Young America's Foundation v. Eric W. Kaler ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-3029
___________________________
Young America’s Foundation, a Tennessee nonprofit corporation; Students for a
Conservative Voice, a Registered Student Organization at the University of
Minnesota; Ben Shapiro
Plaintiffs - Appellants
v.
Eric W. Kaler, President Emeritus of University of Minnesota, in his individual
capacity; Michael Berthelsen, Vice President of University Services of University
of Minnesota, in his official and individual capacities; Matthew Clark, Chief of
Police of University of Minnesota, in his official and individual capacities; Troy
Buhta, Lieutenant of University of Minnesota Police Department, in his official
and individual capacities; Erik Dussault, Assistant Director of Student Unions &
Activities of University of Minnesota, in his official and individual capacities
Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: May 11, 2021
Filed: October 4, 2021
____________
Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Students for a Conservative Voice (SCV) brought Ben Shapiro to speak at the
University of Minnesota Twin Cities Campus at an event funded by Young
America’s Foundation (YAF). University of Minnesota (University) officials
rejected various proposed venues for the event, citing security concerns. The
officials ultimately approved a smaller, more remote venue than what SCV had
requested. SCV, YAF, and Shapiro (Appellants) brought claims under 42 U.S.C.
§ 1983 against the officials, alleging that the University’s then-existing events policy
was unconstitutional facially and as applied to them under the First and Fourteenth
Amendments. Because we find that SCV’s facial challenges and requests for
injunctive relief are now moot and that Appellants lack standing to maintain their
as-applied claim, we vacate the district court’s orders with respect to those claims
and remand with instructions to dismiss without prejudice.
I.
In 2017, SCV and Collegians for a Constructive Tomorrow (CFACT), student
organizations at the University, hosted an event featuring conservative speaker
Lauren Southern on the University’s Twin Cities Campus. Prior to the event, SCV
became aware that a group of students planned to protest the event. In response,
SCV contacted the University of Minnesota Police Department (UMPD) and
requested additional security. Upon learning of these security concerns, Erik
Dussault, Assistant Director of Student Unions & Activities, scheduled a meeting
between the student organizations, UMPD, and himself to discuss security for the
event. At this meeting, CFACT mentioned that it, along with SCV, intended to bring
Shapiro to campus the following semester and expressed that similar safety concerns
would likely be present.1
1
As described by the district court, Shapiro is:
an “American political commentator, nationally syndicated columnist,
author, radio talk show host, and attorney.” He holds a [B]achelor’s
degree in political science from the University of California – Los
-2-
Dussault suggested that the students follow the University’s “Large Scale
Event Process” (LSEP) in planning that event. On its face, this policy is a mandatory
approval process for “large scale events,”2 which requires student organizations to
submit a proposal to a committee of administrators and students which then
determines whether the campus can logistically support the event. The parties
dispute whether the LSEP was in fact mandatory, and the record is unclear as to
whether the LSEP committee even existed. It is undisputed that SCV never
submitted a proposal, and the record indicates that no party followed the process in
planning for the Shapiro event. Since the commencement of this litigation, the
University has replaced the LSEP with a more defined “Major Events” policy, which
applies to all individuals regardless of their connection to the University.
The Lauren Southern event was met with a 250-person protest, which resulted
in two arrests, a campus curfew, and the use of chemical spray. However, the event
itself progressed as planned, unaffected by the disruption. That same evening, SCV
Angeles, and a [J]uris [D]octorate from Harvard Law School. He is the
prior editor-in-chief for the Daily Wire, and the host of a podcast and
radio show. He also writes a syndicated column for Creators Syndicate,
and works with YAF to schedule speaking opportunities on college
campuses around the country. While he does not currently practice law,
Shapiro is a licensed attorney in California.
R. Doc. 94, at 3-4 (citations omitted).
2
The LSEP defines “large scale events” as:
Student group sponsored events taking place in a large campus
venue or outdoor space that will draw a significant amount of the
campus population, a large off-campus crowd, or represents a
significant security concern (i.e.[,] public figure, celebrity, etc.).
Events may include, but are not limited to[:] concerts, lectures, public
appearances, performances[,] and rallies.
R. Doc. 1-1, at 2.
-3-
submitted a reservation request for the Mayo Auditorium for a “Ben Shapiro
Speech” on February 26, 2018, stating:
We will be holding the event in Mayo Auditorium. We understand
there is a fee and insurance cost associated with it. That is not an issue.
DO NOT relocate this event, and DO let us know the additional work
we will be required to do ahead of time. The event will likely require
security.
R. Doc. 17-1, at 1. SCV initially estimated attendance for the Shapiro event to be
about 400 people and requested the Mayo Auditorium because the venue held 455
people and was centrally located on the East Bank portion of the University’s
campus. 3 This request was forwarded to the University President, Eric Kaler, who
then sent an email to his chief of staff stating, “So have they actually invited Ben
Shapiro? I do not want this in the middle of campus - West Bank is a better location.”
R. Doc. 51-2, at 2. Kaler later testified that he was concerned about hosting the event
in the Mayo Auditorium because it is in the middle of the medical school and near
the campus’s transit train’s route. He believed that the event would be better located
farther from the center of campus “so that if there was a disruption it would have
minimal effect on the thousands of people who come to the [U]niversity for reasons
besides protesting.” R. Doc. 73-8, at 28-29.
3
The University’s Twin Cities campus is divided into three portions. East
Bank and West Bank are located in Minneapolis on either side of the Mississippi
River. The other portion of the campus is located in St. Paul. East Bank is the
central campus and contains 11 of the University’s 13 residence halls, whereas West
Bank and St. Paul each contain only 1 residence hall. It takes approximately 15
minutes by car to get from West Bank to St. Paul. The campus also maintains a bus
service that offers free transportation to students between the portions of campus. It
takes the bus service 5 minutes to go between West Bank and East Bank; 15 minutes
to go between East Bank and St. Paul; and 20 minutes to go between West Bank and
St. Paul.
