Brister v. Faulkner

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-50254

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ROBERT BRISTER, ROGER BAKER, ERIC SAMSON, AND WILLIAM MEDAILLE,

Plaintiffs-Appellees-

Cross-Appellants,

VERSUS

LARRY FAULKNER, ETC., ET AL.,

Defendants,

EDWIN R. SHARPE,

IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT FOR ADMINISTRATION AND PUBLIC AFFAIRS

AT THE UNIVERSITY OF TEXAS AT AUSTIN;

DONALD L. EVANS,

IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM;

HONORABLE TOM LOEFFLER,

IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM;

RITA C. CLEMENTS,

IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM;

THOMAS C. HICKS,

in His Official Capacity as a Member of the Board of Regents

of the University of Texas System;

LOWELL H. LEBERMANN, JR.,

in His Official Capacity as a Member of the Board of Regents

of the University of Texas System;

PATRICK C. OXFORD,

IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM;

A.W. “DUB” RITER, JR.,

IN HIS OR HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM;

A.R. (TONY) SANCHEZ, JR.,

IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM;

MARTHA E. SMILEY,

IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM;

AND

LARRY FAULKNER,

IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF TEXAS AT AUSTIN,

Defendants-Appellants-

Cross-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

June 28, 2000

Before POLITZ, SMITH, and DENNIS, against future First Amendment violations.

Circuit Judges.

The district court entered a declaratory

JERRY E. SMITH, Circuit Judge: judgment that the property in question is a

“public forum,” because it is indistinguishable

Plaintiffs were handing out leaflets before from the city sidewalks; therefore, the court

an on-campus event at the University of Texas held that the university’s total ban on leafleting

at Austin’s Frank C. Erwin Jr. Special Events by non-students was not a reasonable time,

Center (the “Erwin Center”) when they were place, or manner restriction and is un-

forced to leave the property because they constitutional. Because it determined that

were interfering with the arrival and departure these plaintiffs were impermissibly blocking

of the facility’s patrons. They sued university patrons’ access to the facility, however, the

officials under 42 U.S.C. § 1983, seeking dam- court ruled that the university’s officers were

ages, declaratory relief, and an injunction justified in requiring plaintiffs to move from

2

the property. Thus, the court held that the Center for the delegates to the National Issues

university did not violate the plaintiffs’ Convention. Members of the Austin Greens

constitutional rights, and, consequently, that political party, including plaintiffs Brister,

they were not entitled to damages or injunctive Baker, Samson, and Medaille, attempted to

relief. Accordingly, the court also denied distribute leaflets to the delegates as they en-

attorneys’ fees. tered t he Erwin Center on the Red River

Street side. Only Samson and Medaille were

The defendants appeal, challenging the de- University of Texas students. Some of the

termination that the property is a public forum. convention delegates approached the center by

The plaintiffs cross-appeal the denial of walking along the sidewalk and paved area,

nominal damages, injunctive relief, and while others were transported to the center by

attorneys’ fees. Finding no reversible error, buses that had pulled into the center’s parking

we affirm. lot, located on a recessed area cut into the

paved portion of the property.

I.

The Erwin Center was designed and is After receiving numerous complaints about

maintained for use by the public for the benefit the leafleters, Officer Pascual Marquez, a uni-

of the university. The center hosts a wide va- versity police officer, approached Brister while

riety of academic, athletic, and auxiliary events he was distributing leaflets on the paved area,

each year. Tickets to these events are sold by and informed him of the school’s policy

the university to the general public, and events against non-students’ distribution of literature

are sponsored by university organizations and on university property. Marquez also

by groups not affiliated with the university. explained that the paved recessed area

belonged to the university, whereas the

The Erwin Center is surrounded on all sides sidewalk belonged to the City of Austin, and

by public streets: Martin Luther King, Jr., told Brister he had to remain south of UT’s

Boulevard on the north, Fifteenth Street on the recessed area. Brister continued to leaflet on

south, Interstate 35 on the east, and Red River the paved area and, after another confrontation

Street on the west. The City of Austin owns with Marquez, returned to the south of the

a nine- to twelve-foot easement along each of university property and joined other Austin

the center’s four sides that serve as the city’s Greens members who were displaying a

public sidewalks. A portion of the university’s banner.

