Justice for All v. Faulkner

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 27, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-50335
_____________________
JUSTICE FOR ALL; JEREMY ALDER; A.E. SMITH,
Plaintiffs - Appellees,
versus
LARRY FAULKNER, Dr., individually and in
his official capacity as President of the
University of Texas at Austin; MARK YUDOF,
individually and in his official capacity
as Chancellor of the University of Texas
System; CULLEN M. GODFREY, individually and
in his official capacity as Vice-Chancellor
of the University of Texas System; JAMES W.
VICK, Dr., individually and in his official
capacity as Vice President for Student Affairs
of the University of Texas at Austin; JOE
A. POWELL, individually and in his official
capacity as Associate Vice President of the
Employee and Campus Services of the University
of Texas at Austin; TERESA GRAHAM BRETT,
individually and in her official capacity as
Associate Vice President of Student Affairs and
Dean of Students of the University of Texas at
Austin; CHERYL WOOD, individually and in her
official capacity as Senior Student Affairs
Administrator of the University of Texas at
Austin; JEFFERY VAN SLYKE, individually and
in his official capacity as Police Chief of the
University of Texas at Austin Police Department;
CHARLES MILLER, individually and in his official
capacity as Chairman of the Board of Regents of
the University of Texas System; RITA C. CLEMENTS,
individually and in her official capacity as the
Vice Chairman of the Board of Regents of the
University of Texas System; WOODY L. HUNT,
individually and in his official capacity as the
Vice Chairman of the Board of Regents of the
University of Texas System; FRANCIE A. FREDERICK,
individually and in her official capacity as
Counsel and Secretary of the Board of Regents of
the University of Texas System; ROBERT A. ESTRADA,
individually and in his official capacity as a
member of the Board of Regents of the University
of Texas System; JUDITH L. CRAVEN, Dr., individually
and in her official capacity as a member of the
Board of Regents of the University of Texas System;
CYNDI TAYLOR KRIER, individually and in her official
capacity as a member of the Board of Regents of the
University of Texas System; H. SCOTT CAVEN, JR.,
individually and in his official capacity as a member
of the Board of Regents of the University of Texas
System; JAMES RICHARD HUFFINES, JR., Dr., individually
and in his official capacity as a member of the Board
of Regents of the University of Texas System; JOHN W.
BARNHILL, individually and in his official capacity as
a member of the Board of Regents of the University of
Texas System,
Defendants - Appellants.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before JOLLY, DAVIS, and CLEMENT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The University of Texas at Austin (“the University”) is the
flagship campus of the University of Texas System. Justice For All
(“JFA”) is a student anti-abortion group at the University. JFA
brought this action challenging the University’s “Literature
Policy”, which requires that all printed materials distributed on
campus bear the name of a university-affiliated person or
organization responsible for their distribution. JFA contends that
the policy is an unconstitutional restriction on anonymous speech
in a designated public forum. The University responds that the
policy is a reasonable, viewpoint-neutral regulation of speech
2
within a limited public forum. The district court agreed with JFA,
and issued a permanent injunction barring enforcement of the
Literature Policy to prevent JFA from engaging in anonymous
leafleting.
We AFFIRM the district court’s holding that the Literature
Policy is invalid under the First Amendment. As to the specific
remedy ordered, however, we REMAND for further consideration
consistent with this opinion.
I
In December 2000, and again in February 2001, JFA submitted to
the University’s Dean of Students an “Application for Use of
University Facilities” requesting permission to erect a 5600 square
foot photographic exhibit on the University’s Main Plaza. The
University denied the requests, but gave JFA permission to erect
the exhibit elsewhere on campus on two occasions.
JFA alleges that, during one of the displays, University
officials attempted to prohibit its members from handing out
leaflets. The leaflets in question read, simply, “Life is
Beautiful –- Choose Life”. Although neither party expressly states
as much, it is clear that the intervention occurred solely because
the leaflets did not identify JFA as the organization responsible
for their distribution, as is required by the University’s
Literature Policy.
