The opinion
____________
No. 95-1962
____________
Albert Burnham; Ronald *
Marchese; Michael Kohn; *
Louise Kohn, *
*
Appellees. *
*
v. * Appeal from the United States
* District Court for the
Lawrence Ianni, in his * District of Minnesota
official capacity as *
Chancellor of the University *
of Minnesota at Duluth and *
in his individual capacity, *
*
Appellant. *
____________
Submitted: December 11, 1995
Filed: October 16, 1996
____________
Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.
____________
McMILLIAN, Circuit Judge.
This action was brought in the United States District Court for the
District of Minnesota pursuant to 42 U.S.C. § 1983 by Albert Burnham and
Ronald Marchese, two history professors at the University of Minnesota at
Duluth (UMD), and Michael Kohn and Louise Kohn (the Kohns), two former UMD
history students (collectively plaintiffs), against Lawrence Ianni,
Chancellor of UMD, alleging that Ianni deprived them of rights protected
by the free speech clause of the First Amendment.1 Ianni appeals from the
1
In their amended complaint, plaintiffs sought a declaration
that Ianni's actions were unconstitutional, injunctive relief
against Ianni in his official capacity, and monetary relief against
Ianni in his individual capacity in the amount of at least $50,000,
plus interest. Appellant's Appendix at 4 (amended complaint).
district court's order denying his motion for summary judgment on the basis
of qualified immunity. Burnham v. Ianni, 899 F. Supp. 395 (D. Minn. 1995).
For reversal, Ianni argues that the district court erred in holding that
he violated plaintiffs' clearly established constitutional rights by
ordering the removal of two photographs, one of Burnham and the other of
Marchese, from a display case located in a hallway outside the UMD history
department's classrooms. For the reasons discussed below, we reverse the
order of the district court and remand the case to the district court with
directions to enter judgment for Ianni.
I. Background
The underlying facts of this case are generally not in dispute. Id.
at 397. The two photographs of Burnham and Marchese, which are at the
center of this dispute, were originally part of a visual exhibit conceived
of and created by the Kohns while they were students at UMD. The Kohns
were both members of the UMD history club, for which Burnham was the
faculty advisor. The Kohns' objective in displaying the exhibit was to
convey to observers the history faculty's diverse interests. In
photographing the UMD history professors, the Kohns asked each to pose with
a "prop" of his or her own choice, related to his or her areas of interest.
The photographs were then juxtaposed with written descriptions of the
subject's academic background, historical heroes, and a chosen quotation.
Burnham, who has a special interest in American military history, chose to
be photographed wearing a coonskin cap and holding a .45 caliber pistol;
Marchese, who specializes in ancient Greece and Rome, posed wearing a
cardboard laurel wreath and holding a Roman short sword.
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On May 5, 1992, an officer with the UMD campus police, acting under
instructions from Ianni, removed the photographs of Burnham and Marchese
from the display case.2 Ianni ordered the removal of the two photographs
because he considered them inappropriate for display in light of events
that had occurred over the previous year.
In June of 1991, approximately one year before the photographs of
Burnham and Marchese were removed from the display case, Sandra Featherman
was appointed to the post of UMD vice chancellor. Shortly thereafter, she
began receiving graphically violent threats from an anonymous source or
sources using the identities "Deer Hunters" and "Prince of Death," and
warning her that if she did not stay away from Duluth, she would be
kidnapped or killed. At the same time, a phony memorandum, bearing a
forged signature purporting to be Ianni's, was circulated through the UMD
mail system and distributed on and around campus. This fraudulent
memorandum referred to the "conspiracy to kidnap Sandra Featherman going
on at UMD." Appellant's Appendix at 17 (forged memorandum).
Beginning in March 1992, UMD history professor Judith Trolander
became the target of threats similar to those directed at Featherman. Both
Featherman and Trolander had been involved in a program to improve
diversity and equality on the UMD campus. A flyer entitled "Target
Information" was anonymously posted around campus which said, among other
things, "The Imperial Council of Deer Hunters Proclaim Open Season on Judy
Trolander Lesbian Feminist Bitch." This document told the reader where to
find Professor Trolander's picture and where she lived, and stated the
following:
2
Burnham then removed the remaining photographs in the Kohns'
exhibit.
-3-
She will be a good target for shooting at long range.
The house has large windows and the terrain is clear of
obstacles in all directions. Shooting from the beach or
even from a boat in the bay or lake Superior is
feasible. A 30-60 rifle with 20X2 Bushnell scope would
be a suitable weapon with dum-dum bullets dipped in
poison. Don't forget to put in a couple of clicks in
the crosshairs for windage as the wind is usually strong
there. It is recommended that the hunter shoot from
behind the Surf and Sand Health Center, if there is
return fire from the house it well only kill a few old
people. She is the only occupant of the house, so it is
OK to shoot silhouettes on drawn shades.
Get cracking you kill crazy buckaroos. Its OK to kill
her, the Imperial Counsel rules UMD, the commission on
women is dissolved.
Also, all faculty members ordered to participate in
Featherman's administrative development project will be
sentenced to death along with their pets, children, and
spouses if they comply with these orders. Any one who
cooperates with Featherman will have their target
information published.
The deer hunters need target information on Featherman,
just mention where she lives in the faculty club and
everything will be taken care of.
Appellant's Appendix at 38.
In an attempt to respond to the tension and widespread fear of
violence created by these terroristic threats, Ianni distributed on campus
a memorandum dated March 16, 1992, assuring that the matter was being
investigated by local and federal authorities, that every effort would be
made to bring the perpetrators to justice, and that the school remained
committed to improving the conditions of women and minorities on campus.
On or about March 27, 1992, less than a month after the so-called
"Target Information" flyer was posted, the photographs of Burnham and
Marchese were placed in the display case along with the other photographs
and written materials contained in the Kohns' exhibit. Judith Karon, UMD's
director of personnel and affirmative
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action officer, began receiving complaints and anonymous calls objecting
to the depictions of the two faculty members holding weapons, particularly
the picture of Burnham holding a gun. Professor Trolander, who was
extremely upset about the photographs, also contacted Karon. Karon made
efforts to have the photographs removed, expressing her belief that they
were inappropriate in light of the recent events and the atmosphere of
tension and fear on campus. Several meetings involving Karon, Ianni, the
Kohns, Burnham, Marchese, and other faculty members in the history
department, were held to discuss the two photographs. The chairman and
other members of the history department steadfastly opposed their removal.
See Appellant's Appendix at 50 (internal history department memorandum:
"[s]omehow, this ugly trend of History governance by external
administrators and bureaucrats must be called into account; if the photo
display is our line in the sand, so be it"). On May 4, 1992, Ianni ordered
the two photographs removed from the display case.
Plaintiffs filed this § 1983 action alleging that the removal of the
photographs violated their First Amendment right of free speech. Ianni
filed several motions, including a motion for summary judgment on qualified
immunity grounds. The district court denied that motion, explaining:
On the facts of this case, the court finds,
without hesitation, that "[t]he contours of the right
[were] sufficiently clear [so] that a reasonable
official would understand that what he [did] violates
that right." . . . Ianni asserts that his actions were
taken with the intent to "maintain a positive and
efficient working and learning environment conducive to
the mission of an academic institution." . . .
Chancellor Ianni is, presumably, an educated and erudite
person. It is inconceivable to this court that the
Chancellor of a major University could have failed to
know that [the] First Amendment forbade, except in the
narrowest of circumstances, the type of conduct at issue
here.
