Bloedorn v. Grube ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10168 JAN 28, 2011
JOHN LEY
________________________ CLERK
D.C. Docket No. 6:09-cv-00055-BAE-GRS
BENJAMIN BLOEDORN,
lllllllllllllllllllll Plaintiff - Appellant,
versus
DR. BRUCE GRUBE,
in his official capacity as President of Georgia Southern University,
DR. TERESA THOMPSON,
in her official capacity as Vice President of Student Affairs and Enrollment
Management for Georgia Southern University, et al.,
lllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 28, 2011)
Before HULL and MARCUS, Circuit Judges, and WHITTEMORE,* District Judge.
MARCUS, Circuit Judge:
Benjamin Bloedorn, a Christian evangelical preacher, appeals from the
denial of his motion for a preliminary injunction, which sought, on First
Amendment grounds, to enjoin Georgia Southern University (“GSU” or the
“University”) from enforcing its free speech policies regulating the access of
outside, non-sponsored speakers to the university campus and the permitting
scheme regulating the conduct of these speakers (collectively the “Speech
Policy”). On this preliminary record, Bloedorn has not shown that the district
court abused its discretion nor has he established a substantial likelihood of
success on the merits. Accordingly, we affirm.
I.
These are the essential facts adduced on the limited record presented to this
Court.
On March 28, 2008, Bloedorn, an itinerant preacher who frequently seeks
out busy areas on college campuses to broadcast his evangelical message for four
to six hours at a time on continuous days, along with several companions, arrived
at GSU. Georgia Southern University is a state-funded public university with over
*
Honorable James D. Whittemore, United States District Judge for the Middle District of
Florida, sitting by designation.
2
18,000 students located in Statesboro, Georgia. Bloedorn’s visit to this large
campus was sponsored neither by GSU nor by any affiliated University group or
organization.
Bloedorn began preaching from a heavily trafficked grassy knoll next to
GSU’s Russell Union Student Center and adjacent to the University’s Pedestrian
Mall and Rotunda. Bloedorn’s companions stood in the Pedestrian Mall. The
grassy knoll from which Bloedorn chose to speak was, as it turned out, GSU’s
designated Free Speech Area. Notably, this is the only designated area on campus
where outside, non-sponsored speakers drawn from the general public may engage
in expressive conduct.
Soon after Bloedorn began preaching, a University official approached
Bloedorn and informed him that, before he could use the Free Speech Area, he was
required to seek and obtain a permit from GSU. Bloedorn refused to comply with
the permitting process, deeming it an “affront” to his beliefs and arguing that it
violated his basic constitutional freedoms. Bloedorn resumed preaching. Again,
he was approached, this time by GSU Department of Public Safety Corporal
George Hemm, who explained that Bloedorn, as an outside, non-sponsored
speaker, could not speak on campus without a permit. Still again, Bloedorn
resumed preaching despite the officer’s warning that he could be arrested for
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trespass. At that point, Laura McCullough, a Public Safety Captain, arrived on the
scene and asked Bloedorn to complete and submit a permit request form. For the
third time, Bloedorn refused to apply for a permit, whereupon he was arrested by
Corporal Hemm for trespass.1
GSU’s Speech Policy distinguishes between speakers who are members of
the GSU community or are sponsored by community members and those who are
drawn from outside of the University community and who are not sponsored by a
University group or member. The Speech Policy begins this way:
It is the policy of Georgia Southern to permit the use of facilities by the
general community in a manner which does not compete with the
ongoing programs of the University. Speakers who are not sponsored
by a campus organization may request permission to initiate a gathering
on campus. . . .
If a non-campus speaker is approved, the University reserves the right
to assign space and designate time frequency and length of the proposed
activity. A typical length of time for a speaker is one and a half hours.
Frequency should be no more than once a month under normal
circumstances.
The Speech Policy also codifies the following “General Policies”:
A hearing may be called if it is determined that a speaker or speech will
constitute or create a substantial likelihood of material interference with
the normal orderly decisions and processes of the University or with the
requirements of appropriate discipline. A hearing committee composed
of two faculty members appointed by the President, two students
appointed by Student Government, and the Vice President of Student
1
The criminal trespass charge against Bloedorn was later dropped.
4
Affairs will convene to review the speakers [sic] application. If a
request is denied, the organization or the speaker may appeal to the
President of the University, whose decision will be final.
A hearing will be called if a speaker or speech advocates a call to action
for any of the following:
[1] [t]he overthrow of any government; [2] [t]he willful damage or
destruction of property; [3] [t]he disruption of the University’s regularly
scheduled functions; [4] [t]he physical harm, coercion, or intimidation
of the University’s faculty, staff or students; [5] [o]ther campus disorder
of a violent nature.
The permit request form for outside, non-sponsored speakers directs the
applicant to provide the following basic information: name; organization
represented, if applicable; permanent mailing address; telephone number; type of
requested activity; preferred date(s), hour(s), and duration of requested activity;
primary topic or purpose of requested activity; equipment, literature and sound
enhancement devices to be used; proof of liability insurance, if applicable; and a
signature confirming that the applicant has read and agreed to GSU’s policy
governing the use of campus facilities. The form is available both online and at
the Russell Union Student Center, and is exactly the same form that University
groups and members must use to reserve space on the campus. In assigning a date
and time to an outside, non-sponsored speaker, apparently it is GSU’s undisputed
practice to honor the speaker’s requested date and time so long as the space is not
already reserved by another speaker. Any time an outside, non-sponsored speaker
5
reserves the Free Speech Area, the University’s Department of Public Safety is
notified, and two public safety officers are assigned to maintain security
throughout the duration of the event. From 2006 through August 2009, six
outside, non-sponsored speakers completed permit requests for the Free Speech
Area, and all six requests were granted.
Pursuant to the terms of the Speech Policy, all outside, non-sponsored
speakers (like Bloedorn) may speak only in the designated Free Speech Area after
receiving a permit. Throughout the academic year, this prime campus location is
utilized by GSU’s more than 18,000 students, as well as by University-sponsored
programs and by outside, non-sponsored speakers. GSU’s Assistant Director for
Facilities Susan Nelson explained the primacy of the location this way:
The Free Speech area is located in a grassy area outside of the
Russell Union Building and is in very close proximity to the Rotunda.