property on the center’s Red River Street side

consists of a brown gravel area paved with Medaille also was approached by a

small stones that extends from the center’s university police officer (not Marquez) and

public entrance out to the sidewalk. This was told that he could not distribute leaflets on

property blends in with the city’s sidewalks, the paved area. Medaille identified himself as

and there is no physical demarcation indicating a University of Texas student but nonetheless

where university property ends and the city’s was prohibited from distributing the leaflets,

easement begins. because they did not contain his name or the

name of a student organization, as required by

In January 1996, the Austin Chamber of university rules. The district court found that

Commerce hosted a reception at the Erwin other than Brister and Medaille, none of the

3

leafleters were approached by the school’s and, thus, the officers’ actions were

police. reasonable.

II. III.

Plaintiffs sued Larry Faulkner, President of The university2 contends that because the

the University of Texas at Austin; its Vice- court found that the plaintiffs had suffered no

President for Administrative Affairs; and the constitutional injury regardless of whether the

members of the University of Texas System paved area outside the Erwin Center is a tra-

Board of Regents, all in their official ditional public forum or a non-public forum,

capacities, under § 1983, for prospective relief, the court rendered an improper advisory opin-

claiming their First Amendment rights to free ion in characterizing the nature of the forum.

speech and assembly were infringed by the pol- In support of its claim, the university points to

icy prohibiting non-students from distributing the district court’s decision on plaintiffs’ mo-

leaflets and other literature on university prop- tion to amend the judgment, in which it stated:

erty. Also under § 1983, plaintiffs sought “Even if the Court’s order [holding that paved

damages from Buzz Huber, Events Manager area is a traditional public forum] had been in

for the Erwin Center; and Marquez and Lieu- effect [], it would not have required the

tenant Robert Ewan of the university’s police defendants to alter their behavior toward the

department, in their individual and official plaintiffs. . . . The plaintiffs failed to prove any

capacities.1 actual, compensatory injuries or obtain any in-

junctive relief.” The university asserts that the

The district court dismissed the claims court’s ruling on plaintiffs’ injuries mooted the

against Huber and Ewan but otherwise denied forum question and thus deprived the court of

summary judgment for defendants. After a jurisdiction over that issue.

one-day bench trial, the court concluded that

the university’s rules are unconstitutional as The plaintiffs claim, in response, that the

applied to the paved area along Red River court rendered a valid declaratory judgment,

Street, because that area is a traditional public because each of the plaintiffs presented a via-

forum for First Amendment purposes. The ble controversy: Each attempted to distribute

court further held, however, that the plaintiffs leaflets and was ordered to stop by police, and

had suffered no cognizable constitutional in- each was threatened with arrest if he continued

jury, because their activities disrupted the dele- his activities. Further, plaintiffs argue that the

gates and impeded access to the Erwin Center failure of the district court to award all the re-

lief requested does not render its judgment on

the public forum issue merely advisory.

1

Additionally, the plaintiffs challenged the

The university’s position is without merit.

University’s rules as applied to the West Mall area

of the main campus, which arose out of an April

Although the district court stated several times

1996 incident in which Brister similarly attempted that the plaintiffs’ constitutional rights were

to distribute leaflets. The district court held that

this area was a non-public forum as applied to the

2

general public and that UT’s regulations were rea- Although the defendants are natural persons,

sonable content neutral restrictions. That ruling we sometimes refer to them, for simplicity, as “the

has not been appealed. university.”

4

not violated and that they failed to prove any declaratory relief:

actual, compensatory injuries sufficient for in-

junctive relief, those facts did not deprive the [E]ngrafting upon the Declaratory

district court of jurisdiction to award Judgment Act a requirement that all of

declaratory relief. the traditional equitable prerequisites to

the issuance of an injunction be satisfied

In Steffel v. Thompson, 415 U.S. 452 before the issuance of a declaratory

(1974), the Court was presented with a judgment is considered would defy Con-

challenge to the justiciability of a declaratory gress’ intent to make declaratory relief

judgment action where the plaintiff had not yet available in cases where an injunction

