Gary Bowman v. John A. White , 444 F.3d 967 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2299
___________
Gary Bowman, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
John A. White, in his official capacity *
as Chancellor of the University of *
Arkansas; Donald O. Pederson, in his *
official capacity as Vice Chancellor for *
Finance Administration for the *
University of Arkansas; Larry L. *
Slammons, in his official capacity as *
Director of the University of Arkansas *
Police Department, *
*
Defendants - Appellees. *
___________
Submitted: January 14, 2005
Filed: April 14, 2006
___________
Before BYE, MELLOY, and COLLOTON, Circuit Judges.
___________
MELLOY, Circuit Judge.
Plaintiff-Appellant Gary Bowman filed this civil rights lawsuit pursuant to 42
U.S.C. § 1983 against Defendants-Appellees John A. White, Donald O. Pederson, and
Larry L. Slammons as officials representing the University of Arkansas at Fayetteville
(collectively hereinafter known as the “University”). Bowman alleges that the
University’s policy regarding the use of its facilities and space, which contains
restrictions on use by non-University entities, unconstitutionally abridges his right to
free speech. Following a plenary hearing on the merits of Bowman’s request for
injunctive relief, the district court dismissed his complaint with prejudice. The district
court found that the University’s campus was a nonpublic forum and that all the
challenged restrictions on speech were reasonable. Bowman now brings this timely
appeal.
I.
Gary Bowman is a professing Christian who engages in street preaching about
his religious beliefs and convictions as a tenet of his faith. His message typically
concerns sin, repentance and a final judgment. He states that he shares his message
in the hope of securing salvation for his audience. He employs various means of
communication, including the use of signs, public speaking, literature distribution,
symbolic speech, and one-on-one conversation.
Bowman particularly wants to share his religious message with college students
and others found at public universities because of what he deems to be a moral
obligation. To this end, he preaches at many college campuses, including the
University of Arkansas at Fayetteville. Bowman considers the University a uniquely
suitable place to communicate his message because of its close proximity to his
residence in Oklahoma and the significant number of students that can be found in
outdoor areas.
-2-
The University is the flagship campus of the University of Arkansas System.
It has an enrollment of more than 16,000 students. In an attempt to regulate an ever-
increasing demand on the use of its facilities, the University enacted Fayetteville
Policies and Procedures 708.0, entitled “Use of University Facilities and Outdoor
Space” (the “Policy”). The Policy comprehensively governs the use of University
outdoor space.1 It contains guidelines and procedures for space allocation and
reservations. The Policy applies to all areas within the University’s direct control,
including its streets, sidewalks, and parks.
The Policy distinguishes between University Entities and Non-University
Entities. Under the Policy, Bowman is classified as a Non-University Entity.2 The
Policy places a five-day cap per semester per entity on the use of facilities and outdoor
space by Non-University Entities. In addition to the five-day cap, the Policy requires
Non-University Entities to make reservations in advance of their use of a space. A
reservation allows a Non-University Entity to use the outdoor space for one eight-hour
day. A reservation is required regardless of the use that will be made of the space,
whether that use be speaking, carrying signs, handing out literature, or sitting silently.
The Policy does not, however, regulate one-on-one conversations. The Policy also
imposes a three-business-day advance notice requirement for the use of space by Non-
University Entities. The Policy prohibits a Non-University Entity’s use of space from
interfering with the educational mission of the University and allows the University
to cancel or modify a space reservation in the event that a use does interfere. The
Policy further prohibits the use of space by Non-University Entities during so called
1
Use of indoor space is governed by individual use policies which are not at
issue in this case.
2
It should be noted, however, that on one occasion Bowman was able to obtain
sponsorship from a student organization which allowed him to reserve space as a
University Entity.
-3-
“dead days,” which consist of one quiet study day per semester, all final exam periods,
and dates of commencement activities.
In the fall of 1998, Bowman obtained permits to appear twice on campus for
speaking purposes. Bowman returned to the University in the fall of 2000, at which
time he complained to University officials that the permit requirement was imposing
a significant restraint on his speech. According to Bowman, it was more difficult for
him to plan the days he wished to speak in advance because he could not determine
with any certainty his future work schedule or whether a noteworthy event would
prompt him to want to speak on a certain day.
To alleviate these concerns, the University granted Bowman blanket permission
to appear on campus and communicate his message during the fall semester. With the
blanket permission in place, Bowman spoke approximately twenty times in the fall of
2000. Despite having blanket permission to speak on campus, Bowman discovered
he needed a permit for any other form of expression. Bowman was not permitted to
hand out literature, use signs, or engage in symbolic protests without first obtaining
a permit.
Bowman often used inflammatory language and tactics in his presentations, the
nature of which were considered highly offensive by many students. During the fall
semester of 2000, several students and faculty members complained of Bowman’s
presence on campus. Campus police, in response to these complaints, occasionally
had to curb violent outbursts and erect barricades to maintain crowd control as
Bowman sometimes drew crowds as large as 200 people.
In the spring semester of 2001, the University denied Bowman blanket
permission to speak. As a result, Bowman submitted individual requests for permits
to speak on selected days. By letter, the University advised Bowman that it would
only consider up to three separate space reservation forms at any one time. The letter
-4-
further indicated that the campus speech policies “are currently under review and are
likely to be revised in the future.” That semester, Bowman was denied permission to
speak on the University’s dead days.
For the next fall, Bowman planned a series of presentations entitled “Ten
Commandments,” which was to be part of a larger series entitled “Forty Things Every
Student Needs to Know.” During each campus visit, he anticipated covering one
Commandment and one “Thing Every Student Needs to Know.” Bowman applied for
individual permits to cover each of the first six Commandments.
In the meantime, the University formally revised the Policy to its current form.
By letter dated August 21, 2001, the University informed Bowman of the revisions
and approved, in part, his request for use of the grounds by granting him three days
in which to present his message. Bowman, in a letter outlining his concerns regarding
the Policy, subsequently requested an additional seven days. The University, citing
its new five-day cap, denied Bowman a permit for the additional seven days. Bowman
resubmitted his permit application, requesting an additional three days, for a total of
six days. The University granted him permission for two days, but denied permission
for the third day, citing the five-day cap. Bowman proceeded with his speech on the
days he was allowed to speak, covering the first five Commandments. Due to the
five-day cap, Bowman was precluded from sharing his message for the rest of the fall
semester of 2001.
During the spring semester of 2002, Bowman once again utilized his five
permitted days. Bowman applied for a sixth visit. His request was denied under the
five-day cap.
Later that spring, with the sponsorship of a student organization, Bowman
attempted again to speak on a sixth day. The University approved the appearance, but
required a representative of the student organization to be with Bowman at all times
-5-
while Bowman remained on campus. Bowman was forced to cease his expression
whenever the representative was not present.
Unable to resolve his differences with the University, Bowman filed the present
lawsuit alleging that the permit requirement, five-day cap, three-day advance notice
requirement, and dead day ban are unconstitutionally vague, overbroad, and
discriminatory as applied to him, in violation of the First and Fourteenth Amendments
to the United States Constitution. He sought declaratory and injunctive relief as well
as damages under 42 U.S.C. § 1983.