-5-
Burnham v. Ianni, 899 F. Supp. at 400-01 (citations omitted). Having held
that plaintiffs' clearly established First Amendment rights had been
violated, the district court also denied Ianni's motion to dismiss. Id.
at 404. In reaching its conclusion on the merits, the district court noted
that the display case was a nonpublic forum. Id. at 403. Therefore, the
district court held, the suppression of speech at issue in the case was
subject to a reasonableness test. Id. (citing Perry Educ. Ass'n v. Perry
Local Educators' Ass'n, 460 U.S. 37, 49 (1983) (Perry)). The district
court then determined that the photographs were removed because they were
offensive to some viewers and, therefore, the suppression was content-based
and not reasonable. Id. at 403-04. The district court stated:
Whether the photographs advocated anything is irrelevant
in this context; on the contrary, it was the perception
that the photographs somehow advocated support for those
[who] had made the threats which motivated their
removal. This is an impermissible content based
restriction. . . . That some members of the faculty and
administration were discomfited by the sight of the
photographs displaying weapons is insufficient to
justify the removal of the photographs.
Id. at 404. This appeal followed.
II. Discussion
A. Appellate Review
As stated above, the underlying essential facts are not in dispute.
Under these circumstances, we have appellate jurisdiction to review the
district court's order denying Ianni's motion for summary judgment on
qualified immunity grounds insofar as the district court held, as a matter
of law, that Ianni violated plaintiffs' clearly established First Amendment
rights. See Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995) (citing
Mitchell v.
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Forsyth, 472 U.S. 511, 530 (1985) (interlocutory appellate jurisdiction
exists where qualified immunity issue involves application of "clearly
established" law to a given set of undisputed facts)).
"'While the denial of a motion for summary judgment is not normally
an appealable final judgment, an exception exists for a summary judgment
order denying qualified immunity . . . [and for] issues of law that are
closely related to the qualified immunity determination.'" Beyerbach v.
Sears, 49 F.3d 1324, 1325 (8th Cir. 1995) (quoting Henderson v. Baird, 29
F.3d 464, 467 (8th Cir. 1994), cert. denied, 115 S. Ct. 2584 (1995)). We
review the district court's denial of Ianni's motion for summary judgment
de novo. Id. (citing Get Away Club, Inc. v. Coleman, 969 F.2d 664 (8th
Cir. 1992)). Summary judgment is appropriate where there are no genuine
issues as to any material fact and the moving party is entitled to judgment
as a matter of law. Id.; Fed. R. Civ. P. 56(c).
B. Nature of plaintiffs' claim
In the present case, plaintiffs maintain that the two photographs of
Burnham and Marchese constitute protected speech because they capture and
convey an informational message concerning the UMD history department.
Brief for Appellees at 4 ("[t]he exhibit was intended to inform students
and prospective students about the interests and areas of expertise of the
professors in the department"), 34 (the photographs "expressed and
advocated the professors' interests in the traditional study of classical
and American military history"). Plaintiffs describe the message
purportedly conveyed by the two photographs as follows.
For his photograph, Professor Marchese elected to
pose with an ancient Roman short sword while wearing a
cardboard laurel wreath. . . . He chose to pose with the
Roman sword for two reasons. First, he likes to use
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tangible objects in his lectures, and he had previously
used the sword in that way. Second, one of his
interests is military history. He believes that a
thorough knowledge of the ancient world must include an
appreciation for the military culture and techniques
that allowed Rome to gain and hold an ascendancy over
the Mediterranean world. His courses on ancient history
include far more than military history, but he thinks
that military history is an important aspect of that
era. Hence he believed the Roman sword was an
appropriate "prop" for his photograph.
Professor Burnham's special interest in American
history includes military history in particular. Among
his historical heroes he listed were John Adams and
David Crockett. Consistent with his professional
interests, he posed with a .45 caliber military pistol,
wearing a coonskin cap.
Id. at 3.
C. Burnham's and Marchese's First Amendment rights
Although plaintiffs have failed to articulate this analytical
premise, the two professors' claims derive from the assertion that they
were engaging in non-verbal expressive conduct by their choices of clothing
and props, as worn and displayed in each of their respective photographs.3
Accordingly, in determining whether Ianni violated Burnham's and Marchese's
rights in suppressing the two photographs, our analysis is guided by this
court's recent
3
While plaintiffs also maintain that the photographs were
intended to portray the faculty in an "informal" and "somewhat
humorous" manner, Brief for Appellees at 2, they do not argue, nor
would we find, that the photographs were intended to be forms of
entertainment. Accordingly, we need not consider the First
Amendment standard applicable for some forms of entertainment. Cf.
Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993
F.2d 386, 390-91 (4th Cir. 1993) (because college fraternity's
"ugly woman contest" was similar in nature to a theatrical
performance, it was an inherently expressive form of entertainment
and entitled to constitutional protection despite offensive
caricature of African-American woman).
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decision in Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995) (Tindle),
addressing the standards that apply to this precise type of First Amendment
claim.
In Tindle, a police officer with the Little Rock Police Department
(LRPD) brought a § 1983 action against the chief of police on grounds that
his First Amendment rights were violated when he was given a thirty-day
suspension for appearing at a Halloween party wearing a blackened face,
dressed in bib overalls and a black curly wig, and carrying a watermelon.4
In acknowledging that the plaintiff had facially asserted a First Amendment
right, this court stated:
What one chooses to wear can communicate an
expressive message to others. . . . Wearing a
particular outfit or costume is non-verbal conduct that
is protected as speech under the first amendment if it
is intended to convey a "particularized message" and if
the likelihood is great that the message will be
understood by those who view it.
Id. at 969; accord Tinker v. Des Moines Indep. Com. Sch. Dist., 393 U.S.
503, 505-06 (1969) (wearing black armband to express students' opposition
to Vietnam War was symbolic act protected by the free speech clause of the
First Amendment); Dunn v. Carroll, 40 F.3d 287, 291-92 (8th Cir. 1994)
(Dunn) (wearing patch bearing American flag during months preceding the
Persian Gulf War was nonverbal conduct protected under the free speech
clause). However, this court then went on to explain in Tindle that, even
if a person's chosen appearance is found to be expressive non-verbal
conduct or speech, it is not entitled to absolute protection. 56 F.3d at
970. Because the plaintiff in Tindle was a public employee, and the state
was acting in its capacity as his employer in suspending him
4
The party, which was held at the Fraternal Order of Police
Lodge, was not an official police department function but was
attended by off-duty police officers and their guests. Tindle v.
Caudell, 56 F.3d 966, 968 (8th Cir. 1995).
-9-
on the basis of his speech, his First Amendment claim was to be analyzed
according to the following "two-step test":
The first question is whether the employee's speech
addresses a matter of public concern. Connick v. Myers,
461 U.S. 138, 146 (1983) [(Connick)]. If it does, then
the court must balance the "interests of the [employee],
as a citizen, in commenting upon matters of public
concern and the interests of the State, as an employer,
in promoting the efficiency of the public services it
performs through its employees." Pickering v. Board of
Educ., 391 U.S. 563, 568 (1968) [(Pickering)].
Tindle, 56 F.3d at 970; accord Waters v. Churchill, 511 U.S. 661, ___, 114
S. Ct. 1878, 1884 (1994) (Waters). It is the job of the court to apply
this analysis to the facts. Waters, 114 S. Ct. at 1884 (citing Connick,
461 U.S. at 148 n.7 & 150 n.10).
In the present case, we will assume, for the sake of argument, that
Burnham and Marchese have adequately demonstrated that they sought to
convey a "particularized message" through the clothing worn and props held
in each of their respective photographs. That message, as they describe
it, was to "express[] and advocate[] [their] interests in the traditional
study of classical and American military history." Brief for Appellees at
34. We will further assume, for the sake of argument, that the likelihood
was great that this "particularized message" would be understood by those
who viewed the photographs.
It is undisputed that Burnham and Marchese are public employees and
that Ianni was acting in his official capacity as a public employer
representing the interests of UMD when he ordered the removal of the
photographs from the display case located in the corridor near the UMD
history department's classrooms. Therefore, consistent with Tindle, the
suppression of the two photographs must be analyzed according to the two-
part analysis required by the Pickering-Connick-Waters line of Supreme
Court cases dealing with
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the First Amendment rights of public employees.5 As the Supreme Court
observed in Waters, "the government as employer indeed has far broader
powers than does the government as sovereign." 114 S. Ct. at 1886.