-4-
Despite its reservation request for the Mayo Auditorium, SCV continued to
look for larger venues. SCV had difficulty finding a venue because the University
had not finalized its spring semester class schedule. The student organization
inquired as to the availability of the Tedd Mann Concert Hall and the Northrop
Auditorium, venues located in West Bank with capacities of 1,178 and 2,692 people,
respectively. The administrations of these venues declined to hold the event, and
Dussault later clarified that the decisions were based on the unavailability of the
venues on the event date. SCV also submitted a request to host the event at Willey
Hall, a West Bank location with a 1,058-person capacity; the administration of the
venue set this request to “tentative” because the Mayo Auditorium was still being
held for the event.
On December 19, 2017, Lieutenant Troy Buhta, representing the UMPD, and
SCV conducted a “walkthrough” of the Mayo Auditorium to perform a security
assessment. Following the walkthrough, Buhta concluded that security concerns
rendered the Mayo Auditorium unsuitable for the event, namely the venue’s direct
connection to the University’s hospital and the burden of having to determine
whether an individual was a security threat or merely associated with the hospital.
The following day, Dussault recommended Ferguson Hall, located in West Bank
with a 150-person capacity, and the North Start Ballroom, located in St. Paul with a
555-person capacity. SCV later stated that it would have never agreed to Ferguson
Hall based on its limited capacity. Accordingly, Dussault sent an email to SCV and
Buhta stating: “Sounds like [i]t will be a decision between the North Star Ballroom
or Willey Hall then.” R. Doc. 65-4, at 10. Buhta replied, “Willey [Hall] is not going
to be a good option due to access from the skyway.” R. Doc. 65-4, at 11. In addition,
Buhta recommended the Continuing Education and Conference Center, located in
St. Paul with a 392-person capacity. Based on this information, SCV responded, “It
looks like St. Paul will be our best option,” and requested reservations for both the
North Star Ballroom and the Continuing Education and Conference Center. R. Doc.
65-4, at 46. Notably, later that day, Matt Clark, the University’s Chief of Police,
sent an email to Ken Gay, the Director of the Continuing Education and Conference
-5-
Center, stating: “The admin has asked that we try to move this visit to the St. Paul
campus. It’s going to be a security issue with past lectures at other universities.” R.
Doc. 65-4, at 31. The next day, he sent another email to Gay stating that “the crowd
size need[ed] to be limited to 500” and that he expected there to be protestors present.
R. Doc. 65-4, at 30.
SCV later decided to eliminate the Continuing Education and Student Center
from its consideration based on its associated event costs and smaller size. After a
walkthrough of the North Star Ballroom, SCV reserved the venue for its event. SCV
subsequently met with the venue’s event manager to discuss seating configurations;
SCV selected the 400-seat configuration because any additional seats would have
had an obstructed view. A few weeks later, SCV began selling tickets and sold out
within hours. Dussault informed SCV that 49 seats could be added to the North Star
Ballroom, though the attendees would have partially obstructed views, and SCV
agreed to the expansion.
In late January, SCV, in coordination with YAF, began a “press push” to place
public pressure on the University to provide a larger venue. As part of this campaign,
YAF published a blog post discussing the event planning process and accusing the
University of viewpoint discrimination. On February 12, 2018, a member of the
University’s Board of Regents emailed the University and expressed concerns about
the event planning process. In the member’s opinion, the University’s messaging
regarding the venue changes was inconsistent and Willey Hall was easier to secure
than the North Star Ballroom. This email was forwarded to Clark as well as Michael
Berthelsen, the Vice President of University Services. Clark responded:
We are already past capacity for this event considering the number of
officers on UMPD. Adding additional seats and guarding a growing
protest crowd creates greater safety risk and concern. Changing the
venue to Willey [Hall] would require more personnel to guard skyway
access from other buildings and tunnels. As we discussed, [UMPD] is
not trained or prepared to handle these events. At best, they [are]
-6-
limited to static/non-confrontational locations. If this grows to a larger
protest and counter protest crowd, we need to cancel the event for safety
reason[s], or request many more officers from other agencies. The
location of this event was established and agreed upon (by the student
group) based on the limited personnel within [UMPD].
R. Doc. 65-4, at 110.
On February 16, 2018, the Vice President of SCV submitted another request
for Willey Hall, but the request was denied because SCV had already booked the
North Star Ballroom. SCV subsequently issued a “Statement on Ben Shapiro’s
Speech at the University of Minnesota,” alleging in part that “[t]he University [was]
unwilling to risk protestors shutting roads, blocking trains, or forcing hospitals into
lockdowns so that students would have the opportunity to hear Ben Shapiro speak.”
R. Doc. 65-4, at 100. On February 19, 2018, Matt Kramer, the University’s Vice
President of University Relations emailed Dussault inquiring as to the amount of
people on the event’s wait list. Maggie Towle, the University’s Vice Provost, who
was included on the email, interjected, stating:
I have concerns with this request as we normally wouldn’t engage with
any student group [regarding] their wait list. The event will be live
streamed and seems like the alternative for those that want to see the
program. Unless the [University] plans to move this to a larger venue
(which I do not recommend) I see no purpose in asking about the wait
list.
R. Doc. 65-4, at 114. Berthelsen likewise responded, saying, “We are not moving
the event.” R. Doc. 65-4, at 114. Then the University conducted a press conference
where Kaler explained that the University held no bias toward conservative views
and that decisions were made for safety reasons. Kaler stated, “We are . . . mindful
of the fact that [Shapiro] is a controversial speaker and that at several places where
he’s spoken, protest[ors] have objected, and we intend to ensure the event is safe for
all who attend.” R. Doc. 73-15, at 22.
