American Civil Liberties Union v. Mote , 423 F.3d 438 ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMERICAN CIVIL LIBERTIES UNION, 
Student Chapter - University of
Maryland, College Park; DANIEL M.
SINCLAIR; MICHAEL REEVES;
MATTHEW FOGG,
Plaintiffs-Appellants,
v.  No. 04-1890
C. D. MOTE, JR.,
Defendant-Appellee,
and
REBECCA J. SHEPPARD,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(CA-03-636-RWT)
Argued: March 16, 2005
Decided: September 12, 2005
Before WIDENER and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Shedd and Senior Judge Hamilton concurred.
2 AMERICAN CIVIL LIBERTIES UNION v. MOTE
COUNSEL
ARGUED: Anthony C. Epstein, STEPTOE & JOHNSON, L.L.P.,
Washington, D.C., for Appellants. Mark Jason Davis, Assistant Attor-
ney General, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF:
Michael C. Drew, STEPTOE & JOHNSON, L.L.P., Washington,
D.C.; David Rocah, AMERICAN CIVIL LIBERTIES UNION OF
MARYLAND, Baltimore, Maryland; Arthur B. Spitzer, AMERICAN
CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL
AREA, Washington, D.C., for Appellants. J. Joseph Curran, Jr.,
Attorney General of Maryland, Baltimore, Maryland, for Appellee.
OPINION
WIDENER, Circuit Judge:
Plaintiffs, ACLU Student Chapter-University of Maryland, College
Park, Daniel M. Sinclair, Matthew Fogg, and Michael Reeves1
1
The district court dismissed all of the plaintiffs but Reeves. Only
Reeves pursues his appeal. See Br. p.3 n.2.
The plaintiffs filed a notice of appeal; the defendant did not. Because
the University did not file a notice of appeal, the plaintiffs, in their brief,
take the position that the University accepted the decision of the district
court, that the plaintiff Reeves had standing to pursue his case.
Reeves was an outsider working for candidate Lyndon LaRouche. He
sought to distribute leaflets but was denied permission because all avail-
able spaces had been reserved. When he attempted to distribute the leaf-
lets at a nearby location, University police issued him a citation and
ordered him to leave the College Park campus or be arrested for trespass-
ing. The district court held on those and other facts that Reeves had
standing. Apparently, because the issue was standing and is jurisdic-
tional, the University has pursued the question of Reeves’ standing in its
brief, although it did not appeal. We do not decide the question of
Reeves’ standing, however, because the question the University seeks to
make is that Reeves suffered no injury in fact.
In such a case, under Rivanna Trawlers Unlimited v. Thompson Trawl-
ers, Inc., 840 F.2d 236, 239 (4th Cir. 1988) (citing Bell v. Hood, 327 U.S.
AMERICAN CIVIL LIBERTIES UNION v. MOTE 3
appealed from the district court’s denial of their motion for summary
judgment and the district court’s grant of summary judgment to
defendant, C.D. Mote, Jr., President of the University of Maryland,
College Park. The underlying case was a challenge, on First Amend-
ment grounds, of the University policy that restricted speech in out-
door areas of the campus. The only issue that remains is the
University’s policy restricting speech in outdoor areas by members of
the general public. We affirm.
I.
The State of Maryland has established a system of higher education
"[i]n order to foster the development of a consolidated system of pub-
lic higher education, to improve the quality of education, to extend its
benefits and to encourage the economical use of the State’s
resources." Md. Code Ann. Educ. § 12-101 (2004). College Park is
considered the State’s flagship campus in that endeavor. Md. Code
Ann. Educ. § 12-106(a)(1)(iii)(1)(A) (2004). Its campus occupies
over 1,200 acres in College Park, Maryland, enrolls 34,000 students,
approximately a quarter of which live on campus, and employs
approximately 12,000 faculty and staff members. Defendant C.D.
Mote, Jr. is the president of the University at College Park2 and
approved and issued the regulation challenged in this case.
The policy at issue provides for access to the campus’s facilities by
outsiders. The policy recognizes that "[u]niversity facilities are avail-
able primarily for programs offered by and intended for the campus
community." The policy goes on to authorize the use of Nyumburu
Amphitheater, for public speaking, and designated sidewalks outside
678, 682 (1946)), when the contested basis for jurisdiction is also an ele-
ment of a plaintiff’s federal claim, we held the claim should not be dis-
missed for lack of jurisdiction. And when the claim is neither immaterial
or insubstantial, as here, the proper course of action is for the district
court to accept jurisdiction and address the objection as an attack on the
merits, Rivanna Trawlers, 840 F.2d at 239, which we do here.