After previously dismissing his claim for compensatory damages, the district
court held a plenary hearing pursuant to Fed. R. Civ. P. 65(a)(2), consolidating the
preliminary injunction hearing with a trial on the merits of his complaint. At the
conclusion of the hearing, the district court dismissed Bowman’s complaint because
it found the University to be a nonpublic forum and all the challenged restrictions on
speech to be reasonable.
Bowman filed a timely notice of appeal pursuant to Fed. R. App. P. 4(a),
thereby invoking our jurisdiction over the appeal under 28 U.S.C. § 1291. We
review de novo the district court’s conclusions of law. Doe v. Pulaski County Special
Sch. Dist., 306 F.3d 616, 621 (8th Cir. 2002). There are no material facts in dispute.
II.
“[S]tate colleges and universities are not enclaves immune from the sweep of
the First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972). However, “the
First Amendment does not guarantee access to property simply because it is owned
or controlled by the government.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 46 (1983) (internal quotations omitted). “The existence of a right of
access to public property and the standard by which limitations upon such a right must
-6-
be evaluated differ depending on the character of the property at issue.” Id. at 44. To
this end, the Supreme Court uses a forum analysis for evaluating restrictions of speech
on government property. See id. at 45-46. The forum analysis initially requires a
court to determine whether a property is a traditional public forum, a designated
public forum, or a nonpublic forum. Families Achieving Independence & Respect v.
Neb. Dep’t of Soc. Servs., 111 F.3d 1408, 1418 (8th Cir. 1997). Once a court makes
a determination on the nature of the forum, it then applies the appropriate standard of
scrutiny to decide whether a restriction on speech passes constitutional muster. See,
e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677-683 (1998)
(hereinafter “Forbes”); United States v. Kokinda, 497 U.S. 720, 726-27 (1990). Thus,
the extent to which access to, and the character of speech upon, government property
may be limited depends upon the nature of the forum in which the speech takes place.
Burnham v. Ianni, 119 F.3d 668, 675 (8th Cir. 1997).
A. Traditional Public Forum
The government’s ability to restrict speech is most circumscribed in a
traditional public forum. Perry, 460 U.S. at 45 (“In places which by long tradition or
by government fiat have been devoted to assembly and debate, the rights of the state
to limit expressive activity are sharply circumscribed.”). A traditional public forum
is a type of property that “has the physical characteristics of a public thoroughfare, .
. . the objective use and purpose of open public access or some other objective use and
purpose inherently compatible with expressive conduct, [and] historical[ly] and
traditional[ly] has been used for expressive conduct . . . .” Warren v. Fairfax County,
196 F.3d 186, 191 (4th Cir. 1999) (citations omitted). “‘[P]ublic places’ historically
associated with the free exercise of expressive activities, such as streets, sidewalks,
and parks, are considered, without more, to be ‘public forums.’” United States v.
Grace, 461 U.S. 171, 177 (1983).
-7-
A content-based restriction on speech within a traditional public forum must be
necessary to serve a compelling government interest and be narrowly drawn to
achieve that interest. Perry, 460 U.S. at 45. A restriction on speech that is not
content-based and that restricts the time, place or manner in which speech may be
communicated is subjected to a different, less restrictive standard. Id. The
government may enforce a reasonable, content-neutral time, place and manner
restriction in a traditional public forum if the restriction is narrowly tailored to serve
a significant government interest and leaves open ample alternative channels of
communication. Id.
B. Designated Public Forum
A designated public forum is a nonpublic forum the government intentionally
opens to expressive activity for a limited purpose such as use by certain groups or use
for discussion of certain subjects. Perry, 460 U.S. at 46. “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.”
Forbes, 523 U.S. at 677 (internal quotations omitted) (alteration in original).
Despite this direction from the Supreme Court, our Circuit’s analysis of what
constitutes a “designated public forum,” like our sister Circuits’, is far from lucid.
Substantial confusion exists regarding what distinction, if any, exists between a
“designated public forum” and a “limited public forum.” See generally, Chiu v. Plano
Indep. Sch. Dist., 260 F.3d 330, 345-46 & nn.10-12 (5th Cir. 2001). As the First
Circuit pointed out in a footnote in Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65,
76 n.4 (1st Cir. 2004), “The phrase ‘limited public forum’ has been used in different
ways.’” The First Circuit accurately states that the phrase has been used as a synonym
for the term “designated public forum” and also for the phrase “nonpublic forum.”
Id. The Second Circuit has articulated the view that the phrases “designated public
forum” and “limited public forum” are not synonyms. See, e.g., N.Y. Magazine v.
-8-
Metro. Transp. Auth., 136 F.3d 123, 128 & n.2 (2d Cir. 1998) (describing a limited
public forum as a “sub-category of the designated public forum, where the
government ‘opens a non-public forum but limits th expressive activity to certain
kinds of speakers or to the discussion of certain subjects.’” (quoting Travis v. Owego-
Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 1991))); see also Chiu, 260 F.3d at
346 n.12. A designated public forum can be classified as either “of a limited or
unlimited character.” Van Bergen v. Minnesota, 59 F.3d 1541, 1553 n.8 (8th Cir.
1995).
Under this analysis, a “limited public forum is a subset of the designated public
forum [that] arises ‘“where the government opens a non-public forum but limits the
expressive activity to certain kinds of speakers or to the discussion of certain
subjects.”’” Make the Road By Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.
2004) (quoting Hotel Employees & Rest. Employees Union Local 100 of N.Y. v. City
of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 545 (2d Cir. 2002) (quoting N.Y.
Magazine v. Metro. Transp. Auth., 136 F.3d 123, 128 n.2 (2d Cir. 1998)). For
example, a university concert hall might be considered a “limited public forum,”
designated for particular speech by university-supported musicians. An “unlimited”
designated public forum is a forum designated for expressive conduct by the
government but not limited to a particular type of speech or speaker.
The distinction between a limited designated public forum and an unlimited
designated public forum is significant because it controls the level of scrutiny given
to restrictions on speech. Like the government’s ability to restrict speech in a
traditional public forum, the government’s ability to restrict speech in an unlimited
designated public forum is sharply circumscribed. Perry, 460 U.S. at 45. In an
unlimited designated public forum, the government may enforce a content-neutral
time, place, and manner restriction only if the restriction is necessary to serve a
significant government interest and is narrowly drawn to achieve that interest. Perry,
460 U.S. at 46. In contrast, in a limited designated public forum, “[r]estrictions on
-9-
speech not within the type of expression allowed in a limited public forum must only
be reasonable and viewpoint neutral.” Turner, 378 F.3d at 143.
C. Nonpublic Forum
The government can most freely restrict speech in a nonpublic forum. A
nonpublic forum is government property which is not classified a traditional public
forum or designated public forum. Warren, 196 F.3d at 192. In a nonpublic forum,
the government may restrict speech “‘as long as the restrictions are reasonable and
[are] not an effort to suppress expression merely because the public officials oppose
[a] speaker’s view.’” American Civil Liberties Union of Nevada v. City of Las Vegas,
333 F.3d 1092, 1098 (9th Cir. 2003) (quoting Sammartano v. First Judicial Dist.
Court, 303 F.3d 959, 966 (9th Cir. 2002).