The area has very heavy student traffic, including traffic for eating
facilities and a bus stop for the Georgia Southern University bus service.
During the academic year, the Free Speech area and Rotunda are
heavily utilized by university students and/or for university programs.
Students and university personnel may reserve space in the Rotunda for
any number of purposes and events. During the academic year, this area
as a whole is in use five out of seven days a week.
Undeniably, the Free Speech Area is situated at the crossroads of the University.
Indeed, as Bloedorn himself recognized, the Free Speech Area is “a focal point of
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student activity,” and its surrounding areas “are excellent locations for [his]
message.”
More than a year after he was arrested and removed from the campus, on
July 13, 2009, Bloedorn commenced this civil rights action in federal district
court, pursuant to 42 U.S.C. §§ 1983 and 1988, against several employees of GSU,
including the President of the University, the Vice President for Student Affairs,
the Facilities Use Coordinator, the Director of the Public Safety Department, and a
Public Safety Corporal. Bloedorn claims that the Speech Policy deprived him of
his rights to free speech and due process, as well as the right to be free from
unreasonable seizure. Bloedorn says that he has been unable to return to the
campus to speak because he is fearful of re-arrest. In his complaint, Bloedorn
elaborates that ever since the arrest, he has wanted to return to the campus to speak
with students. He argues that the University’s Speech Policy violates his
expressive rights in four discrete ways: (1) by prohibiting outside, non-sponsored
speakers from engaging in expressive conduct on the campus outside of the Free
Speech Area; (2) by requiring an outside, non-sponsored speaker to apply for a
permit 48 hours in advance; (3) by requiring the outside speaker to disclose basic
contact information on the permit request form; and (4) by restricting the speech of
an outside, non-sponsored speaker to one-and-one-half hours, once per month.
7
On November 24, 2009, a district judge in the Southern District of Georgia
denied Bloedorn’s motion for a preliminary injunction. The district court,
evaluating the University campus as a whole, concluded that the entire campus
was a “limited public forum” and, as a result, analyzed all of GSU’s time, place,
and manner restrictions on outside, non-sponsored speakers only for viewpoint
neutrality and reasonableness. Under this rubric, it determined that Bloedorn
could not show a substantial likelihood of success on any of his claims; because
Bloedorn had not demonstrated a substantial likelihood of success on the merits,
the court did not address any of the remaining requirements for a preliminary
injunction. Finally, the district court did not address Bloedorn’s claim that the
University’s prohibition on expressive conduct by an outside, non-sponsored
speaker anywhere on the campus, except the designated Free Speech Area,
violated the Constitution because Bloedorn lacked standing to raise this claim.
This interlocutory appeal followed.
II.
At the outset, we are required to examine whether Bloedorn has Article III
standing to bring these claims. Fla. Family Planning Council v. Freeman, 561
F.3d 1246, 1253 (11th Cir. 2009). All of the parties agree that Bloedorn bears the
8
ultimate burden of establishing standing, and that to do so requires him to show
that:
(1) the plaintiff . . . suffered an injury in fact -- an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical; (2) there must be a causal
connection between the injury and the conduct complained of -- the
injury has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third
party not before the court; and (3) it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Id. (internal quotation marks omitted). Although Bloedorn did not seek a permit
from the University and did not attempt to speak anywhere on the campus other
than at the Free Speech Area, he has standing to pursue his claims concerning all
of the restrictions GSU has placed on outside, non-sponsored speakers.
In the first place, Bloedorn did suffer an injury in fact that is both concrete
and imminent with respect to his ability to speak throughout the GSU campus.
See id. In determining whether an injury is imminent, the law “requires only that
the anticipated injury occur within some fixed period of time in the future.
Immediacy, in this context, means reasonably fixed and specific in time and not
too far off.” Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch.
Bd., 557 F.3d 1177, 1193-94 (11th Cir. 2009) (internal quotation marks,
alterations, and citation omitted); see also Pittman v. Cole, 267 F.3d 1269, 1283
(11th Cir. 2001) (“[T]he injury requirement is most loosely applied -- particularly
9
in terms of how directly the injury must result from the challenged governmental
action -- where First Amendment rights are involved, because of the fear that free
speech will be chilled even before the law, regulation, or policy is enforced.”)
(internal quotation marks omitted). Moreover, a plaintiff need not expose himself
to enforcement of a law to challenge it in the First Amendment context; instead,
“an actual injury can exist when the plaintiff is chilled from exercising her right to
free expression or forgoes expression in order to avoid enforcement
consequences.” Pittman, 267 F.3d at 1283 (internal quotation marks omitted).
But, in order to establish standing, the plaintiff must show that he has an
unambiguous intention at a reasonably foreseeable time to engage in a course of
conduct arguably affected with a constitutional interest, but proscribed by a statute
or rule, and that there is a credible threat of prosecution. Id.As an outside, non-sponsored speaker, Bloedorn attempted to speak on the
campus, without knowledge that he was coincidentally standing in the Free Speech
Area, and was turned away from the campus as a whole, because he refused to
comply with the University’s Speech Policy. He was arrested after refusing to
apply for a permit and refusing to comply otherwise with GSU’s Speech Policy.
Bloedorn wanted to speak at various locations on the GSU campus without
obtaining a permit or otherwise having his expressive conduct limited, and the
10
Speech Policy prevented him from so doing. Moreover, Bloedorn has averred that
he intends to return and proselytize on the GSU campus, but he has not done so
because of his fear of re-arrest. On this record, there is every indication that GSU
would re-arrest Bloedorn if he returned to campus to speak in the Free Speech
Area without a permit or, for that matter, to speak anywhere else on campus. This
is enough to establish an injury in fact that is actual, concrete, and particularized.
Also, there is a causal connection between Bloedorn’s injuries -- his
inability to speak in the open accessible areas of GSU and in the Free Speech Area
without complying with the permit requirements -- and GSU’s Speech Policy. See
Fla. Family Planning Council, 561 F.3d at 1253. As Bloedorn explained in his
affidavit, “[i]f not for the speech policy, and the actions of [GSU], I would return
to the open accessible areas of GSU and share my message.” There is nothing else
preventing Bloedorn from spreading his message on the campus. Finally, there
can be little doubt that each of Bloedorn’s complained of injuries could be
redressed by a favorable decision in the case. See id.In short, Bloedorn has standing to pursue his claims.