-7-
Prior to the event, UMPD conducted a security assessment of the event.
Under the heading “Scenarios of Concern,” the report stated in part:
There is no credible information indicating a threat to the venue,
speaker, or guests. However, activist groups like ANTIFA & Black
Lives Matter and individuals who were unable to obtain tickets are
likely to protest outside the St. Paul Student Center before and during
the event. There is also a potential for violence between opposing
groups, as seen at the Lauren Southern event in October, where
disturbances were disrupted via chemical spray.
R. Doc. 73-16, at 47. The report further identified a plan to protest the event
promoted by Students for a Democratic Society, another student organization at the
University.4 Additionally, UMPD compiled a detailed “incident action plan” for the
event.
The Shapiro event occurred on February 26, 2018, in the North Star Ballroom.
The venue was sold out, with approximately 450 people in attendance. Those who
were unable to attend the event were able to livestream Shapiro’s speech. About 40
people protested outside the event. The event was executed without any major
disruptions, and Shapiro was able to share his views and field questions from the
audience. The University incurred approximately $15,000 in security and incidental
expenses, including the cost of the 104 to 114 officers available at the venue and the
concrete and steel barricades used to limit access to two streets near the event. None
of these costs was passed on to SCV, YAF, or Shapiro.
Appellants filed suit against Kaler, Berthelsen, Clark, Buhta, and Dussault
(Appellees) in their official and individual capacities seeking both injunctive relief
and damages. Appellants alleged violations of their First and Fourteenth
Amendment rights under 42 U.S.C. § 1983. Specifically, Appellants alleged that the
4
SCV alleges that Students for a Democratic Society is the group who helped
plan and execute the protests at the Lauren Southern event.
-8-
LSEP was unconstitutional on its face and as it was applied to Appellants under the
First Amendment’s guarantee of free speech. Appellants also alleged that the LSEP
violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses
due to the policy’s vague language and Appellees’ practice of using the LSEP as a
justification for suppressing conservative viewpoints, respectively.
Appellees moved to dismiss the complaint in its entirety. The district court
found that YAF and Shapiro lacked standing to seek injunctive relief on any claim.
The district court also dismissed Kaler from the suit, finding that there were
insufficient facts to tie him to the decision-making process. The district court further
found that both facial challenges under the First Amendment and Due Process
Clause of the Fourteenth Amendment failed under the relevant standards and
dismissed the claims. Finally, the district court found that Appellants’ equal
protection claim was barred by qualified immunity and accordingly dismissed the
claim. After discovery, Kaler was added back to the suit.
The parties subsequently filed cross-motions for summary judgment on
Appellants’ only remaining claim: their First Amendment as-applied claim. The
district court found that qualified immunity barred Appellants’ claims for damages
against Appellees in their individual capacities. The district court further found that
SCV, as the only party with standing to seek injunctive relief, had failed to show that
Appellees in their official capacities had maintained an unconstitutional custom and
that SCV accordingly was not entitled to injunctive relief. The district court granted
Appellees’ motion for summary judgment and denied Appellants’ motion.
Appellants appeal the district court’s grant of summary judgment with respect
to their First Amendment as-applied claim against Appellees in their individual
capacities. As the only party with standing to seek injunctive relief, SCV also
appeals the dismissal of the First Amendment facial claim and the Fourteenth
Amendment due process claim and the district court’s grant of summary judgment
with respect to its First Amendment as-applied claim against Appellees in their
-9-
official capacity. Appellants do not challenge the district court’s findings with
respect to YAF’s and Shapiro’s lack of standing to seek injunctive relief nor the
district court’s dismissal of Appellants’ equal protection claim.
II.
Appellees argue that SCV’s facial challenges to the LSEP under the First and
Fourteenth Amendments are moot because the University replaced the LSEP with a
new “Major Events” policy. “Article III mootness arises from the Constitution’s
case and controversy requirement: ‘Article III of the United States Constitution
limits the jurisdiction of the federal courts to actual, ongoing cases and
controversies.’” Ali v. Cangemi, 419 F.3d 722, 723 (8th Cir. 2005) (en banc)
(citation omitted); see also U.S. Const. art. III, § 2, cl. 1. A case is considered moot
“[w]hen, during the course of litigation, the issues presented in a case ‘lose their life
because of the passage of time or a change in circumstances . . . and a federal court
can no longer grant effective relief.’” Id. (second alteration in original) (citation
omitted). “When a law,” or in this case, a university policy, “has been amended or
repealed, actions seeking declaratory or injunctive relief for earlier versions are
generally moot unless the problems are ‘capable of repetition yet evad[ing] review.’”
Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (alteration
in original) (citation omitted). However, a policy is not “capable of repetition yet
evading review” merely because the governing body has the power to reenact the
policy after the lawsuit is dismissed. See Teague v. Cooper, 720 F.3d 973, 977 (8th
Cir. 2013). Instead, “[t]he exceptions . . . are rare and typically involve situations
where it is virtually certain that the repealed [policy] will be reenacted.” Id. (citation
omitted).