Accordingly, when analyzing how to classify a forum we must ask two
questions. First, is the space a traditional public forum, a designated public forum, or
a nonpublic forum? Second, if the space is a designated public forum, is the forum
limited or unlimited in its character?
III.
The district court found that the campus of the University of Arkansas at
Fayetteville is not a public forum. We disagree. The facts of this case show that the
University’s grounds cannot be labeled as only one type of forum and that the areas
in question in this case are unlimited designated public fora.
A modern university contains a variety of fora. Its facilities may include private
offices, classrooms, laboratories, academic medical centers, concert halls, large sports
stadiums and arenas, and open spaces. The University of Arkansas at Fayetteville is
this type of institution. Its open spaces, like those at most major universities, come
-10-
in a number of different types. Some are enclosed quadrangles bordered on all sides
by university buildings and traversed by sidewalks, while others are grassy areas or
plazas on the edge of campus where the University’s grounds abut the city property.
Thus, labeling the campus as one single type of forum is an impossible, futile task.
See Justice for All v. Faulkner, 410 F.3d 760, 766 (5th Cir. 2005) (stating that “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”); see also Ala. Student Party v.
Student Gov’t Ass’n, 867 F.2d 1344, 1354 n.6 (11th Cir. 1989) (Tjoflat, J., dissenting)
(stating that not all of a University campus is a public forum, but rather that a campus
contains a variety of fora). Some places on the University’s campus, such as the
administration building, the president’s office, or classrooms are not opened as fora
for use by the student body or anyone else. As Bowman concedes, these areas are
nonpublic fora. Other campus locations, such as auditoriums or stadiums allow for
certain speech on certain topics. These locations may be described as designated
public fora. Further, the public streets and sidewalks which surround the campus but
are not on the campus likely constitute traditional public fora. Grace, 461 U.S. at 177.
Accordingly, rather than attempt to label the entire campus as one type of forum, we
will discuss only the specific areas at issue in this case.
Bowman desires to speak at various locations throughout the campus including
the streets, sidewalks, and open areas located inside and directly adjacent to the
campus. Specifically at issue in this case, Bowman desires to speak at the outdoor
areas clearly within the boundaries of the campus known as the Union Mall,3 the
3
The Union Mall is located in the center of campus between the library and
Union Mall facility. It is an outdoor area composed of grassy mounds surrounded by
sidewalks and walkways, benches, and potted trees and plants. A bike rack, basketball
hoop, fountain and street lamps appear in pictures depicting the area. The Union Mall
hosts a variety of organized events such as political gatherings and musical events.
-11-
Peace Fountain4 and Brough Commons,5 presumably because of the high
concentration of students in these locations.
The objective evidence in the record shows these particular areas combine the
physical characteristics of streets, sidewalks, and parks, and are open for public
passage. They do not include university buildings or stadiums, but they are located
within the boundaries of the campus. The Union Mall and Peace Fountain are
completely surrounded by University buildings. The physical characteristics of these
spaces, “without more,” might make them traditional public fora. Grace, 461 U.S. at
177; Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (“Wherever the titles
of streets and parks may rest, they have immemorially been held in trust for the use
of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.”).
However, “[p]ublicly owned or operated property does not become a ‘public forum’
simply because members of the public are permitted to come and go at will.” Grace,
461 U.S. at 177. Rather, the open nature of these spaces is merely a factor to consider
in determining whether the government has opened its property. Grace, 461 U.S. at
Students use the Union Mall to sit on its benches and lay on its grass to read, study,
and talk to one another.
4
The Peace Fountain is located in the center of campus and hosts a variety of
organized and unorganized events. The Peace Fountain is a metallic tower structure
with a fountain of water at the base. A cemented area with potted trees and plants
surrounds the fountain. Sidewalks run through and parallel to the Peace Fountain. A
statue and small stone wall appear in pictures of the area.
5
The Brough Commons building is an on-campus eating facility, but the area
in question is outside the building at the intersection of Dickson Street and Ozark
Street. Dickson Street runs from downtown Fayetteville and dead-ends in part of the
campus. The area in question consists of a large sidewalk with some landscaping
featuring trees and plants. The area also contains a historical marker memorializing
the acquisition of the farmland on which the University sits.
-12-
177. We must also examine the traditional use of the property, the objective use and
purposes of the space, and the government intent and policy with respect to the
property, not merely its physical characteristics and location.6 In particular, we must
acknowledge the presence of any special characteristics regarding the environment in
which those areas exist. See, e.g., Tinker v. Des Moines Indep. Sch. Dist., 393 U.S.
503, 506 (1969) (noting the “special characteristics of the school environment”);
Greer v. Spock, 424 U.S. 828, 838-40 (1976) (discussing the unique nature of military
bases and the fact that these circumstances must be taken into consideration).
In the case of the University, although it “possesses many of the characteristics
of a public forum,” such as open sidewalks, “[it] differs in significant respects from
public forums such as streets or parks or even municipal theaters.” Widmar v.
Vincent, 454 U.S. 263, 268 n.5 (1981). A university’s purpose, its traditional use, and
the government’s intent with respect to the property is quite different because a
university’s function is not to provide a forum for all persons to talk about all topics
at all times. Rather, a university’s mission is education and the search for knowledge
– to serve as a “‘special type of enclave’ devoted to higher education.” ACLU
Student Chapter – Univ. of Md., College Park v. Mote, 321 F. Supp. 2d 670, 679 (D.
Md. 2004) (quoting Grace, 461 U.S. at 180); see Widmar, 454 U.S. at 268 n.5 (“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.”). Thus, streets, sidewalks, and other open areas that
might otherwise be traditional public fora may be treated differently when they fall
within the boundaries of the University’s vast campus.
The University argues that the areas at issue should be treated as nonpublic fora.
This argument is contrary to how the University itself, through its policies and
procedures, has treated the Union Mall, the Peace Fountain, and the Brough
6
It must be noted that none of these factors are dispositive.
-13-
Commons. The Policy, which permits speech by University and Non-University
Entities, offers strong evidence that the University “intentionally open[ed]” areas of
the campus “for public discourse.” Forbes, 523 U.S. at 677 (internal quotation
omitted). The Policy expressly states that it applies to “facilities or outdoor space .
. . for use by University entities and Non-University entities.” Fayetteville Policies
and Procedures, “Use of University Facilities and Outdoor Space” 708.0 (A). The
Policy governs the specific areas at issue here. The only use of the space that is
prohibited is any activity by private, for-profit businesses. 708.0 (A). Further, the
Policy indicates that the University has opened up the campus generally, not merely
“to either a specific group of speakers or for discussion on a very narrow topic.”
Bourgault v. Yudof, 316 F. Supp. 2d 411, 420 (N.D. Tex. 2004). The Policy provides
strong evidence that the University, like many public colleges, has opened select
portions of its campus “to facilitate discussion on issues of public concern.” Id. As
such, the Policy indicates that the University itself designated the areas in question as
locations for free expression.
College campuses traditionally and historically serve as places specifically
designated for the free exchange of ideas. Healy, 408 U.S. at 180 (stating that
universities represent a “marketplace of ideas”). The Supreme Court has advanced the
idea that universities have traditionally opened parts of their campuses to speech.