Accordingly, the courts "have consistently given greater deference to
government predictions of harm used to justify restriction of employee
speech than to predictions of harm used to justify restrictions on the
speech of the public at large." Id. at 1887; accord Tindle, 56 F.3d at 972
(same).
Consistent with Pickering and its progeny, we first consider the
issue of whether Burnham's and Marchese's expressive conduct, as captured
in the two photographs, addressed a matter of public concern. In
addressing the meaning of speech on a matter of "public concern," the
Supreme Court has explained: "[w]hen employee expression cannot be fairly
considered as relating to any matter of political, social, or other concern
to the community, government officials should enjoy wide latitude in
managing their offices, without intrusive oversight by the judiciary in the
name of the First Amendment." Connick, 461 U.S. at 146. Assuming that
Burnham's and Marchese's conduct "expressed and advocated the professors'
interests in the traditional study of classical and American military
history" and "inform[ed] students and prospective students about the
interests and areas of expertise of the professors in the department,"
Brief for Appellees at 34, 4, it
5
Plaintiffs make much of the fact that the present case is
different from the public employment cases cited by Ianni in that
it does not involve a personnel action such as a termination or a
suspension of Burnham or Marchese from their employment. We find
this distinction irrelevant. Ianni removed the photographs in part
because he considered them detrimental to the collegiality within
the history department. Appellant's Appendix at 7 (Affidavit of
Lawrence Ianni, ¶ 9). The fact that Ianni chose to respond to what
he considered to be inappropriate employee conduct by the narrowly
tailored act of suppressing the photographs themselves makes this
case no less employment-related than if he had terminated Burnham
and Marchese as an indirect means to remove the photographs or if
he had terminated or suspended them after the fact for refusing to
remove the photographs voluntarily.
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arguably did address a matter of public concern. We will assume for the
sake of argument that it did. Thus, we next proceed to balance the
interests of Burnham and Marchese in commenting upon or expressing their
particular areas of academic interest, through "humorous" and "light-
hearted" portrayals of themselves, against the interests of UMD, as their
employer, in avoiding the potential disruption that Ianni predicted would
result from the continued display of the photographs. According to Ianni,
his intent in removing the two photographs "was to maintain a positive and
efficient working and learning environment conducive to the mission of an
academic institution." Appellant's Appendix at 8 (Affidavit of Lawrence
Ianni, ¶ 11). He explained in his affidavit:
The March 1992 threat against Professor Trolander
inflamed an already tense environment. I saw numerous
employees in tears during that time period, which they
reported to me was due to concern over the death threats
and fears that someone would randomly open fire on the
campus. . . . The atmosphere was unique in my
experience.
Id. at 7 (Affidavit of Lawrence Ianni, ¶ 8). According to his affidavit,
he also felt that a failure to remove the photographs would have a
detrimental effect on faculty collegiality. Id. at 7 (Affidavit of
Lawrence Ianni, ¶ 9).
Plaintiffs maintain that Ianni's prediction of potential disruption
on campus and detriment to faculty collegiality was illogical. However,
they do not allege, nor does anything in the record suggest, that Ianni had
any motive in removing the photographs other than those which he described
in his affidavit. Moreover, in considering the weight to be given Ianni's
prediction of disruption, we note that it is now well-established that the
anticipated disruption in this context need not be actual, but may be
merely potential. Waters, 114 S. Ct. at 1890 ("the potential
disruptiveness of the speech as reported was enough to outweigh whatever
First Amendment value it might have had"); Tindle, 56 F.3d
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at 972 ("[a] showing of actual disruption is not always required in the
balancing process under Pickering"); accord Jeffries v. Harleston, 52 F.3d
9, 13 (2d Cir.) (Jeffries) (noting that Waters stresses that actual
disruption is not required), cert. denied, 116 S. Ct. 173 (1995). We also
recognize that, in balancing the interests of a public employee against the
interests of the government employer in this context, the constitutional
standard takes into account proportionality. "[T]he closer the employee's
speech reflects on matters of public concern, the greater must be the
employer's showing that the speech is likely to be disruptive before in may
be punished. . . . There is, thus, a proportion between the nature of the
speech and the nature of the sanction that may ensue." Jeffries, 52 F.2d
at 13 (citation omitted). In the present case, Ianni need only have made
a minimal showing of potential disruptiveness to justify his actions
because Burnham's and Marchese's speech at best only remotely touched upon
a matter of public concern (i.e., "the professors' interests in the
traditional study of classical and American military history," Brief for
Appellees at 34). Cf. Dunn, 40 F.3d at 292 (message intended to be
conveyed by wearing a patch bearing the American flag during the United
States' military buildup in the Persian Gulf was "squarely within `the
center of public debate'"). In the present case, it is undisputed that
violent death threats had been widely publicized on campus less than two
months before the photographs were removed from the display case. It
cannot seriously be disputed that, during that spring 1992 semester, the
atmosphere on campus was more tense than normal. Upon de novo review, we
have little difficulty holding as a matter of law that the balance of
interests tips in favor of Ianni in this particular instance. As the
Supreme Court has clearly stated:
The key to First Amendment analysis of government
employment decisions . . . is this: The government's
interest in achieving its goals as effectively and
efficiently as possible is elevated from a relatively
subordinate interest when it acts as sovereign to a
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significant one when it acts as employer. The
government cannot restrict the speech of the public at
large just in the name of efficiency. But where the
government is employing someone for the very purpose of
effectively achieving its goals, such restrictions may
well be appropriate.
Waters, 114 S. Ct. at 1888 (emphasis added); accord Jeffries, 52 F.3d at
10 (on remand from the Supreme Court for reconsideration in light of
Waters, holding that defendants, university officials, were entitled to
judgment as a matter of law on professor's claim that they violated his
First Amendment rights by reducing his term as department chair because of
derogatory comments he made about Jews in an off-campus speech). In
Jeffries, 52 F.3d at 13, the Second Circuit explained:
Whittled to its core, Waters permits a government
employer to fire an employee for speaking on a matter of
public concern if: (1) the employer's prediction of
disruption is reasonable; (2) the potential
disruptiveness is enough to outweigh the value of the
speech; and (3) the employer took action against the
employee based on this disruption and not in retaliation
for the speech.[6]
Accordingly, we hold as a matter of law that Ianni, in ordering the
removal of the two photographs from the display case, did not violate
Burnham's and Marchese's First Amendment rights to the extent that they
were engaging in non-verbal expressive conduct by bearing weapons in their
photographs.7
6
On this point, we emphasize that Ianni's actions were
directly targeted at the source of the potential disruption and
were not in retaliation for the speech.
7
In support of our holding, we also note the undisputed facts
that, following the 1992 summer break, the photographs were posted
in the student center on campus and no action was taken at that
time because the atmosphere on campus had improved. Appellant's
Appendix at 8 (Affidavit of Lawrence Ianni, ¶ 12). These facts
further support our conclusion that Ianni, as chancellor of UMD,
did not act unreasonably in handling this entire matter. Cf.
Piarowski v. Illinois Com. College Dist. 515, 759 F.2d 625, 632
(7th Cir.) ("[t]he discouragement is much less, and hence the
abridgment of freedom of expression is less, when the college says
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D. Qualified Immunity
We further hold that, even if we were to find that Ianni violated
Burnham's and Marchese's First Amendment rights, Ianni may not be held
personally liable to pay damages because, under the specific circumstances
of the present case, he is protected by qualified immunity.
[P]ermitting damages suits against government officials
can entail substantial social costs, including the risk
that fear of personal monetary liability and harassing
litigation will unduly inhibit officials in the
discharge of their duties. [Harlow v. Fitzgerald, 457
U.S. 800, 814 (1982).] Our cases have accommodated
these conflicting concerns by generally providing
government officials performing discretionary functions
with a qualified immunity, shielding them from civil
damages liability as long as their actions could
reasonably have been thought consistent with the rights
they are alleged to have violated. See, e.g., Malley v.