Here, we find that this is not one of those rare situations. The new “Major
Events” policy was enacted at the administrative level and became effective on
March 27, 2020. The policy governs “major events” across the Twin Cities Campus
regardless of whether the events are hosted by students or other individuals. The
-10-
University did not merely repackage the LSEP under a new banner but instead
amended the substance of the policy seemingly to address SCV’s concerns. SCV
argues that the LSEP contained vague terms which empower decisionmakers with
impermissibly broad discretion. See, e.g., Appellants Br. 29 (“The terms ‘significant
amount of the campus population,’ ‘large off-campus crowd,’ and ‘significant
security concern’ are undefined in the [LSEP].”). Instead, the “Major Events” policy
contains more defined terms and standards. For example, it defines a “major event,”
in part, as an event “with an anticipated audience size of at least two hundred
involving an outside speaker.” Additionally, instead of generally referencing
“significant security concern[s],” R. Doc. 1-1, at 2, the new policy states that the
University will deny an event proposal on the basis of safety concerns only if “the
event poses a clear and present risk to public health or safety and the University does
not have sufficient resources to adequately address such risk.” Finally, the new
policy specifically responds to SCV’s concerns that such a policy could be used to
exercise viewpoint discrimination through a “heckler’s veto” 5: “The potential
reaction to the event will not be used as a basis for denying a proposed event.”
Further, SCV has not shown that it is “virtually certain” that the LSEP will be
reenacted. See Teague, 720 F.3d at 977 (citation omitted). Because the new “Major
Events” policy is more detailed and pertains to the entirety of the University’s Twin
Cities Campus, it is unlikely that the less defined LSEP, which was enacted only by
the University’s Student Unions & Activities Department, will be reenacted. We
pass no judgment on whether this new “Major Events” policy passes constitutional
muster; we note only that the new policy is distinct from the LSEP such that
providing declaratory or injunctive relief with respect to the LSEP would have no
effect on the “Major Events” policy. See Ali, 419 F.3d at 723; Phelps-Roper, 697
F.3d at 687. Accordingly, we find that SCV’s facial challenges under the First and
Fourteenth Amendments against Appellees in their official capacity are moot.
5
“The ‘heckler’s veto’ involves situations in which the government attempts
to ban protected speech because it might provoke a violent response.” Roe v.
Crawford, 514 F.3d 789, 796 n.3 (8th Cir. 2008).
-11-
III.
Appellants allege that the Appellees unconstitutionally applied the LSEP to
the Shapiro event-planning process. While no party raised the issue, we find it
necessary to determine whether Appellants have standing to maintain their as-
applied challenge. See Bernbeck v. Gale, 829 F.3d 643, 646 (8th Cir. 2016)
(“Standing, although not raised by the parties on this appeal, is a ‘jurisdictional
prerequisite’ and thus ‘a threshold issue that we are obligated to scrutinize,’ sua
sponte if need be.” (citations omitted)). To establish standing, “[t]he plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “Because these
requirements are ‘an indispensable part of the plaintiff’s case, each element must be
supported in the same way as any other matter on which the plaintiff bears the burden
of proof, i.e., with the manner and degree of evidence required at the successive
stages of litigation.” 6 Bernbeck, 829 F.3d at 646 (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992)). Accordingly, the plaintiff may rely on “general factual
allegations of injury resulting from the defendant’s conduct” at the pleading stage,
but at the summary judgment stage the plaintiff “must ‘set forth’ by affidavit or other
evidence ‘specific facts’” to meet its burden. 7 Lujan, 504 U.S. at 561 (citation
6
The dissent asserts that the district court erred in dismissing on summary
judgment the Appellants’ claim that Appellees unconstitutionally applied the LSEP
to them in the Shapiro event-planning process. But in considering the Appellants’
standing to assert this claim, the dissent focuses on standing at the pleading stage,
not at the summary judgment stage. Our discussion of Appellants’ complaint is for
the purposes of determining the contours of their First Amendment claim, not to
consider whether the allegations in the complaint confer standing on Appellants.
Because we must determine whether Appellants have standing at each stage of
litigation, our analysis is properly focused on the evidence Appellants must have
produced at the summary judgment stage to demonstrate that they have standing.
7
In discussing what a defendant must allege to satisfy its pleading burden for
standing, the dissent relies on the statement that “we presume that general allegations
-12-
omitted); Cronin v. Peterson, 982 F.3d 1187, 1193 (8th Cir. 2020) (“Summary
judgment is appropriate if ‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” (citation omitted)).
To establish Article III causation in an as-applied challenge, “a plaintiff must
show that its injury is ‘fairly traceable’ to a challenged statutory provision,” or as in
this case, a university policy. See Neighborhood Enters., Inc. v. City of St. Louis,
644 F.3d 728, 735 (8th Cir. 2011) (citation omitted). Accordingly, a plaintiff does
not have standing to challenge a policy that was not applied to it. See Advantage
Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799-801 (8th Cir. 2006)
(holding that plaintiff lacked standing to challenge portions of a severable municipal
code that were not applied in the denial of plaintiff’s permit application); cf. Phelps-
Roper v. Ricketts, 867 F.3d 883, 896 (8th Cir. 2017) (“[A plaintiff] generally cannot
prevail on an as-applied challenge without showing that the law has in fact
been . . . unconstitutionally applied to [it].” (second alteration in original) (quoting
McCullen v. Coakley, 573 U.S. 464, 485 n.4 (2014))).
Here, Appellants specifically alleged in their complaint that Appellees applied
the LSEP in an unconstitutional manner by exercising viewpoint discrimination in
embrace those specific facts that are necessary to support [a contested] claim.” See
infra, at ___ (quoting Const. Party of S.D. v. Nelson, 639 F.3d 417, 420 (8th Cir.
2011)). However, our Court has recently expressed doubt about the validity of this
rule post- Iqbal and Twombly. See Hawse v. Page, 7 F.4th 685, 689 n.6 (8th Cir.
2021) (“In cases decided before Iqbal and Twombly, a court presented with an issue
of Article III standing would ‘presume[ ] that general allegations embrace those
specific facts that are necessary to support the claim.’ Lujan v. Nat’l Wildlife Fed'n,
497 U.S. 871 (1990). But the Court in National Wildlife Federation expressly drew
that formulation from the permissive pleading regime of Conley v. Gibson, 355 U.S.
