Gilles, James G. v. Blanchard, Bryan K. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1441
JAMES G. GILLES,
Plaintiff-Appellant,
v.
BRYAN K. BLANCHARD, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:04-cv-0083—Larry J. McKinney, Chief Judge.
____________
ARGUED OCTOBER 31, 2006—DECIDED FEBRUARY 14, 2007
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Vincennes University, the oldest
institution of higher education in Indiana (founded in
1806 by future President William Henry Harrison before
Indiana was admitted to statehood)—and a public institu-
tion since its inception—has its main, and only residential,
campus in the town of Vincennes (population 18,000) in
southwestern Indiana. About 5,000 students, all under-
graduate, are enrolled full time at the Vincennes campus.
James Gilles (“Brother Jim”) (home page http://www.
thecampusministry.org/, visited Feb. 2, 2007) is a traveling
2 No. 06-1441
evangelist—the latest in a line of Christian itinerant
preachers stretching back to Saint Paul and prominent in
Methodism in nineteenth-century America. Born near
Vincennes, Gilles gives the following account of his
salvation. As a result of Satan’s machinations, he devoted
himself as a youth to drugs, sex, booze, and rock and roll.
At a rock and roll concert at which the well-known Van
Halen band performed, singer David Lee Roth shouted
to the crowd: “Not even God can save your soul at a Van
Halen concert!” Gilles saw the light, called on God to
save him and thus refute Roth, and was saved. The mes-
sage he preaches, as summarized in his own words, is
“Sinner friend, I have good news for you, you also can
experience righteousness, peace and joy in the Holy
Ghost if you would only forsake your sinful, selfish ways
and turn to the The Lord And Savior Jesus Christ.” Neither
the record nor Brother Jim’s home page indicates that he
is affiliated with any religious organization, although in
another case in which he was turned away by a univer-
sity he is identified as a member of the Free Pentecostal
Holiness Churches, Gilles v. Torgersen, 71 F.3d 497, 499 (4th
Cir. 1995) (dismissed without a decision on the merits),
presumably a reference to the Pentecostal Holiness Church,
a Protestant denomination with Methodist antecedents.
None of this, of course, is important. There is no reason to
doubt either his bona fides or that the content of his
religious advocacy is protected by the First Amendment.
The question is whether the protection extends to a par-
ticular site on the university campus.
Vincennes University and Brother Jim first intersected
in 2001, when he entered the campus uninvited and
walked to a lawn in the middle of the campus, next to the
university library. He preached from the lawn and a
No. 06-1441 3
disturbance ensued, the nature of which is not revealed
by the record, although the university’s dean of students
stated in his deposition that “when I went there, he
[Brother Jim] was in the grassy area in front of the library.
He had had—he was speaking to a number of students
there. There was some—a disturbance, and at one point
the campus police felt like he was in danger. And they
asked him to leave, and he did.” From another case we
learn that “when preaching, [Brother Jim] uses a con-
frontational style that includes calling people in the crowd
names, such as whoremonger and drunkard, once the
individuals have answered certain questions that he poses
to them. He has been arrested on numerous occasions
in the past.” Gilles v. Torgersen, No. 92-0933, 1995 U.S. Dist.
LEXIS 8502, at *2 (W.D. Va. Jan. 31, 1995), vacated for
want of standing, 71 F.3d 497 (4th Cir. 1995). Brother
Jim denied that his preaching at Vincennes in 2001 had
caused a disturbance, and in the procedural posture of the
case we must credit his denial.
In reaction to the incident—whatever exactly it was—the
university for the first time adopted a formal policy
governing access to the campus by outsiders to the uni-
versity community. Entitled “Sales and/or Solicitation
Policy,” the policy requires prior approval by the dean
of students of all sales on campus. In addition, and more
to the point of this case, the policy also requires the dean’s
prior approval of all “solicitations” on campus. Solicitation
is defined as “the act of seeking to obtain by persuasion; to
entice a person to action; or the recruiting of possible
sales.” Solicitors, if approved, are limited to soliciting
in the brick walkway directly in front of the student union.
Here is a satellite photo of the campus, showing the
library lawn and the walkway.
4 No. 06-1441
No. 06-1441 5
Brother Jim returned to the campus the following year,
proceeded to the lawn, was turned back and told he
could preach only on the brick walkway. He tried to preach
there, but the fact that the walkway is adjacent to a
street makes it a noisy locale for a speech. Unable to at-
tract an audience, he broke off and left, and filed this
suit against the responsible university officials, contend-
ing that the solicitation policy infringes his right of free
speech. The district court granted summary judgment
for the defendants.