been charged with any crime under the would be inappropriate. . . . Thus, the

relevant state criminal trespass statute. The Court of Appeals was in error when it

plaintiff sought declaratory relief, claiming that ruled that a failure to demonstrate

application of that law would violate his First irreparable injurySS a traditional

and Fourteenth Amendment rights to distribute prerequisite to injunctive relief, having

handbills at a shopping center. The Court held no equivalent in the law of declaratory

that the case presented an “actual controver- judgmentsSSprecluded the granting of

sy,” that federal declaratory relief is not declaratory relief. The only occasions

precluded when a prosecution based on an as- where this Court has disregarded these

sertedly unconstitutional state statute has been “different considerations” and found that

threatened, but is not pending, and that the preclusion of injunctive relief inevitably

plaintiff’s failure to demonstrate irreparable in- led to a denial of declaratory relief have

jury and to obtain injunctive relief does not been cases in which principles of

preclude declaratory relief. federalism militated altogether against

federal intervention in a class of

Significantly, the petitioner had “been twice adjudications.

warned to stop handbilling that he claims is

constitutionally protected and [had] been told Id. at 471-72.

by the police that if he again handbill[ed] at the

shopping center and disobey[ed] a warning to Similarly, in International Soc’y for Krish-

stop he [would] likely be prosecuted.” Id. na Consciousness v. Eaves, 601 F.2d 809 (5th

at 459. The Court reasoned that “it is not nec- Cir. 1979), we held that a religious

essary that petitioner first expose himself to organization’s anticipatory challenge to a

actual arrest or prosecution to be entitled to municipal ordinance regulating the distribution

challenge a statute that he claims deters the of literature and solicitation of funds at a city-

exercise of his constitutional rights.” Id.3 In owned airport was a justiciable actual

addition to its concerns about unnecessarily controversy. We noted that “the premise of

exposing citizens to criminal sanctions, the Marbury v. Madison requires us to insist that

Court discussed the unique nature of an anticipatory challenge to a statute’s

constitutionality grow out of a ‘real,

substantial controversy between parties . . . a

3

See also KVUE, Inc. v. Austin Broadcasting dispute definite and concrete.’” Id. at 817

Corp., 709 F.2d 922, 928 & n.3 (5th Cir. 1983) (citations omitted). Thus, to determine

(quoting Steffel).

5

whether there was a “definite and concrete” chimerical”: The officers were fully prepared

dispute, we asked “whether the plaintiff is to arrest the protesters if they did not comply

seriously interested in disobeying . . . the with the officers’ instructions. Thus, plaintiffs

challenged measure.” Id. at 818. And we have demonstrated the existence of an Article

summarized the actual-controversy re- III controversy. See High Ol’ Times, Inc. v.

quirement with respect to anticipatory Busbee, 621 F.2d 135, 139 (5th Cir. 1980).

challenges in the following terms: “We can be Steffel teaches that it is irrelevant whether

most certain that a constitutional challenge plaintiffs were successful in obtaining

grows out of a genuine dispute and is not a monetary or injunctive awards and that,

contrivance prompted solely by a desire to instead, declaratory judgment relief is a proper

enforce constitutional rights if we know that way for individuals to proceed to ensure that

the allegedly unconstitutional statute interferes their constitutional rights are protected.

with the way the plaintiff would normally

conduct his affairs.” Id. at 819. IV.

On the merits of the forum issue, the

There can be no doubt that plaintiffs were university challenges the district court’s

seriously interested in disobeying the conclusion that this particular university prop-

university’s policy prohibiting non-students ertySSoutside the Erwin Center, between the

from distributing leaflets on campus. Indeed, public entrance and Red River StreetSSis in-

like the petitioner in Steffel, several of the distinguishable from the Austin city sidewalks

plaintiffs had been approached more than once and, for that reason, is a traditional public for-

by Marquez and other officers and had been um. “The Court has identified three types of

threatened with arrest if they did not move to fora: the traditional public forum, the public

the public sidewalks away from the entrance to forum created by government designation, and

the Erwin Center. Although plaintiffs are not the nonpublic forum.” Arkansas Educ.

