Wilson v. Johnson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0481n.06
Filed: July 5, 2007
No. 05-6733
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CALEB WILSON, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOSEPH E. JOHNSON, President of the ) EASTERN DISTRICT OF TENNESSEE
University of Tennessee; JAN SIMEK, )
Interim Director of the University of )
Tennessee School of Architecture; PAUL )
LEE, Individually and as Director of the )
University of Tennessee School of Art; )
MARLENE DAVIS, Individually and as )
Former Director of the University of )
Tennessee School of Architecture; )
EDWARD YOVELLA, Individually and as )
Chief of the University of Tennessee Police )
Department; RALPH MOLES, Individually )
and in his Official Capacity; ROBERT )
CUMMINGS, Individually and in his )
Official Capacity; SCOTT BROOKS, )
Individually and in his Official Capacity; )
)
Defendants-Appellees. )
)
Before: GIBBONS and McKEAGUE, Circuit Judges; and BUNNING, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Caleb Wilson appeals the
*
The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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district court’s grant of summary judgment to the defendants-appellees, all officials of the University
of Tennessee (“the University”), on his claims pursuant to 42 U.S.C. § 1983. Wilson claims that the
defendants violated his rights under the First and Fourth Amendments when they allegedly removed
painted messages and hanging banners that Wilson had placed on University buildings to protest the
then-impending war with Iraq. Furthermore, Wilson claims that defendants violated his rights under
the Fourteenth Amendment by promulgating a student disciplinary provision against vandalism that
is too vague and by failing to provide sufficient notice of the University sign-posting policy. For the
following reasons, we affirm the judgment of the district court.
I.
On February 13, 2003, Caleb Wilson, a student at the University of Tennessee, went to the
University’s Art and Architecture Building (“A&A”) to make banners protesting the impending war
with Iraq. Each of the banners was approximately three feet by six feet in size. Wilson hung three
banners in the A&A, one from a balcony on the inside of the building and two outside the building.
Wilson painted the words “NO WAR” in yellow paint on the exterior wall of the A&A, on the
interior door of the elevator in the A&A, and on the front doors of the Stokely Athletic Center
(“SAC”). Defendant Officer Robert Cummings of the University’s police department arrived at the
scene and arrested Wilson for vandalism, public intoxication, and evading arrest. After the arrest,
defendant Officer Scott Brooks, also of the University’s police department, arrived at the scene.
After Wilson was taken to the police station, he admitted to painting on the A&A and SAC and
hanging banners on the A&A without permission. Defendant Police Chief Edward Yovella was
notified of the vandalism and the banners but was not told of their content. Yovella instructed his
officers to return to collect the banners as evidence. Cummings and defendant Sergeant Ralph Moles
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returned to the scene and found that a janitor had already taken down the banners. There is no
evidence that any other signs, hung by other persons, were removed.
On the night of Wilson’s arrest, an employee of the Facilities Services Department of the
University who had responsibility for maintenance of the A&A and SAC received a call from an
unnamed University police department dispatcher informing him that the buildings had been
vandalized, that the investigation was complete, and that he “needed to take care of it.” An
independent contractor removed Wilson’s graffiti, but other graffiti were not removed.
As of February 13, 2003, a number of University policies potentially applied to the incident.
The official student handbook stated that exclusion from the University or a lesser penalty may result
from misconduct, including: (1) “[v]andalism, malicious destruction, damage, or misuse of private
or public property, including library material,” (2) “[v]iolation of written University policies or
regulations as stipulated herein or as promulgated and announced by authorized personnel,” and (3)
“[c]ommission of an act or an attempt to commit an act on University property . . . that would be in
violation of state or federal law.” The University also had published a Facilities Services Guide
providing that the “general posting of notices and signs within campus buildings and on the grounds
of the University is allowable only on Bulletin Boards provided for this purpose.” Additionally, the
Guide provided that the “posting and/or distribution of political and/or commercial signs and
handbills is not permitted in campus buildings or on the grounds of the University.”
At the time of the incident, numerous messages painted on walls and posted signs were on
display in apparent violation of the stated University policies. There were no approved places for
graffiti, and the painting of messages on the A&A and SAC was never permitted. Certain signs,
regarding student displays of art or announcing student events, were encouraged but required
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approval from the faculty before posting. Violations of the University’s policies were universally
viewed as a problem by University personnel, but practical and budgetary concerns prevented the
immediate removal of offending graffiti and signs. Therefore, the removal of offending items was
prioritized based upon how noticeable or intrusive the offending items were. The University did not
post notices of its vandalism and sign posting policies on the walls of the A&A and SAC.
Wilson claims that, at the time of the incident, he did not know that painting on the structure
of the A&A and SAC was a violation of University policy or state vandalism law. He stated that he
believed that painting on the structure of the A&A and SAC was condoned because previous graffiti
had not been removed and because he had not heard that it was deemed criminal. Wilson claims that
he did not realize that it violated University policy to hang his banners from the A&A. Wilson made
no efforts to determine whether his actions were in fact permitted.
