution,
shall be enjoyed by the university community at Southeastern. Free
discussion of ideas of either controversial or non-controversial
nature shall not be curtailed.
These freedoms, however, are not absolute. Colleges and
universities have well-established rights to regulate time, place, and
manner so that activities do not intrude upon or interfere with the
academic programs and administrative processes of the university.
The university may designate one or more areas on campus where
individuals may assemble and engage in speech activities. All
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speech and assembly activities must be conducted in accordance
with university regulations.
The SLU speech policy then provides specific regulations governing the time, 1
place,2 and manner3 of speech. The policy also provides provisions regarding
1
The SLU speech policy concerning time restrictions states:
In accordance with US Federal Court decisions, the University has the right to
regulate the time of speech or assembly activities. A two (2) hour time period
will be provided to individual(s) and/or organizations for these purposes at
Southeastern. Speech/assembly activities will be limited to one two hour time
limit per seven-day period, commencing the Monday of each week.
2
The SLU speech policy concerning place restrictions states:
The university has designated the following sites for public discussion and/or
peaceful public assembly or demonstration: (1) the steps in front of the Student
Union Annex and the grassy area immediately in front of the steps and bounded
by the sidewalk; (2) the grassy area in front of the Claude B. Pennington, Jr.
Student Activity Center; (3) Presidential Plaza area north of the Student Union,
as areas where public speech and assemblies may be conducted by students
without prior administrative approval. Individual(s) or organizations wishing
to use such areas will be required to register the public speech or assembly a
minimum of seven (7) days in advance through the office of Assistant Vice
President of Student Affairs.
Public assembly, discussion or demonstration shall not disturb or interfere with
any program, event, or activity approved prior to the public assembly,
discussion or demonstration; shall not unreasonably disturb or interfere with
normal operations and activities of the university; and will not be scheduled
during other major events already scheduled on campus. Use of the area shall
not include activities which could constitute non-permissible solicitation or
which would be an infraction of the university sign policy in regards to
indiscriminately handing out materials to passers-by.
3
The SLU speech policy concerning manner restrictions states:
Any individual(s) or organization may publicly assemble or demonstrate in a
peaceful manner after attaining the permission of the Assistant Vice President
of Student Affairs or his or her designee.
3
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1. An application to assemble publicly or demonstrate must be made seven (7)
days in advance on a form provided by the Assistant Vice President of Student
Affairs and shall contain:
(a) the applicant’s name, address, phone number, social security number
and date of birth;
(b) the proposed location, date and time for the assembly or
demonstration;
(c) the anticipated number of participants; including a list of authorized
representatives of the organization who will be present along with their
addresses, phone numbers, dates of birth, social security number and
their purpose for being there, i.e. speaking, helping with set-up, etc. (ID
cards will be provided to these individuals);
(d) the purpose of the assembly or demonstration;
(e) the signature of the applicant or, if an organization, its authorized
representative.
3. [sic] The Assistant Vice President of Student Affairs shall approve an
application properly made under section 2 unless there are reasonable grounds
to believe that:
(a) the applicant is under a disciplinary penalty prohibiting publicly
assembling or demonstrating;
(b) the proposed location is unavailable or inappropriate at the time
requested;
(c) the proposed date and time are unreasonable;
(d) the assembly or demonstration would unreasonably obstruct
pedestrian or vehicular traffic;
(e) the speech will constitute a clear and present danger to the
institution’s orderly operation, to students, faculty or staff, or property,
through advocacy of immediate action.
4. The manner approved for the public assembly or demonstration will include
but is not limited to the following conditions.
(a) Individual(s) or organizations will be restricted to the place described
in the registration and are not allowed to leave that area to conduct their
assembly.
(b) No harmful acts, destruction or defacement of property, or physical
assaults of persons will be allowed. This includes threats and/or
intimidation aimed at particular individuals and creating in them a
realistic fear for their personal safety or the security of their property.
(c) No use of amplification devices is allowed.
(d) The speech may not be projected onto private areas, such as resident
4
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payment of security fees in particular situations.4
On November 4, 2008, Sonnier filed an action under 42 U.S.C. §§ 1983,
1988, alleging that the SLU speech policy violates his First Amendment right to
free speech. More particularly, Sonnier challenged five provisions of SLU’s
speech policy: (1) the seven-day notice requirement; (2) the two-hour, once-per-
week limitation; (3) the collection of personal information; (4) the security fee
requirement; and (5) the limitation of speech to three specific locations. Sonnier
instituted a facial and an as-applied challenge to these provisions of SLU’s
speech policy, seeking injunctive and declaratory relief, as well as nominal
damages. At the time he filed his action, Sonnier also moved for a preliminary
injunction restraining enforcement of the speech policy. On March 3, 2009, after
hearing arguments of counsel, the district court denied Sonnier’s motion for a
preliminary injunction. Sonnier filed this timely appeal.
hall rooms or classrooms and thereby creating captive audiences who
cannot guard their privacy by avoiding the speech.
4
The SLU speech policy concerning security fees states:
The freedom of ideas is limited only by certain practical constraints,
necessitated by such considerations as securing the safety of person and
property and the need to prevent disruption of the learning environment. The
use of Southeastern Louisiana University Administration staff; University
Police, city of Hammond Police, Tangipahoa Sheriffs Deputies, Louisiana State
Police, or a private security company in connection with the event is at the sole
discretion of the University in determining both the need for, and the strength
of the security detail. The sponsoring individual(s) or organization is
responsible for the cost of this security beyond that normally provided by the
University, specifically those administrators/officers who must be assigned
directly to the event and/or away from their normal operational duties.
5
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II. STANDARD OF REVIEW
We review the denial of a preliminary injunction for an abuse of discretion,
but a decision grounded in erroneous legal principles is reviewed de novo.
Women’s Med. Ctr. v. Bell, 248 F.3d 411, 418–19 (5th Cir. 2001); Hoover v.
Morales, 164 F.3d 221, 224 (5th Cir. 1998); Concerned Women for America, Inc.
v. Lafayette County, 883 F.2d 32, 34 (5th Cir. 1989). See also Doran v. Salemn
Inn, Inc., 422 U.S. 922, 931–32 (1975) (“But while the standard to be applied by
the district court in deciding whether a plaintiff is entitled to a preliminary
injunction is stringent, the standard of appellate review is simply whether the
issuance of the injunction, in the light of the applicable standard, constituted an
abuse of discretion.” (citing Brown v. Chote, 411 U.S. 452, 457 (1973)).
A district court should issue a preliminary injunction only if the plaintiff
establishes: (1) a substantial likelihood of success on the merits; (2) a substantial
threat of irreparable injury if the injunction is not issued; (3) that the threatened
injury caused by the denial of the injunction outweighs any harm that will
result if the injunction is granted; and (4) that the grant of an injunction will not
disserve the public interest. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d
502, 506 (5th Cir. 2009). In this appeal, the parties only dispute the first
requirement; SLU does not dispute that Sonnier has met the other three
requirements. Therefore, we only examine whether the district court abused its
discretion in finding that Sonnier did not have a substantial likelihood of success
on the merits.
In free speech cases, the court must first determine the type of fora. There
are three types of fora: the traditional public fora, the designated public fora,
and the non-public fora. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666,
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677 (1998). The parties agree that the fora in this case is either a public fora or
a designated public fora. Appellant’s Brief, at 18–21; Appellee’s Brief, at 11. We
agree. The scrutiny applied to time-place-manner restrictions is the same for
both a public fora and a designated public fora. United States v. Kokinda, 497
U.S. 720, 726 (1990). Therefore, we need not determine whether the locations
on SLU’s campus that are at issue in this case are public fora or designated
public fora.
Content-neutral time-place-manner restrictions are examined under
intermediate scrutiny, meaning they are permissible so long as they are
narrowly tailored to serve a significant governmental interest and leave open
ample alternative channels for communication of the information. Turner
Broad. Sys. v. FCC, 520 U.S. 180, 213–14 (1997); Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). Content-based time-place-manner restrictions are
examined under strict scrutiny, meaning they must be narrowly drawn to
effectuate a compelling state interest. Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1981). Sonnier acknowledges that the first,
second, third, and fifth challenged provisions are content-neutral. TR at 188.
Sonnier alleges the fourth challenged provision is content-based. Id.
Sonnier agrees that SLU has a significant interest in implementing a
speech policy that promotes education and minimizes disruptions to the
academic setting. TR at 189. Sonnier’s central objection to the policy is that it
is not narrowly tailored to serve SLU’s interest. We agree that SLU has a strong
interest in promoting education. Therefore, we only examine whether the
district court abused its discretion in finding that the speech policy was narrowly
tailored to serve SLU’s interest.
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A restriction is narrowly tailored when it does not “burden substantially
more speech than is necessary to further the government's legitimate interests.”
Ward, 491 U.S. at 798–99. “In the context of intermediate scrutiny, narrow
tailoring does not require that the least restrictive means be used. As long as
the restriction promotes a substantial governmental interest that would be
achieved less effectively without the restriction, it is sufficiently narrowly
tailored.” SEIU v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010) (quoting
Ward, 491 U.S. at 798 (1989)). “What constitutes a reasonable, narrowly
tailored regulation depends on a variety of factors, including the character of the
place in which the regulation is enforced.” Id. at 599. Thus, we examine all of
the restrictions at issue in the context of the location where they are to be
enforced: a college campus.
III. SCOPE OF APPEAL
Sonnier argues that the district court erred in denying both his facial
challenge to the SLU speech policy and his as-applied challenge. The defendants
argue that the district court, without objection from the parties, adopted a trial
plan to consider only the facial challenge in its consideration of the preliminary
injunction and defer consideration of the as-applied challenge until the
evidentiary hearing on the permanent injunction that is scheduled for February
2010.
Under F ED. R. C IV . P. 65(a), a district court has broad discretion in
deciding whether to consolidate a preliminary injunction with the hearing of the
motion for the permanent injunction. See Dillon v. Bay City Constr. Co., 512
F.2d 801, 804 (5th Cir. 1975). “The rule permits the Trial Judge to flexibly
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merge and hear the component parts of a case thereby avoiding repetition and
unnecessary delay.” Id.
Although in this motion for preliminary injunction Sonnier brought both
a facial challenge and an as-applied challenge, the district court’s trial plan is
evident in the court’s comments throughout the hearing on the preliminary
injunction. The court began the hearing on the motion for preliminary
injunction by asking a number of preliminary questions to counsel, including
questions about what occurred just before Sonnier was escorted from the
campus. Thereafter the court stated:
It sounds like you all have some key factual issues that are in
dispute as to what occurred here when Mr. Sonnier went on campus
as well as some other issues that maybe pertinent for a resolution
of the constitutional questions, particularly as regards to perhaps
application and the execution of this policy, but I’m dealing here
with the policy on its face. While you concede that it maybe content
neutral on its face, I haven’t heard an argument that it’s applied, at
least, because you haven’t gone into discovery yet on this, whether
it’s applied just to say religious groups or certain groups as opposed
to others. . . . It seems as if there’s some facts that need to be
determined here to resolve this particular case.
Transcript Record (“TR”) at 220–21 (emphasis added).
The court, in its ruling, then stated:
. . . I don’t find that here the policy of the university, or at least the
present set of facts that I have before me, would justify the in [sic]
granting a preliminary injunction. I would require further discovery
on its execution, as well as on the actual circumstances surrounding
this incident, because there’s differences of opinions on the facts
here as presented on what occurred that day with Mr. Sonnier and
campus officials. So it will require further discovery, but on its face
it’s content neutral, the policy that is.
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I make a preliminary finding that it does not appear to violate
First Amendment issues insofar as the policy itself on its face.
*********
In denying the preliminary injunction request, however, we reserve
the right to revisit all of these particular issues as further facts are
developed, but on its face I don’t find that there’s a basis at this time
for the issuance of a preliminary injunction.
Id. at 228–29.
Sonnier never objected during the hearing to the district court’s decision
to proceed to hear the facial challenge. Although there is no express agreement
in the record by Sonnier to limit the hearing to a facial challenge, Sonnier’s
counsel did announce at the beginning of the hearing that he had no witnesses
to present and it’s clear from the record that Sonnier had conducted little or no
discovery.5 In fact, Sonnier resisted providing initial rule 26 discovery requested
by the defendants.
In sum, Sonnier gave no indication to the court that his focus at the
preliminary injunction hearing was on anything other than the facial challenge
consistent with the judge’s announcement that this was the sole issue that it
intended to resolve at the hearing. This is consistent with Sonnier’s motion to
stay proceedings in the district court pending appeal where he stated:
The issues of this case depend heavily on disputes of law, not of fact.
The primary challenge to SLU’s policy in this case is a facial
challenge. Thus, the Fifth Circuit will address purely legal issues
to determine the likelihood of plaintiff’s success on the merits. And,
5
For example, Sonnier had no discovery or evidence designed to show why the
University’s regulations were not narrowly tailored or how the regulations could be more
narrowly drawn and still serve the University’s legitimate purposes.
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once the Fifth Circuit speaks to the meaning of the law, the case
would essentially be resolved.
Given the position of the parties at the hearing, the court was justified in
addressing only the facial challenge to SLU’s regulations at the hearing on the
preliminary injunction and waiting to address the as-applied challenge until the
hearing on the permanent injunction.
Therefore, on appeal, we only review the district court’s denial of a
preliminary injunction for Sonnier’s facial challenge, reserving the right of
Sonnier to present evidence to support his as-applied challenge and his facial
challenge at the upcoming hearing on the permanent injunction.
IV. ANALYSIS
“A facial challenge . . . is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances
exist under which the Act would be valid.” U.S. v. Salerno, 481 U.S 739, 745
(1987).6 See U.S. v. Stevens, 2010 U.S. LEXIS 3478, at *22 (2010) (stating that
the Salerno standard is a standard used to succeed in a typical facial attack).
A facial challenge will fail when the statute has a “plainly legitimate sweep.”
6
In the First Amendment context, a challenger may also succeed by establishing that
the regulation is impermissibly overbroad because a substantial number of its applications are
unconstitutional. Wash. State Grange, 128 S.Ct. at 1191 n.6; New York v. Ferber, 458 U.S.
747, 769 (192). In this case, however, Sonnier stated during appellate oral argument that this
was a “regular” facial challenge and not an overbreadth facial challenge. See also Appellant’s
Reply Brief, at 2–3 (discussing the differences between a facial challenge and a facial
overbreadth challenge). Moreover, a challenger may only bring either an as-applied challenge
or an overbreadth challenge, but he may not bring both. See Virginia v. Hicks, 539 U.S. 113,
118–19 (2003). Because Sonnier brought an as-applied challenge that is still pending before
the district court, he cannot argue an overbreadth challenge on appeal.
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Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997) (Stevens, J., concurring
in judgments). The Supreme Court has explained why abstract facial challenges
are disfavored:
Facial challenges are disfavored for several reasons. Claims of
facial invalidity often rest on speculation. As a consequence, they
raise the risk of “premature interpretation of statutes on the basis
of factually barebones records.” Facial challenges also run contrary
to the fundamental principle of judicial restraint that courts should
neither “‘anticipate a question of constitutional law in advance of
the necessity of deciding it’” nor “‘formulate a rule of constitutional
law broader than is required by the precise facts to which it is to be
applied.’” Finally, facial challenges threaten to short circuit the
democratic process by preventing laws embodying the will of the
people from being implemented in a manner consistent with the
Constitution. We must keep in mind that “‘[a] ruling of
unconstitutionality frustrates the intent of the elected
representatives of the people.’”