III.
We begin our analysis with the unremarkable observation that a preliminary
injunction in advance of trial is an extraordinary remedy. United States v.
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Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983). The purpose of the
preliminary injunction is to preserve the positions of the parties as best we can
until a trial on the merits may be held. Univ. of Tex. v. Camenisch, 451 U.S. 390,
395 (1981). In order to prevail on an application for a preliminary injunction, the
plaintiff must clearly establish all of the following requirements:
(1) . . . a substantial likelihood of success on the merits; (2) irreparable
injury will be suffered unless the injunction issues; (3) the threatened
injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing party; and (4) if issued, the
injunction would not be adverse to the public interest.
Am. Civil Liberties Union of Fla., Inc., 557 F.3d at 1198 (internal quotation marks
omitted). If Bloedorn is unable to show a substantial likelihood of success on the
merits, we need not consider the other requirements. See Pittman, 267 F.3d at
1292.
We review the district court’s denial of a preliminary injunction generally
for an abuse of discretion, but we examine the legal conclusions on which the
denial is based de novo. Am. Civil Liberties Union of Fla., Inc., 557 F.3d at 1198.
Moreover, we review the core constitutional facts de novo, unlike historical facts,
which are measured only for clear error. Id. The difference between historical and
constitutional facts has been framed this way:
[O]rdinary historical facts. . . . are facts about the who, what, where,
when, and how of the controversy . . . .
12
By contrast, under the assumptions about the law that we have
made for purposes of deciding this case, we must determine the “why”
facts. Those are the core constitutional facts that involve the reasons the
[defendant] took the challenged action . . . .
We must find the disputed “why” facts -- the motive facts --
ourselves, as though the district court had never made any findings
about them.
Id. at 1206-07.
It is by now clear that the First Amendment does not guarantee access to
property just because it is owned by the government. Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 803 (1985). Rather, we are required to
examine the policy and practice of the government to determine whether it
intended to open a specific place for public discourse. See Ark. Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 677 (1998). Thus, by example, the mere fact
that the “Justice Department in Washington has a large auditorium, with a stage,
and so would be a suitable venue for a theatrical production” does not compel the
conclusion that the First Amendment requires the Justice Department to make that
space available to the public for that purpose. Gilles v. Blanchard, 477 F.3d 466,
469-70 (7th Cir. 2007). By the same token, the fact that a University may make a
discrete location on a sprawling campus available for public discourse does not
compel the conclusion that it must open the doors of all of its facilities for public
discourse.
13
As the Supreme Court explained almost thirty years ago:
A university differs in specific respects from public forums such as
streets or parks or even municipal theaters. A university’s mission is
education, and decisions of this Court have never denied a university’s
authority to impose reasonable regulations compatible with that mission
upon the use of its campus and facilities. We have not held, for
example, 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.
Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981).
In order to help answer whether government property may be utilized for an
expressive purpose by the general public, the courts have resorted to classifying
the character of the property. When a regulation in some way limits or bars the
use of government property as a forum for expression, we begin our analysis by
asking about the nature of the government property involved. United States v.
Frandsen, 212 F.3d 1231, 1237 (11th Cir. 2000). Thus, the Supreme Court has
broadly discerned three distinct (although not airtight) categories of government
property for First Amendment purposes: traditional public fora, designated public
fora, and limited public fora. See, e.g., Christian Legal Soc’y Chapter of the Univ.
of Cal., Hastings College of the Law v. Martinez, -- U.S. --, 130 S. Ct. 2971, 2984
n.11 (2010); Pleasant Grove City v. Summum, -- U.S. --, 129 S. Ct. 1125, 1132
(2009). And, the degree of scrutiny we place on a government’s restraint of
speech is largely governed by the kind of forum the government is attempting to
14
regulate. This is so because “the First Amendment does not guarantee the right to
communicate one’s views at all times and places or in any manner that may be
desired.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640,
647 (1981). Thus, “[t]he Government, like any private landowner, may preserve
the property under its control for the use to which it is lawfully dedicated.”
Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189, 1201 (11th Cir. 1991) (internal
quotation marks omitted). It is equally clear, however, that state-funded
universities, such as GSU, are government property, “not enclaves immune from
the sweep of the First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972).
Traditional public fora are public areas such as streets and parks that, since
“time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.” Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (internal quotation marks
omitted). Thus, a time, place, and manner restriction can be placed on a traditional
public forum only if it is content neutral, narrowly tailored to achieve a significant
government interest, and “leave[s] open ample alternative channels of
communication.” Id.A designated public forum is “government property that has not
traditionally been regarded as a public forum” but that has been “intentionally
15
opened up for that purpose.” Christian Legal Soc’y, 130 S. Ct. at 2984 n.11
(quoting Pleasant Grove City, 129 S. Ct. at 1132). To create a designated public
forum, the government must intentionally open up a location or communication
channel for use by the public at large. Cornelius, 473 U.S. at 802; see also Forbes,
523 U.S. at 677 (“The government does not create a designated public forum by
inaction or by permitting limited discourse, but only by intentionally opening a
nontraditional public forum for public discourse.”) (internal quotation marks and
alteration omitted). And, “a school creates a designated public forum only when
school authorities have by policy or practice opened those facilities for
indiscriminate use by the general public.” Bannon v. Sch. Dist. of Palm Beach
Cnty., 387 F.3d 1208, 1213 (11th Cir. 2004) (internal quotation marks omitted).
Just as with a traditional public forum, a time, place, and manner restriction can be
placed on a designated public forum only if it is content neutral, narrowly tailored
to achieve a significant government interest, and “leave[s] open ample alternative
channels of communication.” Perry Educ. Ass’n, 460 U.S. at 45-46.