Wilson filed a complaint in the district court alleging violations of his First, Fourth, and
Fourteenth Amendment rights resulting from the removal of his painted messages and banners, his
arrest without probable cause, and the promulgation and enforcement of vague University policies.
In addition to defendants involved on the night of the incident (Brooks, Cummings, Moles, and
Yovella, who were sued in their individual and official capacities), Wilson sued Dr. Joseph E.
Johnson, President of the University, in his official capacity only, Jan Simek, interim Director of the
School of Architecture, in his official capacity only, Paul Lee, Director of the School of Art, in his
individual and official capacities, and Marlene Davis, Director of the School of Architecture at the
time of the incident, in her individual and official capacities. The district court granted summary
judgment for the defendants, holding that Wilson’s paintings on the structure of the A&A and SAC
were vandalism not protected by the First Amendment and that there was no evidence that any
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defendant removed Wilson’s banners because of the message they conveyed. The district court held
that Wilson was estopped from claiming his arrest was without probable cause because the issue was
resolved in his state criminal proceedings when he pled guilty to evading arrest. Finally, the district
court held that the University’s policies were not vague and provided fair notice concerning
unacceptable conduct. Wilson filed a timely notice of appeal but does not appeal the claim of arrest
without probable cause.
II.
A district court’s grant of summary judgment is reviewed de novo. McWane, Inc. v. Fidelity
& Deposit Co. of Md., 372 F.3d 798, 802 (6th Cir. 2004). Summary judgment is proper when there
are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). This court, reviewing the record taken as a whole, views the
evidence and draws all inferences in the light most favorable to Wilson, the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, a mere
scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find
for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A.
Wilson argues that he had a First Amendment right to paint messages and hang banners
protesting the war in Iraq on the A&A and SAC and that his speech was discriminated against based
on its content.
Although Wilson’s banners may constitute political protest protected under the First
Amendment, such speech is not “equally permissible in all places and at all times.” Cornelius v.
NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 800 (1985). “The Supreme Court has
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adopted a forum analysis for use in determining whether a state-imposed restriction on access to
public property is constitutionally permissible.” United Food & Commercial Workers Union, Local
1099 (UFCWU) v. S.W. Ohio Reg’l Transit Auth., 163 F.3d 341, 349 (6th Cir. 1998). This court has
classified public property as one of three types of fora: (1) the traditional public forum, (2) the
designated public forum, and (3) the nonpublic forum. Putnam Pit, Inc. v. City of Cookeville, Tenn.,
221 F.3d 834, 842 (6th Cir. 2000). All public properties that are not traditional public fora or
designated public fora are nonpublic fora. See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 678-79 (1992).
As Wilson concedes that the A&A and SAC do not constitute traditional public fora, the
court must only determine whether they are designated public fora or nonpublic fora. A designated
public forum is an otherwise nonpublic forum from which the government has designated “a place
or channel of communication for use by the public at large for assembly and speech, for use by
certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802; see Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (noting that the government
is “not required to create the forum in the first place”). “The government does not create a public
forum by inaction or by permitting limited discourse, but only by intentionally opening up a
nontraditional forum for public discourse.” United Food & Commercial Workers Local 1099 v. City
of Sidney, 364 F.3d 738, 749 (6th Cir. 2004) (citing Cornelius, 473 U.S. at 802). “A designated
public forum is not created when the government allows selective access for individual speakers
rather than general access for a class of speakers.” Ark. Educ. Television Comm’n v. Forbes, 523
U.S. 666, 679 (1998). To determine whether the University intended to create a designated public
forum, the court looks to the “government’s policy and practice with respect to the forum, as well
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as to the nature of the property at issue and its ‘compatibility with expressive activity,’” and the
“context within which the forum is found.” Kincaid v. Gibson, 236 F.3d 342, 349 (6th Cir. 2001)
(en banc) (quoting Cornelius, 473 U.S. at 802).
Wilson argues that the structure of the A&A and SAC are designated public fora on which
the University allows expressive painting and the hanging of banners. Therefore, it was
inappropriate for the district court to dismiss Wilson’s painted messages as vandalism that is not
protected by the First Amendment. If Wilson’s forum analysis were correct, his painted messages
would be not be vandalism because painting would be permitted.
However, Wilson has provided no evidence from which to conclude that the A&A and SAC
are designated public fora. The University’s policies are clear and unambiguous. There is no policy
granting permission to paint messages, and painting messages without permission would constitute
vandalism, see Tenn. Code Ann. § 39-14-408, which is a violation of the standards of conduct. The
posting of signs is permitted only on a designated bulletin board. In fact, Wilson concedes that
“these written rules, taken together, do seem to establish a written policy that prohibits the type of
sign posting in which [Wilson] engaged.” Rather, Wilson argues that the University’s practices were
inconsistent with its stated policy because it failed to “consistently clean up or remove the signs” or
notify the public of its policy. However, as the University “does not create a public forum by
inaction,” this provides no evidence of intent. City of Sidney, 364 F.3d at 749. But see United States
v. Kokinda, 497 U.S. 720, 737-38 (1990) (Kennedy, J., concurring in the judgment) (arguing that
objective characteristics and customary use by the public may control forum designation over
government intent). To the extent that signs were permitted, they required faculty approval and do
not represent the general access required of a designated public forum. See Forbes, 523 U.S. at 679.