Brother Jim argues that since the lawn is public property
and is suitable for speechifying, he can no more be for-
bidden to preach there than he could be forbidden to
preach in a public park. That is incorrect. The Justice
Department in Washington has a large auditorium, with a
stage, and so would be a suitable venue for a theatrical
production. But the First Amendment does not require
the department to make the auditorium available for
that purpose even when it is not being used for depart-
mental business. Public property is property, and the
law of trespass protects public property, as it protects
private property, from uninvited guests. “[T]he Govern-
ment, ‘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,’ Greer v. Spock, 424
U.S. 828, 836 (1976).” Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U.S. 788, 800 (1985). Since
public and private universities compete with each other,
courts hesitate to impose in the name of the Constitu-
tion extravagant burdens on public universities that private
universities do not bear. Cf. Chicago Acorn v. Metropolitan
Pier & Exposition Authority, 150 F.3d 695, 704 (7th Cir. 1998).
6 No. 06-1441
It is not as if requiring a public university to throw
open its grounds to itinerant speakers would merely
redress the advantage that a public university has over a
private one because it has taxpayer support; the require-
ment would deny the university control over its facilities.
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.” Widmar v.
Vincent, 454 U.S. 263, 268 n. 5 (1981). “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.” Adderley v. Florida, 385 U.S. 39, 47
(1966); see also United States Postal Service v. Council of
Greenburgh Civic Associations, 453 U.S. 114, 129 (1981).
No matter how wonderfully suited the library lawn is
to religious and other advocacy, Vincennes University
could if it wanted bar access to the lawn to any outsider
who wanted to use it for any purpose, just as it could
bar outsiders from its classrooms, libraries, dining halls,
and dormitories. It wouldn’t have to prove that allowing
them in would disrupt its educational mission. See Ameri-
can Civil Liberties Union v. Mote, 423 F.3d 438, 444 (4th
Cir. 2005). “[G]overnment may draw permissible status-
based distinctions among 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 speak-
ers are quite similar.” Goulart v. Meadows, 345 F.3d 239,
254 (4th Cir. 2003).
What is true is that a university that decided to permit its
open spaces to be used by some outsiders could not
exclude others just because it disapproved of their mes-
No. 06-1441 7
sage. E.g., Rosenberger v. Rector & Visitors of University of
Virginia, 515 U.S. 819, 828-30 (1995). But it could use neutral
criteria for access, such as that an outsider must be invited
to speak on campus by a faculty member or a student
group. American Civil Liberties Union v. Mote, supra, 423 F.3d
at 444. The difference between invited and uninvited
visitors is fundamental to a system of property rights. “The
fact that other civilian speakers and entertainers had
sometimes been invited to appear at Fort Dix did not of
itself serve to convert Fort Dix into a public forum or to
confer upon political candidates a First or Fifth Amend-
ment right to conduct their campaigns there. The decision
of the military authorities that a civilian lecture on drug
abuse, a religious service by a visiting preacher at the base
chapel, or a rock musical concert would be supportive of
the military mission of Fort Dix surely did not leave the
authorities powerless thereafter to prevent any civilian
from entering Fort Dix to speak on any subject whatever.”
Greer v. Spock, 424 U.S. 828, 838 n. 10 (1976). Coming closer
to this case, we said in Piarowski v. Illinois Community
College District 515, 759 F.2d 625, 629 (7th Cir. 1985), that
the fact “that Piarowski sometimes invited artists from
outside the college to exhibit their work in the [college’s
art] gallery no more made the gallery a public forum than
a teacher’s inviting a guest lecturer to his classroom
would make the classroom a public forum.”
Brother Jim places great weight on Bowman v. White,
444 F.3d 967 (8th Cir. 2006), which held that a public
university that allowed anyone to use its outdoor
spaces for public speaking could not limit that use by
outsiders to five days (per outsider) per semester. The
limit did not discriminate against particular viewpoints.
It merely gave preference to insiders, which strikes us as
8 No. 06-1441
eminently reasonable and leads us to doubt the sound-
ness of the decision, for in Cornelius v. NAACP Legal
Defense & Educational Fund, Inc., supra, 473 U.S. at 806, the
Supreme Court said that “control over access to a
nonpublic forum can be based on subject matter and
speaker identity so long as the distinctions drawn are
reasonable in light of the purpose served by the forum and
are viewpoint neutral”; cf. United States v. Kokinda, 497
U.S. 720, 730 (1990) (plurality opinion). Our case is in any
event distinguishable from Bowman because Vincennes
University has placed the lawn completely off limits to
uninvited outsiders, and if it can’t do that without violat-
ing the Constitution, public universities cannot control
their property. Confining solicitations to the walkway in
front of the student union is entirely appropriate because
most of the solicitations are of students, and where better
to encounter a steady stream of them than outside the stu-
dent union? Letting solicitors into the middle of the
campus would disrupt the campus atmosphere.