Wash. State Grange v. Wash. State Republican Party, 128 S.Ct. 1184, 1191
(2008) (citations omitted). The Court expressed similar sentiments in Sabri v.
U.S., 541 U.S. 600, 608–09 (2004) (citations omitted): “[F]acial challenges are
best when infrequent. Although passing on the validity of a law wholesale may
be efficient in the abstract, any gain is often offset by losing the lessons taught
by the particular, to which common law method normally looks.”
We examine each of the challenged provisions separately.
A.
Sonnier argues first that the requirement that an application to assemble
or demonstrate be made seven days in advance is not narrowly tailored. The
defendants argue that the seven-day notice requirement is permissible because
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public universities have duties and responsibilities that require such advanced
notice.
In Bowman v. White, the Eighth Circuit reviewed the district court’s ruling
on a facial, overbreadth, and as-applied challenge to the validity of a university’s
three-day notice requirement. The court stated that the “modest nature” of a
three-day notice requirement for public speeches, combined with the
“University’s reduced capacity to address ‘the exigencies of determining what,
if any, security, crowd control, additional insurance, etc., will be required for a
particular event,” made the notice requirement “sufficiently narrowly tailored.”
444 F.3d 967, 982 (8th Cir. 2006) (citations omitted). In finding the three-day
notice requirement constitutionally permissible, the Eighth Circuit specifically
distinguished University settings from other public forums. The Bowman court
distinguished its case from the earlier case of Douglas v. Brownell, 88 F.3d 1511,
1523–24 (8th Cir. 1996), in which the court struck down a five-day notice
requirement to picket or parade in city streets. The Bowman court found its
case differed from Douglas because the forum in Bowman was a college campus
whereas the forum in Douglas was a city street. Bowman, 444 F.3d at 982. The
Bowman court explained that “a university is less able than a city or other entity
with police powers to deal with a significant disruption on short notice.” Id.
The Fourth Circuit has similarly stated that universities have unique,
particular concerns that must factor into a court’s review of the university’s
speech policy. See ACLU Student Chapter v. Mote, 423 F.3d 438, 445 (4th Cir.
2005) (allowing the University of Maryland to require non-students to reserve
a spot to speak or distribute leaflets up to five days in advance); Glover v. Cole,
762 F.2d 1197, 1203 (4th Cir. 1985) (stating that “[a] college has a right to
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preserve the campus for its intended purpose and to protect college students
from the pressures of solicitation”).
We agree with the distinction drawn by the Fourth and Eighth Circuits.
Universities are less equipped than cities and other public fora (or designated
public fora) to respond to disruptions on short notice. Providing a university
with advance notice allows the university to adequately take care of any issues
associated with the public speech or demonstration that might hamper the
university’s ability to meet its primary goal — the education of its students.
Sonnier argues that “concerns over traffic, crowd control, property
maintenance, or the public welfare do not justify long notice requirements.”
However, he cites no case concerning a college campus that makes this assertion.
Instead, the cases cited by Sonnier relate to notice requirements for speech on
city streets and public parks. See, e.g., Sullivan v. City of Augusta, 511 F.3d 16,
38–40 (1st Cir. 2007) (striking down a thirty-day notice requirement for parades
on city streets); Douglas, 88 F.3d at 1523–24 (striking down a five-day notice
requirement for parades and pickets on city streets); Grossman v. City of
Portland, 33 F.3d 1200, 1204–08 (9th Cir. 1994) (striking down a seven-day
notice requirement for public speeches and demonstrations in public parks).
Because public universities have different needs and limitations than cities, the
cases cited by Sonnier are not controlling in this case.
Additionally, Sonnier objects to the seven-day notice requirement because
there is no small group or individual exception. Sonnier argues that under Fifth
Circuit precedent, “ordinances requiring a permit for demonstrations by a
handful of people are not narrowly tailored to serve a significant government
interest.” Knowles v. City of Waco, 462 F.3d 430, 436 (5th Cir. 2006). But these
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also only relate to cities and not to universities. See, e.g., American-Arab Anti-
Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005)
(requiring a small group exception for a permit to hold a special event in the City
of Dearborn); Cox v. City of Charleston, 416 F.3d 281, 284–86 (4th Cir. 2005)
(requiring a small group exception for a permit to hold a gathering in the City
of Travelers Rest). Both the Eighth Circuit and the Second Circuit have not
required an individual or small group exception for advanced-notice
requirements on university campuses. See Bowman, 444 F.3d at 982; Powe v.
Miles, 407 F.2d 73, 84 (2d Cir. 1968). In fact, in Bowman, the Eighth Circuit
upheld the permit requirement even when the speaker was a single, traveling
street preacher, much like Sonnier.7
We acknowledge that the seven-day notice requirement is longer than
notice requirements considered by other circuits, but this modest increase in
length does not lead us to conclude that the regulation is not narrowly tailored
for Sonnier’s facial challenge. In order to succeed in a facial challenge, the
plaintiff must establish the regulation would be invalid in all circumstances.
Wash. State Grange, 128 S.Ct. at 1191. There are situations in which a seven-
day notice may well be required. If Sonnier expected to attract a large number
of students with his message, SLU might need the entire seven days to
logistically prepare for Sonnier’s arrival.8 If Sonnier desired to speak on SLU’s
7
The Bowman court noted that the speaker drew crowds when he spoke, sometimes
as large as 200 students, but the permit requirement was placed on the speaker alone,
regardless of the number of students he expected.
8
Sonnier’s counsel even stated at the hearing on the preliminary injunction that “if
they were applying for a group of a hundred people that want to come and speak on campus
you would need time to prepare adequately for that.” TR at 194.
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campus at the same time as a number of other individuals and organizations
wished to speak on SLU’s campus, SLU might need the entire seven days to
organize when each individual would speak. If Sonnier or another speaker
wished to speak at a time when multiple members of the SLU administration
were scheduled to be out of the office, SLU might need the entire seven days to
coordinate who would attend the event. Given that there are instances in which
the seven-day notice requirement may be necessary, the district court did not
abuse its discretion in denying the preliminary injunction for the facial challenge
of the seven-day notice requirement.9
B.
Next, Sonnier argues that limiting the amount of time an individual or
organization may speak on campus to two hours, once per week, is not narrowly
tailored. He compares the regulation to a provision that was struck down in
Bowman. The defendants distinguish the SLU regulation from the Bowman
provision by arguing that the SLU regulation is less restrictive.
In Bowman, reviewing the district court’s ruling on a facial, overbreadth,
and as-applied challenge, the court struck down a provision that limited a
person’s ability to speak on a college campus to five days per semester because
the provision was not narrowly tailored. 444 F.3d at 981–82. The Eighth Circuit
found that while a university had a significant interest in fostering a diversity
of viewpoints and preventing one speaker from monopolizing space on the
9
Sonnier will have the opportunity to produce evidence at the hearing for the
permanent injunction that demonstrates the seven-day notice requirement is not narrowly
tailored as applied to him, and the defendants will have to justify why, as applied to Sonnier,
the requirement is narrowly tailored.
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campus, the provision was not narrowly tailored to achieve those interests. Id.
at 982.
We agree with the defendants that the SLU policy is less restrictive than
the policy at issue in Bowman. While the Bowman policy restricted speakers to
speaking five times per semester, the SLU regulation allows speakers to speak
sixteen times per semester.
More importantly, however, Sonnier has not demonstrated that the SLU
regulation is invalid in all circumstances. There are situations in which limiting
the number of times an individual speaks on campus and the length of time an
individual speaks on campus are valid means for SLU to protect its legitimate
interests. If a large number of individuals or organizations wish to speak on
campus during the same week, the University must have a non-discriminatory
manner of granting permission to as many diverse speakers as possible. By
restricting all of the speakers to two hours per week, the University can better
ensure that the greatest number of different individuals and organizations are
able to deliver their message on campus. Accordingly, we find the district court
did not abuse its discretion in denying Sonnier’s facial challenge to this
regulation.
C.
Next, Sonnier asserts that requiring an applicant to disclose personal
information about himself or herself is not narrowly tailored to achieve SLU’s
interest. The defendants contend that requiring the disclosure of personal
information about speaker applicants is necessary to address public safety
concerns and ensure broad access to the University.
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Other circuits have allowed public entities, including universities, to
require a speaker to provide personal information to obtain a permit. See
Bowman, 444 F.3d at 980–81 (upholding a requirement that speakers obtain a
permit on a college campus); Hobbs v. County of Westchester, 397 F.3d 133,
150–51 (2d Cir. 2005) (upholding a requirement that people planning to use
props and/or equipment during performances in a public forum obtain a permit);
S. Or. Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir. 2004) (upholding
a state statute that required applicants for outdoor gatherings to submit, among
other things, their name, address, estimated attendance, and nature of the
proposed gathering). Sonnier cites Watchtower Bible and Tract Society of New
York v. Village of Stratton, 536 U.S. 150, 166–67 (2002), for the proposition that
he has the right to speak anonymously. Watchtower, however, held that a
village could not require a door-to-door distributor of handbills to register with
the Mayor’s office before canvassing private homes. We agree with Sonnier that
the Court has found anonymous door-to-door pamphleteering to be protected by
the First Amendment. However, Sonnier is not engaging in door-to-door
pamphleteering on private property; Sonnier is speaking on a public university’s
campus. Therefore, we find the cases concerning permit requirements to speak
in public forums more instructive than Watchtower.
The SLU policy requires the applicant’s name, address, phone number,
social security number, date of birth, proposed location, date, and time of the
speech, anticipated number of participants, and purpose of the assembly. We
agree with the defendants that this regulation is narrowly tailored to their
significant interest for Sonnier’s facial challenge. By knowing the identity of
speakers on campus, where they intend to speak, and their purpose, the
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University is better equipped to ensure that necessary safety and security
precautions are taken. Also, obtaining information regarding the future speech
allows the University to take any steps required in advance to continue normal
education functions during the speech. While there may be circumstances in
which all of the information requested by SLU is not narrowly tailored, Sonnier
has not demonstrated that in every instance this regulation is invalid.
Therefore, the district court did not abuse its discretion in denying the
preliminary injunction for this permit requirement.
D.
Sonnier argues next that SLU’s speech policy violates the First
Amendment because it gives the University the “sole discretion . . . in
determining both the need for, and the strength of the security” at the public
assembly or demonstration, and assesses the cost of additional security on the
sponsoring individual or organization. In response, the defendants assert that
the fee has never been charged. Regardless of whether the fee has ever been
charged, we agree with Sonnier.
In Forsyth County v. Nationalist Movement, the U.S. Supreme Court
struck down a virtually identical security fee provision that required
organizations to pay for “the cost of necessary and reasonable protection [for
assemblies] . . . [that] exceeds the usual and normal costs of law enforcement .
. . .” 505 U.S. 123, 126 (1992). The Forsyth County Court found the security fee
unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the
amount of the security fee was left to the “whim of the administrator.” Id. at
133.
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The SLU security fee provision has the same shortcomings as the
ordinance struck down in Forsyth County. As the policy states, determining the
additional amount of security needed is at the “sole discretion” of the University;
no objective factors are provided for the University to rely upon when making
such a determination.10 Because of the unbridled discretion this provision gives
to the University, we conclude that the district court abused its discretion in
denying a preliminary injunction with regards to the security fee.
E.
Sonnier finally contends that the requirement that all assemblies and
demonstrations must occur in three specific on-campus venues is an overly broad
restriction of speech. Further, Sonnier argues that the SLU’s speech policy
unconstitutionally bans him from speaking on the campus’ sidewalks. The
defendants argue that the policy does not prohibit Sonnier from speaking on the
University’s sidewalks and that limiting the geographic area for non-students
to speak and assemble is proper.
Our reading of SLU’s speech policy is consistent with the defendants
reading of the policy: nothing in the policy prohibits Sonnier from walking on the
sidewalks of the SLU campus and speaking to students. The policy simply
precludes group demonstrations and assemblies from occurring on the
University sidewalks. The University obviously has a significant interest
10
The defendants also cite Cox v. New Hampshire, 312 U.S. 569 (1941) for the
proposition that a government may impose fees on speakers for the expenses incident to
speech. The defendants, however, misread Forsyth County’s interpretation of Cox. In Forsyth
County, the Court distinguished Cox because “there was in Cox no testimony or evidence that
the statute granted unfettered discretion to the licensing authority,” whereas in Forsyth
County, as in this case, there was evidence that the administrator of the fees in question had
unbridled discretion to set the fees. See Forsyth County, 505 U.S. at 133 n.11.
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keeping its sidewalks and streets open to allow students and others access to the
campus.
“The courts reject the proposition ‘that a campus must make all of its
facilities equally available to students and nonstudents alike, or that a
university must grant free access to all of its grounds or buildings.” Gilles v.
Blanchard, 477 F.3d 266, 470 (citing Widmar v. Vincent, 454 U.S. 263, 268 n.5
(1981). See also A.C.L.U. v. Mote, 423 F.3d 438, 445 (4th Cir. 2005) (holding that
a university may require outside speakers to speak from particular, pre-
scheduled locations on campus). Undoubtedly, SLU has a significant interest in
preserving its property for educational purposes and limiting where outside
speakers may assemble or demonstrate is narrowly tailored to that purpose. See
Adderly v. Florida, 385 U.S. 39, 47 (1966) (“The State, no less than a private
owner of property, has power to preserve the property under its control for the
use to which it is lawfully dedicated.”); Bowman, 444 F.3d at 978 (“[A]
university’s mission is education and the search for knowledge — to serve as a
‘special type of enclave’ devoted to higher education. Thus, streets, sidewalks,
and other open areas that might otherwise be traditional public fora may be
treated differently when they fall within the boundaries of the University’s vast
campus.”).
We find no authority — and Sonnier provides none 11 — that requires a
public university to throw open its entire campus for public assemblies or
11
None of the cases that Sonnier cites address the question presented here, namely
whether a public university may limit public speech to particular areas on the campus.
Instead, the cases Sonnier cites discuss whether particular areas of college campuses
constitute a public fora. These cases do not stand for the proposition that a college campus
must allow non-students to assemble or demonstrate on all areas of the campus.
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demonstrations. The district court did not abuse its discretion in denying a
preliminary injunction as to the location limitations for where a speaker may
address the students.
CONCLUSION
For the above reasons, we AFFIRM the district court’s order denying the
preliminary injunction on Sonnier’s facial challenge to the following provisions
on the SLU speech policy: (1) the seven-day notice requirement, (2) the two-
hours, once-per-week limitation, (3) the collection of personal information, and
(4) the limitation of speech to three specific locations. We REVERSE the district
court’s order denying the preliminary injunction with regard to SLU’s security
fee requirement, and grant the preliminary injunction restraining defendants
from enforcing this portion of the speech policy.
Affirmed in part.
Reversed in part.
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DENNIS, Circuit Judge, concurring in part and dissenting in part.