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Furthermore, the nature of the property is no more compatible with expressive activity than any other
flat surface, and although the context is one of a university that is “the quintessential marketplace
of ideas,” Kincaid, 236 F.3d at 352 (internal quotation omitted), that context does not preclude
“reasonable regulations compatible with th[e] mission [of education],” Widmar v. Vincent, 454 U.S.
263, 267 n.5 (1981). Thus, there is an absence of evidence that the University intended to create a
designated public forum.
Because the A&A and SAC are nonpublic fora, the government may control access “‘based
on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the
purpose served by the forum and are viewpoint neutral.’” Kincaid, 236 F.3d at 348 (quoting
Cornelius, 473 U.S. at 806). Wilson does not dispute that the University’s policy is facially
reasonable and viewpoint neutral. He alleges that the policy was applied to him in a discriminatory
manner based upon the viewpoint of his speech. The only claimed evidence of viewpoint
discrimination is that Wilson’s painted messages and banners were removed promptly while others
were not. However, undisputed evidence indicates that, due to practical and budgetary concerns,
removal of unauthorized painting and banners was prioritized based upon their prominence. In the
absence of any other evidence, the only reasonable conclusion is that Wilson’s banners were
promptly removed because they were unusually noticeable and intrusive, not because of the
viewpoint they expressed.
Furthermore, in a nonpublic forum, the government can make reasonable regulations based
upon subject matter. Kincaid, 236 F.3d at 348. To the extent that University practice allowed the
hanging of banners, they were as a “means for communicating student events.” Given the purpose
of the fora to provide a location for student education and enrichment, it is reasonable for the
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University to allow announcements of activities and prohibit political messages.
Finally, even if the court concluded that there was evidence of viewpoint discrimination,
there is no evidence that any of the defendants participated in that discrimination. “Because § 1983
liability cannot be imposed under a theory of respondeat superior, proof of personal involvement
is required for a supervisor to incur personal liability.” Miller v. Calhoun County, 408 F.3d 803, 817
n.3 (6th Cir. 2005). There is no evidence that defendants Davis, Johnson, Lee, Simek, and Yovella
were aware of the content of the painted messages or banners prior to their removal. Although the
remaining defendants, Brooks, Cummings, and Moles, were aware of the content of the banners,
there is no evidence that they either removed, or instructed the removal of, the banners.
Therefore, Wilson has failed to demonstrate evidence that the removal of the painted
messages or banners was a violation of his First Amendment rights.
B.
Wilson’s argument that his Fourth Amendment rights were violated by the seizure of his
banners is without merit. As noted above, there is no evidence that any of the defendants were
involved with the removal of the banners. Furthermore, the Fourth Amendment is not violated
through the search or seizure of “abandoned” property, property in which a person can no longer
claim a continuing, legitimate expectation of privacy. United States v. Robinson, 390 F.3d 853, 873-
74 (6th Cir. 2004). Wilson cannot claim any expectation of privacy in the banners that he left
hanging in public places.
C.
Wilson’s argument that the University’s policy prohibiting vandalism is unconstitutionally
vague under the Fourteenth Amendment has no merit. Due process requires that a state enactment
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is “void for vagueness if its prohibitive terms are not clearly defined such that a person of ordinary
intelligence can readily identify that applicable standard for inclusion and exclusion.” UFCWU, 163
F.3d at 358-59. Although vandalism is not defined in the University’s disciplinary policy, the policy
is not vague if the meaning of the term can easily be determined without undue burden. See Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 501 n.18 (1982). The most
obvious definition is found in Tennessee law, which provides that a person is guilty of vandalism
if he “knowingly causes damage to or the destruction of any real or personal property of another . . .
knowing that the person does not have the owner’s effective consent.” Tenn. Code Ann. § 39-14-
408(a). Any concern that a person could unwittingly expose himself to punishment due to the
vagueness of the definition of vandalism is overcome by the requirement of knowledge. See United
States v. Caseer, 399 F.3d 828, 839 (6th Cir. 2005). Furthermore, the University is under no
obligation to ensure every person has “specific” notice of its policies. See Columbia Natural Res.,
Inc. v. Tatum, 58 F.3d 1101, 1105 (6th Cir. 1995) (“The requirement of fair notice is not applied
mechanically or without regard for the common sense judgment that people do not review copies of
every law passed.”). Its policies were published and generally available to anyone interested in
learning of them. Assuming for the sake of summary judgment that Wilson could plausibly have
believed that he was allowed to paint on the buildings and post his banners, he made no effort to
discover whether his actions were prohibited. Ignorance of the law, particularly willful ignorance
such as Wilson exhibited in this case, is no defense. See Caseer, 399 F.3d at 835.
III.
For the foregoing reasons, we affirm the district court’s decision.
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