But here is the rub. In responding to Brother Jim’s lawn
preaching in 2001 by promulgating a policy limited to
sales and solicitations, the university could be thought to
have thrown open the lawn to all outsiders who were
not selling or soliciting. Brother Jim argues forcefully that
he does neither, and he asks us to infer (or allow a jury
to infer) that the application of the policy to him was
therefore pretextual and discriminatory. Not that the
university necessarily disapproves of his message. It may
just fear a disturbance. But yielding to a “heckler’s veto”
infringes a speaker’s free speech. Church of American
Knights of Ku Klux Klan v. City of Gary, 334 F.3d 676, 680-81
(7th Cir. 2003), and cases cited there.
No. 06-1441 9
Brother Jim certainly is not selling anything. And he
does not solicit or receive contributions or seek to “entice”
members of his audiences to “action.” He tries merely to
save their souls and make them happy. Of course, as he
explains, salvation requires them to give up, as he gave
up, drugs, sex (Brother Jim means fornication and adul-
tery—he is not a Shaker), booze, and rock and roll. But
that is enticement to inaction rather than to action. It
is remote from what is ordinarily understood by “solicit-
ation.” To solicit, in law as in ordinary language, is to ask
someone to do something, usually of a commercial or
quasi-commercial character, for the solicitor—so one
solicits a prostitute for sex (or the prostitute solicits one),
or solicits donations to a charity, or solicits a competitor
to join in a price-fixing conspiracy. A priest who urged
conversion to the Catholic Church might be thought to
be engaged in solicitation, and likewise Jehovah’s Wit-
nesses when they go door to door seeking converts. But
the Pope is not soliciting when he gives a speech from the
balcony of St. Peter’s, even though it is implicit or ex-
plicit in his message that the listeners should conform
their behavior to the teachings of the Church. That is
the character of Brother Jim’s preaching. If the Pope and
Brother Jim are solicitors, almost anyone who opens
his mouth to say anything is a solicitor.
The application of the university’s solicitation policy
to Brother Jim brings him to the verge of victory. The
policy as interpreted by the defendants to cover preach-
ing the Gospel is hopelessly vague and thus a supple
weapon for excluding from the university lawn those
outsiders whose message the university disapproves of.
But Brother Jim falls just short of prevailing because he
has failed to show that any uninvited outsider has ever
10 No. 06-1441
been permitted to use the lawn for any purpose. No doubt
outsiders wander in from time to time. The campus is not
fenced, and outsiders are not forbidden to visit. They are
classic licensees. But we are given no instance of an out-
sider’s being permitted to do more than stroll on the
lawn—no instance of an outsider’s being permitted to
give a speech, to play the bongo drums, to pitch a tent, to
beg, to sunbathe, to play frisbee, or to engage in solicita-
tion—without an invitation, whether from the university
or from a faculty member or a student group.
This has long been a norm, and not just a practice:
strangers to the university community are not to use the
library lawn for purposes other than those unobtrusive,
implicitly authorized uses of land (generally as a shortcut
or other pathway) that distinguish a licensee from a
trespasser. E.g., Sammons v. American Automobile Associa-
tion, 912 P.2d 1103, 1105 (Wyo. 1996); Lakeview Associates,
Ltd. v. Maes, 907 P.2d 580, 581-82 (Colo. 1995). So unlikely
is it that a university or any other landowner would, as
Brother Jim contends Vincennes University does, give
strangers a right to roam the campus speechifying, beg-
ging, buttonholing, skateboarding, drag racing, etc., that
he had to produce some evidence of that unlikely author-
ization in order to create a genuine issue of material
fact—some evidence that would allow a reasonable jury
to find that the university has such a permissive policy
and merely denies Brother Jim the benefit of it lest his
incendiary preaching ignite another disturbance.
Brother Jim does point to numerous expressive activ-
ities that have taken place on the library lawn, including
religious activities—preaching by a couple named Duncan
and the annual distribution of free Bibles by the Gideon
Society. But of all the expressive activities that have
No. 06-1441 11
taken place on the lawn, the record discloses only one
that was not by invitation. The Duncans had not been
invited. They had preached on the lawn in 1998, three
years before Brother Jim’s first visit, and the circum-
stances of their visit are hazy. One unauthorized use of
the lawn would not come close to establishing the ab-
sence of a policy against use of the lawn by uninvited
speakers. Maybe no one complained, and as a result the
violation did not come to the attention of the university
authorities—indeed, the dean of students attested that he
had never learned of the matter. Perfect past compliance
with a rule is not a precondition to being allowed to
continue enforcing the rule. Otherwise few rules could
be enforced, and universities would have to fence their
open areas in order to limit access.