I concur in one part of the majority opinion — section IV.D — which
holds that the security fee provision of Southeastern Louisiana University’s
(SLU) policy on speech and assembly is facially unconstitutional, but I
respectfully dissent from the rest of the majority opinion, which upholds the
other challenged provisions of the SLU speech policy as facially
constitutional. In my view, those other provisions of the SLU speech policy
were unconstitutionally applied to the plaintiff, an itinerant Christian gospel
teacher, when SLU police and administrative officers ordered him to stop his
attempts to engage university students in religious conversations on a
campus thoroughfare.
Several basic errors permeate the decisions of the district court and the
majority. First, the district court and the majority erroneously reach and
decide the plaintiff’s facial challenge to the SLU speech policy without first
deciding whether the plaintiff’s as-applied challenges have merit. Second, the
majority adopts as binding precedent a misconception of what makes a law
facially invalid under the First Amendment. The majority erroneously sees
the facial invalidity inquiry as a simple all-purpose “no set of circumstances”
test, under which a plaintiff can prevail in a facial challenge only if the court
is unable to imagine even a single set of circumstances under which the law
or regulation at issue could survive an as-applied challenge. Although the
Supreme Court has adverted to that test in dicta, it has never relied on it in
deciding a facial challenge. In fact, the “no set of circumstances” test is
contradicted by the holdings and reasoning of a substantial and growing
number of Supreme Court and Fifth Circuit cases. Moreover, the use of a
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single test that supposedly applies to all facial challenges appears to be
incompatible with the Supreme Court’s recent explanation in Citizens United
v. FEC, 130 S. Ct. 876 (2010), that “the distinction between facial and as-
applied challenges” has no “automatic effect” on the “pleadings and
disposition” of a case. Id. at 893.
Finally, the majority fails to properly apply the constitutional test
required by the Supreme Court in Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989), and applied by this circuit in Knowles v. City of Waco, 462
F.3d 430, 433-34 (5th Cir. 2006). As the Court in Ward stated:
Our cases make clear . . . that even in a public forum the
government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions
“are justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample
alternative channels for communication of the information.”
491 U.S. at 791 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984)). Although it appears undisputed that the SLU speech policy
is a set of content-neutral restrictions on the time, place, or manner of speech
in a public forum, SLU has not shown by the record in this case that its
restrictions are narrowly tailored to serve a significant governmental interest.
Thus, the challenged restrictions — which require even small groups and
individuals to seek the government’s permission seven days in advance of
speaking in public, to entrust significant personal information to SLU, and to
speak for no more than two hours per seven days — are unconstitutional, at
least as applied to the plaintiff’s speech in this case.
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I. The Plaintiff’s As-Applied Challenge
The majority errs by treating this appeal as involving a purely facial
challenge. This case began when Southeastern Louisiana University (SLU)
applied certain provisions of its official policy on speech and assembly to
Jeremy Sonnier, the plaintiff-appellant. Sonnier is a Christian preacher who
stood in a pedestrian mall on SLU’s campus along with a handful of friends,
holding a sign, and tried to start conversations about religion with
individuals who passed by. Sonnier’s sworn account of these events is
undisputed in the record, and there is no evidence that he tried to give a
public speech to an audience, nor that he disrupted classes, blocked foot
traffic, or in any way incited unrest or disorder. Sonnier was accosted by a
campus police officer who told him that he could not speak because “people
here” disagreed with him. He was threatened with arrest, prevented from
conversing with passersby, and told that he could not speak in this manner
without first getting permission from a university official.
Officer Carmichael told Sonnier that he would be arrested unless he
discontinued all expressive activity. He told Sonnier that there had been
“complaints” and that he was considered “disruptive . . . because there are
people here who are not agreeing with you.” He further explained that “when
your speech becomes offensive to other people, then it becomes a problem.”
When asked to explain how holding a sign or trying to engage in conversation
on an open mall could be disruptive to education, the officer could not do so.
Sonnier was then taken to the office of Jim McHodgkins, Vice-President
of Student Affairs, who supported Officer Carmichael’s comments and actions
and refused to give Sonnier permission to speak on campus that day. Sonnier
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and his friends then left the campus for fear of arrest. In denying Sonnier
permission to speak, McHodgkins relied on SLU’s “University Policy on
Public Speech, Assembly and Demonstrations” (referred to as “the SLU
speech policy” or “the SLU policy” throughout this dissent).
Those are the events out of which this lawsuit arose. Sonnier is
challenging SLU’s restrictions on speech, not merely because he has an
abstract disagreement with them, but because he contends that the SLU
speech policy was applied to him in a way that unconstitutionally burdened,
and continues to burden, his First Amendment rights. By bringing this case,
he seeks to establish that he can, without seeking permission seven days in
advance and complying with other SLU’s restrictions, walk or stand around
the campus, carry a sign, and have conversations with individual students —
the actions for which he was threatened with arrest by a campus police officer
with the support of a senior university official.
This constitutional challenge, therefore, is not “purely facial” in any
meaningful sense. It has been an as-applied case from the very beginning.
Along with his complaint, Sonnier filed a motion for a preliminary injunction
and provided summary judgment–type evidence in support of that motion,
consisting of an affidavit setting out the facts as stated above; a copy of the
SLU speech policy; and a map of the SLU campus. His memorandum in
support of the motion for a preliminary injunction included several pages of
arguments that specifically explained how SLU’s restrictions on speech
“adversely impact Sonnier and his expression.”
About four months after Sonnier filed his motion for a preliminary
injunction, the district court heard oral argument on that motion. During
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that four-month period, the government did not provide any evidence
whatsoever; thus, Sonnier’s account of how the SLU policy had been applied
to him was uncontested. During oral argument, Sonnier’s counsel continued
to explain that the SLU policy’s application to Sonnier was unconstitutional.
For example, at one point the judge asked whether the policy applied to one-
on-one conversations as well as to speeches delivered to an audience.
Sonnier’s counsel replied, “I think that’s confirmed by actual application to
Mr. Sonnier. He was there and attempted to engage in one-on-one
conversation. . . . [H]e attempted to engage in a one-on-one dialogue with one
student about theological points and the officer said that he could[n’t]1 do that
until he obtained permission from the university.”
The record on appeal thus contradicts the majority’s assertion that
“Sonnier gave no indication to the court that his focus at the preliminary
injunction hearing was on anything other than the facial challenge.”2 Maj.
Op. 10. But the district court, despite Sonnier’s written and oral explanations
of why the SLU speech policy was unconstitutional as applied to him, decided
1
The transcript says “could,” not “couldn’t,” but the context makes it clear that
Sonnier’s counsel must have said (or intended to say) “couldn’t.”
2
The majority opinion notes that Sonnier did not conduct any discovery, but it does not
explain why Sonnier should have conducted discovery. He already knew from personal
experience how the SLU policy had been applied to him.
Likewise, there is no apparent reason why Sonnier should have called witnesses at the
preliminary injunction hearing. He had already given his account of the events giving rise to
the lawsuit in his uncontradicted affidavit which had been filed four months earlier.
The majority implies that Sonnier did something wrong when he “resisted providing
initial Rule 26 discovery requested by the defendants.” Maj. Op. 10. However, assuming for
the sake of argument that this is true (although the district court did not rule on any discovery
disputes), the majority does not explain how ignoring all of Sonnier’s as-applied arguments
could be an appropriate sanction for any such misbehavior.
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to focus solely on the facial aspects of Sonnier’s arguments. The court made
what it described as “a preliminary finding that it does not appear to violate
First Amendment issues insofar as the policy itself on its face” and denied the
motion for a preliminary injunction.
This was erroneous for two reasons. First, it should be self-evident that
a party bringing a motion for a preliminary injunction has the right to make
any relevant legal argument in support of that motion.3 Among the
prerequisites for a preliminary injunction is that the moving party must
establish “a substantial likelihood of success on the merits.” E.g., Palmer ex
rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009).
In order to show such a likelihood of success, a plaintiff who seeks a
preliminary injunction because he believes a governmental restriction on
speech is unconstitutional as applied to him has to make the argument that
the restriction is unconstitutional as applied. If a court simply ignores all as-
applied arguments, then the plaintiff is prevented from using those
arguments to demonstrate his likelihood of success on the merits. The
3
It is helpful to clarify that, as the Supreme Court has recently explained, facial and
as-applied challenges are not really separate claims, but are merely different arguments in
support of the claim that the plaintiff’s constitutional rights have been violated. In Citizens
United v. FEC, 130 S. Ct. 876 (2010), the Court explained that Citizens United’s facial
challenge — in which it asked the Court to overrule Austin v. Michigan Chamber of Commerce,
494 U.S. 652 (1990) — was “not a new claim,” but was only “a new argument” in support of
Citizens United’s already-existing “claim that the FEC ha[d] violated its First Amendment
right to free speech.” Citizens United, 130 S. Ct. at 893.
Likewise, in the instant case, Sonnier’s facial and as-applied challenges are not
separate claims, but are merely different arguments in support of Sonnier’s claim that SLU
has violated his First Amendment right to free speech. Thus, it is proper to refer to Sonnier’s
“as-applied arguments” as I do here.
See section II.B below for a more extended discussion of the significance of Citizens
United.
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plaintiff is therefore denied injunctive relief to which he may be entitled,
without having been afforded any real opportunity to explain why he is
entitled to it.4
The fact that the district court intended to hear as-applied arguments
at a later stage of this case does not excuse the failure to consider them at the
preliminary injunction stage. Even if the district court will eventually be
willing to listen to those arguments, it has already ignored them at a critical
stage of this case, even though they were plainly relevant to whether Sonnier
was entitled to a preliminary injunction. The denial of a preliminary
injunction is, in itself, a substantial and unnecessary denial of Sonnier’s
constitutional rights. “It is well settled that the loss of First Amendment
freedoms for even minimal periods of time constitutes irreparable injury
justifying the grant of a preliminary injunction.” Deerfield Med. Ctr. v. City of
Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981).
4
The majority cites Fed. R. Civ. P. 65(a) and Dillon v. Bay City Construction Co., 512
F.2d 801, 804 (5th Cir. 1975), for the proposition that the district court acted within its
discretion. Maj. Op. 8-9. However, these authorities are irrelevant; neither of them comes
anywhere close to permitting a district court to ignore as-applied arguments and entertain
only facial arguments for a preliminary injunction. Rule 65(a) states that “the court may
advance the trial on the merits and consolidate it with the [preliminary injunction] hearing,”
but the district court did not do anything like that in this case; rather, it held a preliminary
injunction hearing but refused to consider as-applied arguments.
In Dillon, this court held that a district court had abused its discretion by consolidating
a preliminary injunction hearing with a trial on the merits in a way that “inhibited altogether
the extensive discovery and investigation necessitated by this kind of class action and to which
the plaintiffs had a right under [Rule] 26.” 512 F.2d at 804. If anything, Dillon favors the
plaintiff in this case: it stands for the principle that it is an abuse of discretion for a district
court to structure its proceedings in a way that prevents a party from fully presenting its case.
At any rate, the district court in this case did not consolidate the preliminary injunction
hearing with the trial on the merits, so Dillon and Rule 65(a) are irrelevant.
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The second reason why the district court erred by choosing to consider
only facial and not as-applied arguments is that such an approach to deciding
cases is directly contrary to the Supreme Court’s repeated pronouncements
that as-applied challenges are to be favored over facial ones. “[F]acial
challenges are best when infrequent. Although passing on the validity of a
law wholesale may be efficient in the abstract, any gain is often offset by
losing the lessons taught by the particular, to which common law method
normally looks. Facial adjudication carries too much promise of ‘premature
interpretatio[n] of statutes’ on the basis of factually barebones records.”
Sabri v. United States, 541 U.S. 600, 608-09 (2004) (quoting United States v.
Raines, 362 U.S. 17, 22 (1960)) (second alteration in Sabri) (citations
omitted). See also Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 450-51 (2008) (giving “several reasons” why “[f]acial challenges are
disfavored”).
If facial challenges are disfavored, then when a plaintiff argues that a
law is unconstitutional both on its face and as applied, courts ought to start
by addressing the as-applied arguments. That approach allows us to focus on
“the lessons taught by the particular, to which the common law method
normally looks.” Sabri, 541 U.S. at 609. The district court here did just the
opposite. Sonnier provided an affidavit detailing the facts of the incident in
which the SLU speech policy was applied to him; the government offered no
countervailing evidence. Yet, rather than focusing on the particular facts of
the event that gave rise to this lawsuit, the district court considered only the
policy on its face.
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Because the district court erred in this way, our court should either
address Sonnier’s as-applied arguments or else vacate the district court’s
order denying a preliminary injunction and remand the case for the district
court to consider those arguments in the first instance. We can reach
Sonnier’s as-applied arguments on appeal because they are not waived:
Sonnier made them before the district court, even though they were ignored,
and his appellate briefs are also replete with as-applied arguments. There is
no good reason for this court to follow the district court’s error in treating this
case as if it involved a purely facial challenge.
II. Facial Challenges and Intermediate Scrutiny
The majority opinion is predicated not only on the mistaken premise
that this appeal involves an exclusively facial challenge, but also on the
erroneous belief that there is one single test that must be used to resolve
essentially5 all facial challenges regardless of subject matter. According to
the majority, that test is the “no set of circumstances” test, under which a
plaintiff can prevail only if the court cannot imagine even a single set of
circumstances under which the law or regulation at issue could survive an as-
applied challenge. The majority’s reliance on that test is erroneous for three
principal reasons.
First, the idea that there is a single test for all facial challenges is
contradicted by the Supreme Court’s explanation in Citizens United v. FEC
that the facial/as-applied distinction does not have “some automatic effect” or
5
In the majority’s view, there is one narrow exception to this rule: challenges involving
the overbreadth doctrine in the context of the First Amendment. Maj. Op. 11 n.6. That
exception is not relevant here, since Sonnier’s arguments do not rely on that doctrine.
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“control the pleadings and disposition in every case involving a constitutional
challenge.” 130 S. Ct. 876, 893 (2010). Second, the “no set of circumstances”
test is incompatible with the test that actually does determine the
constitutionality of the content-neutral time-place-manner speech restrictions
that are challenged in this case — namely, intermediate scrutiny, as defined
in cases like Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), and
Knowles v. City of Waco, 462 F.3d 430, 433-34 (5th Cir. 2006). Third, the
Supreme Court and the Fifth Circuit have repeatedly disregarded or rejected
the “no set of circumstances” test in a variety of circumstances, due to its
incompatibility with numerous substantive constitutional doctrines and tests
such as the Lemon test, the vagueness doctrine, and intermediate scrutiny.
For these reasons, even if it were true that this appeal involves a purely
facial challenge, the “no set of circumstances” test on which the majority
relies would still be the wrong test to apply. The way to determine whether
the challenged provisions of the SLU speech policy are constitutional is to
apply intermediate scrutiny — that is, to decide whether they are narrowly
tailored to serve a significant government interest.
A. The majority’s reasoning relies on the “no set of circumstances”
test, and not on intermediate scrutiny.
Although the majority seems to acknowledge that intermediate scrutiny
is the applicable test in this case, Maj. Op. 7-8, its reasoning ultimately relies
instead on the “no set of circumstances” test. The majority holds that the
challenged provisions of the SLU speech policy are facially constitutional
(except for the security fee provision) because the majority is able to imagine
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situations in which those provisions would survive as-applied challenges.