As a result of the incident, JFA brought this action,
challenging various University policies on First Amendment grounds.
3
In response, the University amended or repealed some of the
policies in question, leaving two claims for the district court to
resolve. One of the two, which challenged the University’s rules
regarding the erection of stationary exhibits on campus, was
dismissed by the district court. JFA does not appeal the
dismissal.
The second of JFA’s two claims challenged the Literature
Policy as an unconstitutional restriction on anonymous speech
within a designated public forum. The Literature Policy is
actually comprised of two discrete rules: Institutional Rule § 13-
404 and Regents Rule § 12. Regents Rule § 12 applies generally to
the University of Texas System and provides that “[a]nonymous
publications are prohibited, and any individual or organization
publishing or aiding in publishing, or circulating or aiding in
circulating, an anonymous publication will be subject to
disciplinary action”. Institutional Rule § 13-404 implements the
Regents Rule on the Austin campus, and states that “all literature
distributed on campus must identify the University person or
organization1 responsible for its distribution”.2
1
The term “university person or organization” refers to
registered student, faculty, or staff organizations, and individual
students, faculty members, or staff members. Under § 13-103 of the
Institutional Rules, all other persons and organizations are deemed
“off-campus persons or organizations”.
2
We would also emphasize what is not under review in this
case. JFA has not challenged provisions in the Institutional Rules
requiring individuals and groups to identify themselves on signs
posted on University kiosks (§ 13-503(d)) or departmental bulletin
4
The University has advanced several justifications for the
Literature Policy. Before the district court, it argued, inter
alia, that the policy was enacted to prevent littering on campus.
On appeal, the University has abandoned the anti-littering
rationale and contends that the Literature Policy ensures that
literature is not distributed by non-affiliated individuals or
groups, thus preserving the campus for use by students, faculty,
and staff.
The district court concluded (1) that “the campuses of public
colleges and universities” are “designated public forums for
student expression” and (2) that the University’s Literature Policy
was not narrowly tailored to serve a significant state interest.3
As such, it granted summary judgment for JFA and permanently
enjoined the University from enforcing the Literature Policy “to
prevent Plaintiffs from engaging in anonymous leafletting”. The
University now appeals that decision.
II
JFA contends that the Literature Policy violates the First
Amendment, insofar as it effectively bars anonymous leafleting by
students on the campus of a public university. Before turning our
boards (§ 13-506(b)). As noted in the district court order, what
is at issue here is the “distribution” of literature –- i.e., the
physical handing out of leaflets and other materials.
3
The substantive analysis in this case was done, quite ably,
by Magistrate Judge Austin. Because the district court adopted the
findings and recommendations of the magistrate in full, we refer to
them as being those of the district court.
5
attention to the Literature Policy itself, we must address two
threshold questions. First, we must determine whether the speech
at issue –- that is, anonymous leafleting –- is protected under the
First Amendment. If it is, we must determine the proper level of
constitutional scrutiny to apply to the particular forum in
question.
A
As a general proposition, anonymous speech is protected by the
First Amendment. See, e.g., McIntyre v. Ohio Elections Comm’n.,
514 U.S. 334 (1995); Buckley v. American Constitutional Law
Foundation, Inc., 525 U.S. 182, 199-200 (1999); Talley v.
California, 362 U.S. 60, 64 (1960). In striking down prohibitions
on anonymous publication, the Supreme Court has noted, inter alia,
the importance of anonymity as a means of permitting “[p]ersecuted
groups and sects” to “criticize oppressive practices and laws”.
Talley, 362 U.S. at 64.
More specifically, the First Amendment’s protection of
anonymous speech extends beyond traditional publishing to encompass
anonymous leafleting. In Talley, for example, the Supreme Court
held void a city ordinance barring the distribution of handbills
that did not include the name and address of both the author and
distributor. See id. at 60-61, 65. Moreover, the Court observed
in McIntyre that “anonymous pamphleteering is not a pernicious,
fraudulent practice, but an honorable tradition of advocacy and
6
dissent”, which “exemplifies the purpose behind the Bill of Rights,
and of the First Amendment in particular”. 514 U.S. at 357.