Finally, in the Supreme Court’s nomenclature, a limited public forum may
be established when the government limits its property “to use by certain groups or
dedicate[s it] solely to the discussion of certain subjects.” Christian Legal Soc’y,
130 S. Ct. at 2984 n.11 (quoting Pleasant Grove City, 129 S. Ct. at 1132). Any
16
restrictions made on expressive activity in a limited public forum only must be
reasonable and viewpoint neutral. Id. at 2984. Reasonableness in this context
“must be assessed in the light of the purpose of the forum and all the surrounding
circumstances.” Cornelius, 473 U.S. at 809. Moreover, the restriction “need not
be the most reasonable or the only reasonable limitation.” Id. at 808. In fact,
“[i]mplicit in the concept” of a government forum that has not been opened widely
to the general public is the government’s “right to make distinctions in access on
the basis of . . . speaker identity.” Perry Educ. Ass’n, 460 U.S. at 49. Thus, “a
speaker may be excluded from” a limited public forum “if he is not a member of
the class of speakers for whose especial benefit the forum was created.”
Cornelius, 473 U.S. at 806; see also Good News Club v. Milford Cent. Sch., 533
U.S. 98, 106 (2001); Rosenberger v. Rector & Visitors of the Univ. of Va., 515
U.S. 819, 829 (1995).
In applying this nomenclature here, we cannot consider the GSU campus as
a singular whole. Instead, as the Supreme Court has instructed in Cornelius, the
scope of the relevant forum is defined by “the access sought by the speaker,”
meaning that if a speaker seeks access only to a limited area of government
property, we must tailor our approach to “the perimeters of a forum within the
confines of the government property.” 473 U.S. at 801. A university campus will
17
surely contain a wide variety of fora on its grounds. See Bowman v. White, 444
F.3d 967, 976-77 (8th Cir. 2006) (“[L]abeling the campus as one single type of
forum is an impossible, futile task.”); Justice for All v. Faulkner, 410 F.3d 760,
766 (5th Cir. 2005) (“The Supreme Court’s forum analysis jurisprudence does not
require us to choose between the polar extremes of treating an entire university
campus as a forum designated for all types of speech by all speakers, or,
alternatively, as a limited forum where any reasonable restriction on speech must
be upheld.”). Plainly, Georgia Southern University’s campus contains a multitude
of facilities and land -- including classrooms, lecture halls, private offices,
laboratories, dormitories, a performing arts center, sports facilities, open spaces, a
botanical garden, a planetarium, a center for wildlife education, and a museum.
Thus, any attempt to affix a single label on so large and diverse a campus likely
would render the forum analysis meaningless.
Today we are called on to examine separately two distinct areas of the GSU
campus where Bloedorn has sought to speak: the Free Speech Area, where outside,
non-sponsored members of the general public are allowed to speak; and GSU’s
sidewalks, Pedestrian Mall, and Rotunda, where only GSU-affiliated expressive
conduct is permitted. Our focus remains on GSU’s intentions in establishing and
maintaining its property. See Cornelius, 473 U.S. at 802. Thus, we look first to
18
the policy and practice of the University and to the nature of the property and its
compatibility with expressive activity. See id.A. Sidewalks, Pedestrian Mall, and Rotunda
Bloedorn claims that GSU should be preliminarily enjoined from enforcing
its absolute ban on all expressive activity by outside, non-sponsored speakers on
the University’s sidewalks or its Pedestrian Mall, and in its Rotunda. We are
unpersuaded.
As we see it, each of these campus sites falls into the category of a limited
public forum. Again, a state-funded university is not a traditional public forum,
Widmar, 454 U.S. at 267 n.5, and GSU has expressed no intention to open these
areas to the general public for expressive conduct. The University has limited
these areas only for use by a discrete group of people -- the GSU community; its
students, faculty, and employees; and their sponsored guests. See Christian Legal
Soc’y, 130 S. Ct. at 2984 n.11 (explaining that a limited public forum is
established when the government opens “property ‘limited to use by certain groups
or dedicated solely to the discussion of certain subjects’”) (quoting Pleasant Grove
City, 129 S. Ct. at 1132)); ACLU v. Mote, 423 F.3d 438, 444-45 (4th Cir. 2005).
This is precisely the definition of a limited public forum.
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Finally, the University is under no obligation to open its campus to outside,
non-sponsored speakers; the First Amendment does not guarantee access to
property for speech activities simply because the property is government-owned.
Cornelius, 473 U.S. at 803. Necessarily then, there is no requirement “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.” Widmar, 454 U.S. at 267 n.5 (emphasis added).
Contrary to Bloedorn’s suggestion, it is of lesser significance that the GSU
sidewalks and Pedestrian Mall physically resemble municipal sidewalks and
public parks. The physical characteristics of the property alone cannot dictate
forum analysis. United States v. Kokinda, 497 U.S. 720, 727 (1990). “Publicly
owned or operated property does not become a ‘public forum’ simply because
members of the public are permitted to come and go at will.” United States v.
Grace, 461 U.S. 171, 177 (1983). Instead, we look to the traditional uses made of
the property, the government’s intent and policy concerning the usage, and the
presence of any special characteristics. See Greer v. Spock, 424 U.S. 828, 837-38
(1976) (discussing the unique nature of military bases and the fact that these
circumstances must be taken into consideration); Tinker v. Des Moines Indep.
20
Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (noting the “special characteristics of
the school environment”).
Thus, by way of example, even though highway rest areas and municipal
parks often are physically identical, we have found that a highway rest area, unlike
a municipal park, is not a public forum precisely because “the government did not
intend to open the forum to the same panoply of activity permitted in” municipal
parks. Sentinel Commc’ns Co., 936 F.2d at 1204. Similarly, in Greer, the
Supreme Court found that, even though a military base permitted free civilian
access to certain unrestricted areas, the base was not thereby transformed into a
public forum; the presence of sidewalks and streets within the base did not change
that determination. 424 U.S. at 830, 835-38. And, in Kokinda, the Supreme Court
found that a postal sidewalk -- a sidewalk running between the parking lot and the
post office -- was not a traditional public forum because, although it was identical
in appearance to the nearby municipal sidewalk, it was not constructed “to
facilitate the daily commerce and life of the neighborhood or city,” and it was “not
expressly dedicated . . . to any expressive activity” by postal service regulations.