Briggs, 475 U.S. 335, 341 (1986) (qualified immunity
protects "all but the plainly incompetent or those who
knowingly violate the law"); Mitchell v. Forsyth, 472
U.S. 511, 528 (1985) (officials are immune unless "the
law clearly proscribed the actions" they took); Davis v.
Scherer, 468 U.S. 183, 191 (1984); Harlow v. Fitzgerald,
supra, at 819. Cf., e.g., Procunier v. Navarette, 434
U.S. 555, 562 (1978). Somewhat more concretely, whether
an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official
action generally turns on the "objective legal
reasonableness" of the action, Harlow [v. Fitzgerald],
457 U.S. at 819, assessed in light of the legal rules
that were "clearly established" at the time it was
taken, id. at 818.
Anderson v. Creighton, 483 U.S. 635, 638-39 (1987) (citations omitted).
. . . you may exhibit your work on campus -- just not in the alcove
off the mall"), cert. denied, 474 U.S. 1007 (1985).
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In Anderson v. Creighton, the Supreme Court addressed the degree of
generality versus specificity with which the relevant legal rule is to be
defined for purposes of determining whether the law was "clearly
established" at the time of the relevant events. Id. at 639. The Court
explained that, in order for the concept of a "clearly established" law to
comport with the "objective legal reasonableness" standard set forth in
Harlow v. Fitzgerald, 457 U.S. at 819, "the contours of the right must be
sufficiently clear that a reasonable official would understand that what
he [or she] is doing violates that right." Anderson v. Creighton, 483 U.S.
at 640. "This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been
held unlawful . . . but it is to say that in the light of pre-existing law
the unlawfulness must be apparent." Id. at 640 (citations omitted).
Needless to say, the very conduct at issue in the present case had
not been specifically held unlawful at the time of the relevant events.
The pertinent case law in existence at the time Ianni removed the
photographs from the display case included the Supreme Court's decisions
in Connick and Pickering, as well as a body of lower federal court
decisions which had applied Connick and Pickering -- none of which were
factually similar to the present case. With this in mind, we now ask the
question: assuming that Ianni had violated Burnham's and Marchese's First
Amendment rights, would that violation have been objectively reasonable,
in light of the legal rules that were "clearly established" at the time of
his actions? Stated differently, would the assumed unlawfulness have been
apparent in light of pre-existing law? See Anderson v. Creighton, 483 U.S.
at 640.
As discussed above, the Pickering balancing test involves a two-part
inquiry: (1) whether the speech is on a matter of public concern, Connick,
461 U.S. at 146, and, if so, (2) whether, on balance, the interests of the
employee in making the statement
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outweigh the interests of the government employer in promoting the
efficiency and effectiveness of the public services it performs.
Pickering, 391 U.S. at 568. If both criteria have been met, then a First
Amendment violation has occurred. In the present case, if we were to find
that a First Amendment violation occurred, we would conclude that it was
not based upon clearly established law. First, it would not have been
clear to an objectively reasonable official that the photographs contained
speech on a matter of public concern, even assuming they "expressed and
advocated the professors' interests in the traditional study of classical
and American military history." Brief for Appellees at 34. As stated
above, we think these photographs, which were intended to be informal and
humorous visual displays of each professor's individual academic interests,
at best only remotely touched upon a matter of public concern. See supra
slip op. at 13.
Moreover, at the time Ianni removed the photographs, it would not
have been apparent to an objectively reasonable official that Burnham's and
Marchese's interests in displaying themselves holding weapons, as a way of
demonstrating their individual academic specialties, outweighed UMD's
interest in removing the photographs, in an effort to maintain an efficient
and effective campus environment. As discussed above, there were numerous
competing factors which contributed to Ianni's decision to remove the
photographs at that particular time, including the atmosphere of tension
and fear on campus resulting from the recent highly publicized death
threats and the fact that alternative channels were left open for
plaintiffs to convey the same information. See infra slip op. at 20-21.
We believe our qualified immunity analysis is consistent with the
current state of qualified immunity jurisprudence as it has evolved in this
and other circuits. In Grantham v. Trickey, 21 F.3d 289, 292-95 (8th Cir.
1994) (Grantham), this court thoroughly examined the history of Eighth
Circuit case law dealing
-17-
specifically with the applicability of qualified immunity in the public
employee speech context. Implicit in that opinion is the fundamental tenet
that the qualified immunity analysis should always be adapted to the
specific case at hand. Id. at 293-95. In Grantham, 21 F.3d at 295, this
court determined that it was appropriate under the circumstances of that
case to follow the analysis in Bartlett v. Fisher, 972 F.2d 911 (8th Cir.
1992) (Bartlett). In Bartlett, 972 F.2d at 916-17, we recognized that,
"because Pickering's constitutional rule turns upon a fact-intensive
balancing test, it can rarely be considered 'clearly established' for
purposes of the Harlow qualified immunity standard."8 We agree with this
statement as a general proposition, and think that the present case is not
an exception. Qualified immunity is ordinarily a formidable defense to
overcome where the
8
A very similar view has been expressed by our court in other
constitutional contexts. For example, in Manzano v. South Dakota
Dep't of Social Servs., 60 F.3d 505, 509-11 (8th Cir. 1995), we
observed that the constitutionally protected liberty interest which
parents have in familial integrity is not absolute, and when a
parent alleges that official conduct infringed upon that right, the
merits of that constitutional challenge are determined by a
balancing test. We then observed that "[t]he need to continually
subject the assertion of this abstract substantive due process
right to a balancing test which weighs the interest of the parent
against the interests of the child and the state makes the
qualified immunity defense difficult to overcome." Id. at 510.
"Moreover, the requirement that the right be clearly established at
the time of the alleged violation is particularly formidable." Id.
(citing cases). In Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.
1987), also a case involving the constitutional right of familial
integrity, we applied the doctrine of qualified immunity after
noting our agreement with the Seventh Circuit's observation in
Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479
U.S. 848 (1986), that, when a determination of constitutional
protection turns on application of a balancing test, "the right can
rarely be considered 'clearly established,' at least in the absence
of closely corresponding factual and legal precedent."
-18-
constitutionality of official conduct is being assessed according to a
fact-intensive balancing test.9
In sum, we conclude that, even if we were to find that Ianni violated
Burnham's and Marchese's First Amendment rights, "officers of reasonable
competence could disagree on this issue" and, therefore, "immunity should
be recognized." Malley v. Briggs, 475 U.S. at 341. Accordingly, as an
alternative basis for our disposition, we hold that Ianni would, in any
case, be protected by qualified immunity.
E. The Kohns' First Amendment rights
While Burnham and Marchese were responsible for the expressive
conduct that was captured in each of their respective photographs, it was
the Kohns who conceived of the idea for the exhibit and who were
responsible for placing the photographs in the display case. Therefore,
the Kohns have asserted a First Amendment right to use the two photographs
as a means "to publicize some of the areas of expertise and interest of the
History Department's faculty, while at the same time portraying the faculty
in an informal, somewhat
9
Having said this, we are quick to caution that today's
holding by no means suggests that qualified immunity will protect
public officials in every instance where the applicable
constitutional standard involves a balancing test. As plaintiffs
point out in their brief, this court has on at least two occasions
denied qualified immunity to school officials who violated
teachers' First Amendment rights under Pickering. See Southside
Pub. Schs. v. Hill, 827 F.2d 270, 272-75 (8th Cir. 1987) (denying
qualified immunity to defendants, school officials, who had
constructively terminated elementary school teachers in retaliation
for having written a letter to the state department of education
complaining about violations of the federal statutory requirement
that handicapped children be provided a free appropriate public
education); Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 318
(8th Cir. 1986) (qualified immunity denied to school superintendent
and school board members who fired school principal for the stated
reason, among others, that he had publicly criticized their
decision to transfer his wife from the high school to the junior
high school level).