Certainly, the right to “anonymous speech” has a somewhat
different meaning for a student who speaks on the campus of a
public university than it has for a leafleter on a public street.
Public universities can and typically do restrict access to campus
facilities. Identifying oneself as a student to a designated
university official will often serve as one’s “admission ticket” to
use those facilities for various purposes, including speech. As
such, on-campus speech –- by virtue of the simple fact that it
occurs within a forum that only certain persons may use –- will
almost never be completely anonymous.
What remains of a student’s anonymity after he has identified
himself to university officials, however, is significant. He may,
if he chooses, remain anonymous in relation to other students, as
well as most faculty and staff. This residual anonymity is no less
critical to the expression of controversial ideas on university
campuses than the right to more complete anonymity is to such
expression in traditional public spheres. As such, we have no
trouble concluding that the anonymous leafleting prohibited by the
Literature Policy is a form of speech protected under the First
Amendment.
B
We thus proceed to determine what level of First Amendment
scrutiny to apply in our review of the Literature Policy. The
7
policy is a restriction on speech on government-owned property –-
i.e., the campus of the University of Texas at Austin. The
standards by which regulations of speech on government property
must be evaluated “differ depending on the character of the
property at issue”. See Perry Education Assn. v. Perry Local
Educators’ Assn., 460 U.S. 37, 44 (1983). As such, our analysis
turns on how the University’s campus is classified as a forum for
protected speech under the Supreme Court’s precedents.
Broadly speaking, there are three types of forum for purposes
of First Amendment scrutiny: traditional, nonpublic, and
designated. See id. at 44-46. Restrictions on speech in
traditional public forums, such as streets and parks, receive the
strictest scrutiny.4 Restrictions in nonpublic forums, such as
military installations, receive the most forgiving.5 The campus of
the University of Texas at Austin, however, fits neither category.
It falls instead within the middle category, broadly referred to as
“designated” public forums.
In recent years, the Supreme Court has made it clear that this
middle category is further divided into two discrete types of
forum: true “designated” forums and “limited” forums.6 The
4
See, e.g., Carey v. Brown, 447 U.S. 455, 461 (1980).
5
See, e.g., Greer v. Spock, 424 U.S. 828 (1976).
6
Although the Supreme Court and the circuits have clarified
the functional difference between designated and limited forums,
the precise taxonomic designation of the latter remains elusive.
As we observed in Chiu v. Plano Independent School District, 260
8
distinction is critical in this case, because restrictions on
speech in a designated forum are subject to strict scrutiny,
whereas such restrictions in a limited forum are reviewed under a
less demanding standard for “reasonableness”. See Chiu, 260 F.3d
at 346; see also Rosenberger, 515 U.S. at 829.7
In Chiu, this court set forth a two-factor test for
classifying such intermediate public forums as either designated or
limited. Under Chiu, we look to “(1) the government’s intent with
respect to the forum, and (2) the nature of the forum and its
compatibility with the speech at issue”. 260 F.3d at 346. As a
preliminary matter, however, we note that there is some dispute
between the parties as to the precise nature of the “forum” at
issue in this case. As such, before applying the Chiu test, we
must define the parameters of the forum.
1
F.3d 330, 346 n. 10 (5th Cir. 2001), the Supreme Court at one time
“referred to limited public forums as being a subcategory within a
designated public forum”, but had more recently “used the phrase
‘limited public forum’ to describe a type of nonpublic forum of
limited open access”. Compare Widmar v. Vincent, 454 U.S. 263,
273-74 (1981) with Rosenberger v. Rector & Visitors of the Univ. of
Virginia, 515 U.S. 819, 829 (1995).