41, 45-46 (1957), which was retired by Twombly. 550 U.S. at 561-63. Some post-
Twombly decisions, like the dissent in this case, quote the phrase without identifying
its origin. We see no reason why an analytical approach taken specifically from an
abrogated decision would survive the abrogation.” (alteration in original)).
-13-
restricting the Shapiro event to the St. Paul campus. 8 Now, at the summary judgment
stage, Appellants have not put forth sufficient evidence for a reasonable jury to find
that Appellees in fact applied the LSEP to them. See Anderson v. Liberty Lobby,
8
For example, in their Second Amended Verified Complaint, Appellants
alleged:
181. In practice, the [LSEP] punishes disfavored speech
because it allows University officials to move SCV to a smaller, more
remote location based on the alleged []controversial nature of the event
and a completely speculative number of protestors that may choose to
attend and protest—or blockade—SCV’s event.
182. In practice, Defendants’ [LSEP] was applied against
Plaintiffs’ expressive events without the narrow, objective, or definite
standards that are constitutionally required to limit the discretion of
[University] officials.
183. Defendants’ [LSEP] was applied against Plaintiffs’
expressive events without requiring [University] officials to provide
written justification for their decision to impose restrictions on student
speech.
184. Defendants’ [LSEP] was applied against Plaintiffs’
expressive events without an appeal process for students to utilize when
restrictions were imposed on their event and Plaintiffs were denied the
opportunity to appeal the restrictions imposed on their event.
....
187. Defendants’ application of the [LSEP] to Plaintiffs’ events
was neither a reasonable nor valid time, place, and manner restriction
on speech because it was not content-neutral, it was not narrowly
tailored to serve a significant government interest, and it did not leave
open ample alternative channels of communication.
R. Doc. 58, at 28-30.
-14-
Inc., 477 U.S. 242, 248 (1986). The record reflects that Appellees’ decisions were
independent of the LSEP and made within the scope of each Appellees’ position at
the University, but Appellants’ complaint presents no First Amendment challenge
to Appellees’ actions apart from Appellees’ application of the LSEP. See Singleton
v. Ark. Hous. Auths. Prop., 934 F.3d 830, 837 (8th Cir. 2019) (“[Although] the
pleading requirements under the Federal Rules [of Civil Procedure] are relatively
permissive, they do not entitle parties to manufacture claims, which were not pled,
late into the litigation for the purpose of avoiding summary judgment.” (alterations
in original) (citation omitted)). 9
9
In concluding the “Allegations of Law” in their Second Amended Verified
Complaint, Appellants state: “Pursuant to 42 U.S.C. §§ 1983 and 1988, SCV is
entitled to a declaration that Defendants violated Plaintiffs’ First Amendment rights
through their assessment of restrictions on Plaintiffs pursuant to the [LSEP].” R.
Doc. 58, at 31 (emphasis added). There are allegations in Appellants’ complaint that
could be read to include a general First Amendment challenge when the allegations
are read in a vacuum. For example:
178. Defendants violated Plaintiffs’ First Amendment rights by
refusing to allow SCV to use Willey Hall because Defendants
determined, with their unbridled discretion, that the Shapiro Event
involved “controversial activity.”
179. Defendants engaged in content- and viewpoint-based
discrimination by examining whether Plaintiffs’ speech was
“controversial” and how listeners might react to the speech.
R. Doc. 58, at 28. However, “[t]he complaint ‘should be read as a whole,’”
Warmington v. Bd. of Regents, 998 F.3d 789, 795 (8th Cir. 2021) (citation omitted),
and in doing so here, it is clear that these paragraphs refer to the standards articulated
in Appellants’ as-applied challenge to the LSEP in the prior paragraph:
177. Defendants’ [LSEP] and their practice of refusing to allow
student organizations to use certain venues on campus if Defendants
consider the event to be “controversial” is based on listeners’ reactions
and violates the First Amendment as-applied because they grant
-15-
As a general matter, both parties agree that despite the LSEP’s mandatory
language, it was not mandatory in practice. See Appellants Br. 17 (arguing that “the
University has never required any other student groups hosting events on campus to
comply with the [LSEP]”); Appellees Br. 8-9 (stating that, while the process is not
mandatory, “[s]everal student groups follow the LSEP each year”). Further, the
record is unclear as to whether the LSEP was followed for any events:
[T]he enforcement body, the Large Scale Events Committee does not
even exist and the University has not required any other groups to
follow the [LSEP]. Because the Committee does not exist, [Dussault]
acknowledged that he does not know what the university would do with
a request: “Well, I don’t currently know who we would give it to . . . . I
would at least give it to my supervisor, Denny, who would then
potentially bring it forward to whoever from university services would
consider it.” Asked whether he has ever handled a proposal in this
manner under the [LSEP], Dussault said, “No.”
[University] officials unbridled discretion to discriminate against
speech based on its content or viewpoint.
R. Doc. 58, at 28 (emphasis added). The dissent suggests that, when read as a whole,
the complaint clearly encompasses both the LSEP and “other conduct and ‘practices’
beyond the LSEP” as part of Appellants’ First Amendment claim. But this reading
of the complaint ignores that the “other conduct” and “practices” are explicitly tied
to implementation and execution of the LSEP, particularly where the Appellants
multiple times refer to these “practices” as “associated” with the Speech Suppression
Policy, which is made up of the LSEP. Where the challenged practices are
associated with the LSEP and thus dependent on the implementation of the LSEP,
they cannot form a basis for an independent First Amendment claim. As the
plaintiffs in this case, Appellants are the masters of their complaint. See Winfrey v.