-19-
humorous way." Brief for Appellees at 2.10 Their claims require a
separate analysis.
To begin, we agree with the district court's conclusion that the
display case was a nonpublic forum. Burnham v. Ianni, 899 F. Supp. at 403
(focusing on facts that the display case was under UMD's control, that UMD
allowed members of the history club to use it upon request, and that the
display case was dedicated to use of the UMD history department for
disseminating information about the department). Because the display case
was a nonpublic forum, the issue as to whether the Kohns' First Amendment
rights were violated when the two photographs were removed from the display
case turns on whether "the distinctions drawn [were] reasonable in light
of the purpose served by the forum and [were] viewpoint neutral."
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)
(Cornelius). So long as these requirements are met, "[c]ontrol over access
to a nonpublic forum can be based on subject matter." Id. "The
reasonableness of the Government's restriction of access to a nonpublic
forum must be assessed in the light of the purpose of the forum and all the
surrounding circumstances." Id. at 809.
We hold that Ianni's decision to remove from the display case the two
photographs which depicted professors holding weapons was not an
unreasonable subject matter restriction in light of the purpose of the
forum, which was to disseminate information about the history department
and, additionally, according to plaintiffs, to display items of historical
interest. Brief for Appellees at 4-5. His actions were narrowly tailored
and left open other channels through which the Kohns could still publicize
Burnham's and Marchese's interests in classical and American military
history.
10
The Kohns have not alleged that their constitutional rights
were violated because the photographs at issue represent a form of
artistic expression, either standing alone or as an integral part
of the overall exhibit.
-20-
See Perry, 460 U.S. at 53 ("the reasonableness of the limitations . . . is
also supported by the substantial alternative channels that remain open").
For example, nothing prevented the Kohns from replacing the removed
photographs with similar pictures of Burnham and Marchese without weapons,
while continuing to publicize through written descriptions their interests
in American military and classical history. Moreover, Ianni's actions were
reasonable in light of the events of the preceding year, during which two
UMD employees, including one professor in the history department, had been
the targets of violent threats and efforts to intimidate them by
encouraging others to commit acts of violence against them. While
plaintiffs emphasize that "neither plaintiffs nor their pictures had
anything whatsoever to do with [the threats against Featherman and
Trolander]," Brief for Appellees at 17, the law does not require Ianni to
prove such a correlation. "[A] finding of strict incompatibility between
the nature of the speech . . . and the functioning of the nonpublic forum
is not mandated." Cornelius, 473 U.S. at 808.
Finally, notwithstanding our failure to discern any viewpoint from
the exhibition of photographs which purportedly projected the interests of
Burnham and Marchese in American military and classical history, Ianni has
demonstrated beyond any dispute that his removal of the photographs had
nothing whatsoever to do with those matters. As discussed above, he was
motivated solely by the potential disruptiveness of the photographs. On
this point, we note the district court's emphasis on its conclusion that
the suppression was "content-based." Burnham v. Ianni, 899 F. Supp. at
403-04. However, the current constitutional standard in nonpublic forum
cases does not focus solely on whether the suppression was content-based
but, rather, turns on whether the suppression was reasonable and viewpoint-
neutral.
In sum, we hold as a matter of law that Ianni did not violate the
Kohns' First Amendment rights when he had removed from the
-21-
display case two photographs depicting what he reasonably considered to be
potentially disruptive and, therefore, inappropriate subject matter.
Furthermore, even if we were to conclude that Ianni violated the Kohns'
First Amendment rights, we would in any case hold that Ianni is shielded
by qualified immunity from liability for damages because "officers of
reasonable competence could disagree on this issue" and, therefore,
"immunity should be recognized." Malley v. Briggs, 475 U.S. at 341.
III. Conclusion
For the forgoing reasons, we hold as a matter of law that Ianni did
not violate any of plaintiffs' First Amendment rights. We further hold,
in the alternative, that, even if Ianni did violate any of plaintiffs'
First Amendment rights, he is protected by qualified immunity.
Accordingly, the order of the district court denying Ianni's motion for
summary judgment is reversed and the case is remanded to the district court
with instructions to enter judgment for Ianni.
BEAM, Circuit Judge, dissenting.
Under this opinion of the court, the plaintiffs/appellees can burn
an American flag outside the University history department, Texas v.
Johnson, 491 U.S. 397 (1989), but cannot advance, as students and members
of the history faculty, expressive conduct intended to support and
publicize areas of teaching expertise and special interest within the
department. This content-based suppression was clearly not an act by the
University chancellor that properly balanced free speech against work place
tranquility. It was, rather, as aptly stated by the district court,
unvarnished censorship. The court's opinion is not a demonstration of
legitimate First Amendment jurisprudence but is, rather, an example of the
triumph of the political correctness agenda of three or four
-22-
campus personalities over well-established free speech rights of students
and faculty. From this result, I dissent.
I. FACTS
The court sets forth what it calls "underlying facts" that are
"generally not in dispute." Supra at 2. The opinion omits, however, other
"undisputed" facts of importance to the case and several disputed material
facts as well. Since this matter is before the court on motion for summary
judgment11 based on a claim of qualified immunity, the court "ordinarily
must look at the record in the light most favorable to the party
[plaintiffs/appellees] opposing the motion, drawing all inferences most
favorable to that party." Harlow v. Fitzgerald, 457 U.S. 800, 816 n.26
(1982). With this requirement in mind, a more complete recitation of the
facts, some of them perhaps disputable at trial, based upon the affidavits
in the record as annotated in the appellees' brief, is necessary.
Plaintiff Burnham has been a part-time professorial member of the
history department at the University of Minnesota-Duluth (UMD) since 1986.
He holds a Ph.D. and his special expertise is United States history,
particularly military history.
Plaintiff Marchese is a tenured professor in the University of
Minnesota system. He is a professor of humanities, classics and history
at UMD and a professor of ancient history and archaeology in the Center for
Ancient Studies at the University of Minnesota-Minneapolis.
11
It does not appear that discovery of any kind has been
conducted in this case. Apparently all facts are advanced through
plaintiffs' pleadings and affidavits submitted by the parties.
-23-
The History Club, active for a number of years on campus, operates
under the auspices of the UMD history department. At all relevant times,
Professor Burnham was faculty advisor to the Club.
During the fall quarter of 1991, two student members of the History
Club, plaintiffs Michael and Louise Kohn, conceived an idea for a project
that was intended to publicize some of the areas of expertise and interest
of the history department's faculty, while at the same time portraying the
faculty in an informal, somewhat humorous way. The Kohns approached
Professors Burnham and Marchese as well as other members of the department,
all of whom agreed to participate. They agreed to pose for a picture with
a "prop" that related to their areas of interest. They also agreed to
supply information about their areas of interest, their academic
background, their historical heroes, and to supply a quotation to be used
along with the above information and their photographs.
For his photograph, Professor Marchese elected to pose with an
ancient Roman short sword while wearing a cardboard laurel wreath. He
listed his specialties as "Ancient Greece and Rome, Homeric Literature" and
identified Homer and Alexander the Great as historical heroes. He chose
to pose with the Roman sword for two reasons. First, he likes to use
tangible objects in his lectures, and he had previously used the sword in
that way. Second, one of his interests is military history. He believes
that a thorough knowledge of the ancient world must include an appreciation
for the military culture and techniques that allowed Rome to gain and hold
an ascendancy over the Mediterranean world. His courses on ancient history
include far more than military history, but he thinks that military history
is an important aspect of that era. Hence he believed the Roman sword was
an appropriate "prop" for his photograph.
Professor Burnham's special interest in American history includes
military history in particular. Among the historical
-24-
heroes he listed were John Adams and Davy Crockett. Consistent with his
professional interests, he posed with a .45 caliber military pistol,
wearing a coonskin cap.