7
In Rosenberger, the Supreme Court reviewed speech
restrictions in a “limited forum” only (1) for viewpoint
neutrality; and (2) to determine whether the restriction was
“reasonable in light of the purpose served by the forum”. 515 U.S.
at 829. This standard is identical to that which the Court has
applied to nonpublic forums. See, e.g., Perry Education Assn., 460
U.S. at 49.
9
The University’s case is based on a general assertion that
“the University campus” is a limited public forum. The University
suggests that to hold otherwise would render the entire campus “the
equivalent of a public park”, insofar as any regulation of speech
by “students, teachers, or anyone else” would be subject to strict
scrutiny. Moreover, the University notes that it affirmatively
prohibits speech by “off-campus persons or organizations” –- i.e.,
anyone who is not a student, faculty member, or staff member –- and
contends that the district court’s order, if upheld, would
undermine its ability to do so. The University’s arguments do not
reflect an appreciation of the distinction between limited and
designated public forums as they exist within the university
property.
The distinction between limited and designated public forums
is not a simple “all-or-nothing” proposition. 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.8 Instead, as the Supreme Court indicated
8
More generally, we note that a central function of the
limited/designated dichotomy has been to permit courts to strike a
balance between “the necessit[y] of confining a forum to the
limited ... purposes for which it was created” and the requirement
that the state, once it has opened a forum, “respect the lawful
boundaries it has itself set”. Rosenberger, 515 U.S. at 829
(citing Cornelius v. NAACP Legal Defense and Education Fund, Inc.,
473 U.S. 788, 804-06 (1985)); see also Perry Education Assn., 460
10
in Arkansas Public Television Assn. v. Forbes, a given forum may be
designated for one class of speaker or speech, and still “limited”
with respect to others.9 See 523 U.S. 666, 677-81 (1998) (“If the
government excludes a speaker who falls within the class to which
a designated public forum is made generally available, its action
is subject to strict scrutiny.”).
As such, the University’s concern that an adverse holding must
necessarily throw open the gates of public universities to any type
of speech by any speaker is unfounded. We are not called upon in
this case to decide whether the University of Texas at Austin has
opened its entire campus to unfettered expression by the general
public. Instead, our task is simply to determine whether outdoor
open areas of the University’s campus, accessible to students
generally, have been designated as a forum for student expression.
We now proceed with that inquiry.
2
We turn, then, to the first element of the Chiu test: the
government’s intent with respect to the forum. Government intent
U.S. at 46-48. Such a balancing would be largely impossible were
the designated/limited dichotomy to be treated as a simple binary
choice to be made at a facility-wide (here, campus-wide) level.
9
This court has drawn similar distinctions in its own case
law. In Chiu, for example, we noted that “when school district
authorities elect to open public school facilities after school
hours for public meetings during which public issues will be
discussed in a manner similar to a limited-topic school board
meeting, the district officials have designated a public forum for
the limited time and topic of the meeting”. See Chiu, 260 F.3d at
348 (emphasis added).
11
represents “the critical starting point” of forum analysis, as “the
government creates a designated public forum ‘only by intentionally
opening a nontraditional forum for public discourse’”. Chiu, 260
F.3d at 347 (quoting Cornelius, 473 U.S. at 805).
The University contends that, by enforcing a “pervasive and
comprehensive ... system” of speech regulations, it has
demonstrated an intent to establish its campus as a limited public
forum. The general thrust of these regulations is summarized in §
6.1 of the Regents Rules, which provides that:
The property, buildings, or facilities owned
or controlled by the U.T. System or component
institutions are not open for assembly,
speech, or other activities as are the public
streets, sidewalks, and parks. The
responsibility of the Board of Regents to
operate and maintain an effective and
efficient system of institutions of higher
education requires that the time, place, and
manner of assembly, speech, and other
activities on the grounds and in the buildings
and facilities of the U.T. System or component
institutions be regulated.