497 U.S. at 727-28, 730. It is immaterial that, inevitably, some expressive conduct
may occur in the forum because the law is clear that “the government does not
create a public forum by permitting limited discourse, but only by intentionally
21
opening a nontraditional forum for public discourse,” id. at 730 (internal quotation
marks and alterations omitted), and that the occurrence of expressive activity “in
the context of the forum created does not imply that the forum thereby becomes a
public forum for First Amendment purposes,” Cornelius, 473 U.S. at 805.
Even though GSU’s campus possesses many of the characteristics of a
public forum -- including open sidewalks, streets, and pedestrian malls -- it differs
in many important ways from public streets or parks. See Widmar, 454 U.S. at267 n.5. Perhaps most important, the purpose of a university is strikingly different
from that of a public park. Its essential function is not to provide a forum for
general public expression and assembly; rather, the university campus is an
enclave created for the pursuit of higher learning by its admitted and registered
students and by its faculty.
Nor is this case like Grace, where the Supreme Court determined that the
sidewalks comprising the outer edges of the property of the United States Supreme
Court were indistinguishable from other public sidewalks in Washington, D.C.,
and, thus, constituted traditional public fora. 461 U.S. at 179-80. Here, the
sidewalks, Pedestrian Mall, and Rotunda are all contained inside of the GSU
campus. All of the University’s entrances are identified with large blue signs and
22
brick pillars, all of the buildings are identified with large blue signs, and all of its
parking lots have signs restricting their use to GSU community members.2
B. Free Speech Area
On this limited preliminary injunction record, we conclude that the Free
Speech Area essentially falls into the category of a designated public forum. The
University’s Speech Policy, which broadly allows expressive conduct both by
GSU-affiliated individuals and groups and non-sponsored outsiders alike in the
Free Speech Area, suggests strongly that GSU has intentionally opened this
specific and limited area of the campus “for public discourse.” Forbes, 523 U.S. at
677 (internal quotation marks omitted). GSU has in no way limited this property
to use by a specific category of group or speaker, nor has it limited discussion to
certain topics or entirely prohibited expressive conduct on the premises. See
Christian Legal Soc’y, 130 S. Ct. at 2984 n.11; Gay Lesbian Bisexual Alliance v.
Pryor, 110 F.3d 1543, 1548 (11th Cir. 1997). Rather, the University has
intentionally opened this limited space at the crossroads of the campus to its
student body and to the general public without any restrictions on content. In
short, because the Free Speech Area appears to have most of the essential
2
The appellant has not presented any evidence supporting the claim that the district court
erred in failing to analyze separately interior sidewalks falling within the geographic boundaries
of the GSU campus and perimeter sidewalks on Statesboro’s public streets. We, therefore, have
no occasion to draw any such distinction on this limited record.
23
characteristics of a designated public forum, any time, place, and manner
restrictions placed on its use must be content neutral, narrowly drawn to achieve a
significant government interest, and leave open ample alternative channels for
communication. Perry Educ. Ass’n, 460 U.S. at 45-46; see also Bowman, 444
F.3d at 979.
IV.
Having characterized the nature of the University’s property at issue, we
turn to Bloedorn’s specific challenges to its Speech Policy. First, appellant claims
that the University has impermissibly banned him from speaking on GSU’s
sidewalks and Pedestrian Mall and in the University’s Rotunda. Again, we are
unpersuaded.
In analyzing the constitutional validity of GSU’s Speech Policy, we are
mindful of the Supreme Court’s recent words:
Our inquiry is shaped by the educational context in which it arises: First
Amendment rights, we have observed, must be analyzed in light of the
special characteristics of the school environment. This Court is the final
arbiter of the question whether a public university has exceeded
constitutional constraints, and we owe no deference to universities when
we consider that question. Cognizant that judges lack the on-the-ground
expertise and experience of school administrators, however, we have
cautioned courts in various contexts to resist substituting their own
notions of sound educational policy for those of the school authorities
which they review.
24
Christian Legal Soc’y, 130 S. Ct. at 2988 (internal quotation marks, alteration, and
citations omitted).
Because the University’s sidewalks, Pedestrian Mall, and Rotunda are
limited public fora, any time, place, and manner restrictions made on expressive
activity need only be viewpoint neutral and reasonable; and the restriction need
not “be the most reasonable or the only reasonable limitation.” Cornelius, 473
U.S. at 808. The regulation is constitutional so long as it is “reasonable in light of
the purpose which the forum at issue serves.” Perry Educ. Ass’n, 460 U.S. at 49.
The GSU campus is government property dedicated to education and
learning by its accepted and registered students, as well as by its faculty and staff.
“[T]he State, no less than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully dedicated.” U.S.
Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129-30 (1981)
(internal quotation marks omitted). Indeed, implicit in the idea that a government
forum has not been opened widely and intentionally to the general public is the
government’s right to draw distinctions in access based on a speaker’s identity.
Perry Educ. Ass’n, 460 U.S. at 49. Thus, “a speaker may be excluded from” a
limited public forum “if he is not a member of the class of speakers for whose
25
especial benefit the forum was created.” Cornelius, 473 U.S. at 806; see also
Good News Club, 533 U.S. at 106.
Plainly, Bloedorn is not “a member of the class of speakers for whose
especial benefit the forum was created,” Cornelius, 473 U.S. at 806, so he may be
constitutionally restricted from undertaking expressive conduct on the
University’s sidewalks or its Pedestrian Mall or at its Rotunda. Nor, on this
limited record, can there be any doubt that GSU’s Speech Policy is both viewpoint
neutral and reasonable. There is no record evidence suggesting (nor has Bloedorn
even alleged) that the ban on outside, non-sponsored speakers in these areas is
viewpoint-based; it applies equally to all outside, non-sponsored speakers. Nor is
there any record evidence even remotely suggesting that the University has ever
made any exception to this policy. Moreover, the policy is a reasonable one. It
appears to further GSU’s interest in preserving its limited facilities and resources
for its more than 18,000 students, its faculty, and its employees. We add that GSU
has not denied outside, non-sponsored speakers from all access to its campus; the
University has only required them to speak in a designated Free Speech Area
located at the crossroads of one of the most highly trafficked areas of campus.