A total of eleven professors posed for or supplied pictures. The
Kohns assembled an exhibit that incorporated these photographs along with
the written comments submitted by each faculty member.
The photographs and the accompanying written material comprising the
exhibit communicated something of considerable public interest. The
exhibit was intended to be viewed by students and prospective students, as
well as any members of the public who might be on the premises. Its
purpose was to inform students and prospective students about the interests
and areas of expertise of the professors in the department. It was also
intended to communicate information about the professors and their
attitudes toward history--as reflected, for example, in their choices of
historical heroes.
The exhibit was put up in the history department's display case,
located in the public corridor next to the classrooms used by the
department, on March 27, 1992. This display case is designed to hold
material that communicates ideas to the public. The case and its contents
are seen by students who are taking classes located in the vicinity, by
faculty members, and by members of the general public. The display case
is reserved for the use of the history department. The plaintiffs allege
that the case has contained, for a number of years, an exhibit on Roman
siege warfare equipment that was assembled by Professor Marchese. The case
has been used by members of the History Club as well as by the history
department faculty. The case is used only to communicate matters that are
considered to be of public interest. It is not used for private
communications, like a mailbox or a message system.
-25-
The exhibit was observed by hundreds if not thousands of people.
Members of the department received many compliments on the presentation,
as did the students who assembled it. For two weeks no one expressed any
criticism of the exhibit. The display appeared to make a contribution to
morale and good relations within the department itself.
On April 10, 1992, Judith Karon (who was then UMD's affirmative
action officer) and UMD Police Captain Harry Michalicek came to the history
department and viewed the exhibit. It was subsequently learned that this
was in response to a complaint by Charlotte Macleod, an assistant professor
who was the head of the UMD Commission on Women. Karon went to the
departmental secretary, Elizabeth Kwapick, and demanded that the pictures
of Professors Burnham and Marchese be removed. This demand was denied by
the department.
Professor Burnham called a lawyer in the University of Minnesota's
Legal Department, who told him that she could find nothing wrong with the
display as described. The history department agreed that the department
should resist any attempt by the administration to censor the photographs,
and the department declined to remove them.
On April 27, 1992, Karon sent a memorandum to the Dean of the College
of Liberal Arts, John Red Horse, stating that she expected the photos to
be removed immediately because she found them to be "totally
inappropriate." Dean Red Horse apparently refused to act on Karon's
request. On April 30, 1992, Karon sent Professor Burnham a memorandum
explaining her reasons for wanting to censor the photographs of Professors
Burnham and Marchese. In her memorandum, Karon again stated that she
ordered the exhibit censored because she found the photographs
"insensitive" and "inappropriate."
-26-
On the morning of April 29, 1992, Louise Kohn, Michael Kohn,
Elizabeth Kwapick and Professor Burnham met with UMD Chancellor Lawrence
Ianni to explain the display and protest Karon's attempted censorship of
the pictures and the students' work. During that meeting, Chancellor Ianni
said that he personally found nothing wrong with the photographs.
On the afternoon of the same day, the history department held a
meeting on this issue, which was also attended by Ianni, Karon, and Dean
Red Horse. During that meeting, Chancellor Ianni again stated that he
personally saw nothing wrong with the photographs, but hinted that he
nevertheless might support their removal.
When asked to explain why she wanted the pictures censored, Karon
tried to tie them in with a written threat against Professor Judith
Trolander and other members of the department, which had been found on
March 16, 1992. Members of the department told Karon that they thought her
attempt to link the pictures to this deranged threat was absurd.
(Plaintiffs allege that Professor Trolander had not initially been offended
in any way by the pictures, in fact, she participated in the project by
posing for a photograph and specifying her specialties, a personal
quotation and historical heroes. On the day it was put up she said that
she thought the display was "very nice.") Karon also stated at that
meeting that she considered the photographs to constitute sexual
harassment. She was unable to explain what she meant by this. Karon was
asked by what authority she could order the removal of a student
departmental display, and she was not able to give any satisfactory answer.
On May 4, 1992, Chancellor Ianni ordered UMD Plant Services Director
Kirk Johnson to remove the pictures of Professors Burnham and Marchese, but
he reported he was unable to obtain access. Ianni then ordered UMD police
to remove the photos, and the next day, UMD Police Captain Michalicek went
to the history department
-27-
and removed the photographs. The photographs were apparently given to
Karon, who locked them up. Ultimately, through the efforts of Captain
Michalicek, they were returned to Michael and Louise Kohn. Only the two
photographs with weapons were removed. The other nine photographs remained
on display. Professors Burnham and Marchese then removed the balance of
their contributions to the display.
II. DISCUSSION
The court's opinion concedes as it must that the censored
presentation at issue was constitutionally protected free speech. See,
e.g., Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-
06 (1969); Tindle v. Caudell, 56 F.3d 966, 969 (8th Cir. 1995). And, "[i]t
can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the schoolhouse
gate." Tinker, 393 U.S. at 506. Indeed, the idea that a faculty member
can be compelled to relinquish First Amendment rights in connection with
employment at a public school has been "unequivocally rejected." Pickering
v. Board of Educ., 391 U.S. 563, 568 (1968).
A. Pickering Balancing
The court contends, however, that the right to express this
particular free speech must be balanced by the state employer's right to
content suppression in the name of work place efficiency and harmony. It
then employs a line of wholly inapposite employee discipline and
termination cases to summarily dispose of the violation of the faculty
members' First Amendment rights. See, e.g., Pickering, 391 U.S. 563
(teacher discharged for letter written to newspaper criticizing school
board and school superintendent); Connick v. Myers, 461 U.S. 138 (1983)
(assistant district attorney discharged for distributing questionnaire
concerning office morale and policy and confidence in supervisors); Waters
v. Churchill, 114 S. Ct. 1878, 1887 (1994) (nurse discharged
-28-
over statements dealing with hospital working conditions); and Tindle, 56
F.3d 966 (police officer suspended for attending Fraternal Order of Police
party wearing blackened face, bib overalls, black curly wig and carrying
watermelon).
These cases are inapplicable for at least two reasons. The speech
at issue in Pickering, Connick and Waters was directly critical of the
efficiency and operations of the employers' business. In Tindle there was
evidence that the conduct (although indirect in presentation) directly led
to racial friction and disharmony within the Little Rock Police Department,
thus affecting work place morale and efficiency. Here the speech was
essentially supportive of University operations, extolling the capabilities
and interests of certain faculty members. Contrary to the conduct in
Tindle, the photographs of Burnham and Marchese were not presumptively
divisive, even in the ambiance of the threats detailed by the court, nor
were they shown to have been a palpable threat to work place morale,
efficiency or harmony.
There was also no adverse employment action against which a free
speech right might be balanced. When put to the test on this misuse of
precedent, the court curiously explains, supra at 11 n.5, that the
censorship itself is somehow the adverse employment action. Turning to
Tindle, a case mightily relied upon by the court, an apt analogy,
considering this argument, would be for the police to have seized Tindle’s
bib overalls, black curly wig and his watermelon and called it an adverse
employment action. The adverse employment action was, of course, the
officer’s suspension.12
12
Tindle is inapposite for an additional reason. It involves
a police department which, as pointed out by Judge Loken in
Bartlett v. Fisher, 972 F.2d 911 (8th Cir. 1992), “as a
paramilitary force, should be accorded much wider latitude than the
normal government employer in dealing with dissension within its
ranks.” Id. at 918. (See further discussion infra at 34). The
more apposite case, unmentioned by the court, is Kincade v. City of
Blue Springs, Missouri, 64 F.3d 389 (8th Cir. 1995), cert. denied,
116 S. Ct. 1565 (1996), a matter that is factually on point with
this action and arrives at a contrary conclusion. (See further
discussion infra at 34-35).