The Institutional Rules implement the general directives of
the Regents Rules on the Austin campus. Chapter 13 of the
Institutional Rules, entitled “Speech, Expression, and Assembly”,
begins by guaranteeing the expressive rights of students, faculty,
and staff. Subchapter 13-100 provides the following “Governing
Principles”:
a. The freedoms of speech, expression, and
assembly are fundamental rights of all
persons and are central to the mission of
the University. Students, faculty, and
staff have the right to assemble, to
12
speak, and to attempt to attract the
attention of others, and corresponding
rights to hear the speech of others when
they choose to listen, and to ignore the
speech of others when they choose not to
listen.
b. Students, faculty and staff are free to
express their views, individually or in
organized groups, orally or in writing or
by other symbols, on any topic, in all
parts of the campus, subject only to
rules necessary to preserve the equal
rights of others and the other functions
of the University. ...
The Institutional Rules “preserve ... the other functions of the
University” primarily by designating appropriate locations, times
and/or procedures for the use of, inter alia, signs, banners,
kiosks, tables, “exhibits”, and amplified sound. They are, as
Regents Rule 6.1 suggests, generally the sort of “time, place, and
manner” regulations that might be enforced in any public forum –-
designated, traditional, or otherwise.10
In contrast to its relatively comprehensive regulation of the
time, place, and manner of speech, the University imposes only
minimal restrictions on the substance of speech. Section 13-101(c)
of the Institutional Rules provides that “[e]xcept as expressly
authorized by subchapter 13-200, the University shall not
discriminate on the basis of the political, religious,
10
In traditional public forums, “[t]he state may ... enforce
regulations of the time, place, and manner of expression which are
content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of
communication.” See, e.g., Chiu, 260 F.3d at 345 n.9 (quoting
Perry Education Assn., 460 U.S. at 45).
13
philosophical, ideological, or academic viewpoint expressed by any
person”. Notably, subchapter 13-200 prohibits only obscenity,
defamation, harassment, commercial solicitation, and incitements to
violate the law, all of which reflect distinctions as to content,
rather than viewpoint. Moreover, Section 13-305(b) provides that
“even [the] rules [set forth in Chapter 13] are subject to the
constitutional right of free speech” and as such, “must be
viewpoint neutral”.
Thus, the University’s Institutional Rules mandate that any
substantive restrictions on student speech –- at least in open,
outdoor portions of the campus -- must be both (1) viewpoint
neutral and (2) content neutral, unless one of a small number of
expressly delineated exceptions applies.11 Put another way,
although the University’s restrictions on the time, place, and
manner of speech are indeed “comprehensive”, it has nonetheless
affirmatively and expressly guaranteed its students, faculty, and
11
As further evidence of its intent to establish a limited
forum, the University points to provisions within the Regents Rules
that deny the above-described protections to non-affiliated
individuals and organizations –- i.e., the general public. We
agree that the Regents Rules evince a clear intent on the part of
the University of Texas System to restrict the public’s right to
speak on its campuses. The Literature Policy, however, does not
apply to the general public; it applies solely to university-
affiliated individuals and groups. As noted supra, the narrow
question before us is whether the University has sufficiently
demonstrated an intent to limit speech by the affected class –-
i.e., students, faculty, and staff. The exclusion of other classes
is not relevant to that inquiry.
14
staff virtually all of the rights that the Constitution provides
speakers in traditional public spaces.
The University’s regulations are not materially different –-
at least, with regard to their treatment of student speech12 –- from
those that we reviewed in Hays County Guardian v. Supple, 969 F.2d
111 (5th Cir. 1992). In Hays County Guardian, we considered an
earlier version of the Regents Rules, which, much like the current
Institutional Rules, guaranteed students the right to “assemble and
engage in free speech” subject to “reasonable nondiscriminatory
regulations as to time, place, and manner of such activities”. Id.
at 117. We observed that the Regents Rules “support the conclusion
that the University intended the campus to serve as a public forum
for its students” and held that the campus was a “limited public
forum, designated for the speech of students”.13
The Institutional Rules, like the regulations in Hays County
Guardian, clearly evince an intent to maintain the Austin campus as
a designated forum for student expression, subject only to time,
12
The version of the Regents Rules we considered in Hays
County Guardian extended the right to speak on campus to “[a]ny
group or person, whether or not a student or employee”. See 969
F.2d at 117.