Brother Jim lists the following speakers or events that
have taken place on the library lawn, in addition to the
Duncans’ preaching and the Gideons’ handing out Bibles:
Women of Essence; Black Male Initiative; Indiana Na-
tional Guard; Kernan and Davis for Indiana campaign;
Rebekka Armstrong (an HIV-positive former Playboy
Playmate); Mark Sterner (speaker on drunk driving);
Mentalist Craig Karges; TB Re-Screening; Student Part
Time Job Fair; The Man Without a Face (an oral cancer
survivor who lost half his jaw and part of his tongue);
Health Screening; Ariana Huffington; Dr. Peter DeBenedit-
tis (speaker on how the media manipulate consumers);
Manufacturing Job Fair; Amanda Persinger (pharmaceuti-
cal representative); Prentis Hall Sales Representa-
tive; Tupperware Multihost Bingo/Party; Kevin Riggins
(speaker against athletic doping); Kelly Craig (speaker
against drunk driving); and the Red Cross Blood Drive.
This bewildering miscellany refutes an inference of dis-
12 No. 06-1441
crimination against disfavored points of view, or of a
university administration fearful of controversy and of the
disturbances that might ensue. As far as appears, any
student group can invite any speaker to speak on the
library lawn. The diversity of speakers mirrors the diver-
sity of the university community.
Of course there would be even greater diversity of
viewpoints if anyone, invited or uninvited, could use the
lawn for expressive activity; for apparently no one in the
Vincennes University community wants to invite Brother
Jim to speak. He wants to turn the lawn into an American
version of Speakers’ Corner in London’s Hyde Park,
where anyone can speak on any subject other than the
Royal family or the overthrow of the British government.
The limits that Vincennes University has placed on the
use of the library lawn are consistent with limiting uni-
versity facilities to activities that further the interests
of the university community. The limits are constitutional.
We should note that the defendants wanted us to pitch
our analysis on the distinction that the Supreme Court has
drawn between “traditional public forums,” “designated
public forums,” and “nonpublic forums.” E.g., Good News
Club v. Milford Central School, 533 U.S. 98, 106-07 (2001);
International Society for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 678-79 (1992). The first consist of streets and
parks and other public property that are traditional, and,
the Supreme Court has ruled, irrevocable venues for
expressive activity (marches, demonstrations, harangues,
and so forth). The second consist of public facilities for
expression that are nontraditional, such as public theaters,
and used for only some types of expressive activity even
though they could be used for others as well—a public
theater could be used for political rallies. The Court
No. 06-1441 13
does not require that they be used for expressive activ-
ities for which they were not intended to be used, pro-
vided that there is no discrimination based on the message
of the excluded speaker, or that their use for expressive
activity be irrevocable. The third category consists of public
facilities like the Justice Department’s auditorium that
could be used for private expressive activities but are
not—and they do not have to be.
The difficulty with using the “forum” template to re-
solve this case—a difficulty that is common enough where
rules are concerned—is that the present case falls into a
crack between the rules. The library lawn is not open to
all outsiders, or closed to all outsiders, or reserved for
some uses but not others. To fill the crack, cases such as
Bowman v. White, supra, 444 F.3d at 975-76; Justice for All v.
Faulkner, 410 F.3d 760, 765-69 (5th Cir. 2005), and Travis
v. Owego-Apalachin School District, 927 F.2d 688, 692 (2d
Cir. 1991), have carved out a fourth category—a variant
of the second, the “designated public forum.” This fourth
category is variously (and confusingly) termed the “limited
designated public forum” (versus the “true forum”), the
“limited public forum,” or the “limited forum.” The terms
denote a public facility reserved for some speakers but
not others, here members of the university community
and their guests but not uninvited outsiders.
We doubt the utility of multiplying categories in this
fashion, thus adding epicycles to an already complex
scheme and turning the search for sensible results into a
classification game. The issue more simply posed is
whether a university should be able to bar uninvited
speakers under a policy that by decentralizing the invita-
tion process assures nondiscrimination, and a reason-
able diversity of viewpoints consistent with the univer-
14 No. 06-1441
sity’s autonomy and right of self-governance. We have
tried to explain why the Constitution does not commit a
university that allows a faculty member or student group
to invite a professor of theology to give a talk on campus
also to invite Brother Jim and anyone else who would
like to use, however worthily, the university’s facilities
as his soapbox. To call the library lawn therefore a “lim-
ited designated public forum” is an unnecessary flourish.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-14-07