challenging the constitutionality of a criminal Television Comm’n v. Forbes, 523 U.S. 666,

statute per se, the university’s policy, if 677 (1998) (internal quotations and

upheld, would allow its police to arrest the punctuation omitted). Traditional public fora

leafleters under a criminal-trespass theory. “are defined by the objective characteristics of

Accordingly, there is no distinction between the property, such as whether, ‘by long

the conundrum faced by the individuals in tradition or by government fiat,’ the property

Steffel and Eaves, on the one hand, and the has been ‘devoted to assembly and debate.’”

dilemma faced by the instant plaintiffsSSeither Id. (quoting Perry Educ. Ass’n v. Perry Local

they risked being criminally punished by Educators’ Ass’n, 460 U.S. 37, 45 (1983)).

engaging in “conduct which [they] may have Thus, the district court correctly observed that

honestly thought was constitutionally public sidewalks are, by long tradition, public

prot ected,” or, else, they would be deterred fora.4

from “engaging in protected activity and

enforcing constitutional rights.” Eaves, 601 In determining that the university’s paved

F.2d at 821. area adjacent to the Austin sidewalk is a public

In no way are plaintiffs’ “threats of

prosecution . . . imaginary, speculative or 4

The university does not challenge the

conclusion that Austin’s sidewalks are public fora.

6

forum, the district court relied primarily on sidewalks. See id. at 178-79. Thus, the

United States v. Grace, 461 U.S. 171 (1983), university relies on the general rule that “[a]

holding that a statute prohibiting displaying “in university differs in significa

the Supreme Court building, or on its grounds, nt respects from public forums such as streets

any flag, banner, or device designed to bring or parks or even municipal theaters.” See

into public notice any party, organization, or Widmar v. Vincent, 454 U.S. 263, 268 (1981).

movement,” was an unreasonable place

restriction on the exercise of free speech and On the other hand, plaintiffs argue that

was unconstitutional. Particularly troubling to Grace still supports the district court’s

the Court was the fact that the statute’s ban conclusion that the Erwin Center’s grounds

applied to the public sidewalks surrounding the that are adjacent to the Red River Street

Court building, because sidewalks are sidewalk are a public forum. They point to the

traditional public fora. See id. at 178-79. The Court’s concern that “[t]here is no separation,

Court did not opine on whether the statute no fence, and no indication whatever to

was unconstitutional as applied to the building persons stepping from the street to the curb

and grounds inside the sidewalks, however, and sidewalks that serve as the perimeter of

but instead relied on its observation that “the the Court grounds that they have entered some

sidewalks comprising the outer boundaries of special type of enclave.” Grace, 461 U.S. at

the Court grounds are indistinguishable from 180.

any other sidewalks in Washington, D.C., and

we can discern no reason why they should be Likewise, here there is no indication or

treated any differently.” Id. at 179. physical demarcation of the public sidewalk,

which is a public forum, and the university

Grace, then, frames the terms of the grounds, which typically are not. The

dispute. On the one hand, the university seeks university challenges this assertion, however,

to distinguish the holding that the statute was arguing that its police officers provide verbal

unconstitutional as applied to the public warnings sufficient to establish a reasonable

sidewalks. It argues that the district court boundary line. It points to the undisputed

incorrectly presupposed the outcome- facts in the instant case that demonstrate that

determinative conclusionSSi.e., it relied on Marquez and the other officers repeatedly

Grace to establish that the university’s informed the plaintiffs of when they

grounds were themselves a public sidewalk impermissibly had crossed onto university

and, therefore, a public forum. property.

The university is in fact correct that Grace But these verbal warnings are not sufficient.

is not a perfect fit for that conclusion, because First, the facts of Grace undermine the

there the Court compared the sidewalks in university’s claim that repeated warnings can

quest ion to “any other sidewalks in suffice to establish a boundary between public

Washington, D.C..” Notably, the Court did and non-public fora. The petitioners there had

not compare those sidewalks to the internal been threatened with arrest several different

grounds of the Court building; indeed, the times while they were protesting on the public

Court expressly refused to make any judgment sidewalks bordering the Court building, and

as to the building and grounds inside the each time they left without an incident. Thus,

7

they plainly knew that the statute prohibited very particular facts.