City of Forrest City, 882 F.3d 757, 758 (8th Cir. 2018). When it became clear that
their alleged injury was not rooted in Appellees’ application of the LSEP, Appellants
had ample opportunity to amend their complaint accordingly. We will not now on
review of a summary judgment decision read in a new claim in order to confer
standing to Appellants. See Singleton, 934 F.3d at 837.
-16-
Appellants Br. 13 (fourth alteration in original) (citations omitted).
Even assuming the LSEP was occasionally used at the University, there is no
evidence in the record that Appellees in fact applied the LSEP to SCV’s event.
Dussault initially “suggested” that SCV use the LSEP. R. Doc. 73-6, at 99-100. But
there is no record evidence showing that Appellees required SCV to follow the LSEP
or that SCV ever in fact participated in the LSEP, see, e.g., R. Doc. 73-5, at 100,
much less that an LSEP committee ever met to discuss the event. If the record
indicated that Appellees merely deviated from the LSEP, we might find that
Appellants’ have standing to bring their as-applied challenge to determine whether
Appellees imposed some “unique scrutiny” upon SCV in planning the Shaprio event,
cf., e.g., Gerlich v. Leath, 861 F.3d 697, 704-07 (8th Cir. 2017) (finding that
university officials applied university policy in a discriminatory manner when
reviewing plaintiffs’ trademark application in part by requiring plaintiffs to obtain
additional approval not required by the general policy), but the record does not
include an indicia of evidence that the LSEP impacted Appellees’ actions. The
record shows that Appellees’ actions were independent of the LSEP, premised on
concerns related to each Appellee’s University role. In short, Appellants have failed
to establish causation at the summary judgment stage, i.e., they have failed to
establish that the alleged injury—the violation of their First Amendment right to free
speech—is “fairly traceable” to Appellees’ alleged application of the LSEP. See
Spokeo, Inc., 136 S. Ct. at 1547. Accordingly, we find that Appellants do not have
standing to maintain their as-applied challenge because they have not shown that the
LSEP was in fact applied to them. 10
10
Our findings are in agreement with the district court, which noted:
[T]here is no record evidence that SCV actually participated in the
LSEP process, or was ever actually required to follow the LSEP’s
requirements. SCV never filled out any LSEP forms related to the
Shapiro event—beyond a venue reservation request—and did not
prepare a LSEP proposal for either the Lauren Southern or Shapiro
events. Moreover, there is no evidence that an LSEP committee ever
-17-
IV.
Accordingly, because we find that SCV’s claims for injunctive relief are moot
and that Appellants lack standing to maintain their as-applied claim, we vacate the
district court’s order of dismissal and grant of summary judgment as it relates to
those claims and remand with instructions to dismiss the claims without prejudice.11
GRASZ, Circuit Judge, concurring in part and dissenting in part.
I agree the students’ facial challenge to the University’s Large Scale Event
Process/Policy is moot, and concur in part II of the court’s opinion. I respectfully
disagree, however, with the court’s conclusion in part III that the students’ complaint
fails, on its face, to clear the rather low bar of alleging facts sufficient to establish
Article III standing for the students’ remaining claims. And because I believe the
facts viewed in the light most favorable to the students set forth a viable First
Amendment claim, I would reverse the district court’s summary judgment order.
I. Standing
In assessing whether the students’ complaint establishes standing for their
remaining First Amendment claims, the court rightly observes that it must be “read
met to discuss the event, much less that a committee ever approved or
denied Shapiro’s visit. In contrast, SCV did precisely what student
groups typically do when planning events that raise safety concerns—
they work with [the University] and the UMPD to ensure the event is
hosted safely.
R. Doc. 94, at 62; see also R. Doc. 94, at 65. We pass no judgment on the
constitutionality of Appellees’ actions, only that Appellants have failed to establish
standing to challenge those actions through its as-applied challenge of the LSEP.
11
Accordingly, we also vacate the district court’s denial of Appellants’ motion
for summary judgment.
-18-
as a whole.” Ante, at 15 n.9. But reading the complaint “as a whole” does not negate
our duty to read the complaint according to the applicable standard for determining
standing at the pleading stage.
As the court acknowledges, “There are allegations in the Appellants’
complaint that could be read to include a general First Amendment challenge[.]” Id.Indeed, neither the district court nor any of the many defendants raised, discussed,
or found the standing issue identified by the court. True, our court has an
independent responsibility to ensure Article III standing. See Bernbeck v. Gale, 829
F.3d 643, 646 (8th Cir. 2016). But that does not mean we may rewrite the
complaint’s terms or construe its allegations in a manner that divests the court of
jurisdiction where an alternative construction is both readily available and more
consistent with its language.
Precedent dictates that we must “construe the complaint in favor of the
complaining party.” United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829,
834 (8th Cir. 2009).12 This means viewing the complaint’s allegations in the light
most favorable to the plaintiffs. Sarasota Wine Mkt., LLC v. Schmitt, 987 F.3d 1171,
1178 (8th Cir. 2021). When viewing the complaint, we also make all reasonable
inferences in favor of the plaintiffs. Kuhns v. Scottrade, Inc., 868 F.3d 711, 715–16
(8th Cir. 2017). All this is done in a general framework which allows a plaintiff to
satisfy its pleading burden for Article III standing with “general factual allegations.”
Miller v. Thurston, 967 F.3d 727, 734 (8th Cir. 2020) (quoting Iowa League of Cities
v. EPA, 711 F.3d 844, 869 (8th Cir. 2013)). This is because “we presume that
12
The court suggests I am applying the wrong standard because the case is no
longer at the pleading stage but has progressed to the summary judgment stage.
Ante, at 12 n.6. But this is not a case where the court is determining the plaintiff has
failed to support its allegations with competent evidence. Instead, the court is
determining the plaintiffs’ evidence does not fit within the confines of the
allegations. In making that determination, I see no reason why we would not apply
the pleading standard to determine the scope of the allegations in the complaint.