Th[e] danger [of chilling speech] is especially real in the University
setting, where the State acts against a background and tradition of
thought and experiment that is at the center of our intellectual and
philosophic tradition. . . . [U]niversities began as voluntary and
spontaneous assemblages or concourses for students to speak and to
write and to learn. The quality and creative power of student intellectual
life to this day remains a vital measure of a school’s influence and
attainment.
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 835-36 (1995)
(citations omitted). Indeed, in times of great national discussion, such as during the
-14-
height of the Vietnam War or the debate over the war in Iraq, college campuses serve
as a stage for societal debate. Often those speaking on college campuses are not
enrolled students, but rather people like Bowman, who travel from campus to campus
to spread their message. Thus, public university campuses historically contain places
where space is specifically designated by society and universities themselves for
speech.
This tradition of free expression within specific parts of universities, the
University’s practice of permitting speech at these locations, and the University’s past
practice of permitting both University Entities and Non-University Entities to speak
at these locations on campus demonstrate that the University deliberately fosters an
environment that permits speech “subject to the limits necessary to preserve the
academic mission and to maintain order.” Hays County Guardian v. Supple, 969 F.2d
111, 117 (5th Cir. 1992) (finding certain outdoor areas of a university to be a
designated public forum, designated for the speech of students). Accordingly, we
hold that the specific property at issue – the Union Mall, Peace Fountain, and Brough
Commons – are designated public fora. This holding does not apply to any other areas
on the University campus, about which we express no opinion.
We must next decide whether the forum is limited or unlimited in its character.
In this case, although the University gives preferential treatment to University Entities
over Non-University Entities in regard to use of University space, there is little
evidence that the University intended to limit the use of University space to a
particular type of speech or speaker. Accordingly, we hold that the spaces at issue are
unlimited designated public fora.
-15-
IV.
Having concluded that the outdoor areas in question are unlimited designated
public fora, we must ascertain whether the Policy impermissibly restrains free
expression. We analyze the University’s time, place, and manner restrictions using
the appropriate scrutiny standard, which requires a restriction on speech to be content-
neutral and narrowly tailored to serve a significant government interest. Perry, 460
U.S. at 45.
There is no evidence that the Policy is anything but content neutral. Our
analysis, therefore, focuses on whether the Policy is narrowly tailored to serve a
significant government interest. The University has identified a number of interests
that justify a restriction on speech. One significant interest is protecting the
educational experience of the students in furtherance of the University’s educational
mission.7 This interest is significant because an educated electorate is essential to the
vitality of our democracy and a lack of proper education diminishes the value of our
free speech rights. See Keyishian v. Bd. of Regents of the Univ. of the State of N.Y.,
385 U.S. 589, 603 (1967) (“The Nation’s future depends upon leaders trained through
wide exposure to that robust exchange of ideas . . . .”). A second significant interest
is in ensuring public safety. Like education, safety is a fundamental human need
without which the desire to speak one’s mind becomes moot. See Heffron v. Int’l
Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (“As a general
matter it is clear that a State’s interest in protecting the ‘safety and convenience’ of
persons using a public forum is a valid governmental objective.”). Finally, a third
significant interest asserted by the University is the fostering of a diversity of uses of
University resources.
7
This interest includes the University’s interest in preserving University
Entities’ priority for the space in furtherance of that mission.
-16-
A regulation is narrowly tailored when it furthers a significant government
interest that would be achieved less effectively without the regulation. Thorburn v.
Austin, 231 F.3d 1114, 1120 (8th Cir. 2000). The statute does not, however, need to
be the least restrictive means of regulation possible. Id. Accordingly, we next analyze
whether each of the time, place and manner restrictions imposed by the University are
sufficiently narrowly tailored to meet one or more of the significant government
interests described above.
A. Permit Requirement
The University’s requirement that a Non-University Entity obtain a permit
before “using” outdoor space is a prior restraint on speech against which there is a
heavy presumption of unconstitutionality. Forsyth County v. The Nationalist
Movement, 505 U.S. 123, 130 (1992). The government “may impose a permit
requirement on those wishing to hold a . . . rally.” Id. This permit may only be
imposed, however, if it does not delegate overly broad licensing discretion to a
government official, is content-neutral, is narrowly tailored to the University’s
significant governmental interests, and leaves ample alternative channels for
communication. Id.
The University’s policy does not delegate overly broad discretion to its
officials, nor does it allow the denial or revocation of permits on the basis of content.
The Policy applies to all not-for-profit Non-University Entities.8 The Policy grants
the University the right to deny or revoke a permit for the use of a space by a Non-
University Entity only for limited reasons, such as interference with the educational
activities of the institution.
8
The Policy gives the University broad discretion to deny permits to for-profit
entities.
-17-
The University has a significant public safety interest in requiring a permit
because of the time and resources necessary to accommodate the crowds that Bowman
attracts. See Thomas v. Chicago Park Dist., 534 U.S. 316, 322 (2002) (upholding a
requirement that individuals obtain a permit before conducting events in public parks
involving fifty or more people); see also Grossman v. City of Portland, 33 F.3d 1200,
1206 (9th Cir. 1994) (“Some type of permit requirement may be justified in the case
of large groups, where the burden placed on park facilities and the possibility of
interference with other park users is more substantial.”). Bowman argues that the
Thomas and Grossman analyses are not applicable to him because he is a single
speaker. This argument fails because regardless of whether Bowman is speaking
alone or with others, carrying a sign, or handing out literature, he has demonstrated
the capacity to attract a crowd and disrupt the unique educational environment.
See Mote, 321 F. Supp. 2d at 679. In fact, the majority of Bowman’s space
reservation requests listed an estimated attendance of between fifty and one hundred
people, analogous to the situation in Thomas. The actual attendance at his events has
run as high as two hundred people. Under these circumstances, the permit
requirement is justified to “coordinate multiple uses of limited space,” “assure
preservation of the [campus],” “prevent uses that are dangerous” to students or other
people, and “to assure financial accountability for damage” caused by Bowman’s
event. Thomas, 534 U.S. at 322.
The University’s permit requirement is narrowly tailored to meet these
significant interests. The University’s requirement that Non-University Entities notify
the University in advance of their intent to use its facilities does not burden
substantially more speech than is necessary to further the University’s interests. These
interests include ensuring public safety, minimizing the disruption of the educational
setting, and coordinating the use of limited space by multiple entities. Further, the
University’s requirement leaves open ample alternative channels for communication.
Accordingly, although the Policy admittedly does burden Bowman’s speech by
-18-
requiring him to plan sufficiently in advance to obtain a permit, it is not overly
burdensome so as to make the permit requirement unconstitutional.
B. Five-Day Cap
In addition to the permit requirement, the University regulates the time in which
a speaker may speak by imposing a cap of five, eight-hour days per semester. If a
speaker requests a sixth day, the University will deny the permit. The University
explains that the five-day cap allows the speaker, on a semester basis, the same
number of access hours as expended on a typical three-semester-hour class. The
University argues that the five-day cap fosters a diversity of usage, prevents
monopolization of space and preserves the property’s tax-exempt status.