2
The State University System in Maryland is headed by a chancellor
who appoints the president of each constituent institution, of which the
University of Maryland, College Park, is one. See Md. Code Ann. Educ.
§§ 12-108; 12-109.
4 AMERICAN CIVIL LIBERTIES UNION v. MOTE
the Stamp Student Union, for distribution of literature, by "persons or
groups other than students, faculty, and staff, and not otherwise spon-
sored by a department or registered student organization." (hereinafter
outsiders) The Stamp Student Union is the single most trafficked
place by a cross-section of the campus, and Nyumburu is next to it.
If a member of the general public is sponsored by a member of the
campus community they have the same access to facilities as their
sponsor. The only requirements for an outsider to engage in public
speaking or distributing literature on campus is that they reserve space
at the appropriate location by registering with the campus reservations
office up to five days in advance. Under the policy, reservations are
to be approved on a space-available basis with priority given to Uni-
versity departments, registered student organizations, students, fac-
ulty, and staff. Lack of available space is the only acceptable reason
to deny a permit. Unsponsored public speaking and distribution of lit-
erature by outsiders is prohibited away from Nyumburu and Stamp
Student Union, respectively. Failure to follow the University regula-
tions "will result in revocation of an approved reservation and/or
other appropriate administrative action." If the violator is a member
of the public, they may be required to leave the campus.
II.
We review de novo a district court’s grant of summary judgment.
Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va. Inc., 43 F.3d
922, 928 (4th Cir. 1995). When, as here, a party appeals the denial
of summary judgment together with an appeal of the granting of a
cross-motion for summary judgment, we have jurisdiction to review
the propriety of the denial of summary judgment by the district court.
Monahan v. County of Chesterfield, 95 F.3d 1263, 1265 (4th Cir.
1996)(citing Sacred Heart Med. Ctr. v. Sullivan, 958 F.2d 537, 543
(3d Cir. 1992)). Summary judgment under Rule 56(c) is appropriate
"if the pleadings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is enti-
tled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).
III.
The issue in this case is plaintiff’s assertion that the University’s
policy violates the speech clause of the First Amendment. The First
AMERICAN CIVIL LIBERTIES UNION v. MOTE 5
Amendment provides that "Congress shall make no law . . . abridging
the freedom of speech." Under our decision in Goulart v. Meadows,
345 F.3d 239 (4th Cir. 2003), when a First Amendment claim is
asserted the court must begin the inquiry by determining whether the
plaintiff had engaged in protected speech. Goulart, 345 F.3d at 246
(citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 797 (1985)). If that is the case, the court next "must identify the
nature of the forum, because the extent to which the Government may
limit access depends on whether the forum is public or nonpublic."
Goulart, 345 F.3d at 246 (quoting Cornelius, 473 U.S. at 797). After
determining the type of forum, the court must determine whether the
justifications for the exclusion satisfy the requisite standard for that
forum. Goulart, 345 F.3d at 246 (citing Cornelius, 473 U.S. at 797).
The first step in the analysis is easily answered here. Reeves
attempted to engage in speech of a political nature, which the parties
agree is protected speech.
We next turn to the second question in the analysis, what is the
nature of the forum. There are three different types of forums in First
Amendment cases, traditional public forums, non-public forums, and
limited (or designated) public forums. Warren v. Fairfax County, 196
F.3d 186, 190-91 (4th Cir. 1999)(citing Ark. Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 677 (1998)). A traditional public
forum, such as streets, sidewalks, and parks, requires the government
to accommodate all speakers, because these places have the character-
istics of a public thoroughfare, a purpose that is compatible with
expressive conduct, as well as a tradition and history of being used
for expressive conduct. Warren, 196 F.3d at 191. The government can
restrict speech in a traditional public forum on the time, place and
manner of expression only, if the restriction is content-neutral, is nar-
rowly drawn to serve a significant state interest, and leaves open
ample channels of communication of the information. Warren, 196
F.3d at 192; see also p.202.
Conversely, a non-public forum is one that has not traditionally
been open to the public, where opening it to expressive conduct
would "somehow interfere with the objective use and purpose to
which the property has been dedicated." Warren, 196 F.3d at 192-93.