demonstrations on these particular sidewalks

outside the Court, but, nevertheless, the Court While both sides make plausible arguments,

held that there was nothing to distinguish these and while it could be onerous for the university

sidewalks from any other sidewalks in the Dis- to have to open up the entire area outside the

trict of Columbia. Erwin Center to public discourse, the concerns

with chilling otherwise constitutionally-

The university seeks to distinguish this fact protected speech are paramount. If individuals

as well, and it correctly observes that Grace are left to guess whether they have crossed

“does not address the question of whether an some invisible line between a public and non-

oral warning would serve as a sufficient public forum, and if that line divides two

‘indication’ of the boundary between the worldsSSone in which they are free to engage

sidewalk and the plazaSSor, indeed, whether in free speech, and another in which they can

any ‘physical demarcation’ is required at that be held criminally liable for that speechSSthen

point at all.” It argues that the Austin public there can be no doubt that some will be less

sidewalk cannot reasonably be thought to likely to pursue their constitutional rights, even

extend all the way from the curb to the base of in the world where their speech would be

the building, and it warns that the definition of protected.

constitutional public fora should not turn on

the architectural characteristics of individual Moreover, it is of little consequence that

buildings. In other words, if the university had the university’s officers first warn the

not chosen to pave the Erwin Center’s protesters before they arrest them. The

grounds with the same brown stones as those constitutional right to free speech suffers

used for the public sidewalk, there would be injury when this impermissible amount of

little question that the property in question was doubt is introduced, and when constitutional

not a public forum. expression is chilled.

Furthermore, the university’s burden is not

Yet the university cannot so easily avoid so overwhelming as it claims. While the

Grace’s reasoning. In addition to its desire to district court did hold that the Erwin Center’s

protect the traditional public fora, the Court grounds, between the base of the building and

was concerned with the adequacy of the notice the curb of Red River Street, were a public

provided to those who reasonably thought forum, it nevertheless left the university the

they were on public grounds. This is evident option of reasonable time, place, and manner

from the Court’s prolonged discussion of the restrictions. Thus, the university still can re-

lack of any indicat ion or dividing line that move anyone who interferes with the flow of

would inform a protester that he had entered traffic to and from the Erwin Center, thereby

some special “enclave” where free speech was ensuring that the university’s interests retain

not protected. Similarly, here the plaintiffs and some protection.

other members of the public cannot be certain

when they have entered the university’s The district court reached the correct con-

enclave, and notwithstanding the university’s clusion based o n the very specific facts set

concerns about the intricacies of architectural forth hereSSi.e., a unique piece of university

design, First Amendment cases often turn on property that is, for all constitutional purposes,

8

indistinguishable from the Austin city to get off the sidewalk and, erroneously, that

sidewalk. Accordingly, the judgment in that the university’s property encompassed the en-

respect is affirmed.5 tire sidewalk area along Red River, they

proceeded to hand out pamphlets while

V. standing in the street.

On cross-appeal, plaintiffs present three

challenges to the conclusion that they suffered This dispute is primarily factualSSwhether

no violation of their constitutional rights. We there was sufficient evidence to support the

consider each in turn. finding that the plaintiffs impeded patrons’ ac-

cess to the Erwin Center and, therefore, that

A. the officers were justified in requiring them to

Plaintiffs contend that the court committed move pursuant to a reasonable time, place, and

clear error in finding that Medaille, Baker, and manner restriction. If such evidence is in the

Samson impeded access to the Erwin Center record, plaintiffs concede that they cannot de-

and otherwise disrupted the delegates.6 As a monstrate clear error, even if there is

result, plaintiffs argue that each should have contradictory evidence supporting their

been awarded nominal damages for prevailing position. But, plaintiffs argue that there is no

on his constitutional claim.7 They maintain evidence that Medaille, Baker, or Samson ever

that the record is wholly devoid of evidence was directly in front of the center’s doors or

that Baker, Samson, or Medaille ever was in that any of them in some other way blocked

front of the doors to the Erwin Center delegates from getting inside, because neither

restricting the delegates’ access. With respect Marquez nor any other university officer tes-

to Baker and Samson, the plaintiffs claim the tified to such fact.