The University’s interest in fostering a diversity of viewpoints and avoiding the
monopolization of space serves a significant interest. However, the five-day cap is
not sufficiently narrowly drawn to achieve that interest. The Policy as written does
not by itself foster more viewpoints; it merely limits Bowman’s speech. If no one else
wants to use the space after Bowman has used his five permits, the space will go
unused even if Bowman still wants to use the space. A more narrowly tailored policy
might grant Bowman more than just five days per semester to speak if the space is not
being used, but give preference to other speakers who have not already obtained five
permits. Furthermore, a policy that allows speakers to obtain permits for a limited
number of events at any one time might be permissible to further the significant
interest of keeping spaces open for an array of groups and a diversity of uses. This
type of policy would further the University’s interest in preventing a single entity
from monopolizing a specific space by reserving that space for an entire semester with
a single permit request.
Although the five-day cap might increase the odds that the space will be
available for informal use, this rationale is not a sufficient justification in light of the
-19-
disfavor with which restrictions on speech are viewed. The University’s limitation is
not narrowly tailored to achieve its interest in fostering a diversity of viewpoints and
avoiding monopolization of space. Accordingly, we conclude that the five-day cap
is an unnecessary abridgment of Bowman’s speech rights, and therefore
unconstitutional.
C. Three-Day Notice Requirement
The University requires three-days’ advance notice. Bowman argues that the
advance notice requirement effectively bars him from engaging in constitutionally
protected spontaneous speech. The University asserts that the notice requirement is
necessary to allow it to plan for exigencies such as crowd control and insurance
requirements. This court stated in Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th
Cir. 1996), that a five-day advance notice requirement for a permit was not narrowly
tailored. We noted, however, that advance notice requirements of three days or fewer
have been upheld by courts as sufficiently narrowly tailored. Id. at 1523. The case
at bar is distinguishable from Douglas in at least two ways. First, the notice
requirement is only three days. Second, a university is less able than a city or other
entity with police powers to deal with a significant disruption on short notice. Mote,
321 F. Supp. 2d at 681 (“a University’s resources are limited and the University has
an interest in reserving those resources for University community members”); see also
Glover v. Cole, 762 F.2d 1197, 1203 (4th Cir. 1985) (“[a] college has a right to
preserve the campus for its intended purpose and to protect college students from the
pressures of solicitation”). In light of the modest nature of the requirement and what
the district court described as the University’s reduced capacity to address “the
exigencies of determining what, if any, security, crowd control, additional insurance,
etc., will be required for a particular event,” we conclude that the advance notice
requirement is sufficiently narrowly tailored, and thus permissible.
-20-
D. Dead Day Ban
The University bans Non-University Entities from using its space during so-
called “dead days.” The University explains that “dead days” are the official final
examination periods, which allow students to study for and take final exams in a
peaceful, quiet environment, and the dates of official University commencement
activities. Protecting the educational experience of the students by preserving limited
quiet study and exam-taking time is a significant government interest. The University
has shown that Bowman’s activities such as preaching, passing out literature, or
carrying a sign could very easily interfere with a student’s educational experience by
causing a noise disturbance. For example, carrying a sign, though silent as an action,
might provoke noisy, disruptive confrontations.
Bowman argues that the dead day ban is underinclusive because it leaves a
substantial amount of seemingly intrusive conduct unregulated, in that it allows
speech by University Entities, which could be just as intrusive as speech by Non-
University Entities. See City of Ladue v. Gilleo, 512 U.S. 43, 52-53 (1994) (stating
that exceptions to a regulation of speech may diminish government’s credibility in
justifying its regulation). This underinclusivity, however, does not necessarily
undermine the credibility of the university’s rationale for limiting access during
examination and commencement periods. The underinclusive regulation of speech in
Ladue was a “red flag” that rendered “implausible the government’s claim that the
regulation . . . [wa]s narrowly tailored,” National Federation of the Blind v. Federal
Trade Commision, 420 F.3d 331, 345-46 (4th Cir. 2005), but a limitation on speech
that is not all-encompassing may still be narrowly tailored where the underinclusivity
does not favor a particular viewpoint or undermine the rationale given for the
regulation. Id.; Children of the Rosary v. City of Phoenix, 154 F.3d 972, 982 (9th Cir.
1998); ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 957-58 (D.C. Cir. 1995).
-21-
Here, the university reasonably justified a modification of its unlimited
designated forum during discrete times of the academic year when an abundance of
speakers would be likely to interfere with the educational mission. During these
periods, the university restricts not only outside speakers like Bowman, but also
university-related activities (such as athletic contests and work on the physical plant)
that have a potential to hinder students in their preparation for examinations.
(Appellant’s App. at 290-91). We think it was reasonable for the administration to
conclude that University Entities who do reserve space in the designated forums on
these dates are more likely to be attuned to the special needs of the university
community during examination and commencement periods (see id. at 341), and thus
less likely to disrupt the campus during these sensitive times. In effect, the university
has elected to limit the designated forums to certain classes of speakers during these
narrow windows in the academic year, and it is well established that the government
is not required “to indefinitely retain the unlimited open character of” a designated
public forum. Perry, 460 U.S. at 46. Accordingly, we conclude that the dead day ban
passes constitutional muster.
V.
For the foregoing reasons, we conclude that the University’s permit
requirement, notice requirement, and dead day ban are constitutional, but that the five-
day cap is insufficiently narrowly tailored to survive. Accordingly, we affirm in part
and reverse in part.
-22-
BYE, Circuit Judge, concurring,
While I agree with the Court as to the ultimate outcome of this case, I write
separately because the Union Mall, Peace Fountain, and Brough Commons should be
recognized as traditional public fora.
The most important analysis we undertake in a First Amendment case is the
forum analysis. As the Court recognizes, the forum analysis dictates the level of
scrutiny we apply in First Amendment cases. See Ark. Educ. Television Comm’n v.
Forbes, 523 U.S. 666, 677-83 (1998). While the Court does an excellent job of
wading through the muddy waters of First Amendment forum analysis jurisprudence,
like so many courts, it fails to plant the seeds of its discourse in the marshes at issue
here. I cannot adopt the Court’s view as to public areas on a public university campus
not being traditional public fora but instead designated public fora which the
University can redesignate to a non-public forum on a whim.
I
The Court employs the now-standard definition of a traditional public forum:
property owned or controlled by the government which (1) has the physical
characteristics of a public thoroughfare, (2) was created with the purpose of open
public access or for a purpose inherently compatible with expressive conduct,9 and (3)
9
While the purpose for which a space was created is important to determine
whether a traditional public forum exists, government intent is not otherwise relevant
to a determination of whether a space is a traditional public forum. See Am. Civil
Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092, 1104 & n.11 (9th Cir.
2003). Even under a broader intent analysis, however, the University’s historical use
of the spaces for expressive purposes suggests the areas were intended to be traditional
-23-
has traditionally been used for expressive conduct. Warren v. Fairfax County, 196
F.3d 186, 191 (4th Cir. 1999). Streets, sidewalks and parks are the quintessential
traditional public fora. See ante at 12 (citing United States v. Grace, 461 U.S. 171,
177 (1983); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)); see also Am.
Civil Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092, 1099 (9th Cir.