13
The University contends that the district court erred in
relying on Hays County Guardian, observing that the case “predated
the recent clarification” of the distinction between designated and
limited forums. The argument is without merit. Although the
designated versus limited distinction has been clarified to an
extent in recent years, the court in Hays County Guardian reached
precisely the same result it would reach today –- i.e., that
regulations of student speech on campus were subject to strict
scrutiny –- based on essentially the same substantive analysis.
15
place, and manner regulations and a small number of enumerated
content-based restrictions. In short, the University has given its
students too broad a guarantee of expressive freedom now to claim
it intended its campus to function as a limited public forum.
We turn then, briefly, to the second element of the Chiu test:
the compatibility of the speech being conducted with the forum
created. This element requires far less extensive analysis than
the intent prong, as a university campus is clearly “an appropriate
place for communication of views on issues of political and social
significance”. See Chiu, 260 F.3d at 349 (quoting Estiverne v.
Louisiana State Bar Assn., 863 F.2d 371, 378-79 (5th Cir. 1989).
The only plausible argument to the contrary is the
University’s contention that the Literature Policy’s prohibition of
anonymous leafleting functions as a mechanism for excluding non-
university-affiliated leafleters, thus preserving the campus for
student use. This argument has some intuitive merit, but is
properly considered infra as an argument that the Literature Policy
serves a significant state interest, and thus survives strict
scrutiny, rather than as an argument for avoiding strict scrutiny
altogether.
In sum, we hold that the University, through its own policies,
has designated the outdoor open areas of its campus generally
accessible to students -- such as plazas and sidewalks –- as
public forums for student speech. As such, the Literature Policy’s
16
prohibition of anonymous leafleting in such areas is subject to
strict scrutiny.
III
In order to survive First Amendment strict scrutiny, a content
neutral restriction on speech must be narrowly tailored to a
significant state interest and must leave open ample alternative
channels of communication.14 See, e.g., Perry Education Assn., 460
U.S. at 45. The University contends that the basic function of the
Literature Policy is to allow University officials to identify the
source of a given piece of literature and thereby prevent non-
affiliated persons or groups from distributing literature on
campus. As such, the University argues, the Literature Policy
serves a significant state interest by preserving the campus for
speech by students, faculty, and staff.
JFA contends that the University’s forum preservation
rationale is largely pretextual. It argues that the Literature
Policy is underinclusive for the purpose of preventing on-campus
speech by non-affiliated persons. JFA observes that, although the
14
JFA contends that the district court erred in classifying
the Literature Policy as a content neutral restriction on speech.
Instead, JFA asserts, the policy is a content-based restriction,
insofar as it requires personal or group identification on the
literature itself, and therefore must be (1) narrowly tailored to
a “compelling government interest” and (2) the least restrictive
alternative available to the government. See, e.g., United States
v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
Because the Literature Policy fails to satisfy either formulation
of strict scrutiny, we will assume, arguendo, that the Literature
Policy is content neutral and that the less demanding test applies.
17
Regents Rules prohibit non-affiliated persons from using the
University campus for speech of any type, the University’s attempts
to preserve the forum for students by prohibiting anonymous speech
extend only to the distribution of literature. Other forms of
anonymous speech, such as signs and oratory, are permitted.
The space available for distribution of literature by students
is reduced to the same extent where a non-affiliated person
communicates via anonymous picketing, as opposed to anonymous
leafleting. Because the University prohibits the latter while
permitting the former –- and presents no compelling argument as to
why the two ought to be distinguished for purposes of “forum
preservation” -- we agree that the credibility of its rationale is
diminished. See City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994).15
Nonetheless, we are persuaded that, as a general principle,
the government does have a significant interest in preserving the
15
The credibility of the University’s rationale is further
eroded by the Literature Policy’s ineffectiveness at accomplishing
even the narrow objective that the University has elected to pursue
–- i.e., preserving the campus forum by prohibiting anonymous
leafleting by non-affiliated persons. The University concedes that
the main practical effect of the Literature Policy is to permit
officials to collect anonymous leaflets “that have been detached
from their speaker” and are “floating around the campus”.