record reflects that once they were instructed

By contrast, the three plaintiffs point to

Marquez’s testimony that the leafleters, other

5

This holding applies only to the specific prop- than Brister, “were not in the immediate area.”

erty at issue on Red River Street and is not to be These plaintiffs assert that the closest

interpreted to apply to any other property around testimony supporting the district court’s

the perimeter of the Erwin Center or elsewhere, conclusion was Marquez’s statement that he

about which we express no opinion. “noticed approximately five solicitors with a

large banner and passing out leaflets as people

6

Plaintiffs concede that there is contradictory exited the buses.” But, plaintiffs note that

evidence in the record to support the district court’s there was no mention that the leafleters were

findings of fact with respect to Brister. preventing people from getting off the buses,

7

nor did anyone identify the plaintiffs as the

See, e.g., Fyfe v. Curlee, 902 F.2d 401 (5th

particular leafleters Marquez observed.

Cir. 1990); Ryland v. Shapiro, 708 F.2d 967 (5th

Cir. 1983) (plaintiff who prevails on constitutional

claim but who otherwise does not suffer any injury Thus, plaintiffs contend that they were re-

is entitled to nominal damages). The plaintiffs also quired to leave the public sidewalk, not the

insist that Brister is entitled to nominal damages university grounds, despite the fact that they

because he successfully demonstrated that an un- were not impeding anyone’s entry into the Er-

constitutional act occurred, even though his own win Center. If this is so, then, plaintiffs argue

conduct prevented his suffering any damages.

9

that the finding that these three plaintiffs in- they were interfering with no one. Also, there

hibited delegates from entering the center is is evidence that Baker and Samson stood in

clearly erroneous, and, therefore, that the find- the recessed area of the university property,

ing that their constitutional rights were not where the buses were dropping off delegates,

violated should be reversed, for the reason that and offered leaflets to people as they got off

this factual finding formed the only basis for these buses. While it is uncertain whether this

the court’s legal conclusion. leafleting inhibited patrons’ access to the

Erwin Center, the court could have concluded

The university responds by noting that the that this was enough for the officers to ask the

court simply discounted these plaintiffs’ self- plaintiffs to move back to the sidewalk, and it

interested and unbelievable testimony. It con- refutes plaintiffs’ claim that they restricted

tends that the plaintiffs’ account should be dis- their activities to only the sidewalk.

believed because they admitted that their re-

collection of events was hazy, and because that B.

account is inconsistent with other facts that are Plaintiffs argue that Medaille, who claimed

not in dispute. Specifically, the school claims to have identified himself as a student to an

that this account is not consistent with the fact unspecified university police officer, imper-

that other demonstrators apparently were al- missibly was held to a higher standard than

lowed to distribute literature within the city’s were other university students, because the of-

sidewalk, in full view of university police, and ficer asked him to produce documentation that

that no university personnel attempted to stop proved he was authorized to leaflet on

them.8 Also, none of the plaintiffs could iden- campus. Medaille correctly points out that, as

tify the officer(s) who allegedly told them that a student, he is not required to have prior

they could not distribute literature even on the authorization to leaflet on campus.

sidewalk between the Erwin Center and Red

River Street. But, nevertheless, Medaille failed another

requirement of university policy, namely, that

Because we are under a clearly erroneous any leaflet distributed by a student

standard of review, we cannot second guess organization identify that organization on the

the district court’s decision to believe Mar- face of the document. Because plaintiffs’

quez’s testimony over Brister’s and to pamphlets did not contain any such

discount the other plaintiffs’ statements that identification, Medaille’s claim is moot.9

8

The university also tries to argue that, even if

plaintiffs could prove that university police ordered

9

them not to distribute materials anywhere on the Notably, plaintiffs do not present an over-

Red River sidewalk, “it is legally inconsequential,” breadth challenge to this aspect of the university’s

because the only area where they wanted to regulations, as they are a reasonable time, place,

distribute leaflets was the space in front of the and manner restriction aimed at ensuring the

Erwin Center’s doors. But this claim is university can hold student organizations

unsupported by any evidence and is contrary to the accountable for littering and the like. Unless they

plaintiffs’ complaint that they could not leaflet on can show that Medaille or another student was

the sidewalk. Obviously, plaintiffs wanted to treated unfairly, then, plaintiffs have no remaining

leaflet anywhere they could, the closer the better. claim.