2003). Indeed, “public places historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks, are considered, without
more, to be public forums.” Ante at 7 (quoting Grace, 461 U.S. at 177) (internal
quotations omitted); see also Hague, 307 U.S. at 515 (“Wherever the title of streets
and parks may rest, they have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.”). However, the Court’s
analysis fails to give any weight to the precedent it cites.
The Court acknowledges the areas in dispute–the Union Mall, Peace Fountain,
and Brough Commons–have the “physical characteristics of streets, sidewalks, and
parks, and are open for public passage.” Ante at 12. The Court even goes so far as
to note “[t]he physical characteristics of these spaces, ‘without more,’ might make
them traditional public fora.” Id. Of course, the physical characteristics of a space are
not the only factors to consider in a traditional public forum analysis. The purpose for
which the space was created and the traditional use of the space must also be
considered. See Warren, 196 F.3d at 191. In analyzing the other factors, the Court
missteps. It gives undue weight to largely irrelevant factors, insufficiently analyzes
others, and fails to contextualize its analysis to the University of Arkansas spaces at
issue.
public fora. See Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (“Intent
is not merely a matter of stated purpose. Indeed, it must be inferred from a number
of objective factors, including: [the government’s] policy and past practice, as well as
the nature of the property and its compatibility with expressive activity.”).
-24-
The Court, relying upon dicta in a case dealing with spaces on the University
of Maryland campus, claims a public university’s mission is “not to provide a forum
for all persons to talk about all topics at all times,” but rather to serve as an enclave
for higher education. Ante at 13. The Court next ascribes this mission to the
University of Arkansas without analyzing its varied missions or how they relate to
determining the existence of a traditional public forum.10 See ACLU of Nevada, 333
F.3d at 1104 & n.11 (noting government intent is not relevant to a traditional public
forum analysis). Despite its contention no factor is dispositive, see ante at 12 n.6, the
Court essentially concludes this mission is sufficient to outweigh all other factors.
The Court’s analysis, however, does not comport with Supreme Court
precedent. The issue is not whether the mission of the University as a whole is to
provide full access to everyone on all topics, but whether the University created the
spaces for public access and a purpose not incompatible with expressive conduct and
such spaces have historically been used for expressive conduct. The University’s
overall mission is irrelevant to a proper First Amendment forum analysis.
Should the University’s mission be relevant, it would not be dispositive of
whether a space is a traditional public forum. “The primary factor in determining
whether property owned or controlled by the government is a public forum is how the
locale is used.” Hotel Employees & Rest. Employees Union, Local 100 of New York,
N.Y. & Vicinity, AFL-CIO v. City of New York Dep’t of Parks & Recreation, 311
F.3d 534, 547 (2d Cir. 2002) (quoting Int’l Soc’y for Krishna Consciousness, Inc. v.
N.J. Sports & Exposition Auth., 691 F.2d 155, 160 (3d Cir. 1982)); see also Int’l
Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 693 (1992) (Kennedy, J.,
concurring) (“If our public forum jurisprudence is to retain vitality, we must recognize
10
One of the University of Arkansas’s purposes in enacting the Policy is the
promotion of viewpoint diversity.
-25-
that certain objective characteristics of Government property and its customary use
by the public may control.”) (quoting United States v. Kokinda, 497 U.S. 720, 737
(1990) (Kennedy, J., concurring)).
The Court’s analysis gives rather short shrift to another significant factor in the
traditional public forum analysis: whether the space was created for a purpose
incompatible with expressive conduct. The Court does not suggest how expressive
conduct, occurring in the Union Mall, Peace Fountain, or Brough Commons is
“basically incompatible” with a mission of promoting higher education. See Greer v.
Spock, 424 U.S. 828, 843 (1976). Indeed, courts have consistently held expressive
conduct is compatible with a purpose of promoting education. See, e.g., Keyishian
v. Bd. of Regents of the Univ. of N.Y., 385 U.S. 589, 603 (1967) (noting the purpose
of public universities is to expose students to a “marketplace of ideas”); Bd. of
Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 237 (2000)
(“[R]ecognition must be given as well to the important and substantial purposes of the
University, which seeks to facilitate a wide range of speech.”); Peck v. Upshur County
Bd. of Educ., 155 F.3d 274, 279 (4th Cir. 1998) (affirming the district court finding
the express purpose of a primary school board’s practice of allowing private speakers
access to the public schools was to promote “a broad spectrum of knowledge”); N.J.
Sports & Exposition Auth., 691 F.2d at 160 (“[T]he exchange of ideas is an essential
part of the educational process . . . .”); Glover v. Cole, 762 F.2d 1197, 1200 (4th Cir.
1985) (“A college milieu is the quintessential ‘marketplace of ideas.’”).
In analyzing the particular spaces, it is undisputed the Union Mall, Peace
Fountain, and Brough Commons are public thoroughfares open to public access. It
is also undisputed these areas are used and have historically been so for expressive
and non-expressive activities by both University and Non-University Entities. The
Court’s analysis discounts such significant factors in favor of a lesser one–the
University’s mission–which is largely irrelevant to a traditional public forum analysis.
-26-
II
The authority upon which the Court relies does not support the view streets,
sidewalks, and parks on a public university are not traditional public fora. In fact, the
Court’s position is tenuous at best. See Healy v. James, 408 U.S. 169, 180 (1972)
(“[T]he precedents of this Court leave no room for the view that, because of the
acknowledged order, First Amendment protections should apply with less force on
college campuses than in the community at large.”). The only appellate case the Court
cites arguably on point is Hays County Guardian v. Supple, 969 F.2d 111, 118 (5th
Cir. 1992), which held sidewalks and plazas to be designated public fora for the
speech of university students. The analysis in Hays, however, follows the test for
determining whether a space is a traditional public forum. See id. at 117 (noting
Southwest Texas State University’s regulations permit “[a]ny group or person,
whether or not a student or employee, and whether or not invited by a registered
student, faculty, or staff organization, may assemble and engage in free speech
activities on the grounds of the campus”). In analyzing the spaces, however, the Fifth
Circuit never addressed the traditional uses of the sidewalks and plazas or whether
they might be considered traditional public fora. Accordingly, Hays does not stand
for the proposition outdoor sidewalks and plazas on University property are not
traditional public fora; it only stands for the proposition they are at least designated
public fora.
The other cases to which the Court cites are clearly distinguishable as they
relate to: (1) public high schools, which have not been traditionally held open to
expressive conduct, Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506
(1969); see also Southworth, 529 U.S. at 237 (Souter, J., concurring) (“[Our] cases
dealing with the right of teaching institutions to limit expressive freedom of students
have been confined to high schools, whose students and their schools’ relation to them
are different and at least arguably distinguishable from their counterparts in college
-27-
education.”) (internal citations omitted), and which face unique and significant
discipline concerns, N.J. Sports & Exposition Auth., 691 F.2d at 160 (“Since the
exchange of ideas is an essential part of the educational process, but the need for
discipline and order is great, a public high school is probably a limited forum also.”);
and (2) military bases which have not been historically held open as a public
thoroughfare or for expressive conduct, Greer, 424 U.S. at 838.