According to the majority, “there are instances in which the seven-day notice
requirement may be necessary” and therefore that requirement is facially
constitutional. Maj. Op. 15. The majority likewise concludes that the
limitation of speech to two hours per seven days is facially constitutional
because “Sonnier has not demonstrated that the SLU regulation is invalid in
all circumstances” and “[t]here are situations in which limiting the number of
times an individual speaks on campus and the length of time an individual
speaks on campus are valid means for SLU to protect its legitimate interests.”
Maj. Op. 16. And the majority holds that the personal information disclosure
requirement is facially constitutional because “[w]hile there may be
circumstances in which all of the information requested by SLU is not
narrowly tailored, Sonnier has not demonstrated that in every instance this
regulation is invalid.” Maj. Op. 18.
Thus, the test that determines the outcome the majority reaches is the
“no set of circumstances” test. The majority’s line of reasoning is that because
it is possible to imagine some set of circumstances in which each of these
restrictions on speech would survive an as-applied challenge (for example,
“[i]f Sonnier or another speaker wished to speak at a time when multiple
members of the SLU administration were scheduled to be out of the office,”
Maj. Op. 15), all of the restrictions are therefore facially constitutional. In
other words, under the majority opinion’s reasoning, if one situation can be
imagined in which a particular restriction on speech would be justified, that
is enough to uphold a restriction which applies to all situations.
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Although it sometimes mentions intermediate scrutiny and narrow
tailoring, the majority opinion does not apply intermediate scrutiny to the
challenged speech restrictions. That is, it makes no attempt to determine
whether each of the restrictions is narrowly tailored to serve a significant
government interest, either as written or as applied to Sonnier. The majority
does not determine whether each restriction “targets and eliminates no more
than the exact source of the ‘evil’ it seeks to remedy.” Knowles, 462 F.3d at
434 (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988)) (internal quotation
mark omitted). Nor does it consider whether “‘a substantial portion of the
burden on speech does not serve to advance’ the [restriction’s] stated goals.”
Id. (quoting Ward, 491 U.S. at 799). Nor does it ask whether each restriction
“burden[s] substantially more speech than is necessary to further the
government’s legitimate interests.” Ward, 491 U.S. at 799. Instead, the
majority merely imagines hypothetical situations and decides that such
imaginings are sufficient to facially justify SLU’s restrictions on speech.
The majority’s “no set of circumstances” test thus hardly amounts to
scrutiny at all. It puts a practically insurmountable barrier in the path of
Sonnier’s challenge to the facial constitutionality of these governmental
limitations on speech.6 But my objection to the majority’s use of the “no set of
6
Interestingly, the majority does not apply the “no set of circumstances” test to SLU’s
security fee provision, which it holds is facially unconstitutional. Maj. Op. 18-19. Instead, it
recognizes (and I agree) that this provision is indistinguishable from the ordinance that the
Supreme Court struck down in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).
However, if the majority were to apply the “no set of circumstances” test to the security fee
provision, it would have to conclude that the provision is facially constitutional because it is
possible to imagine a circumstance in which SLU might set a security fee that would be
justifiable — for instance, a nominal fee for security for a large concert. The majority holds
that this speech restriction is facially unconstitutional without regard to the “no set of
circumstances” test, but it nonetheless holds that all the other challenged restrictions are
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circumstances” test is not only that it has the practical effect of making facial
challenges futile. Rather, the most important problem with the “no set of
circumstances” test is that it is an incorrect statement of the law: as I explain
below, it is contradicted by numerous Supreme Court and Fifth Circuit cases
concerning facial challenges and intermediate scrutiny, and it is ultimately
based on nothing more than a controversial dictum in one case.
B. The Supreme Court in Citizens United has explained that the
distinction between facial and as-applied challenges has no
automatic effect; this contradicts the mistaken idea that virtually all
facial challenges are governed by the “no set of circumstances” test.
The majority’s stated reason for applying the “no set of circumstances”
test is solely that this case involves (in the majority’s view) a purely facial
challenge. Maj. Op. 11-12. Thus, the majority relies on a test that
supposedly applies to all facial challenges, regardless of what type of law is
being challenged. However, the Supreme Court has recently clarified that it
is erroneous to make this kind of sharp, categorical distinction between the
methods for adjudicating facial and as-applied challenges: “[T]he distinction
between facial and as-applied challenges is not so well defined that it has
some automatic effect or that it must always control the pleadings and
disposition in every case involving a constitutional challenge.” Citizens
United v. FEC, 130 S. Ct. 876, 893 (2010).7
facially constitutional because the plaintiff cannot meet that test.
7
All nine Justices (five in the majority and four dissenters) agreed with this statement.
See Citizens United, 130 S. Ct. at 935 n.9 (Stevens, J., dissenting) (expressly agreeing that “the
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The real significance of the facial/as-applied distinction, the Court
explained, is that “it goes to the breadth of the remedy employed by the
Court.” Id. In other words, the facial invalidation of a statute is a broader
remedy than as-applied invalidation. A facial challenge is an argument
asking the court to hold that a particular law can never be validly enforced,
whereas an as-applied challenge is an argument asking the court to hold that
a law cannot be enforced in some particular set of circumstances.8 In this
distinction between facial and as-applied challenges does not have ‘some automatic effect’ that
mechanically controls the judicial task”). See also id. at 919 (Roberts, C.J., concurring)
(further discussing the unimportance of the distinction between facial and as-applied
challenges). See infra note 10 (quoting and discussing Chief Justice Roberts’s concurrence).
It is also worth noting that the Supreme Court decided the facial challenge in Citizens
United in a way that was consistent with this dissent’s analysis of the facial/as-applied
distinction, and did not employ the “no set of circumstances” test. The Court announced that
it was deciding the facial constitutionality of the statute at issue, id. at 892-96; explained that
it was applying strict scrutiny, id. at 898; and held that the statute was facially
unconstitutional, id. at 913. Several more examples of Supreme Court and Fifth Circuit cases
in which the courts have resolved facial challenges while disregarding the “no set of
circumstances” test are collected in section II.D below.
8
Further underscoring that facial and as-applied challenges are simply arguments for
particular remedies, the Citizens United Court explained that Citizens United’s facial
challenge (which asked the Court to overrule Austin v. Michigan Chamber of Commerce, 494
U.S. 652 (1990)) was “not a new claim” but was only “a new argument” in support of Citizens
United’s “claim that the FEC ha[d] violated its First Amendment right to free speech.”
Citizens United, 130 S. Ct. at 893. Thus, the underlying claim was that the plaintiff’s
constitutional right had been violated; the facial and as-applied challenges were the plaintiff’s
arguments in support of that claim; and the difference between the facial and as-applied
arguments was that they led to different remedies.
Likewise, in the instant case, Sonnier’s facial and as-applied challenges are not
separate claims, but are distinct arguments supporting Sonnier’s claim that SLU has violated
his First Amendment right to free speech. The difference between Sonnier’s facial and as-
applied arguments is that the as-applied arguments, if accepted, would lead to a narrower
holding that the challenged policy is invalid under certain circumstances, whereas the facial
arguments would lead to a broader holding that the challenged policy is invalid in all
circumstances.
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case, the plaintiff has made both types of arguments before this court and the
district court.
In Citizens United as well as other cases, the Supreme Court has relied
on what is perhaps the clearest explanation of the relation between facial and
as-applied challenges: Richard H. Fallon, Jr., As-Applied Challenges and
Third-Party Standing, 113 Harv. L. Rev. 1321, 1336-39 (2000).9 It is worth
quoting that article at length here in order to correct some common
misconceptions:
[T]he terms of discourse frequently suggest that there is a sharp,
categorical distinction between facial and as-applied adjudication
and that courts are often called upon to apply general principles
governing facial challenges. Both suggestions are misleading.
...
Facial challenges are not sharply categorically distinct from
as-applied challenges to the validity of statutes. Under Article
III, a federal court must always begin with a case, framed by
concrete facts including an allegation of harm to a specific
plaintiff caused by an identified defendant. The focus of concern
must be whether the plaintiff is entitled to relief. To adjudicate a
case, however, a court will invoke legal doctrine, typically as
reflected in general rules, principles, or tests. Moreover, the
application of doctrine — including the processes of reasoning
necessary to resolve the dispute — will sometimes unmistakably,
9
See Citizens United, 130 S. Ct. at 893 (“[O]nce a case is brought, no general categorical
line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’
cases.” (quoting Fallon, supra, at 1339) (internal quotation marks omitted)); Gonzales v.
Carhart, 550 U.S. 124, 168 (2007) (“[A]s-applied challenges are the basic building blocks of
constitutional adjudication.” (quoting Fallon, supra, at 1328) (internal quotation marks
omitted)); Sabri, 541 U.S. at 610 (citing Fallon, supra, at 1351).
Federal appellate courts, too, have often made use of this article. E.g., Richmond Med.
Ctr. for Women v. Herring, 570 F.3d 165, 172-73 (4th Cir. 2009) (en banc) (quoting at length
from Fallon, supra, at 1331, 1337, 1368).
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even necessarily, yield the conclusion that a statute is invalid, not
merely as applied to the facts, but more generally or even in
whole. In such cases, facial invalidation occurs as an outgrowth
of as-applied adjudication.
Marbury v. Madison, [5 U.S. 137 (1803),] often regarded as
the foundation for the traditional model of as-applied
adjudication, is exemplary. In Marbury, the Supreme Court
considered whether a provision of the 1789 Judiciary Act
permissibly vested the Court with original jurisdiction over
William Marbury’s suit against James Madison. In ruling that
Article III forbade the exercise of jurisdiction, the Court in one
sense engaged in as-applied adjudication. It decided the
constitutional issue only as an incident of determining its
jurisdiction in a particular case. At the same time, Marbury’s
reasoning was general. The Court made clear that the challenged
provision of the Judiciary Act was invalid not merely as applied
to Marbury’s suit against Madison, but in all cases insofar as it
purported to confer original Supreme Court jurisdiction not
contemplated by Article III.
As it was in Marbury v. Madison, so it is in myriad other
circumstances: in ruling on an as-applied challenge, a court
incidentally reaches a conclusion that a statute is more broadly
invalid. In the modern day, the variety of tests employed in
constitutional litigation is seemingly endless. Nonetheless,
familiar and recurring kinds of tests illustrate how as-applied
adjudication can inevitably result in facial invalidations.
“Purpose” tests identify statutes as invalid if enacted for
constitutionally forbidden motives. . . . “Suspect-content” tests,
under which statutes that regulate on certain bases must be
justified as narrowly tailored to advance a compelling state
interest, have similar effects. A statute that fails a
suspect-content test is invalid in whole.
Just as some assessments of “as-applied” challenges
necessarily yield the conclusion that a statute is wholly invalid,
other judicial analyses — conducted pursuant to other doctrinal
tests — establish that statutes are invalid in part. In United
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States v. National Treasury Employees Union, [513 U.S. 454
(1995),] for example, the plaintiffs challenged a federal statute
forbidding certain governmental employees to receive honoraria
for speaking or writing. To assess the claim, the Court
articulated a balancing test. Under that test, it found the statute
invalid as applied to the relatively low-level employees who had
brought suit, but it noted that its reasoning would not necessarily
apply to cases involving higher-level employees. The Court thus
reserved the question of the statute’s validity as to categories of
employees not before the Court. [See id. at 477-78.]
Examples could be multiplied, all to the same effect: when a
court upholds a constitutional challenge, the nature of the test
that it applies will determine whether the statute is found
unconstitutional solely as applied, in part, or in whole. Even
facial invalidations are the outgrowth of litigation that is, in an
important sense, as-applied. But once a case is brought, no
general categorical line bars a court from making broader
pronouncements of invalidity in properly “as-applied” cases. Nor
is there a distinctive class of “facial challenge” cases in which the
court is required to do so.
Fallon, supra, at 1336-39 (footnotes omitted). The key point is that facial and
as-applied challenges are not categorically different types of cases to which
different rules of decision apply. On the contrary, in order to adjudicate
constitutional challenges, courts apply whatever constitutional doctrines and
tests are relevant to the substance of each particular case, and the results of
that analysis determine whether a challenged law is unconstitutional, either
on its face or as applied to a particular situation.10
10
This understanding is further reinforced by Chief Justice Roberts’s concurrence in
Citizens United:
[T]he debate over whether to consider this claim on an as-applied or facial basis
strikes me as largely beside the point. Citizens United . . . has a constitutional
claim — the Act violates the First Amendment, because it prohibits political
speech. The Government has a defense — the Act may be enforced, consistent
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As the Supreme Court said in Citizens United, “the distinction between
facial and as-applied challenges is not so well defined that it has some
automatic effect.” 130 S. Ct. at 893. There is “no general categorical line”
between facial and as-applied challenges. Id. (quoting Fallon, supra, at
1339). The facial/as-applied distinction merely “goes to the breadth of the
remedy employed,” id., because a facial challenge is an argument for the
facial invalidation of a law, whereas an as-applied challenge is an argument
for the narrower remedy of as-applied invalidation.11 Therefore, the
with the First Amendment, against corporations. Whether the claim or the
defense prevails is the question before us.
Given the nature of that claim and defense, it makes no difference of any
substance whether this case is resolved by invalidating the statute on its face
or only as applied to Citizens United. Even if considered in as-applied terms,
a holding in this case that the Act may not be applied to Citizens United —
because corporations as well as individuals enjoy the pertinent First
Amendment rights — would mean that any other corporation raising the same
challenge would also win. Likewise, a conclusion that the Act may be applied
to Citizens United — because it is constitutional to prohibit corporate political
speech — would similarly govern future cases. Regardless whether we label
Citizens United’s claim a “facial” or “as-applied” challenge, the consequences of
the Court’s decision are the same.
130 S. Ct. at 919 (Roberts, C.J., concurring). As the Chief Justice recognized, the labels of
“facial” and “as-applied” were “beside the point”; the real question was whether the challenged
law was consistent with the First Amendment, and the Court’s answer to that substantive
constitutional question would determine whether the statute was unconstitutional on its face,
unconstitutional as applied, or constitutional.
Likewise, in every case in which a law is subjected to a constitutional challenge —
including the instant case — the proper method is to apply the relevant substantive
constitutional doctrines and tests, and the result of that process determines whether the
challenged law should be held unconstitutional either on its face or as applied.
11
It is worth briefly noting that this understanding of the distinction between facial and
as-applied challenges is not necessarily inconsistent with the opinion that has been read as
creating the “no set of circumstances” test, United States v. Salerno, 481 U.S. 739, 745 (1987).
The Federal Circuit, in Rothe Development Corp. v. Department of Defense, 413 F.3d
1327 (Fed. Cir. 2005), adjudicated a facial challenge to a statute under strict scrutiny and not
the “no set of circumstances” test. Id. at 1329, 1337-38. The court explained, “Salerno is of
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underlying question in this case — that is, whether the SLU speech policy is
consistent with the First Amendment — must be determined, not by applying
a special test for all facial challenges (the majority’s “no set of circumstances”
test), but by applying the substantive constitutional test that determines the
constitutionality of the type of regulation that is challenged here. That test is
intermediate scrutiny as defined in cases like Ward and Knowles, which
requires that a content-neutral restriction on the time, place, or manner of
speech must be narrowly tailored to serve a significant government interest.