And, an outside speaker still may speak on the Pedestrian Mall or in the Rotunda if
he finds a GSU-affiliated sponsor. GSU has the right to preserve its campus for its
26
intended purpose, and its method of doing so is both viewpoint neutral and
reasonable.
In short, on this preliminary record, we cannot say that Bloedorn has clearly
established a substantial likelihood of success as to this claim. See Am. Civil
Liberties Union of Fla., Inc., 557 F.3d at 1198 (requiring the movant for a
preliminary injunction to “clearly establish[]” that there is “a substantial likelihood
of success on the merits”).
V.
Bloedorn also challenges several of the time, place, and manner restrictions
contained in the University’s permitting scheme. But, on the record now before
us, Bloedorn has not shown a substantial likelihood of success on the merits on
any of these claims. The University’s regime appears to be content neutral,
narrowly tailored to achieve a significant government interest, and leaves open
ample alternative channels for communication.
A. Content Neutral
To begin with, Bloedorn has not established that the permitting scheme
discriminates based on content. Moreover, there is little indication that the
University’s Speech Policy or its practices have afforded its officials unbridled
discretion to assign the location, the time, or the length of the permits.
27
The Speech Policy is content neutral on its face. It does not discriminate in
any way based on who the speaker may be or on the nature of the topic the speaker
wishes to address. All outside, non-sponsored speakers must comply in the same
way with the policy by first obtaining a permit to use the designated Free Speech
Area. Indeed, Bloedorn has never even suggested that the Speech Policy’s terms
allow GSU to discriminate against outside, non-sponsored speakers based on
content.
Instead, Bloedorn seems to argue that the University’s permitting scheme,
despite its content neutral language, is, in fact, content based because it reposes in
its officials broad discretion to covertly discriminate based on content. Our law
has long established that a permitting scheme would be content discriminatory,
and thus amount to an unconstitutional prior restraint on speech, if the government
exercised unbridled discretion to limit access to a particular public forum. Cooper
v. Dillon, 403 F.3d 1208, 1215 (11th Cir. 2005); Burk v. Augusta-Richmond
Cnty., 365 F.3d 1247, 1256 (11th Cir. 2004) (“Even a facially content-neutral
time, place, and manner regulation may not vest public officials with unbridled
discretion over permitting decisions.”); Frandsen, 212 F.3d at 1236-37 (finding an
unconstitutional prior restraint where a National Park Service licensing scheme
gave a park official an unlimited time frame in which to grant or deny permits to
28
protest in the park). The infirmity flowing from “unbridled discretion” is that it
allows the government official to reject or limit the permit application based on
improper content based considerations. Thomas v. Chicago Park Dist., 534 U.S.
316, 323 (2002) (“Where the licensing official enjoys unduly broad discretion in
determining whether to grant or deny a permit, there is a risk that he will favor or
disfavor speech based on its content.”).
In determining whether a permit policy is content based because it has
granted an official “unbridled discretion,” we examine first “the purpose behind
the regulation.” Cooper, 403 F.3d at 1215 (internal quotation marks omitted).
And, “[a]s a general rule, laws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed are content based.”
Id. (internal quotation marks omitted). To avoid unbridled discretion, the permit
requirements should contain narrowly drawn, reasonable, and definite standards to
guide the official’s decision. Burk, 365 F.3d at 1256.
Thus, for example, in Burk, a panel of this Court found that a permit policy
unlawfully granted unbridled discretion where it required the applicant to provide
“an indemnification agreement in a form satisfactory to the attorney” for the city,
because it provided no guidance about the meaning of the term “satisfactory.” 365
F.3d at 1256 (internal quotation marks omitted). And, in Frandsen, we found that
29
a permitting scheme provided the official with unbridled discretion because it did
not enumerate a time period in which the official had to rule on the permit
application, instead requiring only that he issue a permit “without unreasonable
delay,” without defining “unreasonable,” thereby creating a situation where “[a]
park superintendent who does not agree with the political message to be espoused
could allow the permit request to sit on his desk for an indefinite period of time --
resulting in speech being silenced by inaction.” 212 F.3d at 1240.
The GSU permitting scheme does not employ vague or undefined standards.
While Bloedorn is correct that the GSU website contains a general statement that
GSU retains the authority to determine the time and location of the permitted
speech, GSU’s actual policies and practices are more narrowly drawn than that.
We consider the actual policies and practices employed by the University, not just
the policy’s text. See Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123,
131 (1992) (explaining, in evaluating a claim of “unbridled discretion,” that “we
must consider the [government’s] authoritative constructions of the ordinance,
including its own implementation and interpretation of it”).
University officials may not exercise unbridled discretion in determining the
location of an outside, non-sponsored speaker’s expressive activity. See, e.g., City
of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 769-70 (1988). It is the
30
express and undisputed policy of GSU that the Free Speech Area is the only venue
where an outside, non-sponsored speaker may undertake expressive conduct. And
there has been no showing that the University has deviated from this policy. Nor
do GSU officials appear to have broad discretion in assigning the date and time. It
is GSU’s undisputed practice to issue a permit for a speaker’s requested date and
time so long as the space has not already been reserved by another speaker or
group. Finally, the text of the Speech Policy does not afford unbridled discretion
in assigning the length of time for which the permit is granted, or the frequency.
The Speech Policy says that an outside speaker’s “typical length of time” is one-
and-one-half hours and that “[f]requency should be no more than once a month
under normal circumstances.”
Teresa Thompson, Vice President of Student Affairs and Enrollment
Management for GSU, averred in a supporting affidavit that the Speech Policy
“provides . . . that persons not affiliated with the University may reserve the Free
Speech area once a month for a period of one and one half hours.” And, Bloedorn
has presented no evidence thus far that the University has ever granted a permit to
an outside, non-sponsored speaker to speak for a longer period of time or with
greater frequency. Nor does this limited record evince any pattern of favoritism
on the part of the University’s officials. In short, GSU’s permit application policy
31
does not appear to grant GSU unbridled discretion to determine the location, the
time, or the length of the allowed speech. The University appears to have
specifically drawn reasonable and definite standards, and applied those standards
consistently, indicating a “well-established practice.” Burk, 365 F.3d at 1256.