Restrictions on speech in a non-public forum should be upheld if they
are viewpoint neutral and reasonable "in light of the purpose of the
6 AMERICAN CIVIL LIBERTIES UNION v. MOTE
forum and all the surrounding circumstances." Warren, 196 F.3d at
193 (quoting Cornelius, 473 U.S. at 809).
The third type of forum, a limited or designated public forum, is
one that is not traditionally public, but the government has purpose-
fully opened to the public, or some segment of the public, for expres-
sive activity. Warren, 196 F.3d at 193 (citing Ark. Educ., 523 U.S. at
677). Once a limited or designated public forum is established the
government can not exclude entities of a similar character to those
generally allowed. Goulart, 345 F.3d at 250 (citing Warren, 196 F.3d
at 194).
Plaintiff argues that the outdoor areas of the College Park campus
should be considered public forums. To support this argument plain-
tiff points to the fact that access to the outdoor areas are not limited
to students, faculty and staff, but instead are generally open to any
member of the public, and that the University allows members of the
public to engage in any lawful activity in these open areas except pub-
lic speaking and handbilling. While this is true, it is not determinative
because "[t]he government does not create a public forum by inaction
or by permitting limited discourse, but only by intentionally opening
a nontraditional forum for public discourse." Cornelius, 473 U.S. at
802. Plaintiff’s argument is also answered by looking to the Supreme
Court decision in Widmar v. Vincent, 454 U.S. 263 (1981), which rec-
ognized that "the campus of a public university, at least for its stu-
dents, possesses many of the characteristics of a public forum." 454
U.S. at 267 n.5 (citing Police Dept. of Chicago v. Mosley, 408 U.S.
92 (1972). The Court then went on to say that "[a] university differs
in significant respects from public forums such as streets or parks or
even municipal theaters." Widmar, 454 U.S. at 267 n.5.
Examining the circumstances of this case, we are of opinion and
agree with the district court that the College Park campus is a limited
public forum. Contrary to plaintiff’s arguments, the campus is not
akin to a public street, park, or theater, but instead is an institute of
higher learning that is devoted to its mission of public education. This
mission necessarily focuses on the students and other members of the
university community. Accordingly, it has not traditionally been open
to the public at large, but instead has been a "special type of enclave"
that is devoted to higher education. United States v. Grace, 461 U.S.
AMERICAN CIVIL LIBERTIES UNION v. MOTE 7
171, 180 (1983). There is nothing in the record to indicate that until
the policy at issue here was implemented, the campus was anything
but a non-public forum for members of the public not associated with
the university. By implementing its policy the University made the
campus a limited public forum. See Goulart, 345 F.3d at 249 (a lim-
ited public forum can only be created by purposeful government
action).
After determining that a limited public forum exists, a court must
next determine whether an internal or external standard should apply.
See Warren, 196 F.3d at 193-94. An internal standard applies and the
restriction is subject to strict scrutiny "if the government excludes a
speaker who falls within the class to which a designated [limited]
public forum is made generally available . . ." Warren, 196 F.3d at
193 (quoting Ark. Educ., 523 U.S. at 677). An external standard
applies if the person excluded is not a member of the group that the
forum was made generally available to. Warren, 196 F.3d at 194.
Under the external standard, "the selection of a class by the govern-
ment must only be viewpoint neutral and reasonable in light of the
objective purposes served by the forum." Warren, 196 F.3d at 194.
The only Constitutional limit placed on restrictions on public access
in these cases is that, "once a limited forum has been created, entities
of a ‘similar character’ to those allowed access may not be excluded."
Warren, 196 F.3d at 194 (citing Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 53 (1983)).
The court must next determine if those being excluded are of a sim-
ilar character to those who are allowed access, that is the members of
the University community who are permitted to speak freely on Uni-
versity grounds. Under our decision in Goulart whether a person is
of a "similar character" to others permitted to speak in the forum
depends on the purpose of the limited forum. Goulart, 345 F.3d at
252. The purpose of the University is clearly to provide a venue for
its students to obtain an education, not to provide a venue for expres-
sion of public views that are not requested or sponsored by any mem-
ber of the campus community. While it is obviously true that there
could be similarities in the content of speech by an outsider and a
member of the campus community, that does not require them both
to be treated the same. This case is clearly an example of where "the
government may draw permissible status-based distinctions among
8 AMERICAN CIVIL LIBERTIES UNION v. MOTE
different classes of speakers in order to preserve the purpose of the
forum, even when the proposed uses by those inside the permitted
class of speakers and those outside the permitted class of speakers are
quite similar." Goulart, 345 F.3d at 254.