C. The “no set of circumstances” test is inconsistent with the
requirements of intermediate scrutiny, and is therefore inapplicable
to this case.
limited relevance here, at most describing a conclusion that could result from the application
of the strict scrutiny test.” Id. at 1337-38. Thus, the Rothe court read Salerno as being
consistent with the principle that the facial/as-applied distinction “goes to the breadth of the
remedy employed by the Court,” Citizens United, 130 S. Ct. at 893. Under this reading,
Salerno simply means that a successful facial challenge has the outcome of “establish[ing] that
no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745.
See also Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 797-98
(1984) (“In cases of this character a holding of facial invalidity expresses the conclusion that
the statute could never be applied in a valid manner.”).
Under the Federal Circuit’s reading, the Salerno “no set of circumstances” language
does not create a universal test for all facial challenges; instead, it only describes the outcome
of a successful facial challenge. This reading is consistent with all the authorities cited in this
dissent that are in conflict with the “no set of circumstances” test. A few other courts and at
least one eminent law professor have adopted this reading of Salerno. Daskalea v. Wash.
Humane Society, 480 F. Supp. 2d 16, 36 n.22 (D.D.C. 2007); MDK, Inc. v. Vill. of Grafton, 345
F. Supp. 2d 952, 960 (E.D. Wis. 2004); In re Termination of Parental Rights to Diana P., 694
N.W.2d 344, 361 (Wis. 2005) (Roggensack, J., concurring); Richard H. Fallon, Jr., As-Applied
and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1342-43 (2000).
The article that makes the most thorough case for this reading is Marc E. Isserles, Overcoming
Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359 (1998),
on which the Rothe court relied.
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The majority’s “no set of circumstances” test is vastly different from,
and logically incompatible with, the intermediate scrutiny test. These two
tests allocate the burden of persuasion differently; they provide different
criteria to determine a law’s constitutional validity; and they are likely to
produce opposite results in a great many cases, including this one. Thus, the
majority’s reliance on the “no set of circumstances” test in this case
contravenes the numerous precedents which establish that intermediate
scrutiny is the proper way to determine the constitutionality of a content-
neutral restriction on the time, place, or manner of speech. The only way to
remain consistent with the precedents on intermediate scrutiny is to reject
the erroneous “no set of circumstances” test.
The well-known requirements of intermediate scrutiny are as follows:
the government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions
“are justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample
alternative channels for communication of the information.”
Knowles v. City of Waco, 462 F.3d 430, 433-34 (5th Cir. 2006) (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984))).12 “A regulation ‘is narrowly
tailored if it targets and eliminates no more than the exact source of the “evil”
it seeks to remedy.’” Id. at 434 (quoting Frisby v. Schultz, 487 U.S. 474, 485
(1988)). In other words, “[a] regulation is ‘narrowly tailored’ when it does not
‘burden substantially more speech than is necessary to further the
12
Even the defendants’ brief on appeal agrees that this is the applicable standard.
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government’s legitimate interests.’” Hays County Guardian v. Supple, 969
F.2d 111, 118 (5th Cir. 1992) (quoting Ward, 491 U.S. at 799). “At a
minimum, a regulation cannot be narrowly tailored unless the cost to speech
is ‘carefully calculated’ and the fit between the burden and the state interest
is ‘reasonable.’” Id. (quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492
U.S. 469, 481 (1989)).
“The government bears the burden of establishing that the regulations
are reasonable.” Id. That is, the government must identify the significant
state interests to which a challenged regulation is narrowly tailored, and
“show affirmatively that the[] restriction is narrowly tailored to protect the
identified interests.” Id. at 119. In summary, a content-neutral restriction on
the time, place, or manner of speech must be narrowly tailored to serve a
significant governmental interest, and the government bears the burden of
identifying such interests and showing how the restriction is narrowly
tailored to them.
As explained above, although the majority opinion initially seems to
acknowledge that intermediate scrutiny is the governing test, the majority
ends up relying on the “no set of circumstances” test instead. The two tests
are inconsistent with one another for multiple reasons. First of all, they
allocate the burden of persuasion in opposite directions. Intermediate
scrutiny requires the government to justify the restrictions that it imposes on
public speech. Hays County Guardian, 969 F.2d at 118. But the “no set of
circumstances” test, as explained by the majority opinion, requires that “the
challenger must establish that no set of circumstances exists under which the
Act would be valid.” Maj. Op. 11 (emphasis added) (quoting United States v.
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Salerno, 481 U.S. 739, 745 (1987)). The majority opinion, in applying the “no
set of circumstances” test, reiterates that it puts the burden on the plaintiff:
“the plaintiff must establish the regulation would be invalid in all
circumstances.” Maj. Op. 15 (emphasis added). “Sonnier has not
demonstrated that the SLU regulation is invalid in all circumstances.” Maj.
Op. 16 (emphasis added). “Sonnier has not demonstrated that in every
instance this regulation is invalid.” Maj. Op. 18 (emphasis added). And this
difference in the allocation of the burden of persuasion is not a mere
technicality. By putting the burden on Sonnier, the majority demands that
he prove a negative. This is improper not only because it is practically
impossible to meet such a demand, but also because “[w]hen the Government
restricts speech, the Government bears the burden of proving the
constitutionality of its actions.” United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803, 816 (2000). See also Hays County Guardian, 969 F.2d at 119.
Intermediate scrutiny appropriately puts the burden of persuasion on the
government; the “no set of circumstances” test fails to do so. The two tests
are therefore inconsistent with one another.
Second, intermediate scrutiny and the “no set of circumstances” test
require courts to base their decisions on entirely different criteria.
Intermediate scrutiny requires courts to begin by identifying the legitimate
government interests, if any, that are served by a restriction on speech.
Courts must then decide whether the restriction is narrowly tailored to those
identified interests — in other words, whether the restriction “does not
‘burden substantially more speech than is necessary to further the
government’s legitimate interests.’” Hays County Guardian, 969 F.2d at 118
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(quoting Ward, 491 U.S. at 799). Thus, intermediate scrutiny requires a court
to look at the overall burden on speech that is imposed by a challenged
restriction, and decide whether that burden is substantially greater than
necessary. By contrast, the “no set of circumstances” test does not require
this sort of consideration of the “fit between the burden and the state
interest,” id. — instead, it only requires the court to exercise its imagination
in order to come up with some possible scenario in which the restriction at
issue would survive an as-applied challenge. That is the process the majority
has followed in applying the “no set of circumstances” test here.13 Because
intermediate scrutiny and the “no set of circumstances” test require courts to
use completely different decisionmaking processes, the two tests are
incompatible.
Third, considering the vast differences between them, it follows that
these two tests are likely to produce opposite results in a wide variety of
cases. This case exemplifies the difference in results. The majority, applying
the “no set of circumstances” test, holds that the challenged provisions of the
SLU speech policy are facially constitutional. I, on the other hand, would
apply intermediate scrutiny under Ward and Knowles and therefore conclude
that the imposition of a permit requirement on individuals and small groups,
the seven-day advance notice requirement, the limitation of speech to two
hours per seven days, and the broad personal information collection
13
E.g., Maj. Op. 15 (“If Sonnier expected to attract a large number of students with his
message . . . If Sonnier desired to speak on SLU’s campus at the same time as a number of
other individuals and organizations . . . If Sonnier or another speaker wished to speak at a
time when multiple members of the SLU administration were scheduled to be out of the
office . . . .”).
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requirement are unconstitutional. The reasons why these provisions do not
survive intermediate scrutiny are explained below in Part III.
For all these reasons, the majority’s application of the “no set of
circumstances” test contravenes the long list of Supreme Court and Fifth
Circuit precedents which establish that intermediate scrutiny is the proper
way to determine whether a content-neutral restriction on the time, place, or
manner of speech is constitutional.14 It is not possible to apply both the “no
set of circumstances” test and the intermediate scrutiny test and reach
consistent results. We should therefore apply intermediate scrutiny, a test
that has been firmly established by a long line of governing precedents.
D. The Supreme Court and the Fifth Circuit have repeatedly
disregarded or rejected the “no set of circumstances” test in cases
where it was incompatible with the relevant constitutional doctrines.
14
E.g., Hill v. Colorado, 530 U.S. 703, 725-26 (2000); Burson v. Freeman, 504 U.S. 191,
197 (1992); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Frisby v. Schultz, 487 U.S.
474, 481-82, 485 (1988); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984);
Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804-05 (1984);
United States v. Grace, 461 U.S. 171, 177 (1983); Serv. Employees Int’l Union, Local 5 v. City
of Houston, 595 F.3d 588, 596 (5th Cir. 2010); Knowles v. City of Waco, 462 F.3d 430, 433-34
(5th Cir. 2006); Hays County Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992);
Beckerman v. City of Tupelo, 664 F.2d 502, 516 (5th Cir. 1981).
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Controversy among Supreme Court Justices15 and doubt among the
lower courts16 regarding the “no set of circumstances” language has persisted
since that phrase first appeared in United States v. Salerno, 481 U.S. 739, 745
(1987). In some recent cases, the Court has openly recognized, but not
resolved, the dispute as to whether the “no set of circumstances” language is
the governing test for all,17 or any, facial challenges. See United States v.
15
See City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (plurality opinion) (“To the
extent we have consistently articulated a clear standard for facial challenges, it is not the
Salerno formulation, which has never been the decisive factor in any decision of this Court,
including Salerno itself . . . .”); id. at 78-81 (Scalia, J., dissenting) (defending the “no set of
circumstances” test); Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175-
76 (1996) (mem.) (opinion of Stevens, J., respecting denial of certiorari) (characterizing the “no
set of circumstances” test as a dictum, “unsupported by citation or precedent,” inconsistent
with an array of legal principles, and “draconian” in its effects); id. at 1178-81 (Scalia, J.,
dissenting from denial of certiorari) (characterizing the “no set of circumstances” test as “a
long established principle of our jurisprudence” but citing no Supreme Court case decided prior
to Salerno to support it).
16
For example, the Eleventh Circuit in United States v. Frandsen, 212 F.3d 1231 (11th
Cir. 2000), noted that the “no set of circumstances” test “has been subject to a heated debate
in the Supreme Court, where it has not been consistently followed.” Id. at 1235 n.3. The court
decided not to apply the “no set of circumstances” test to the facial challenge in that case
because “[w]hatever the precise scope of the general rule may be, the Supreme Court and this
Court consistently have permitted facial challenges to prior restraints on speech without
requiring the plaintiff to show that there are no conceivable set of facts where the application
of the particular government regulation might or would be constitutional.” Id. at 1236.
The Sixth Circuit, in Staley v. Jones, 239 F.3d 769 (6th Cir. 2001), considered Morales
to have overruled Salerno at least as to facial challenges under the vagueness doctrine, and
held that prior to Morales there was no clearly established federal law on that issue. Id. at
789-90. And the en banc Fourth Circuit in Richmond Medical Center for Women v. Herring,
570 F.3d 165 (4th Cir. 2009) (en banc), after considering Salerno and other cases, concluded
that “[w]e need not . . . attempt to resolve the uncertainty regarding the appropriate criteria
for entertaining facial challenges” because the facial challenge in that case failed even if “no
set of circumstances” was not the proper test. Id. at 174.
17
The “no set of circumstances” passage in Salerno excludes the narrow category of
facial challenges under the overbreadth doctrine in the context of the First Amendment. 481
U.S. at 745. That exception is not at issue here. The majority in this case considers the “no
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Stevens, 130 S. Ct. 1577,1587 (2010)18 ; Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008); Gonzales v. Carhart, 550 U.S.
124, 167 (2007). The Court has sometimes quoted the “no set of
circumstances” language in a positive light (without actually using it as the
basis for a decision),19 but the phrase appears more frequently in Supreme
Court dissents which have accurately pointed out that the majorities in those
cases were not following the “no set of circumstances” test.20 Importantly,
after diligent research I have been unable to find a single Supreme Court case
set of circumstances” test to apply to all other facial challenges. Maj. Op. 11 & n.6.
18
The Court in Stevens wrote:
To succeed in a typical facial attack, Stevens would have to establish “that no
set of circumstances exists under which [§ 48] would be valid,” United States v.
Salerno, 481 U.S. 739, 745 . . . (1987), or that the statute lacks any “plainly
legitimate sweep,” Washington v. Glucksberg, 521 U.S. 702, 740 n.7 . . . (1997)
(STEVENS, J., concurring in judgments) (internal quotation marks omitted).
Which standard applies in a typical case is a matter of dispute that we need not
and do not address, and neither Salerno nor Glucksberg is a speech case.
130 S. Ct. at 1587. The Court’s mention of speech cases is noteworthy here, since it suggests
that some Justices may consider the “no set of circumstances” test to be inapplicable to speech
cases even if it does apply to facial challenges in some other area of law. However, as will be
discussed below, there are also Supreme Court decisions in several other areas of
constitutional law that conflict with the “no set of circumstances” test.
19
See Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995); Reno v. Flores, 507 U.S. 292,
301 (1993); Rust v. Sullivan, 500 U.S. 173, 183 (1991); Ohio v. Akron Ctr. for Reproductive
Health, 497 U.S. 502, 514 (1990).
20
See Virginia v. Black, 538 U.S. 343, 375 n.4 (2003) (Scalia, J., concurring in part and
dissenting in part); Stenberg v. Carhart, 530 U.S. 914, 1019 (2000) (Thomas, J., dissenting);
Morales, 527 U.S. at 78-81 (Scalia, J., dissenting); Romer v. Evans, 517 U.S. 620, 643 (1996)
(Scalia, J., dissenting); Ada v. Guam Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011
(1992) (Scalia, J., dissenting from denial of certiorari); Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 973 (1992) (Rehnquist, C.J., concurring in the judgment in part and dissenting
in part); Kraft Gen. Foods, Inc. v. Iowa Dep’t of Revenue & Fin., 505 U.S. 71, 82-83 (1992)
(Rehnquist, C.J., dissenting); Bowen v. Kendrick, 487 U.S. 589, 627 n.1 (1988) (Blackmun, J.,
dissenting).
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— including Salerno itself — in which the holding actually relied on the “no
set of circumstances” test.21 That language therefore remains nothing more
than a controversial dictum.
Although lower courts should ordinarily take a deferential position
toward Supreme Court dicta,22 this particular dictum is contradicted by the
reasoning and the results of several subsequent Supreme Court cases. In
addition, our own court has already issued at least four post-Salerno decisions
which have directly contradicted the “no set of circumstances” test.
The list of Supreme Court cases contradicting the “no set of
circumstances” test includes (but is not limited to) Hill v. Colorado, 530 U.S.
703 (2000); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000);
City of Chicago v. Morales, 527 U.S. 41 (1999); Planned Parenthood of
21
In Morales, the plurality opinion stated that “the Salerno formulation . . . has never
been the decisive factor in any decision of this Court, including Salerno itself.” 527 U.S. 41,
55 n.22 (plurality opinion). Justice Scalia’s dissent argued in favor of the “no set of
circumstances” test, but tacitly conceded the inability to cite any case in which it had been “the
decisive factor.” See id. at 80 n.3 (Scalia, J., dissenting). While Morales was decided in 1999,
my research has not revealed any Supreme Court case before or since then in which the “no
set of circumstances” test has been decisive. See supra notes 19-20 (collecting cases in which
that test has been mentioned).
22
“Of course, we treat the considered dicta of the Supreme Court with greater weight
and deference ‘as prophecy of what that Court might hold.’” Valladolid v. Pac. Operations
Offshore, LLP, 604 F.3d 1126, 1131 (9th Cir. 2010) (quoting United States v. Montero-
Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc)). “We do not blindly, however,
follow an unconsidered statement simply because it was uttered by the Supreme Court.” Id.