-29-
Even if this “square peg in round hole” approach by the court were
to have any validity at all, which it does not, it would fail on the facts.
I do not believe that an employer must unreasonably endure dissident
and offensive speech without recourse simply because of the First
Amendment. As noted in Waters, however, the government employer must make
a substantial showing that the speech is, in fact, disruptive before it may
be punished. Waters, 114 S. Ct. at 1887. I concede the court's point that
a government, as an employer, has broader powers in suppressing free speech
than a government as a sovereign. I further concede that we have given
some deference to an employer's predictions of work place disruption. Id.
We have never given, however, and indeed we have rejected, any deference
to a government supervisor's bald assertions of harm, especially those, as
here, that are based on conclusory hearsay and rank speculation.13
Recently we observed that "it is critical to determine whether the
defendants [employers] have put the Pickering balancing test at issue by
producing evidence that the speech activity had an adverse effect on the
efficiency of the . . . employer’s operations." Grantham v. Trickey, 21
F.3d 289, 294 (8th Cir. 1994). We have noted that "[a] public employee's
exercise of free speech rights affects the
13
The factual differences between this case and Tindle are
dramatic. Undisputed evidence was presented in Tindle showing that
racial divisiveness existed prior to the incident in question
sufficient to cause the police department to hire an individual to
conduct "prejudice reduction workshops;" that several African-
American officers resigned from the Fraternal Order of Police over
the incident; that Tindle's conduct violated a department rule; and
that Tindle admitted that his acts had "humiliated and offended a
number of African-American [police] officers." Tindle, 56 F.3d at
968. Here, there was no showing even remotely approaching these
proportions. Indeed, only two people, for certain, Karon and
Macleod, were critical of the display and the basis for their
criticism had little, if anything, to do with the ongoing
efficiency and effectiveness of the educational operation at UMD.
-30-
efficiency of the operation of the public service when [the evidence shows
that] it affects the morale of the work force and damages the program's
reputation." Id. at 295. This is a burden that falls upon the employer.
For instance, the Supreme Court, in Pickering, noted that "no evidence to
support [professional damage to the school board and superintendent] was
introduced at the hearing" and rejected the work place disruption argument
of the board. Pickering, 391 U.S. at 570.
Part II(C) of the court’s opinion, which attempts to address
Burnham and Marchese’s First Amendment rights, is a salmagundi of
erroneous arguments and conclusions that are difficult to respond
to in a concise and orderly fashion. The “mix and match” character
of the opinion results from the court’s need to respond to an act
of “politically correct” censorship searching for a lawful
rationale--after the fact. Properly analyzed, Ianni’s position is
simply not defensible.
As conceded by the court, the Pickering/Connick balancing
test, if at all applicable, which it is not, requires the court to
determine whether the professors’ free speech rights “outweigh the
interests of [UMD] in promoting the efficiency and effectiveness of
the public services it performs,” supra at 17, here the educational
mission of the University. Unfortunately, the court, at best,
pursues an apples and oranges approach. It seems to attempt to
balance the free speech rights against, on the one hand, a
purported campus “atmosphere of tension and fear,” supra at 17, and
on the other hand, but only peripherally and obliquely, the
disruption of the pedagogical mission of UMD. Because we are
dealing with summary judgment rather than the results of a trial,
we note that the impact of the free speech on the campus’s
atmosphere, if any, is hotly disputed. Its impact upon the
educational mission of UMD is totally unproven and unaddressed
except in the most conclusory fashion.
-31-
-32-
Of course, there is really no evidence that the offending
photographs actually impacted the campus atmosphere at all. The
best that can be said for the court’s extensive discussion of the
alleged threats to Ms. Featherman and Ms. Trolander, see supra at
3-4, is that some campus milieu may have been created by acts that
occurred in June of 1991 and early March of 1992, acts preceding
the erection of the display. Obviously, the then non-existent
photographs had no effect upon the environment created by these
incidents. Indeed, Ianni’s memo of March 16, 1992, purportedly
dealing with these threats, preceded the March 27, 1992, posting of
the display. And, although the affidavits of both Burnham and
Marchese expressly discount and deny that a “climate of fear”
existed on campus, clearly placing the “atmosphere” issue in
dispute for summary judgment purposes, see Burnham Affidavit
Appellees' App. at 17 and Marchese Affidavit Appellees' App. at 27,
it is obvious that the photographs had nothing to do with the
campus ambiance that existed at the time of Ianni’s March 16 memo.
Thus, the test, flunked by Ianni so far, is what effect, if any,
did the photographs have on University functions. The present
record leaves this question unanswered.
Even if, for the sake of argument, I were to concede the
existence of pre-existing campus tension arising from the
Featherman and Trolander episodes, there is absolutely no evidence,
except for Ianni’s sweeping conclusions, that establishes a nexus
between the two photographs and an exacerbated atmosphere of fear
on the campus or, more importantly, that establishes a
relationship, direct or indirect, between the photographs and the
“efficiency and effectiveness” of UMD’s mission in public
education. Evidence that the photographs increased campus-wide
tension which in turn diminished the efficiency of the mission of
UMD is totally absent, not just in dispute, although even a dispute
-33-
of fact would doom a grant of summary judgment for Ianni on the
basic First Amendment issue.
-34-
Additionally, qualified immunity, the issue that gives this
court jurisdiction to review the district court’s denial of summary
judgment, is an affirmative defense that Ianni must assert.
Siegert v. Gilley, 500 U.S. 226, 231 (1991). Thus, Ianni had the
burden of proving, Watertown Equip. Co. v. Northwest Bank
Watertown, 830 F.2d 1487, 1490 (8th Cir. 1987), cert. denied, 486
U.S. 1001 (1988), that the constitutional right asserted by the
plaintiffs was not clearly established at the time of the incident
or if established, was not discernible to an objective government
official under the facts available or, in the alternative, of
proving the “necessary concomitant” that plaintiffs have not
asserted “a violation of a constitutional right at all.” Siegert,
500 U.S. at 232. It is the alternative inquiry that the court
primarily relies upon today, i.e., is there a constitutional
violation at all? As I have noted, Ianni has simply not shouldered
his burden of proof as to this prong of qualified immunity
jurisprudence or, at the very least, he has left a factual inquiry
on this issue on the table to be fleshed out at a trial.14
The court’s secondary attempt to pump air into its reversal
balloon, through a finding of qualified immunity enforceable
through summary judgment, quickly deflates with the failure of
proof on the basic Pickering/Connick issue. Beyond that, however,
14
While our cases frame this alternative inquiry as one leading
to a determination of qualified immunity, the procedure actually
tests whether a viable claim for relief has been stated under 42
U.S.C. § 1983. Ordinarily, denial of a motion for failure to state
a claim is interlocutory and unappealable. When coupled with an
affirmative defense of qualified immunity, however, the "failure
to state a claim" issue becomes appealable under the rationale set
forth in Siegert. In my view, if a constitutional right has not
been asserted "at all," a defendant has no need for immunity.
Siegert, 500 U.S. at 232. The case should simply be dismissed for
the lack of a workable claim. Conceptually, immunity is only
needed to protect a government actor from suit if an actual
constitutional violation has occurred.
-35-
the court advances a new and surprising theory that whenever a
Pickering/Connick balancing test is required, government officials
-36-
must always be awarded qualified immunity. Supra at 18-19.15
Although it admits the existence of several cases contrary to its
theory, see supra at 19 n.9, the court fails to cite the most
analogous case, Kincade v. City of Blue Springs, Missouri, 64 F.3d
389 (8th Cir. 1995), cert. denied, 116 S. Ct. 1565 (1996), even
though a member of the panel majority joined that opinion.