10

C. Thus, plaintiffs have not developed their

To challenge the holding that they suffered argument here, and they have identified no re-

no violation of their constitutional rights, versible error. Therefore, we affirm the

plaintiffs attack what they call the “phantom district court’s ruling that plaintiffs suffered no

time, place and manner restrictions.” They ar- violation of constitutional rights.

gue that the court’s finding that the officers

were justified in preventing them from VI.

distributing leaflets, when that distribution in- Plaintiffs aver that the court erred in

terfered with the flow of visitors to and from denying them nominal damages. Part of their

the Erwin Center, was erroneous, because the reasoning is based on their contention, rejected

only place and manner that existed was the un- above, that we should reverse the district

iversity’s absolute ban on non-students’ court’s determination that their constitutional

distributing of literature on university rights were not violated. But plaintiffs also

property. Thus, plaintiffs assert that the argue that regardless of the ruling that they

university chose not to promulgate time, place, sustained no actual injuries, the court still

and manner restrictions that would balance its should have awarded them nominal damages.

interests against those of persons wishing to

exercise their constitutional rights. Plaintiffs cite cases such as Russell v.

Harrison, 736 F.2d 283, 291 (5th Cir. 1984),

But, in their brief, plaintiffs expressly in which we noted that “if upon remand, the

abandon any void-for-vagueness argument, district court finds a denial of procedural due

and, as a result, we cannot see what they hope process, actual damages may be awarded un-

to accomplish. They have not shown, or even der 42 U.S.C. § 1983, and nominal damages

argued, that the ban on leafleting during these are appropriate in the event that no actual

events would be an unreasonable restriction damages are shown.” Plaintiffs also reason

were it expressly promulgated, nor have they that “[b]y making deprivation of such [consti-

argued that the university discriminated against tutional] rights actionable for nominal damages

them on the basis of the content of their without proof of actual injury, the law

message. recognizes the importance to organized society

that those rights be scrupulously observed.”

Perhaps plaintiffs are trying to contend that Lewis v. Woods, 848 F.2d 649, 651 (5th Cir.

the “phantom” restrictions are not narrowly 1988) (quoting Carey v. Phiphus, 435 U.S.

tailored to serve a legitimate government inter- 247, 266 (1978)).

est. But the district court has already struck

down the only restrictions that are codified, at These authorities do not support plaintiffs’

least with respect to this property, and the uni- contention that they are entitled to nominal

versity correctly points out that it did not have damages, however, because all of them depend

a more narrow time, place, or manner re- on the pre-existing determination that their

striction to evaluate because, until the district constitutional rights were violated. That is not

court’s decision in the instant case, the the case here, for the district court expressly

university did not consider the grounds to be a held that “none of the plaintiffs’ constitutional

public forum. rights were violated because the University

police officers, both Marquez who approached

11

Brister and the unidentified officers who ap- UT responds by asserting that it has not

proached the other plaintiffs, were justified in violated that order, because its reasoning

requiring the plaintiffs to move away from the demonstratedSSby reference to an earlier rul-

Red River doors.” Instead, it was the ing in the same caseSSthat the “public forum”

university’s policy banning all leafleting by the university had created was time-limited as

non-students on university property, and not well as fact-specific:

its treatment of the individual plaintiffs, that

was unconstitutional. In the fact situation presently before the

Court, the University has invited several

As a result, the district court fashioned the well known individuals to participate in

appropriate relief, a declaratory judgment that a seminar. The record reflects that the

the policy would be unconstitutional if applied seminar was open to the public and that

to the public forum outside the Erwin Center, the public would be invited to verbally

on the Red River Street side, without proper participate in the seminar. In light of

time, place, or manner restrictions. Nominal these circumstances and the applicable

damages were neither necessary nor proper in case law, it is clear t hat the University

this circumstance, and the court committed no created a “public forum” at this

error in refusing them. particular place and at this particular

time. Consequently, the first

VII. amendment rights of non-students

Plaintiffs claim that the district court abused would be abridged if they were not

its discretion in denying injunctive relief that allowed to distribute literature along

would have forced the university to comply with University students.