B. Narrow Tailoring
Nor has Bloedorn shown a substantial likelihood that several of the time,
place, and manner restrictions are not narrowly tailored to serve significant
government interests.3 A narrowly tailored time, place, and manner restriction on
speech does not “burden substantially more speech than is necessary” to further a
significant government interest. Ward v. Rock Against Racism, 491 U.S. 781, 799
(1989). So long as the policy is content neutral, the restriction “need not be the
least restrictive or least intrusive means of doing so.” Id. at 798. Rather, the
government need only avoid “regulat[ing] expression in such a manner that a
3
In his brief, Bloedorn also challenges, for the first time on appeal, the Speech Policy
requirement that any distributed literature must identify the distributing organization or
individual. Because this issue was never raised in the district court, we decline to consider it
today. F.D.I.C. v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993) (“By well settled
convention, appellate courts generally will not consider an issue or theory that was not raised in
the district court.”). Nor has Bloedorn ever alleged that he was seeking or would seek to
distribute literature on the GSU campus. Accordingly, it is not clear, at least for now, that he has
established standing to pursue this claim because he has not shown any imminent injury as a
result of this time, place, and manner restriction. See Am. Civil Liberties Union of Fla., Inc., 557
F.3d at 1193-94.
32
substantial portion of the burden on speech does not serve to advance its goals.”
Id. at 799.
We start then with the University’s interests and ask whether they are
significant and whether the scheme avoids regulating speech in a manner that does
not service its goals. First, the University has a significant interest in regulating
competing uses of the Free Speech Area in order to ensure that diverse viewpoints
are heard and that the University’s community members -- particularly the
students -- have ample access to scarce university facilities. See Berger v. City of
Seattle, 569 F.3d 1029, 1041 (9th Cir. 2009) (“[U]nder appropriate circumstances,
a permitting requirement governing the use of a public open space can further a
legitimate interest in the regulation of competing uses of that space.”); Bowman,
444 F.3d at 980-81 (holding that “the fostering of a diversity of uses of University
resources” is a significant government interest). We have no doubt that a
university’s interest in protecting the educational experience of its students is a
significant one. See Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (“The
Nation’s future depends upon leaders trained through wide exposure to [a] robust
exchange of ideas . . . .”).
The University also has a significant interest in ensuring safety and order on
campus, especially where the Free Speech Area is sited at a highly trafficked area
33
of the campus, and the University employs a limited security force. “[A] State’s
interest in protecting the safety and convenience of persons using a public forum is
a valid governmental objective.” Heffron, 452 U.S. at 650 (internal quotation
marks omitted); see also Thomas, 534 U.S. at 323 (“Regulations of the use of a
public forum that ensure the safety and convenience of the people are not
inconsistent with civil liberties . . . .”) (internal quotation marks omitted).
Furthermore, “consideration of a forum’s special attributes is relevant to the
constitutionality of a regulation since the significance of the governmental interest
must be assessed in light of the characteristic nature and function of the particular
forum involved.” Heffron, 452 U.S. at 650-51 (finding that “[t]he flow of the
crowd and demands of safety are more pressing in the context of” a state fair than
of a public street). And, in making this analysis, we focus not just on ensuring the
safety of the GSU community, but also on protecting the safety of the speaker
himself. Considering the attributes of the University’s Free Speech Area -- its
outdoor location in one of the most highly trafficked areas of a campus with over
18,000 students that employs a limited number of security personnel (four or five
public safety officers are on duty at any one time) -- there can be little doubt that
considerations of safety are substantial.
1. Disclosure Restriction
34
Bloedorn particularly challenges the University’s requirement that an
outside, non-sponsored speaker must disclose his name, telephone number, and e-
mail address on the permit request form. As for this claim, he cannot clearly
establish a substantial likelihood of success on the merits. There is significant
evidence on this limited record that the disclosure restriction is tailored narrowly
enough to maximize GSU’s significant interest in allocating access to the
University’s scarce resource (the Free Speech Area), and in protecting the safety
and security of its community. The disclosure requirement allows GSU to contact
the applicant to alert him that his permit has been granted or denied, discourages
criminal activity, and provides basic contact information in the event anyone is
injured or any property is damaged. Notably, the University requires its own
students and other community members to disclose the very same information any
time they seek to reserve a campus area for a speech activity.
History has taught us that sometimes registration requirements including the
obligation to disclose a speaker’s name may chill potential speakers by eliminating
anonymous speech. See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village
of Stratton, 536 U.S. 150, 166 (2002); McIntyre v. Ohio Elections Comm’n, 514
U.S. 334, 341-42 (1995) (After all, a “decision in favor of anonymity may be
motivated by fear of economic or official retaliation, by concern about social
35
ostracism, or merely by a desire to preserve as much of one’s privacy as
possible.”). But, the GSU restriction requires only that Bloedorn identify himself
to the university officials who process his permit application; there is no
requirement that he provide his name or contact information to anyone else. In
that sense, he may remain an anonymous speaker. More importantly, we are hard-
pressed to think of an alternative scenario that would afford Bloedorn greater
anonymity while still allowing the University to have some way to contact him in
order to tell him that his permit has been approved, or to advise him of any
necessary rescheduling. Nor must we think of one, because, of course, the
restriction “need not be the least restrictive or least intrusive means of doing so.”
Ward, 491 U.S. at 798.
Quite simply, without the ability to contact outside, non-sponsored speakers
about the results of their permit applications, the University cannot efficiently or
effectively schedule the use of the highly-demanded Free Speech Area. We repeat
these undisputed facts: this is an area of campus that is heavily utilized; in fact, it
is in use five out of seven days a week during the academic year. And, because it
is apparently the choicest venue on campus to reach the widest audience, GSU
students and community members also compete for access to this space. We add
that, because we are dealing with a large university campus with a small security
36
department, unlike a city street or park that may be protected by a far larger police
force, there is a real need to ensure the safety of students and visitors alike.