The Court also relies upon dicta found in a footnote in Widmar v. Vincent, 454
U.S. 263, 268 n.5 (1981) (“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.”), for the
proposition streets, sidewalks, and parks found within public universities are not
traditional public fora. This reading is not supported by the footnote. The footnote
begins, “[t]his Court has recognized that the campus of a public university, at least for
its students, possesses many of the characteristics of a public forum.” Id. (internal
citation omitted). The footnote goes on to limit this generality when applied to college
classrooms. For this limitation, the Court relies upon cases dealing with public high
schools, which, as noted above, are readily distinguishable from college campuses.
The Court in no way suggests, and perhaps with its use of the term “all” implies the
contrary, all streets, sidewalks, and parks on a public university are non-traditional
public fora.
Indeed, the Court’s reading is in tension with its position a public university
campus contains a variety of fora. See Justice for All v. Faulkner, 410 F.3d 760, 766
(5th Cir. 2005); Ala. Student Party v. Student Gov’t Ass’n, 867 F.2d 1344, 1354 n.6
(11th Cir. 1989) (Tjoflat, J., dissenting). If a public university contains a space which
is properly considered a traditional public forum, which it almost certainly does, I
cannot think of a more appropriate traditional public forum than a street, sidewalk, or
park. For this reason, I disagree with Am. Civil Liberties Union v. Mote, 423 F.3d
-28-
438, 433-34 (4th Cir. 2005) (holding because the campus is an institution of higher
learning, its outdoor areas are not held open to the general public). Mote stands for
the proposition the campus as a whole, including classrooms, facilities, and buildings,
must be open to the entire public for the outdoor areas to constitute a traditional public
forum, even when the public has unfettered access to such outdoor areas. I
emphatically disagree with Mote for the reasons described in this concurrence. See
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988) (“[High] school
facilities “may be deemed to be public forums only if school authorities have ‘by
policy or by practice’ opened those facilities ‘for indiscriminate use by the general
public.”) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,
47 (1983)); see also Faulkner, 410 F.3d at 766 (noting a public university campus may
contain a variety of fora); Ala. Student Party, 867 F.2d at 1354 n.6 (same).
III
The Court does acknowledge public universities and colleges have been
historically and traditionally used for expressive purposes by students and non-
students alike. The Court considers the outdoor areas on the University of Arkansas
campus to be unlimited designated public fora, presumably to ensure student and non-
student speech is protected to the level we associate with public universities.
However, although the Court’s designation requires the application of the same level
of scrutiny of regulations limiting speech as does a traditional public forum
designation, see, e.g., Goulart v. Meadows, 345 F.3d 239, 250 (4th Cir. 2003), the
Court’s designation does not effectively serve to protect either student or non-student
speech.
Once a space is deemed something other than a traditional public forum, even
if an unlimited designated public forum, the government is free to redesignate the
space to limit further expressive conduct or to prohibit it completely. See, e.g., Lee,
-29-
505 U.S. at 700 (Kennedy, J., concurring); Perry, 460 U.S. at 46 (declaring a
governmental entity is not required to retain indefinitely the open character of a
designated public forum); Chicago Acorn v. Metro. Pier & Exposition Auth., 150 F.3d
695, 699-700 (7th Cir. 1998). This is a concept inconsistent with our basic
understandings of a public university. See Rosenberger v. Rector & Visitors of the
Univ. of Va., 515 U.S. 819, 835-36 (1995) (discussing the historical use of
universities as “voluntary and spontaneous assemblages or concourses for students to
speak”).
To safeguard a public university street, sidewalk, or park’s role as a place for
students to assemble and speak, these areas must be considered the type of property
which would fall within the traditional public forum category. Whether a particular
public university street, sidewalk, or park is a traditional public forum will depend
upon the purpose for which it was created and its traditional use. However, there is
no forum more appropriately considered a “marketplace of ideas” and historically
used by all members of the public to present both socially acceptable and unacceptable
speech than a street, sidewalk, or park found on a public university campus.
Indeed, there is no reason students who may or may not pay tuition and who
may or may not live on campus should have more expressive rights upon a campus
street than should non-students who directly support the public university with tax
dollars. The non-student public attends civic, sporting, theater, and other events on
public university campuses. In this sense, a public university belongs just as much to
a community as it does to the students. Nor is a public university’s educational
mission limited to its students–a university and its faculty publish books to benefit the
public good and use public tax dollars to conduct important research. If we are to
protect any space as a traditional public forum for expressive purposes, a public
university street, sidewalk, or park must be such a space.
-30-
Wherever a public street or sidewalk runs, it is presumed to be a traditional
public forum. Frisby v. Schultz, 487 U.S. 474, 480 (1988). There is, therefore, no
reason to apply a different level of scrutiny to a street, sidewalk or park which
happens to fall within the boundaries of a public university than to one owned by a
municipality. The location of the street “may well inform the application of the
relevant test, but it does not lead to a different test.” Id.; see also Grayned v. City of
Rockford, 408 U.S. 104, 116 (1972) (“The nature of a place, the pattern of its normal
activities, dictate the kinds of regulations of time, place, and manner that are
reasonable.”) (internal quotation omitted). The University of Arkansas allows
indiscriminate expressive use by all members of the public at the Union Mall, Peace
Fountain, and Brough Commons, regulated only by narrowly tailored time, place, and
manner restrictions designed to serve significant government interests. While the
university context may allow greater and different types of time, place, and manner
regulations, those regulations do not change the character of the space as a traditional
public forum.
IV
The Court wholly fails to acknowledge the University did not formally regulate
expressive conduct on its public thoroughfares until it enacted the Policy in 1993.
Because the University now chooses to regulate speech, however, may not be
sufficient to overcome the objective indicia of contrary purpose. See Paulsen v.
County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991).
-31-
It is unclear from the record whether the spaces at issue in the instant case were
designated when the University was founded in 1871 or were created sometime
thereafter. If created at the time the University was founded or prior to the enactment
of the Policy, this might suggest the University designated the spaces for a purpose
inherently compatible with expressive conduct. See Rosenberger, 515 U.S. at 835-36
(“[U]niversities began as voluntary and spontaneous assemblages or concourses for
students to speak and to write and to learn.”); Mote, 423 F.3d at 433-34 (“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.”). If created after the enactment of the Policy, it is
possible the University intended a purpose not inherently compatible with expressive
conduct. However, the record is conspicuously silent on this issue and, indeed, why
the spaces were designated as such in the first instance.
The Court, however, does acknowledge the spaces at issue have historically and
traditionally been used by University and Non-University Entities.11 The Court
further recognizes “college campuses traditionally and historically serve as places
specifically designated for the free exchange of ideas.” Ante at 14. Indeed, the Court
recognizes a historical and traditional use of public universities and colleges by non-
students and students alike is to discuss issues of public significance during times of
turmoil. The Court, however, does not suggest where this speech historically or
traditionally occurred on the campuses.
I am left with uncertainty when the spaces were designated and why–factors of
significant importance in determining whether the spaces were created for purposes
11
While the Court uses its analysis of the historical and traditional use of the
spaces to determine whether the spaces are designated public fora or non-public fora,
the same analysis applies equally to determine whether the spaces are traditional
public fora or non-traditional public fora.