Having decided that the University’s campus is a limited public
forum, and that the external standard applies in this case, the restric-
tion by the University only has to be "viewpoint neutral and reason-
able in light of the objective purposes served by the forum." Warren,
196 F.3d at 194. Plaintiff argues that the University’s policy lacks
both viewpoint neutrality and reasonableness, thus failing this stan-
dard. To support his assertion that the policy is not viewpoint neutral
plaintiff points to one occasion where the University allowed a protest
staged by the Westboro Baptist Church other than within the limits
of the regulations. The record shows that the University, as an aca-
demic exercise, had raised the subject of community reaction to the
killing of a homosexual college student by showing a play called "The
Laramie Project" to foster more discussion among students involved
in the University’s First Year Book Program. Knowing the Baptists
were opposed, the University permitted their protest away from
Nyumburu and at the play’s location. We think this lessened restric-
tion was "reasonable in light of the purpose served by the forum."
Goulart, 345 F.3d at 259 (quoting Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 106-07 (2001))(emphasis in Goulart). As stated
previously, the purpose of the University is the education of the stu-
dents. Permitting this protest furthered that interest and was therefore
reasonable in light of it. The University regulations contain no regula-
tion on speech or handbilling based on content or viewpoint.
Having determined that the University’s policy is viewpoint neu-
tral, the court must then determine if the policy is "reasonable in light
of the purpose served by the forum." Goulart, 345 F.3d at 259 (quot-
ing Good News Club, 533 U.S. at 107)(emphasis in original). To sup-
port this argument plaintiff relies upon our decision in Metromedia
Publ’g Co. of S.C., Inc. v. Greenville-Spartanburg Airport Dist., 991
F.2d 154 (4th Cir. 1993). Metromedia is not applicable here however,
because that case concerned a total ban on the placement of newspa-
per racks, which we held to be unreasonable under the circumstances.
This case does not involve a total ban of speech by the general public,
it merely involves a time, place, and manner restriction. We begin this
AMERICAN CIVIL LIBERTIES UNION v. MOTE 9
analysis by noting that the University’s policy "need only be reason-
able; it need not be the most reasonable or the only reasonable limita-
tion." Cornelius, 473 U.S. at 808 (emphasis in original). The
University policy does not deny un-sponsored outsiders access to its
campus, but instead merely requires them to reserve a spot which they
may do as much as five days in advance, and then speak or distribute
leaflets in that part. We especially note the places for speaking or
handbilling are the most visited on the campus, a distinct advantage
to the speaker or handbiller. If outsiders desire to leaflet or give a
speech in another area of campus, they must simply find a sponsor,
and they can perform these activities anywhere on the campus. We
have previously recognized that universities have limited resources,
which they have an interest in reserving for members of the university
community. Glover v. Cole, 762 F.2d 1197, 1203 (4th Cir. 1985). If
the University opened its entire campus to all members of the unac-
companied public, it would have to utilize a greater amount of those
resources by, for instance, dispersing the limited staff throughout the
campus to supervise the events. We are of opinion that this simple
requirement of a sponsor is reasonable.
Reeves’ final First Amendment argument is that the University’s
policy acts as an impermissible prior restraint on speech because it
gives university officials unbridled discretion. 11126 Balt. Blvd., Inc.
v. Prince George’s County, Md., 58 F.3d 988, 993-94 (4th Cir. 1995).
Reeves necessarily is making this argument concerning the areas
away from Stamp and Nyumburu, because permits for those locations
can only be denied due to lack of space, giving university officials
virtually no discretion. As discussed, the University is a limited public
forum, and as such can constitutionally exclude outsider speech as
long as the exclusion is viewpoint neutral and reasonable. See, e.g.,
Griffin v. Dep’t of Veterans Affairs, 274 F.3d 818, 825 (4th Cir.
2001). Having already determined that the University’s policy is
viewpoint neutral and reasonable, it is also not an impermissible prior
restraint.
The judgment of the district court is accordingly
AFFIRMED.