-19-
general allegations embrace those specific facts that are necessary to support [a
contested] claim.” Constitution Party of S.D. v. Nelson, 639 F.3d 417, 420 (8th Cir.
2011) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 550,
561 (1992)). 13
In the context of our assessment of Article III standing, reading the students’
complaint “as a whole” is part and parcel of our duty to construe the complaint in
favor of the complaining party. Here, two key paragraphs that must be read in
conjunction with the remainder of the complaint are paragraphs 2 and 3. Paragraph
2 states, “This case arises from the policies and practices of [the] University of
Minnesota . . . and public officials employed by the University that restrict the
expressive rights of students and student organizations.” R. Doc. 58, at 2 (emphasis
added). Paragraph 3 states, “UM has a Large Scale Events Policy and practice that
it uses to censor, restrict, and inhibit unpopular speech, thus unconstitutionally
infringing upon students’ First Amendment and Fourteenth Amendment rights (the
“Speech Suppression Policy”).” Id. (emphasis added).
So, by its own terms, the complaint defines “Speech Suppression Policy” as
referring to both the Large Scale Events Policy (LSEP) and the “practice” of the
defendants.
Despite this, the court takes a different path, cabining the students’ “as-
applied” First Amendment challenge exclusively to the LSEP. 14 This approach
13
The court doubts the validity of this rule post-Iqbal and Twombly. Ante, at
12-13 n.7. But we have applied the rule post-Twombly, see Auer v. Trans Union,
LLC, 902 F.3d 873, 878 (8th Cir. 2018), and so until the Supreme Court or the en
banc court decides otherwise, it is still the law of the circuit. See United States v.
Hellems, 866 F.3d 856, 863 n.3 (8th Cir. 2017) (recognizing a panel is bound by
Eighth Circuit precedent).
14
Admittedly, the students’ complaint had confusing labeling. In paragraph
55 of the complaint, the students say that they have attached, as Exhibit 1, “A copy
-20-
overlooks that the complaint defines the “Speech Suppression Policy” to include
other conduct and “practices” beyond the LSEP. 15 The court also fails to actually
read the complaint as a whole. Indeed, following paragraphs 2 and 3, quoted above,
numerous additional paragraphs of the complaint present general factual allegations
sufficient to satisfy the students’ burden of showing injury fairly traceable to the
defendants’ conduct outside of, or in addition to, the LSEP. Even if one could
somehow equate the Speech Suppression Policy with the LSEP, I count no less than
six paragraphs of the complaint that reference the Speech Suppression Policy which
also expressly refer to practices beyond the LSEP that allegedly infringe upon the
students’ First Amendment rights. R. Doc. 58, ¶¶ 18, 176, 177, 180, 197, 199.16
of the Speech Suppression Policy.” Exhibit 1, however, is actually a copy of the
LSEP. Read in isolation, or under a less forgiving standard of review, I might agree
this mistake could doom the students’ claim. However, we must read the complaint
as a whole and we must consider its allegations in the light most favorable to the
students. Metro. St. Louis, 569 F.3d at 834.
15
In at least seven places the court’s opinion substitutes “[LSEP]” in place of
“Speech Suppression Policy,” when analyzing the complaint. Ante, at 13–14 n.8, 15
n.9.
16
These allegations include:
18. Defendants’ application of the Speech Suppression Policy and
practices have deprived and will continue to deprive Plaintiffs of their
paramount rights and guarantees under the United States Constitution.
176. Defendants’ Speech Suppression Policy and their practice of
refusing to allow student organizations to use certain venues on campus
if Defendants believe the event is “controversial” violates the First
Amendment as-applied because it is a prior restraint on speech in areas
of campus that are traditional or designated public fora for UM
students.
177. Defendants’ Speech Suppression Policy and their practice of
refusing to allow student organizations to use certain venues on campus
-21-
And many other paragraphs of the complaint reference actions taken beyond the
LSEP. Id. ¶¶ 94–97, 111–12, 161–62, 172–75, 178–79. 17
if Defendants consider the event to be “controversial” is based on
listeners’ reactions and violates the First Amendment as-applied
because they grant UM officials unbridled discretion to discriminate
against speech based on its content or viewpoint.
180. Defendants’ Speech Suppression Policy and associated practice
of refusing to allow certain student organizations to use certain venues
for “controversial” events constituted an unconstitutional “time,”
“place,” and “manner” restriction that violated Plaintiffs’ right to
freedom of speech and expression.
197. Defendants’ Speech Suppression Policy and associated practice
chill, deter, and restrict Plaintiffs from freely expressing their beliefs.
199. Defendants’ Speech Suppression Policy and associated practice
violate Plaintiffs’ right to free speech as guaranteed by the First
Amendment to the United States Constitution.
R. Doc. 58, at 4, 27–28, 31 (emphasis added).
17
These allegations include:
94. However, before SCV even had the opportunity to choose its
preferred venue, Defendant Kaler denied them the opportunity to hold
the Shapiro event in the largest and most central portion of the
Minneapolis campus.
95. On October 26, 2017, Defendant Kaler replied to an email
referencing a visit by Shapiro as follows: “So have they actually invited
Ben Shapiro? I do not want this in the middle of campus – West Bank
is a better location.” A true and correct copy of the email is attached
hereto as Exhibit 2.
96. Through this directive, Kaler forbid Plaintiffs from hosting the
Shapiro event in the East Bank of the Minneapolis campus. The East
-22-
Bank is the heart of the Twin Cities campus and where many of the
major events on campus are held because it contains many of the largest
and most accessible campus venues.