-32-
inherently compatible with expressive conduct. In spite of the Court’s valiant effort
to use generalization to establish the historical and traditional use of the Union Mall,
Peace Fountain, and Brough Commons, the record remains insufficient to determine
whether the spaces are traditional public fora under our adopted precedent.
However, the absence of a record should not necessarily preclude us from
reaching a conclusion on the merits of a case. Grace is instructive: “‘[p]ublic places’
historically associated with the free exercise of expressive activities, such as streets,
sidewalks, and parks, are considered, without more, to be ‘public forums.’” 461 U.S.
at 177. This view is buttressed by Frisby, which states, “[n]o particularized inquiry
into the precise nature of a specific street is necessary; all public streets are held in the
public trust and are properly considered traditional public fora.” Frisby, 487 U.S. at
481; see also Kokinda, 497 U.S. at 744 n.2 (Brennan, J., dissenting) (“[W]hen citizens
are going about their business in a place they are entitled to be, they are presumptively
entitled to speak.”).
While Frisby does not stand for the proposition every sidewalk, street or park
located on government property is a public forum, it does suggest a heavy burden to
prove otherwise. Frisby, read in light of Grace and Kokinda, suggest there is a
presumption of public streets, sidewalks, and plazas being associated with expressive
conduct, wherever they are located, are presumed to be traditional public fora, unless
proved otherwise. While other spaces may constitute traditional public fora, see
ACLU of Nev., 333 F.3d at 1099 n.6, these are the spaces the case law presumes to
be traditional public fora.
Given the sparse record in the instant case, it is incumbent upon us to determine
a framework for proving whether a particular space is a traditional public forum.
Given the presumption established by Grace and Frisby, we should permit a prima
facie showing of a traditional public forum to be made when a plaintiff establishes the
-33-
space at issue is a public street, sidewalk, or plaza associated with expressive activity.
Here, Mr. Bowman has clearly done so.
When a plaintiff makes a prima facie showing a space is a traditional public
forum, the defendant should bear the burden to produce objective evidence of the (1)
physical characteristics, (2) original purpose, or (3) historical and traditional use of
the space which would rebut plaintiff’s prima facie showing.
Here, the University failed to produce evidence which would establish anything
other than a traditional public forum regarding the purposes for which the Union Mall,
Peace Fountain, and Brough Commons were created or regarding the historical and
traditional uses of those spaces.12 Accordingly, I would conclude the University failed
to meet its burden to produce evidence sufficient to rebut Bowman’s prima facie
showing the spaces at issue are traditional public fora.13 Nevertheless, this does not
12
That the University has restricted speech for over a decade does not establish
that those restrictions comport with the greater history of the spaces or their inherent
compatibility with expressive purposes. Indeed, although a University may attempt
to change the character of a traditional public forum, it can only do so legitimately by
changing the physical characteristics of the space–it may not do so by fiat. See Lee,
505 U.S. at 700 (Kennedy, J., concurring); Kokinda, 497 U.S. at 743 (Brennan, J.,
dissenting) (“Public access is not a matter of grace by government officials but rather
inherent in the open nature of the locations.”).
13
The Court fails to analyze the differences between the three areas, including
those related to public perception, which might counsel a different outcome for the
Brough Commons than the Union Mall or the Peace Fountain. Brough Commons is
unique even among the other two public places because it is located at the intersection
of two public streets and is not separated from the city sidewalks and public
thoroughfares by a fence or other clear demarcation. The record establishes a
passerby would not know she had entered a “special enclave” with reduced
protections for expressive conduct once she passed onto the Brough Commons area.
See Grace, 461 U.S. at 179-80; Initiative and Referendum Inst. v. United States Postal
-34-
end the inquiry. A determination must still be made whether the regulations comport
with the standard of scrutiny applied to regulation of traditional public fora.
V
Although I disagree with the Court’s forum analysis and failure to place
appropriately the burden of rebuttal on the University, I agree with the ultimate
disposition of this case because the advance notice and permit requirements, as well
as the dead day restrictions, imposed by the University pass constitutional muster
under the traditional public forum analysis, while the five day limitation does not.14
See Grayned, 408 U.S. at 118-19 (noting the city can restrict the public’s expressive
activity on public sidewalks adjacent to a school if the conduct “materially disrupts
classwork or involves substantial disorder or invasion of the rights of others”).
Although the Court’s reasoning as to Bowman’s proposed leafletting and silent
speech activities comes close to upholding improper prohibitions on speech based
upon a feared reaction, see Tinker, 393 U.S. at 508-09; PeTA, People for the Ethical
Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1206 (10th Cir. 2002) (citing
Cox v. Louisiana, 379 U.S. 559, 560 (1965)), given the University’s limited resources,
Serv., 417 F.3d 1299, 1313-14 (D.C. Cir. 2005). Under the case law which speaks
directly to this issue, Brough Commons is a traditional public forum.
14
Although the same scrutiny is applied in cases involving traditional public
fora and designated public fora, see, e.g., Goulart, 345 F.3d at 250, I disagree with the
Court’s implicit suggestion there is a lessened burden for designated public fora
because the University may simply redesignate the space at issue. While the
University may redesignate the space if the space is deemed a designated public
forum, such a redesignation cannot serve to avoid review under the designated public
forum standard, nor can it be applied as a post hoc rationalization for an
unconstitutional restriction of expressive conduct.
-35-
the advance notice and permit regulations nevertheless serve significant governmental
interests in protecting University Entities against unwanted solicitation and ensuring
proper crowd control capabilities, while being narrowly tailored to those interests.
See Glover, 762 F.2d at 1201-03 (concluding solicitation restriction is a “manner”
restriction which passes constitutional muster).
Similarly, the dead day ban is a time restriction which serves a significant
government interest in ensuring proper studying and testing conditions and is
narrowly tailored to those interests.15 See PeTA, 298 F.3d at 1204-05.
15
Bowman has raised concerns regarding the distinction between University and
Non-University Entities’ speech on dead days. I disagree with the Court’s treatment
of this argument insofar as the limitations on athletic contests and plant maintenance
are highly distinguishable. Maintenance work is not a protected expressive activity.
Limitations on athletic contests do limit speech, but it is unclear from our precedent
whether such speech is actually deemed protected speech. In any event, the spaces in
which the contests occur might not be considered either traditional public fora or
unlimited designated public fora and the limitations imposed restrict both student and
non-student speech. I further question the Court’s speculation University Entities’s
expressive activities, which may include speech by individuals not associated with
education, are more attuned to the needs of the University for quiet during the dead
days than the public. Nevertheless, the differential treatment raised by Bowman does
not serve to make the regulation improper under a traditional public forum analysis
because it serves significant government interests and is narrowly tailored to those
interests since it minimizes the distractions faced by students during exam period and
leaves open ample other times during which expressive activities may occur. Further,
such claims are more properly raised under the Equal Protection Clause than under the
First Amendment. See Kokinda, 497 U.S. at 733.
-36-
Based on such reasoning as to the nature and status of the Union Mall, Peace
Fountain, and Brough Commons, which, I believe, should be recognized as traditional
public fora, I do, nonetheless, concur in the ultimate outcome of this case.
______________________________
-37-