“While the dicta of the Supreme Court merits our deference, we also heed Chief Justice
Marshall’s admonition that:
general expressions, in every opinion, are to be taken in connection with the
case in which those expressions are used. If they go beyond the case, they may
be respected, but ought not to control the judgment in a subsequent suit, when
the very point is presented for decision . . . .”
In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 92-93 (2d Cir. 1993)
(quoting Cohens v. Virginia, 19 U.S. 264, 399 (1821)).
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Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Bowen v. Kendrick,
487 U.S. 589 (1988); and Frisby v. Schultz, 487 U.S 474 (1988). The Fifth
Circuit cases include Service Employees International Union, Local 5 v. City
of Houston, 595 F.3d 588 (5th Cir. 2010); Knowles v. City of Waco, 462 F.3d
430 (5th Cir. 2006); Doe v. Santa Fe Independent School District, 168 F.3d 806
(5th Cir. 1999); and Ingebretsen v. Jackson Public School District, 88 F.3d 274
(5th Cir. 1996). In each of these cases (which will be discussed more
specifically below), the courts adjudicated facial challenges by relying on
substantive constitutional doctrines that were incompatible with the “no set
of circumstances” test. Some of these cases involved intermediate scrutiny,
while others involved other constitutional tests — but they were all facial
challenges, and in all of them the courts disregarded or rejected the “no set of
circumstances” test. These cases, all of which are binding on us, strongly
support the conclusion that the “no set of circumstances” test simply is not an
accurate statement of the law that governs this case.
The “no set of circumstances” test arose from this sentence in Salerno:
“A facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be valid.” 481 U.S. at
745. This language constitutes dicta, not a holding, because it was not part of
the basis for the Supreme Court’s decision in Salerno. The respondents in
Salerno brought a facial challenge to the Bail Reform Act, but they did not
claim that the Act was unconstitutional as applied to them. Id. at 745 n.3.
Therefore, if Salerno had really held that identifying a single valid
application of a law is enough to defeat a facial challenge, the Court could
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have rejected the facial challenge simply because the Act was not
unconstitutional as it had been applied to the respondents in that case. See
Morales, 527 U.S. at 55 n.22 (plurality opinion) (explaining that the sentence
was dicta for this reason).23 But instead, the Supreme Court decided in
Salerno that the Bail Reform Act was facially constitutional, not because it
satisfied the “no set of circumstances” test, but because the Act as written
was consistent with the Court’s interpretation of the Due Process Clause and
the Eighth Amendment.24
23
See also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175
(1996) (opinion of Stevens, J., respecting denial of certiorari) (observing that the controversial
statement was “unnecessary to the holding in [Salerno], for the Court effectively held that the
statute at issue would be constitutional as applied in a large fraction of cases”).
24
The specific reasoning by which the Supreme Court resolved the facial challenge in
Salerno was as follows. As to the Due Process Clause, the Court acknowledged that there is
a “‘general rule’ of substantive due process that the government may not detain a person prior
to a judgment of guilt in a criminal trial,” 481 U.S. at 749, but nonetheless held that “this right
may . . . be subordinated to the greater needs of society” and that “Congress’ careful
delineation of the circumstances under which detention will be permitted satisfies this
standard,” id. at 750-51. The Court thus balanced the rights of arrestees against the interests
of society and decided that the Bail Reform Act, on its face, was constitutional because it did
not go too far in “subordinat[ing]” the rights of arrestees.
As to the Eighth Amendment, the Court held that “when Congress has mandated
[pretrial] detention on the basis of a compelling interest other than prevention of flight [such
as public safety], as it has here, the Eighth Amendment does not require release on bail.” Id.
at 754-55. Thus, the Court’s reasoning centered on what the Eighth Amendment does and
does not require the government to do. It held that the Bail Reform Act was facially
constitutional because the Eighth Amendment does not forbid Congress from mandating
pretrial detention for arrestees who are thought to pose a danger to the community.
Therefore, the Supreme Court’s decision in Salerno was not at all based on the “no set
of circumstances” dictum. “In each step of its analysis, the Court measured the Bail Reform
Act against the substantive requirements of the Due Process Clause and the Eighth
Amendment as articulated in the relevant doctrinal tests. The Salerno defendants lost their
facial challenge, not because the Court was able to identify some constitutional applications,
but because the Court held that the Act on its face satisfied all of the applicable due process
and Eighth Amendment doctrinal tests.” Marc E. Isserles, Overcoming Overbreadth: Facial
Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359, 399 (1998).
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Furthermore, Salerno’s “no set of circumstances” language has never
played a decisive role in any subsequent Supreme Court case either, as far as
my research has shown. See Morales, 527 U.S. at 55 n.22 (plurality opinion)
(asserting that “the Salerno formulation . . . has never been the decisive
factor in any decision of this Court, including Salerno itself”); id. at 80 n.3
(Scalia, J., dissenting) (responding to Justice Stevens’s claim, but not citing
any Supreme Court case in which the “no set of circumstances” language has
been decisive). Thus, although some Justices have debated whether the “no
set of circumstances” test should be the law, the Supreme Court has never
actually held that that language governs all (or any) facial challenges. See
also United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (acknowledging
that this issue “is a matter of dispute that we . . . do not address”).
In sharp contrast to the absence of any Supreme Court cases in which
the “no set of circumstances” test has actually been adopted as the law, there
have been a significant number of post-Salerno cases in which the Court has
adjudicated facial challenges in a manner that was inconsistent with that
supposedly governing test. Our court, too, has done likewise on several
occasions.
For instance, the Supreme Court and this court have repeatedly
disregarded the “no set of circumstances” test in deciding facial challenges in
Establishment Clause cases, because it is inconsistent with the substantive
constitutional tests that apply in that area of constitutional law. Only a year
after Salerno was decided, the Supreme Court in Bowen v. Kendrick, 487 U.S.
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589 (1988), applied the Lemon test25 to decide a facial challenge to a statute,
and ignored the government’s argument that the Court should instead apply
Salerno to resolve the facial challenge. The four dissenting Justices expressly
agreed with this aspect of the majority’s reasoning because the “no set of
circumstances” test “is wholly incongruous with the analysis of an
Establishment Clause challenge under Lemon.” Id. at 627 n.1 (Blackmun, J.,
dissenting).
Following Bowen’s lead, the Fifth Circuit in Ingebretsen v. Jackson
Public School District, 88 F.3d 274 (5th Cir. 1996), sustained a facial
challenge to a school prayer law under the Establishment Clause, holding
that the law failed the Lemon test, the “coercion test,” and the “endorsement
test.” Id. at 278-80. Some circuit judges accurately pointed out that the
Ingebretsen panel’s reasoning and holding were contrary to the “no set of
circumstances” test: “It would be ludicrous to assert, and the panel did not
attempt to do so, that there is ‘no set of circumstances’ under which the
Mississippi prayer statute can be upheld.” Id. at 286 (Jones, J., dissenting
from denial of rehearing en banc) (quoting Salerno, 481 U.S. at 745). The
Supreme Court denied certiorari. 519 U.S. 965 (mem.).
Three years later, the Fifth Circuit again disregarded the “no set of
circumstances” test and sustained a facial challenge to a school district’s
policy regarding prayer in Doe v. Santa Fe Independent School District, 168
F.3d 806 (5th Cir. 1999). This time, the Supreme Court granted certiorari
and affirmed our court’s holding that the school policy at issue was facially
25
The Lemon test, which takes its name from Lemon v. Kurtzman, 403 U.S. 602 (1971),
is a three-part test for deciding whether a law violates the Establishment Clause. See Bowen,
487 U.S. at 602.
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unconstitutional. 530 U.S. 290, 316 (2000). (The policy “impose[d] on the
student body a majoritarian election on the issue of prayer” before football
games. Id.) The dissents in both the Supreme Court and the Fifth Circuit
criticized the majorities for not following the “no set of circumstances” test.
530 U.S. at 318 (Rehnquist, C.J., dissenting); 168 F.3d at 832 (Jolly, J.,
dissenting). Chief Justice Rehnquist’s dissent showed that it was possible to
imagine circumstances in which the school policy could survive an as-applied
challenge. For instance, “it is possible that the students might vote not to
have a pregame speaker, in which case there would be no threat of a
constitutional violation.” 530 U.S. at 321. Nonetheless, the six-Justice
Supreme Court majority declined to apply the “no set of circumstances” test
and held that the policy was facially unconstitutional. Id. at 316 (majority
opinion).
The reason that both the Supreme Court and this court rejected the “no
set of circumstances” test in Santa Fe, Bowen, and Ingebretsen is readily
apparent: the use of that test would have been incongruous with the
constitutional tests that courts normally use to decide whether a law violates
the Establishment Clause, including the Lemon test, the coercion test, and
the endorsement test, see Ingebretsen, 88 F.3d at 279. Those cases presented
essentially the same situation as the instant case: the “no set of
circumstances” test is incompatible with the test that actually applies here —
intermediate scrutiny — so the correct way to decide this case is to apply
intermediate scrutiny.
Those Establishment Clause cases are not the only ones in which the
Supreme Court has reached decisions that were incompatible with the “no set
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of circumstances” dictum. Another such case was Morales, in which the Court
sustained a facial challenge to a Chicago anti-loitering ordinance because it
was unconstitutionally vague and gave too much discretion to the police. See
527 U.S. at 51, 60-64 (majority opinion). Justice Scalia, in dissent, explained
that the majority’s reasoning and result were inconsistent with the “no set of
circumstances” test because it was possible to imagine a situation in which
the ordinance would have survived an as-applied challenge. See id. at 81-82
(Scalia, J., dissenting) (depicting a scenario out of West Side Story which,
under the “no set of circumstances” test, would be enough to “settle the
matter of respondents’ facial challenge to the ordinance’s vagueness”). In
Morales, just as in the aforementioned Establishment Clause cases, the
application of the “no set of circumstances” test would have been inconsistent
with the relevant substantive constitutional doctrine on which the majority
relied — namely, “the requirement that a legislature establish minimal
guidelines to govern law enforcement,” id. at 60 (majority opinion) (quoting
Kolender v. Lawson, 461 U.S. 352, 358 (1983)) (internal quotation marks
omitted). Justice Scalia’s “no set of circumstances” reasoning simply did not
answer the dispositive question: whether the ordinance was so vague that it
failed to give minimal guidelines to govern law enforcement personnel. The
majority therefore properly decided the case on the basis of vagueness and did
not apply the “no set of circumstances” dictum, which would have been
incompatible with that approach.
Another example of a case in which the Supreme Court’s reasoning and
result were contrary to the “no set of circumstances” dictum is Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), in
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which the Court held that a spousal notification requirement in a state law
regulating abortion was “an undue burden, and therefore invalid.” Id. at 895.
In dissent, Chief Justice Rehnquist accurately observed that the lead opinion
“appears to ignore” Salerno. Id. at 973 n.2 (Rehnquist, C.J., dissenting). He
explained that under the “no set of circumstances” test, the spousal
notification provision could not possibly be facially unconstitutional because
“the vast majority of wives seeking abortions notify and consult with their
husbands, and thus suffer no burden as a result of the provision.” Id. There
were any number of circumstances in which the notification provision would
have been valid as applied, but the Supreme Court nevertheless held that it
was facially unconstitutional. Many federal courts have recognized that the
“undue burden” test under Casey contradicts the “no set of circumstances”
test. See Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 368-69 (6th
Cir. 2006) (reviewing cases from nine other circuits). In short, the Supreme
Court in Casey did the same thing it did in Morales, Santa Fe, and Bowen: it
did not follow Salerno’s “no set of circumstances” dictum, and instead applied
the relevant substantive constitutional test — which, the plurality in Casey
decided, was the “undue burden” test.
The Supreme Court and our court have also disregarded the “no set of
circumstances” test when adjudicating facial challenges raising the very same
constitutional question that arises in this case: whether a content-neutral
restriction on the time, place, or manner of speech is narrowly tailored to
serve a significant governmental interest. The year after Salerno was
decided, the Court applied intermediate scrutiny and not the “no set of
circumstances” test in Frisby v. Schultz, 487 U.S 474 (1988). The majority
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held that the law at issue (an ordinance forbidding picketing in front of
residences) was narrowly tailored and was therefore facially constitutional.
Id. at 488. The Court supported its holding not by imagining a single
constitutionally valid application of the ordinance (which would be sufficient
to defeat a facial challenge under the “no set of circumstances” test), but by
considering the entire scope of the ordinance’s restriction on speech and
determining that it was narrowly tailored. See id. at 485-88.
Likewise, in Hill v. Colorado, 530 U.S. 703 (2000), the Supreme Court
rejected a facial challenge to a content-neutral restriction on the time, place,
and manner of speech (a state law restricting protests near health care
facilities). See id. at 708 (noting that this was a facial challenge). The
majority and the dissenters disagreed over whether the restriction was
narrowly tailored, but none of the Justices even raised the “no set of
circumstances” test. The majority held that the law was facially
constitutional because it was narrowly tailored, and did not employ the “no
set of circumstances” test. See id. at 725-30 (majority opinion). Justice
Scalia, in dissent, argued that the law was not narrowly tailored, and hence
was facially unconstitutional, because “with respect to those who are seeking
to enter or exit [health care] facilities, the statute does not protect them only
from speech that is so intimidating or threatening as to impede access.
Rather, it covers all unconsented-to approaches for the purpose of oral
protest, education, or counseling . . . .” Id. at 755 (Scalia, J., dissenting).
Thus, Justice Scalia believed that the law could have legitimately been
applied to speech that was “so intimidating or threatening as to impede
access” to health care facilities. Under the “no set of circumstances” test, this
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single imagined circumstance under which the law would have been valid as
applied would have been enough to uphold the facial constitutionality of the
challenged law. Yet Justice Scalia argued that it was facially
unconstitutional. Thus, in Hill, all nine Justices completely ignored the “no
set of circumstances” test, even though that test would have easily compelled
the conclusion that the challenged law was facially constitutional.
Furthermore, the Fifth Circuit has twice sustained facial challenges to
content-neutral time-place-manner restrictions, even though those
restrictions would plainly have been facially constitutional under the “no set
of circumstances” test. In Knowles v. City of Waco, 462 F.3d 430 (5th Cir.
2006), this court held that two municipal ordinances were facially
unconstitutional because they were not narrowly tailored to serve a
significant governmental interest. The ordinances forbade all “parades” and
“street activity” at particular times of day, and imposed a permit requirement
at all times. 462 F.3d at 431-32. The ordinances would have been facially
constitutional under the “no set of circumstances” test because it would have
been trivially easy for the court to imagine particular kinds of “parades” and
“street activities” on which the ordinances’ time restrictions and permit
requirement could validly be imposed. For example, a sizable parade with
floats and marching bands could have been subjected to a permit
requirement, and could have been prohibited from passing through a school
zone around the end of the school day. But this court properly disregarded
the “no set of circumstances” test and instead applied intermediate scrutiny,
holding that the ordinances were not narrowly tailored and were therefore
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facially unconstitutional. Id. at 431, 433 (facial challenge); id. at 437 (holding
both ordinances unconstitutional).