97. Defendant Kaler made this decision (1) more than four months
prior to the date of the Shapiro event, (2) without any information
relating to security concerns about the event, and (3) even though
numerous speaking events of similar or larger size are held on the East
Bank of campus every year.
111. On December 21, 2017, Defendant Clark sent an e-mail to Ken
Gray, the Director of the University’s Continuing Education and
Conference Center, stating, “The admin has asked that we try to move
this visit to the St. Paul campus. It’s going to be a security issue with
past lectures at other universities.”
112. Defendant Clark also communicated to Defendant Buhta that the
Shapiro event was to be moved to the St. Paul campus, per “the admin.”
161. The University unreasonably forced SCV to hold their event on
the St. Paul campus even though numerous other speakers raising
similar, or even greater security concerns, were welcomed to speak at
the Minneapolis campus.
162. As a result of Defendants’ actions, Plaintiffs were unable to
deliver their message to hundreds of students that wanted to attend the
event and those students were deprived the opportunity to attend the
Shapiro lecture and to participate in an important dialogue on matters
of public concern.
172. Each of the venues chosen, including Willey Hall, is a public
forum for speech and expressive activities by students enrolled at the
University.
173. The First Amendment’s Free Speech Clause, incorporated and
made applicable to the states by the Fourteenth Amendment to the
United States Constitution, prohibits content and viewpoint
-23-
In my view, the court’s failure to acknowledge the complaint’s broad
definition of “Speech Suppression Policy” and also the complaint’s repeated and
express references to the defendants’ practices outside the LSEP, derailed the court’s
Article III analysis. The students did not limit their “as-applied”18 claims solely to
discrimination in the public forums for student speech and expression
on the campus of a public university.
174. A public university’s ability to restrict speech—particularly
student speech—in a public forum is limited.
175. Moreover, under the First Amendment’s Free Speech Clause, and
regardless of the type of forum, a prior restraint on citizens’ expression
is presumptively unconstitutional, unless it (1) does not delegate overly
broad licensing discretion to a government official, (2) contains only
content and viewpoint neutral reasonable time, place, and manner
restrictions, (3) is narrowly tailored to serve a significant governmental
interest, and (4) leaves open ample alternative means for
communication.
178. Defendants violated Plaintiffs’ First Amendment rights by
refusing to allow SCV to use Willey Hall because Defendants
determined, with their unbridled discretion, that the Shapiro Event
involved “controversial activity.”
179. Defendants engaged in content- and viewpoint-based
discrimination by examining whether Plaintiffs’ speech was
“controversial” and how listeners might react to the speech.
R. Doc. 58, at 17, 19, 25–28.
18
Whether the term “as-applied” is pertinent to the students’ remaining First
Amendment claims is unnecessary to decide. We assess standing based on
allegations of injury fairly traceable to the defendants’ conduct. Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). Because the students’ remaining claims are
based on conduct outside the LSEP, they are not challenging the University’s
application of the written LSEP policy. As such, the claims are not a “paradigmatic
as-applied attack.” Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011).
-24-
the LSEP and the complaint should not be construed as if they had. To show
standing, the students’ complaint needs only include “general factual allegations of
injury resulting from the defendant[s’] conduct.” Bennett v. Spear, 520 U.S. 154,
168 (1997) (quoting Lujan, 504 U.S. at 561). In my view the complaint easily
satisfies this modest standard.
II. Summary Judgment
Because I believe the students have standing, I turn to review of the district
court’s grant of summary judgment to the defendants. Granting summary judgment
was improper because, viewed in the light most favorable to the students, the record
evidence establishes a First Amendment violation.
When the students requested to reserve a venue on the main campus to host a
speech by author and commentator Ben Shapiro, the request was handled in a most
curious way. Notice of the request was transmitted to none other than the president
of the University. The president’s reaction was swift, and his directive to
subordinates was clear and decisive: “So have they actually invited Ben Shapiro? I
do not want this in the middle of campus—West Bank is a better location.” This
occurred four months before Shapiro was scheduled to speak. According to the
record, all the president knew about Shapiro then was that he was “a right wing
speaker and he made some appearances on other campuses.”
Though the University previously hosted other controversial speakers on its
main campus, it denied the students access to similar venues for the Shapiro event.
Regardless, such labels do not dictate pleading requirements. Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 331 (2010) (“The distinction [between facial and
as-applied claims] . . . goes to the breadth of the remedy . . . not what must be pleaded
in a complaint.”). And more importantly, “[t]he right to challenge a policy under
the First Amendment is the same whether the policy is written or not.” NAACP v.
City of Philadelphia, 39 F. Supp. 3d 611, 616 (E.D. Pa. 2014).
-25-
In fact, the University eventually relegated the event to the St. Paul campus—far
away from most student housing. Unknown to the students at the time, the head of
campus security informed a facilities director two months before the event that “the
admin has asked that we try to move [Shapiro’s] visit to the St. Paul campus.”
Despite these facts, the district court awarded the University officials
summary judgment. In doing so, it repeatedly made inferences in favor of the
officials to explain away the above-referenced evidence. For example, it inferred
the reason the officials treated the students less favorably than groups with differing
views was because of security concerns—despite evidence that other speakers who
had similar security needs were invited to speak at the Minneapolis campus. Surely,
viewing the evidence in a light most favorable to the plaintiffs does not entail taking
the defendants’ word for it that they had innocent and neutral intentions. Granting
the defendants these types of inferences flips the summary judgment standard on its
head. See Tolan v. Cotton, 572 U.S. 650, 656–57 (2014) (explaining that “under
either prong [of the qualified immunity test], courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment”). Properly viewed
under the summary judgment standard, I believe the record evidence demonstrates a
reasonable jury could conclude the students’ clearly established First Amendment
rights were violated. I would thus reverse the order granting summary judgment.
______________________________
-26-