2. 48-Hour Notice Restriction
Bloedorn also claims that the permitting scheme’s requirement that all
outside, non-sponsored speakers obtain a permit to speak in the Free Speech Area
at least 48 hours in advance is not narrowly tailored to meet the University’s
significant interest in maintaining safety and order on campus. Again, we are
unpersuaded that Bloedorn has clearly established a substantial likelihood of
success on the merits.
GSU’s safety concern is not only with protecting its more than 18,000
students and countless other community members, but also with protecting the
speaker from the thousands of individuals passing by the area every day. Crowds,
and potentially unruly ones, are inevitable in a highly trafficked area of a large
university campus. In fact, because of the location of the Free Speech Area, it is
unlikely that any speaker using the area would fail to attract attention.
GSU claims that it needs 48 hours advance notice to prepare its Public
Safety Department to receive an outside, non-sponsored speaker. As we have
noted, GSU typically has only four or five public safety personnel patrolling the
campus at a time. Any time an outside, non-sponsored speaker reserves the Free
37
Speech Area, the Department of Public Safety is notified, and two campus security
personnel are assigned. When required to so assign its officers, the Department of
Public Safety must alter its employee schedule to ensure that there are sufficient
public safety officers to patrol the rest of the campus. Advance notice of 48 hours
seems reasonably calculated to achieve a significant purpose. We add that the 48-
hour notice period is brief -- a mere two days. Other circuits have upheld
university permitting schemes that require significantly more advance notice.
See Bowman, 444 F.3d at 982 (finding that a 3-day notice requirement was
narrowly tailored to serve a significant interest in campus safety, because “a
university is less able than a city or other entity with police powers to deal with a
significant disruption on short notice”); Sonnier v. Crain, 613 F.3d 436, 445 (5th
Cir. 2010) (upholding a 7-day notice requirement imposed by Southeastern
Louisiana University, because “[u]niversities 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.”).
3. Time Restriction
38
Bloedorn also argues that the time restriction contained in the permitting
scheme -- the limitation of a permit to an outside, non-sponsored speaker to one-
and-one-half hours no more than once a month -- is not narrowly tailored to meet
the University’s significant interests in regulating competing uses of the site and in
ensuring that its students have ample access to the facility. The University has
offered sufficient evidence on this limited record to show that the time restriction
is narrowly tailored to achieve its interest in providing the broadest access to this
scarce resource, thereby offering the students exposure to a wider variety of
viewpoints.
The time restriction is not draconian. Under the policy, Bloedorn can speak
for an extended time period. One-and-one-half hours is longer than most college
lectures, than most television shows, and than many movies; it is no less time than
is generally allocated for a presidential debate, and it is substantially more time
than this Court affords for oral argument. Moreover, in context, it does not appear
to us to be an insubstantial amount of time when that speech occurs at the
epicenter of the campus near the Student Center, dining facilities, and a bus stop
for the GSU bus service, and where the venue itself is a scarce resource. The
University has offered, and Bloedorn has not challenged, that there appears to be a
39
large number of university speakers who want to use the Free Speech Area, and
that the policy promotes the propagation of a wide variety of viewpoints.
Although more debatable on this limited record, we think the requirement
that an outside, non-sponsored speaker is limited to once a month preliminarily
passes constitutional muster. In the words of Assistant Director of Facilities for
GSU Susan Nelson, the Free Speech Area and the adjacent Rotunda are “heavily
utilized by university students and/or for university programs”; the area is reserved
by “[s]tudents and university personnel . . . for any number of purposes and
events”; and “is in use five out of seven days a week.” Again, the area is a very
scarce resource for which students and university programs appear to heavily
compete, and there is little doubt that the University may give its own students a
priority in using this scarce facility.
Bloedorn points out, however, that the University conceivably could create
a wait list system, similar to the one suggested in dicta by the Eighth Circuit in
Bowman. See 444 F.3d at 981-82. But our analysis does not turn on what is
theoretically possible for the University to do. A valid time restriction need not be
the “least restrictive” or “least intrusive” means of achieving the significant
government interest. Ward, 491 U.S. at 798. We are not prepared today to impose
on GSU the added administrative burden of creating and monitoring a wait list and
40
of constantly communicating with individuals who are in no way affiliated with
the University. While Bloedorn has not shown a substantial likelihood that the
once-a-month restriction is not narrowly tailored, we do not foreclose the
possibility that, on a more ample record, he may be able to do so. The University
could have done more to explain just how “used” the Free Speech Area is during
the five school days in a week by the GSU community. Thus, for example, we
cannot tell how often the Free Speech Area, as opposed to the adjacent Rotunda, is
utilized by University students or for University programs. Nor are we told
precisely what “heavily utilized” means. But, we can say with confidence that, on
this preliminary injunction record, Bloedorn has not shown a substantial
likelihood of success concerning the frequency limitation imposed by the
University.
C. Ample Alternative Channels
Finally, the record shows that the University has left open ample alternative
channels for communication for Bloedorn to get his message out to the student
body. This is a large campus located in Statesboro, Georgia. Surrounding the
campus on every side are public streets and sidewalks from which Bloedorn can
preach his message to GSU community members as they enter and exit the campus
apparently without any limitations imposed by the University. Not only can GSU
41
students walk from campus to the nearby streets of Statesboro, but GSU even runs
a bus service that transports students to a variety of off-campus locations.
Bloedorn can avoid the limitations imposed by the permitting scheme simply by
speaking to students as they enter and exit the campus from GSU’s several well-
marked entrance and exit points.
Finally, Bloedorn could conceivably obtain sponsorship from one of the
countless GSU-affiliated organizations to speak on campus. And, if he were so
sponsored, Bloedorn would not have to comply with the limitations on outside,
non-sponsored speakers. Indeed, there is no evidence in this record that Bloedorn
made even the slightest attempt to reach out to any GSU faculty, staff, students, or
affiliated organizations to find a sponsor.
In as much as Bloedorn has failed to establish a substantial likelihood of
success on the merits as to any of his claims, we need not, and do not, examine
whether he has suffered irreparable harm, or whether a balance of the hardships
weighs in his favor, or, finally, whether the public interest would support the
issuance of a preliminary injunction. See Pittman, 267 F.3d at 1292.
On this limited record, we
AFFIRM.
42