Just recently, in Service Employees International Union, Local 5 v. City
of Houston, 595 F.3d 588 (5th Cir. 2010), this court again sustained a facial
challenge to a content-neutral time-place-manner restriction even though the
“no set of circumstances” test would have required the opposite result. The
court held that an ordinance “confin[ing] downtown weekday parades to two
one-hour windows: 10:00 a.m. to 11:00 a.m. and 2:00 p.m. to 3:00 p.m.,” id. at
603, was facially unconstitutional. Id. at 604; see also id. at 595 (noting that
the plaintiffs had brought a facial challenge). If the court had applied the “no
set of circumstances” test, it would have had to hold that the ordinance was
facially constitutional because it is possible to imagine a single day on which
it might have been valid for the city to confine downtown parades to those two
one-hour windows — for instance, a weekday when some kind of festival was
scheduled to take place downtown between 11:00 a.m. and 2:00 p.m. But the
SEIU v. Houston court did not follow this kind of reasoning; rather, it
explained that the restriction was not narrowly tailored: “there is scant
connection between the restrictive parade hours and the putative
consequences that are the justifications for the Ordinance.” Id. at 604. Thus,
SEIU v. Houston and Knowles show that this circuit, like the Supreme Court,
has quite properly disregarded the supposed “no set of circumstances” test
when adjudicating facial challenges under intermediate scrutiny.
The collection of Supreme Court and Fifth Circuit cases discussed here
— Bowen, Ingebretsen, Santa Fe, Morales, Casey, Frisby, Hill, Knowles, and
SEIU v. Houston — demonstrates whatever authority the Salerno “no set of
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circumstances” dictum may have once had has not endured. The majority
opinion’s reliance on that dictum to decide this case is out of step with a large
and growing body of authoritative caselaw to the contrary.
* * *
To summarize the foregoing analysis, there are at least three different
lines of authority supporting the conclusion that the Salerno “no set of
circumstances” dictum does not provide an appropriate standard for
adjudicating this facial challenge. First, the “no set of circumstances” test
supposedly governs all facial challenges, but the Supreme Court in Citizens
United v. FEC has contradicted the erroneous idea that there is one single
test for all facial challenges; on the contrary, the facial/as-applied distinction
does not have any “automatic effect” on the disposition of a case. 130 S. Ct.
876, 893 (2010). Second, the “no set of circumstances” test is incompatible
with intermediate scrutiny because the two tests allocate the burden in
opposite ways, require the courts to focus on very different criteria, and
ultimately produce incompatible results; thus, by applying the “no set of
circumstances” test, the majority contravenes the numerous precedents (such
as Ward and Knowles) holding that intermediate scrutiny is the appropriate
constitutional test for the content-neutral time-place-manner restriction that
is at issue here. Third, the Supreme Court and this court have repeatedly
decided cases using reasoning and reaching results contrary to those required
by the “no set of circumstances” test, e.g., Santa Fe, Morales, Casey, and
Knowles. Therefore, considering all of the above, I believe the majority in this
case has erred by using the “no set of circumstances” test as the decisive
element in its reasoning.
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III. Application of Intermediate Scrutiny
In this case, the plaintiff has brought a constitutional challenge to
certain provisions of SLU’s policy on speech and assembly. These provisions
are content-neutral26 and regulate the time, place, and manner of speech.
Therefore, the test that determines their constitutional validity is the
intermediate scrutiny standard as defined in numerous cases such as Ward
and Knowles. To pass this test, a law must be narrowly tailored to serve a
significant government interest. The remainder of this dissent examines
whether the challenged speech restrictions — which require individuals and
small groups to apply seven days in advance for permission to speak in public;
require the disclosure of significant personal information from everyone who
plays any role in a speech event; and limit the speech of any individual or
group to two hours per seven days — are narrowly tailored to the significant
interests that the government has identified.
A. Our Time-Place-Manner Precedents
Our cases uniformly hold that the government must justify content-
neutral restrictions on the time, place, and manner of speech in a public
forum 27 by showing that they are narrowly tailored to serve a significant
26
The plaintiff’s appellate brief argues that the security fee provision is not content-
neutral. I do not address that issue here, because I agree with the majority’s holding that the
security fee provision is unconstitutional. The plaintiff acknowledges that the other provisions
he challenges are content-neutral.
27
As the majority opinion says, Maj. Op. 7, and as the defendants acknowledge, the
public, outdoor areas of the SLU campus are either a traditional public forum or a designated
public forum. There is no need to decide which of these two types of public forum is at issue
because “[t]he state's power ‘to restrict speakers’ access to [a designated] public forum is
subject to the same first amendment constraints that apply to traditional public forums.’”
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governmental interest. This is commonly referred to as intermediate
scrutiny. See Serv. Employees Int’l Union, Local 5 v. City of Houston, 595
F.3d 588, 596 (5th Cir. 2010); Knowles v. City of Waco, 462 F.3d 430, 433-34
(5th Cir. 2006); Beckerman v. City of Tupelo, Miss., 664 F.2d 502, 516 (5th
Cir. 1981). “A regulation ‘is narrowly tailored if it targets and eliminates no
more than the exact source of the “evil” it seeks to remedy.’” Knowles, 462
F.3d at 434 (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988)). In other
words, “[a] regulation is ‘narrowly tailored’ when it does not ‘burden
substantially more speech than is necessary to further the government’s
legitimate interests.’” Hays County Guardian v. Supple, 969 F.2d 111, 118
(5th Cir. 1992) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799
(1989)). “At a minimum, a regulation cannot be narrowly tailored unless the
cost to speech is ‘carefully calculated’ and the fit between the burden and the
state interest is ‘reasonable.’” Id. (quoting Bd. of Trustees of State Univ. of
N.Y. v. Fox, 492 U.S. 469, 481 (1989)).
“The government bears the burden of establishing that the regulations
are reasonable.” Id. That is, the government must identify the significant
state interests to which a challenged regulation is narrowly tailored, and
“show affirmatively that the[] restriction is narrowly tailored to protect the
identified interests.” Id. at 119.
This court’s method of analysis in Knowles exemplifies the usual and
proper way of applying intermediate scrutiny to a restriction on speech.
Knowles is on all fours with the instant case in every relevant respect: it
Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 345 (5th Cir. 2001) ((quoting Estiverne v. La.
State Bar Ass’n, 863 F.2d 371, 376 (5th Cir. 1989)).
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involved a challenge to content-neutral restrictions on speech and assembly
in a public forum. Moreover, the plaintiffs in Knowles brought purely facial
challenges, and the court did not reach the issue of overbreadth. 462 F.3d at
433. Thus, even assuming that the majority is correct in addressing only
Sonnier’s facial challenge, Knowles is indistinguishable from the present case.
In Knowles, the plaintiffs were anti-abortion protesters who sought to
“pray, display anti-abortion signs, distribute literature, and counsel clinic
clients on the public sidewalk outside an abortion clinic”; they brought suit
“challenging the facial constitutionality of two city ordinances that
threaten[ed] their ability” to do so. Id. at 431. This court began its analysis
by identifying the significant state interests that had been asserted by the
government: “Waco’s asserted interests in protecting school children and
citizens on public roads are generically significant.” Id. at 434. The court
then decided whether the two challenged ordinances were narrowly tailored
to the government’s asserted purposes. The court concluded that “the School
Zone ordinance is not narrowly tailored because the ordinance ‘sweeps far
more broadly than is necessary to further the city’s legitimate concern’ of
enhancing the safety and welfare of schoolchildren and others using Waco’s
public rights of way.” Id. at 435 (quoting Ward, 491 U.S. at 801)). It further
concluded that the other ordinance, the “Parade Ordinance,” was
unconstitutional because “ordinances requiring a permit for demonstrations
by a handful of people are not narrowly tailored to serve a significant
government interest.” Id. at 436. Knowles thus followed five other circuits 28
28
Berger v. City of Seattle, 569 F.3d 1029, 1039 (9th Cir. 2009) (en banc); Cox v. City of
Charleston, 416 F.3d 281, 286 (4th Cir. 2005); Am.-Arab Anti-Discrimination Comm. v. City
of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th
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in holding that laws requiring people to obtain permits for public speech and
assembly must contain exceptions for small groups and individuals. The
court held that the government had failed to carry its burden to show that its
restrictions on speech were narrowly tailored.29
Cir. 1996); Grossman v. City of Portland, 33 F.3d 1200, 1206-07 (9th Cir. 1994); Cmty. for
Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990).
29
The same method of analysis under intermediate scrutiny — examining whether the
government has shown a sufficiently close connection between its means and its ends — has
been followed in many other cases. See, e.g., SEIU v. Houston, 595 F.3d at 604 (“Houston has
barred downtown parades for all but two one-hour periods a day on weekdays. Its asserted
justification of preventing traffic congestion is arguably confined to the morning and evening
rush hours. . . . [T]here is scant connection between the restrictive parade hours and the
putative consequences that are the justifications for the Ordinance.”); Hays County Guardian,
969 F.2d at 123 (“We find the University’s educational goals sufficiently weighty . . . . We also
find that the University’s financial support for the student-run newspaper is a narrowly
tailored means of advancing these interests.”); Beckerman, 664 F.2d at 516 (“This ordinance
reaches more broadly than is reasonably necessary to protect legitimate state interests.”); see
also Frisby, 487 U.S. at 484-86 (first identifying the “significant government interest” served
by the challenged ordinance, and then explaining that the ordinance “is narrowly tailored” to
that interest); Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810
(1984) (upholding an ordinance that “curtails no more speech than is necessary to accomplish
its purpose”); United States v. Grace, 461 U.S. 171, 182-83 (1983) (considering a challenged
law’s apparent purpose as well as an additional justification proffered by the government, and
holding that the law did not “substantially” or “sufficiently” serve either purpose); Berger, 569
F.3d at 1041 (explaining that this standard requires a reasonable fit between the government’s
means and ends); Prime Media, Inc. v. City of Brentwood, Tenn., 398 F.3d 814, 821 (6th Cir.
2005) (upholding an ordinance because “[t]he fit between the City’s means and ends is a
reasonable one”); Chesapeake B&M, Inc. v. Harford County, Md., 58 F.3d 1005, 1013 (4th Cir.
1995) (“The ‘intermediate scrutiny’ analysis applicable to content-neutral restrictions on
speech . . . is concerned with the ends government can pursue, the means with which it can
pursue those ends, and the relationship between them.”).
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B. Application of Precedents
In determining the constitutionality of the challenged provisions of the
SLU speech policy,30 we must apply intermediate scrutiny, as exemplified by
Knowles. Thus, the government must (1) identify the significant and
legitimate government interests that it asserts as justifying its restrictions on
speech, and (2) demonstrate that the SLU policy’s speech restrictions are
narrowly tailored to further those government interests.
1. Identification of Government Interests
In cases like this one, in which speech restrictions at a state university
are at issue, the government’s legitimate interests undoubtedly include
protecting and furthering the university’s mission of educating its students.
Still, the government must justify its restrictions on speech by showing that
they are narrowly tailored to serve specific, legitimate government interests.
“First Amendment rights must be analyzed ‘in light of the special
characteristics of the school environment,’” as the Supreme Court stated in
Widmar v. Vincent, 454 U.S. 263, 268 n.5 (1981) (quoting Tinker v. Des
Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969)).31 “A university differs in
30
The challenged provisions are quoted in full in the majority opinion. Maj Op. 3-5
nn.1-4. The restrictions that will be addressed here are (1) the requirement that even
individuals and small groups must obtain advance permission to speak in public; (2) the
requirement that every person who has any role at all in a speech event must entrust various
personal information to SLU; (3) the limitation of speech to a maximum of two hours per seven
days; and (4) the requirement that would-be speakers must apply for permits seven days in
advance.
31
See also Hill v. Colorado, 530 U.S. 703, 728 (2000) (“[I]n determining whether a
statute is narrowly tailored, we have noted that ‘[w]e must, of course, take account of the place
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significant respects from public forums such as streets or parks or even
municipal theaters. A university’s mission is education, and decisions of [the
Supreme] Court have never denied a university’s authority to impose
reasonable regulations compatible with that mission upon the use of its
campus and facilities.” Id. Nonetheless, “[w]ith respect to persons entitled to
be there, [the Supreme Court’s] cases leave no doubt that the First
Amendment rights of speech and association extend to the campuses of state
universities.” Id. at 268-69.32 Therefore, as we have held in another case
involving a state university, “[t]he government bears the burden of
establishing that the regulations are reasonable.” Hays County Guardian v.
Supple, 969 F.2d 111, 118 (5th Cir. 1992).
In this case, the defendant government officials have done little to carry
their burden to “show affirmatively that [the restrictions are] narrowly
tailored to protect [the government’s] identified interests.” Id. at 119.
Indeed, at one point in their appellate brief, the defendants appear to be
declining to even attempt to do so: “In this case the specific significant State
interests of SLU were not in fact yet identified and remain to be determined
in the case in chief.” Appellees’ Br. 12. That is of course an incorrect
statement of the law, since the central issue in this appeal is the
constitutionality of SLU’s speech restrictions, which cannot be determined
to which the regulations apply in determining whether these restrictions burden more speech
than necessary.’ . . . For example, we have recognized the special governmental interests
surrounding schools, courthouses, polling places, and private homes.”) (footnotes omitted)
(quoting Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 772 (1994)).
32
The defendants have not argued that Sonnier was not “entitled to be there”; their
argument is only that the SLU speech policy, on its face and as applied to Sonnier, is
consistent with the First Amendment.
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without first identifying the legitimate interests that are asserted by the
government.
Nonetheless, the defendants’ brief does mention some government
interests. It states, “as a general principle, the government does have a
significant interest in preserving the campuses of public colleges and
universities for the use of students.” Appellees’ Br. 12 (quoting Justice for All
v. Faulkner, 410 F.3d 760, 770 (5th Cir. 2005)). In other words, “the
University has an interest in reserving [its] resources for University
community members.” Appellees’ Br. 15 (quoting Bowman v. White, 444 F.3d
967, 982 (8th Cir. 2006) (quoting ACLU Student Chapter — Univ. of Md.,
College Park v. Mote, 321 F. Supp. 2d 670, 681 (D. Md. 2004))). The
defendants also assert the need “to plan for exigencies such as crowd control
and insurance requirements.” Appellees’ Br. 15. They argue that “the
university as a government entity ha[s] a significant interest in protecting the
educational experience of the students in furtherance of its educational
mission insuring student safety in fostering diversity.” Appellees’ Br. 16.
And they reiterate that “SLU has a legitimate interest in maintaining
sufficient order on its campus so that it may conduct its primary mission of
providing an education to its students and preventing unnecessary disruption
of the academic learning environment.” Appellees’ Br. 21.
These asserted state interests may be fairly summarized as (1)
maintaining public safety, (2) preventing the disruption of education, (3)
conserving the university’s resources, and (4) fostering diversity. But the
defendants have offered little specific explanation of how any of the
challenged provisions of the SLU speech policy are narrowly tailored to serve
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any of these specific interests. For the reasons that follow, the defendants’
arguments fall short of demonstrating that the challenged restrictions on
speech are narrowly tailored to serve the identified interests.
2. Narrow Tailoring
a. Permit Requirement for Individuals and Small Groups
According to Sonnier’s uncontradicted affidavit, he and a handful of
friends simply stood in a pedestrian mall, with Sonnier holding up a sign, and
tried to engage in conversation with passersby. They were peaceable and did
not cause any disruption. Under the precedents of the Fifth Circuit and five
other circuits,33 the First Amendment forbids the government from requiring
individuals and small groups, like Sonnier and his friends, to obtain advance
permission for public speech and assembly. Such permit requirements are
not narrowly tailored to serve any legitimate government interest.