Removing abandoned literature after it has been distributed
does little to free up space for legitimate distribution by
students. Indeed, it would appear that a more plausible
explanation for the Literature Policy is the University’s interest
in the prevention and removal of litter –- a justification the
University advanced before the district court but abandoned on
appeal.
18
campuses of public colleges and universities for the use of
students. As such, we will assume that the narrow purpose actually
served by the Literature Policy –- i.e., preserving outdoor areas
of the campus specifically for leafleting by students –- likewise
represents a significant state interest.
In addition, it is clear that the Literature Policy leaves
open “ample alternative channels of communication” for students.
See Perry Education Assn., 460 U.S. at 45. As JFA acknowledges,
numerous forms of anonymous speech –- including oratory, public
displays, and signs –- remain available for students who wish to
employ them.
The crux of our analysis is the “narrow tailoring”
requirement. A regulation is narrowly tailored when it “does not
burden substantially more speech than is necessary to further the
government’s legitimate interest”. Hays County Guardian, 969 F.2d
at 118 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799
(1989)). Even a legitimate interest cannot justify a restriction
if the latter accomplishes its goal at “an inordinate cost to
speech”. Id.
The University contends that the Literature Policy is narrowly
tailored because “the campus forum is defined by who can speak”,
and thus, a speaker’s identity “is the necessary admission pass to
use this forum at all”. This argument misses the finer point at
issue. It is undoubtedly true that the Literature Policy
represents one method of identifying a given speaker. The “narrow
19
tailoring” inquiry, however, asks whether that particular method
burdens substantially more speech than is necessary. In short, the
relevant question today is not whether the university may require
an “admission pass” to leaflet on campus, but whether that “pass”
need be printed on every leaflet that a student distributes and
reveal his identity to everyone.
We hold, as we must, that the Literature Policy is not
narrowly tailored to the state’s interest in “forum preservation”.
The essence of the University’s “forum preservation” rationale is
the need of certain University officials to know whether a given
leafleter is or is not affiliated with the University, such that,
if he is not, he (and his leaflets) can be removed. By contrast,
the Literature Policy requires that the speaker identify himself,
not just to certain University officials, but to every person who
receives the literature being distributed. As the district court
observed:
There are far more direct means through which
the University can prevent non-students from
leafleting on the UT Campus, which would be
far less burdensome on speech. ... In order
to enforce its policy, the University could
direct its staff to ask suspected non-students
engaging in leafleting to show a University
identification card. If the distributor of
the leaflet is a non-student, then the
University could ask that individual to leave
campus.
Although the procedure outlined by the district court might require
a student distributing leaflets to identify himself to a University
20
official, it would burden substantially less speech than the
Literature Policy’s requirement that every leaflet handed out
identify the student.
We recognize that any alternative policy aimed at preserving
the campus for student use will likewise involve some loss of
speaker anonymity. Moreover, alternative policies may yield new
administrative challenges. The University contends, for example,
that requiring leafleters to show identification to University
officials might (1) lead to claims of selective enforcement, and
(2) increase the frequency of confrontations with University
police.
We do not presume to tell the University precisely how it
should go about preventing unauthorized use of its campus. In
response to the concerns raised above, however, we make two general
observations. First, the University is responsible for ensuring
the even-handed enforcement of all of its regulations relating to
speech. To the extent that a change in policy creates a perception
of selective enforcement, transparency and open dialogue would
appear to be better remedies than overbroad restrictions on
expression.