with its order. They assert that the university

has failed to abide by a prior ruling that held In contrast to the circumstances that

that the same university regulation was motivated the prior order, the university points

unconstitutional for overbreadth. Plaintiffs out that the current controversy centers on

therefore conclude that the university should whether the Erwin Center’s grounds are a

not be trusted to comply with the current traditional public forum, not on whether the

order. university created a “designated public forum”

by inviting individuals to attend any events.10

The prior order, in Mencio v. University of Consequently, the university reasonably

Tex., Civ. Ac. No. A-84-CA-146 (W.D. Tex., thought that its ban on non-student leafleting

May 19, 1986), pro vided, in pertinent part, did not apply to the Erwin Center grounds,

that the policy was “unconstitutional due to its because if it were not a traditional public

overbreadth,” in that it “provide[d] for the ab- forum (and no court had previously held that

solute prohibition of distribution of leaflets by it was), it would have been either a non-public

non-students, faculty and staff.” The policy forum or not a forum at all. Thus, the district

was constitutionally unsound because the uni- court properly determined that no injunction

versity had created a “public forum” at which

the First Amendment Rights of non-students

could not be abridged. 10

See, e.g., Arkansas Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 677 (1998)

(discussing the creation of designated public fora).

12

was necessary to ensure future compliance, Here, as the district court expressly found,

because there is no merit to plaintiffs’ assertion plaintiffs’ constitutional rights were not vio-

that the university wilfully ignored a court lated. Although, they did obtain a declaratory

order. judgment that the policy banning all leafleting

by non-students at the Erwin Center was un-

VIII. constitutional, that judgment did nothing to al-

Plaintiffs contend they are entitled to ter the legal relationship between these parties.

attorneys’ fees under 42 U.S.C. § 1988 as That is, plaintiffs still could not leaflet at the

prevailing parties, because they were awarded time, and in the manner, that they sought.

declaratory relief on their constitutional claim Instead, the judgment put the university on

and because the court’s ruling “materially notice that in the future, it could impose only

alters” the legal relationship between the reasonable time, place and manner restrictions

parties.11 It is of no consequence, according to on leafleting in this traditional public forum.

the plaintiffs, that they did not prevail on any

of their claims for damages or injunctive relief, Nor are plaintiffs saved by their reliance on

because the declaratory judgment in their favor Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d

should be sufficient to establish them as a “pre- 806 (5th Cir.), cert. granted, 120 S. Ct. 494

vailing party” under Farrar v. Hobby, 506 (1999), which they cite for the proposition that

U.S. 103 (1992). a declaration that a policy is unconstitutional is

sufficient for entitlement to fees. But the uni-

The university counters that fees are not versity correctly observes that the court in

justified, because the plaintiffs suffered no con- Santa Fe awarded attorneys’ fees because the

stitutional injury. While the Court in Farrar plaintiffs there “obt ained a judgment

liberally construed the term “prevailing party” vindicating the Santa Fe students’ important

under § 1988, the Court did contemplate there First Amendment Rights in both graduation

will be limits on the awards of fees. For ceremony and football game contexts.” Id. at

instance, it noted that “a judicial 823. In other words, the court found that the

pronouncement that the defendant has violated student-led prayer violated other students’

the Constitution, unaccompanied by an constitutional rights to be free from pro-

enforceable judgment on the merits, does not selytizing at these school-sanctioned events.

render the plaintiff a prevailing party.” Id. at

112. The Court observed that a plaintiff who Thus, for the same reasons that Farrar is

wins either compensatory or nominal damages inapposite, so is Santa FeSSboth involved vio-

is a prevailing party, but this is so because lations of the plaintiffs’ constitutional rights,

there is necessarily a determination that his while the instant case does not. Therefore, the

constitutional rights have been violated. district court did not err in denying attorneys’

fees.

11

The plaintiffs’ demand for attorneys’ fees is AFFIRMED.

also premised on their contention that the district

court er roneously denied them nominal damages

and injunctive relief. Because we have rejected

both of these claims, however, we need not

reconsider them here.

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