In Knowles, this court recognized that “[o]ther circuits have held, and
we concur, that ordinances requiring a permit for demonstrations by a
handful of people are not narrowly tailored to serve a significant government
interest.” 462 F.3d at 436.34 The permit requirement at issue in Knowles was
33
SEIU v. Houston, 595 F.3d at 603; Berger v. City of Seattle, 569 F.3d 1029, 1039-40
(9th Cir. 2009) (en banc); Knowles, 462 F.3d at 436; Cox v. City of Charleston, 416 F.3d 281,
286 (4th Cir. 2005); Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600,
608 (6th Cir. 2005); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996); Grossman v. City
of Portland, 33 F.3d 1200, 1206-07 (9th Cir. 1994); Cmty. for Creative Non-Violence v. Turner,
893 F.2d 1387, 1392 (D.C. Cir. 1990).
34
The court cited Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996); Grossman
v. City of Portland, 33 F.3d 1200, 1202-06 (9th Cir. 1994); and Community for Creative
Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990). Cases from the Fourth and
Sixth Circuits also support the same proposition. See supra note 30.
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held to be unconstitutional because it made no exception for small groups.
Five other circuits have held likewise. The SLU regulation that is at issue in
this case does exactly what those precedents forbid — it requires a handful of
people to obtain a permit before they can speak in a public place. It is
therefore unconstitutional.
There is a good reason why six circuits have agreed that such permit
requirements are unconstitutional: the great majority of individuals and
small groups exercising First Amendment rights do not block traffic or
disrupt classes,35 whereas the few who actually intend to be disruptive or to
interfere with the rights of others are very unlikely to seek advance
permission before doing so. Thus, a permit requirement that applies to small
groups and individuals can reasonably be expected to accomplish nothing
except burdening the speech of law-abiding, non-disruptive people. Such a
requirement therefore “burden[s] substantially more speech than is necessary
to further the government’s legitimate interests,” Ward, 491 U.S. at 799, and
is not narrowly tailored. By contrast, advance permit requirements that
apply only to larger groups or to speakers who draw large crowds are far more
justifiable, because such groups inherently create logistical problems like
traffic and noise that may need to be planned for in advance. Cf. Bowman v.
White, 444 F.3d 967, 981 (8th Cir. 2006). But because these justifications do
35
See Grayned v. City of Rockford, 408 U.S. 104, 119 (1972) (“[I]t would be highly
unusual if the classic expressive gesture of the solitary picket disrupts anything related to the
school, at least on a public sidewalk open to pedestrians.”); cf. SEIU v. Houston, 595 F.3d at
603 (recognizing that a “careful distinction” between small parades and larger ones “is in
accord with principles of narrow tailoring” because small parades have “lesser effects on safety
and congestion concerns”).
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not pertain to small groups, permit requirements that apply to small groups
are not narrowly tailored.
The majority opinion suggests that the requirement of an exception for
small groups, which is well established for municipal ordinances, should not
apply to public universities because “a university is less able than a city or
other entity with police powers to deal with a significant disruption on short
notice.” Maj. Op. 13 (quoting Bowman, 444 F.3d at 982). But this distinction
is factually inapposite here because SLU — like many public universities —
has a police force. Indeed, this case arose from an interaction between the
plaintiff and a campus police officer.
Moreover, the Fourth and Eighth Circuits have specifically rejected
arguments that in small municipalities with limited resources and small
police forces, public safety justifies requiring individuals and small groups to
obtain advance permission to exercise First Amendment rights. Cox v. City of
Charleston, 416 F.3d 281, 285 (4th Cir. 2005); Douglas v. Brownell, 88 F.3d
1511, 1523-24 (8th Cir. 1996). There are strong similarities between
campuses and municipalities, as this court recognized in Hays County
Guardian: “The campus’s function as the site of a community of full-time
residents makes it ‘a place where people may enjoy the open air or the
company of friends and neighbors in a relaxed environment,’ and suggests an
intended role more akin to a public street or park . . . .” 969 F.2d at 117
(quoting Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 651
(1981)). SLU is a sizable university with around 15,000 students; Douglas
involved a municipality with a slightly smaller total population, and Cox
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involved a municipality about one-third as large as SLU.36 The reasoning of
Cox and Douglas therefore applies to SLU with at least equal force.
The court in Cox explained that advance permit requirements are not
justified by the speculative possibility that a small group engaging in free
speech might do something disruptive: “the City fails to explain how a small
demonstration that may become inflammatory would tax its police force any
differently than, for example, a street fight between two individuals, so as to
justify requiring advance warning of all small demonstrations.” 416 F.3d at
285. The court also emphasized that small municipalities can do many other
things to meet their public safety goals. They “can enforce ordinances
prohibiting and punishing conduct that disturbs the peace, blocks the
sidewalks, or impedes the flow of traffic.” Id. at 286. They “can also pass
ordinances that ‘regulate only the volume, location, or duration of [protected]
expression,’ rather than subjecting all speech to a permit requirement.” Id.
(alteration in original) (quoting Cmty. for Creative Non-Violence v. Turner,
893 F.2d 1387, 1393 (D.C. Cir. 1990)). And they can enact permit
requirements that “do[] not burden small gatherings posing no threat to the
safety, order, and accessibility of streets and sidewalks.” Id. at 287. SLU,
like the small municipalities in Cox and Douglas, is free to take steps such as
36
Despite the name of the case, the City of Charleston was not a party to the appeal
in Cox v. City of Charleston. The appellee was a small municipality called Travelers Rest,
South Carolina, which had a population of 4100 in the year 2000. That is less than one-third
of the number of students enrolled at SLU. See http://travelersrestsc.com/community/
(Travelers Rest population); Appellees’ Br. 14 (SLU enrollment).
Douglas concerned the City of Clive, Iowa, whose current population is around 14,000.
See http://www.cityofclive.com/about-clive/. The court rejected the city’s argument that its
“limited resources and small police force” justified a five-day advance notice requirement for
a permit, two days shorter than the advance notice period that is at issue in this case. 88 F.3d
at 1523-24.
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these to further its legitimate interests in maintaining public safety and
preventing the disruption of education. Thus, the reasoning of Cox and
Douglas refutes the idea that the size of SLU’s police force might justify
imposing a permit requirement on individuals and small groups.
The majority opinion cites two cases in support of the view that public
universities can impose advance permit requirements on small groups. Maj.
Op. 14. However, neither case is actually relevant to that issue. In Bowman
v. White, 444 F.3d 967 (8th Cir. 2006), the plaintiff was a speaker who drew
crowds as large as 200 students. Id. at 981. The Eighth Circuit specifically
explained that any argument for a small-group exception would be inapposite
because the speaker regularly drew such large crowds.37 Thus, the Bowman
court had no occasion to even consider whether such a permit requirement
would be constitutional if imposed on an individual or a handful of people. If
anything, the opinion’s emphasis on the size of crowds suggests that the court
would have decided the case differently in the absence of Bowman’s
37
The Bowman court explained:
Bowman argues that the Thomas [v. Chicago Park District, 534 U.S. 316 (2002)]
and Grossman [v. City of Portland, 33 F.3d 1200 (9th Cir. 1994)] analyses are
not applicable to him because he is a single speaker. This argument fails
because regardless of whether Bowman is speaking alone or with others,
carrying a sign, or handing out literature, he has demonstrated the capacity to
attract a crowd and disrupt the unique educational environment. See [ACLU
Student Chapter — Univ. of Md., College Park v.] Mote, 321 F. Supp. 2d [670,]
679 [(D. Md. 2004)]. In fact, the majority of Bowman’s space reservation
requests listed an estimated attendance of between fifty and one hundred
people, analogous to the situation in Thomas. The actual attendance at his
events has run as high as two hundred people. Under these circumstances, the
permit requirement is justified to “coordinate multiple uses of limited space,”
“assure preservation of the [campus],” “prevent uses that are dangerous” to
students or other people, and “to assure financial accountability for damage”
caused by Bowman’s event. Thomas, 534 U.S. at 322 . . . .
Bowman, 444 F.3d at 981.
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“demonstrated . . . capacity to attract a crowd.” Id. at 981. There is no
evidence in the instant case to suggest that Sonnier draws sizable crowds
when he speaks; rather, his uncontradicted evidence is that he merely carries
signs and attempts to engage individual passersby in conversation.
The majority opinion also relies on Powe v. Miles, 407 F.2d 73 (2d Cir.
1968). In that case, a college took disciplinary action against students who
took part in a 16-person demonstration at an ROTC ceremony, in which the
demonstrators deliberately interfered with the audience’s view of the
ceremony. Id. at 77-78. The Second Circuit’s opinion explained that “the
suspensions in this case were not bottomed on a failure to furnish notice to
the administration” as required by the college’s 48-hour advance notice
requirement. Id. at 84. Rather, the demonstrators were suspended for
engaging in disruptive civil disobedience. Thus, the Powe case did not
actually involve a challenge to a policy requiring permission in advance for
speech or assembly; a fortiori, the case did not come close to raising the issue
of whether such a policy was required to contain an exception for individuals
or small groups.
The bottom line is simply that when the government requires every
individual or handful of people to seek advance permission before exercising
their First Amendment rights in public, it suppresses a far greater amount of
speech than is necessary to serve any legitimate governmental purpose.
Occasionally a particular protester may act in a way that interferes with a
university’s educational functions, but — as the Fourth Circuit said in Cox —
that is not really different from the occasional outbreak of a fight, an out-of-
control party, or another small disturbance. If the police can handle other
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small incidents of unruly behavior that happen without advance warning,
then they are equally capable of handling an occasional disruptive protester
or handful of demonstrators without advance warning. As this circuit and
five others have recognized, requiring individuals and small groups to seek
advance government permission before speaking in a public place is “too high
a cost” because it unnecessarily burdens a substantial amount of peaceful,
harmless, constitutionally protected speech. Cox, 416 F.3d at 285 (quoting
Turner, 893 F.2d at 1392). Under these precedents, SLU’s advance permit
requirement is unconstitutional.
b. Other Challenged Restrictions
The government has also failed to carry its burden to justify the other
challenged elements of the SLU speech policy: the requirement that
significant personal information be collected from every single participant in
an event; the provision limiting speech to no more than two hours per seven
days; and the provision requiring seven days’ advance notice to obtain a
permit.
The SLU speech policy imposes a rather sweeping requirement that
personal information, including social security numbers, dates of birth,
addresses and phone numbers, be collected from every single individual who
has any role at all in a speech event — including people who merely set up
equipment, hold signs, or pass out pamphlets. Such a broad requirement is
not necessary to further any legitimate interest that the government has
identified. It is likely that a much narrower version of this policy could be
justified under some circumstances: for instance, as the majority opinion
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states, it would be reasonable for planning purposes (at least for events of any
substantial size) for the university to want to know “the identity of speakers
on campus, where they intend to speak, and their purpose.” Maj. Op. 18.
Furthermore, the university has good reason to obtain identifying
information from at least one responsible person in order “to assure financial
accountability for damage caused by the event.” Thomas v. Chicago Park
Dist., 534 U.S. 316, 322 (2002). But neither of these considerations, nor any
others that have been identified, provide any justification for SLU’s much
broader and more burdensome requirement that everyone involved with an
event must entrust their social security numbers and other personally
identifying information to SLU officials. The majority opinion does not
specifically explain why this requirement should be considered narrowly
tailored. If there is no way to justify it as being narrowly tailored, then our
court ought to acknowledge that it is simply unconstitutional.
As for the regulation limiting speech to two hours per seven days, it
plainly restricts speech far more severely than is necessary to serve the
university’s legitimate interest in “fostering a diversity of viewpoints and
preventing one speaker from monopolizing space.” Maj. Op. 16. The same
goals could be accomplished just as successfully by a policy that would merely
give priority to speakers who had not already spoken for two hours in a given
week. Such a policy might have the effect of limiting everyone to two hours if
there was a week of extraordinarily high demand for speaking time — but,
unlike the policy that is at issue here, it would not purposelessly restrict
speakers to two hours even during weeks when there were no competing
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demands for space or time. The Eighth Circuit made the very same point
concerning a similar restriction in Bowman:
The University’s interest in fostering a diversity of viewpoints
and avoiding the monopolization of space serves a significant
interest. However, the five-day cap is not sufficiently narrowly
drawn to achieve that interest. The Policy as written does not by
itself foster more viewpoints; it merely limits Bowman’s speech.
If no one else wants to use the space after Bowman has used his
five permits, the space will go unused even if Bowman still wants
to use the space. A more narrowly tailored policy might grant
Bowman more than just five days per semester to speak if the
space is not being used, but give preference to other speakers who
have not already obtained five permits.
444 F.3d at 981-82. The SLU policy restricts a speaker’s speech to one two-
hour block per week (32 hours per semester), rather than the five eight-hour
blocks (40 hours) per semester in Bowman, id. at 981, but the Bowman
court’s logic applies equally well. The SLU policy, like the policy in Bowman,
“does not by itself foster more viewpoints; it merely limits [Sonnier’s] speech.”
Id. Because this restriction is no more effective at serving legitimate
government interests than a much less restrictive alternative policy would be,
it is not narrowly tailored.
Finally, the SLU speech policy requires all speakers to apply for
permits seven days in advance. The majority opinion defends this advance
notice requirement as being necessary to allow the university to prepare for
events involving large numbers of people, or to allow SLU administrative
staff to arrange their own schedules so that they can attend events. But
there is no reason why a few people holding signs on a street corner, or a
street preacher trying to converse with passersby about the Bible, would
require SLU to engage in anything close to seven days of logistical
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preparation. Nor is it realistic to suppose that the University would expend
its resources by having an administrator rearrange his or her schedule to
spend hours watching a small group or an individual street preacher, when
campus police officers can see that the peace is kept as part of their regular
jobs. If the small group of anti-abortion speakers in Knowles could not be
subjected to an advance permit requirement for security or logistical reasons,
then there is likewise nothing justifying the imposition of a permit
requirement on the speakers in this case.
The seven-day notice requirement that is challenged in this case might
perhaps be narrowly tailored if it applied only to large groups, but there
appears to be no case that even comes close to saying so; a seven-day notice
period is more than twice as long as the three-day notice period that was
upheld in Bowman for a speaker who drew as many as 200 people. Therefore,
I would avoid deciding whether a seven-day notice period would be too long to
be justifiable if it applied only to large groups. Instead, I would simply
conclude that it is unconstitutional as applied to individuals and small
groups.
* * *
In summary, I respectfully dissent from the majority’s decision not to
hold unconstitutional, as applied to the plaintiff’s speech, the governmental
restrictions on speech that are at issue in this case (except for the security fee
provision, which I agree is unconstitutional). I do so for three reasons: first,
this appeal properly involves an as-applied challenge as well as a facial one;
second, regardless of whether this suit involves a facial or as-applied
challenge or both, the constitutional test that must be applied to these speech
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restrictions is intermediate scrutiny, not the “no set of circumstances” test;
and finally, the government has failed to show that the challenged speech
restrictions are narrowly tailored to serve any legitimate governmental
interest.
78