Second, as to concerns regarding increased confrontation with
University police, the University is perfectly capable of providing
students with alternatives –- that is, with some choice as to the
means of identification. In particular, we do not suggest that the
method of identification prescribed by the Literature Policy would
21
be constitutionally impermissible if alternate, less intrusive,
means were also made available to students. By the University’s
own admission, a majority of student organizations voluntarily
identify themselves on the literature they distribute. The
minority who choose not to do so might be given the choice of
showing identification at the point of distribution, or
alternatively, advising a single designated officer beforehand that
a distribution will occur at a given time and place, thereby
eliminating the need to interrupt the act of distribution itself.
Regardless of the precise method or methods employed, however, the
University must offer student leafleters some choice as to the
means of identification that does not involve disclosing name or
organizational affiliation to all who receive the message.
In sum, we reiterate that, where the government designates a
forum for use by a given class of speaker, it is nearly inevitable
that those who wish to make use of the forum will be required to
sacrifice some measure of anonymity. The Literature Policy’s
requirement that speakers identify themselves to every person who
receives their message, however, sacrifices far more anonymity than
is necessary to effectively preserve the campus forum for its
intended beneficiaries. As such, the Literature Policy is not
narrowly tailored to a significant government interest, and thus,
is invalid under the First Amendment. Accordingly, the judgment of
the district court is affirmed in this respect.
IV
22
Finally, having concluded our First Amendment analysis, we
turn to the remedy ordered by the district court. Although JFA
asked the district court to declare the Literature Policy
unconstitutional on its face, the court enjoined enforcement of the
policy only as it applied to JFA.
In its brief, JFA asks this court to alter the district
court’s ruling on the breadth of its holding, direct the district
court to declare the Literature Policy unconstitutional on its
face, and order the Literature Policy permanently enjoined across
the board. Because JFA did not cross-appeal from the district
court’s judgment, however, we lack jurisdiction to expand the scope
of the remedy ordered. See Ayers v. United States, 750 F.2d 449,
457 (5th Cir. 1985); United States v. American Rwy. Express Co.,
265 U.S. 425, 435 (1924) (absent cross-appeal, “appellee may not
attack the decree with the view either to enlarging his own rights
thereunder or of lessening the rights of his adversary”).
Nonetheless, we express two basic concerns as to the district
court’s remedy. First, it is apparent that a facial challenge to
the Literature Policy was appropriate and was made in this case.16
16
See Board of Airport Commissioners v. Jews for Jesus, Inc.,
482 U.S. 569, 574 (1987) (“an individual whose own speech or
conduct may be prohibited is permitted to challenge a statute on
its face because it also threatens others not before the court”);
see also Watchtower Bible & Tract Society of New York, Inc. v.
Village of Stratton, 536 U.S. 150, 167 n.14 (2002) (“We may,
therefore, consider the impact of this ordinance on the free speech
rights of individuals who are deterred from speaking because the
registration provision would require them to forgo their right to
speak anonymously.”).
23
Nowhere in the court’s order or in the magistrate judge’s rather
extensive report, however, is the rationale set forth for rejecting
JFA’s facial challenge. Our review of the record has discerned no
material differences between the Literature Policy’s impact on JFA
and its impact on other students or student organizations. We
therefore see no clear reason why an “as applied” invalidation was
ordered in this case.
Equally unclear is how the University might cease enforcement
of the Literature Policy against JFA in particular without
abandoning the policy altogether. How, for example, is a
University official to respond if he encounters a person
distributing literature that does not identify its source? It
would appear that, in all such cases, the official would have to
assume that the distributor is a member of JFA, acting in
accordance with the district court’s order. As such, it seems that
an injunction barring enforcement of the Literature Policy “as
applied” to JFA would operate as a de facto facial invalidation.
Given this rather strange result, we think it prudent to
remand the case to the district court. The court may wish to
reconsider JFA’s injunction request.
V
For the reasons set forth above, we AFFIRM the holding and
judgment of the district court that the Literature Policy violates
the First Amendment, but REMAND to the allow the district court, at
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its option, to alter its injunction to bar the University’s
Literature Policy across the board.
AFFIRMED and REMANDED.
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