Kincade was discharged by Blue Springs for exercising his free
speech rights. Because Kincade’s speech touched on a matter of
public concern, as does the speech in this case, the
Pickering/Connick balancing test was employed to review a district
court denial of a motion for summary judgment on qualified immunity
grounds. The court, noting that the only evidence of workplace
disruption was a conclusory statement to that effect by the mayor
and other city officials, asserted:
the Appellants [city officials] have merely
asserted that Kincade’s speech adversely affected
the efficiency of the City’s operations and
substantially disrupted the work environment
without presenting any specific evidence to support
this assertion. They therefore have not put the
Pickering balancing test at issue, and accordingly,
we reject their claim that they are entitled to
qualified immunity because free speech questions
for public employees, as a matter of law, cannot be
“clearly established.”
15
The cases cited by the court exclusively involve police and
paramilitary employers that this circuit has treated differently
than general governmental bodies, schools and colleges, especially
where, as here, elements of academic freedom are present. We have
held that paramilitary employers have a heightened interest in
regulating the speech of its employees to promote loyalty,
obedience in the ranks and public confidence in the units. See,
e.g., Bartlett v. Fisher, 972 F.2d 911, 918 (8th Cir. 1992) (noting
paramilitary government employer “should be accorded much wider
latitude than the normal government employer in dealing with
dissension within its ranks”).
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Kincade, 64 F.2d at 398-99. This is precisely the factual and
legal situation we have in this case and the court’s opinion
clearly violates the precedent established in Kincade.
Admittedly in different contexts, two recent cases generally
dramatize the burden of proof allocation when free speech is at
issue. In 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495
(1996), decided this past term, a case involving commercial
advertising, a commodity recognized as more freely subject to
regulation than other forms of protected speech, id. at 1504, the
Supreme Court rejected the premise that the merchant/advertiser had
the burden of disproving Rhode Island’s stated reason for the
speech regulation, to-wit: the promotion of temperance by the
reduction of alcohol consumption. The Court, rejecting even a
presumption in favor of the state arising from the Twenty-first
Amendment said:
[W]e note that a commercial speech regulation may
not be sustained if it provides only ineffective or
remote support for the government’s purpose. For
that reason, the State bears the burden of showing
not merely that its regulation will advance its
interest, but also that it will do so to a material
degree. The need for the State to make such a
showing is particularly great given the drastic
nature of its chosen means--the wholesale
suppression of truthful, nonmisleading information.
Id. at 1509 (citations and internal quotations omitted). The
Court, here, affirms the wholesale suppression of truthful,
nonmisleading free speech, of a higher order than liquor
advertising upon Ianni’s self-serving, factually unsupported,
subjective state of mind that the censorship might “maintain a
positive and efficient working and learning environment conducive
to the mission of an academic institution.” Supra at 12.
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In an even more recent case, Forbes v. Arkansas Educ.
Television Comm'n, No. 95-2722, slip op. (8th Cir. Aug. 21, 1996),
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in an opinion concurred in by the majority members of this panel,
in litigation in which a minor candidate was excluded from a
televised debate because a government functionary thought he was
not a "viable" candidate, this court said, “We hold that a
governmentally owned and controlled television station may not
exclude a candidate, legally qualified under state law, from a
debate [free speech] organized by it [the television station] on
such a subjective [lack of viability] ground. To uphold such a
defense would, in our view, place too much faith in government.”
Id. at 3. The same goes for the subjective suppression advanced
here. In sum, the court’s holding that “Ianni need only [make] a
minimal showing of potential disruptiveness to justify his
actions,” supra at 13, is simply an incorrect statement of First
Amendment law.
Giving the best gloss possible to the facts adduced by Ianni,
nothing remotely approaching lower morale and program damage at UMD
was established. The censorship itself did more damage to the
morale of the history department than any other possible event
except, perhaps, the announcement of a budget cut. Viewing the
competing affidavits favorably to Burnham and Marchese, as we must
at this summary judgment juncture, we find only three or four
people in support of censorship and none of them offering
objections or reasons running directly to institutional morale or
program damage. As stated earlier, Judith Karon, at the time UMD's
affirmative action officer, thought the display was "insensitive
and inappropriate." She later thought the photographs might
somehow constitute "sexual harassment." Professor Trolander, a
member of the history department faculty, at first thought the
displays were "very nice" but later, apparently, thought the
display was inappropriate. The other offended individual revealed
in the record was Charlotte Macleod, the original complainant, an
assistant professor at UMD and the head of the UMD Commission on
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Women. Without derogation of the strong feelings of these three
individuals, their states of mind are not reason enough to allow
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the University administration to run roughshod over the First
Amendment rights of Burnham and Marchese.
Finally, the court notes, supra at 14 n.7, that later in 1992,
copies of the photographs censored by Ianni were posted at the
student center on campus without complaint of any kind and without
any evidence of an institutional breakdown.16 Far from proof of the
propriety of Ianni's earlier censorship, as the court contends,
this is evidence that there never could have been a showing of work
place disruption. Free speech is free speech whether it occurs in
May in the history display case or in August at the campus student
center.
The facts fail to support Ianni's position, and the district
court so found. Judge Davis stated "[t]his is not an employment
case where there is a threatened disruption to the efficient
delivery of services." Burnham v. Ianni, No. 594-6, mem. op. at 9
(D. Minn. Mar. 17, 1995). The court, in its summary judgment,
fact-finding exercise, seems to have found this holding to be
clearly erroneous. It is, however, the court that is in error.
B. Content Suppression
The most troublesome aspect of the court's opinion is its
failure to properly analyze the real free speech/censorship issues
16
The court excuses this inconsistent position by reference to
an “improved” atmosphere. Supra at 14 n.7. I find no support in
reason or precedent for such a rationale. The plaintiffs point out
in their brief that UMD students recognized the censorship even if
Ianni and Karon did not. The student center display was,
apparently, on the subject of censorship and was headed "The
Administration Does Not Want You to See These." The second showing
argument advanced by Ianni and accepted by the court was
characterized by Judge Davis as "at best, disingenuous." Burnham
v. Ianni, No. 594-6, mem. op. at 12 (D. Minn. Mar. 17, 1995).
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brought clearly into focus in this case. These are the issues
summarily, and incorrectly, disposed of by the court in Part II(E)
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under the heading "The Kohns’ First Amendment rights." Supra at
19. The violation involved all four plaintiffs' First Amendment
rights and not just those of the students.
The court discusses the nature of the forum, an irrelevant
matter. Even so, its conclusion is wrong. Under the facts of this
action, the display case was clearly a limited designated forum,
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45
(1983).17 See also Forbes, slip op. at 3. Thus, the content-based
suppression at work here must have served a compelling state
interest through censorship narrowly drawn to serve that interest.
Widmar v. Vincent, 454 U.S. 263, 270 (1981). No such test was
applied in this case by either Ianni or the court and no such
showing could possibly have been made under the undisputed facts of
this litigation.
At the bottom line, however, the nature of the forum makes
little difference. Even if the display case represented a closed
forum, Ianni violated the First Amendment rights of the plaintiffs,
and in a way that any objective University chancellor would or
should have known.
We need look no further than Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, for controlling precedent
although the answer is so fundamental it governs dozens of cases
decided in this circuit alone. In Tinker, of course, three
students, ages sixteen, fifteen and thirteen, wore black armbands
17
The display case, as earlier noted, was in the hall outside
the history department's classrooms and had been placed there to
hold information about the department, the faculty and students for
the benefit of students, prospective students and the public.
Displays in the case were designated and intended to communicate
truthful, nonmisleading ideas to students, prospective students,
faculty and the public on a permanent, ongoing basis.
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during attendance at their respective Des Moines senior and junior
high schools to publicize their objections to the Vietnam War. A
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few students made hostile remarks to the students wearing armbands
but there were no threats or acts of violence on school premises.
Id. at 508. The school authorities were found by the district
court to have acted reasonably in prohibiting the armbands "because
[the action] was based upon [the school's] fear of a disturbance
from the wearing of the armbands." Id.
The Supreme Court rejected this conclusion saying "in our
system, undifferentiated fear or apprehension of disturbance is not
enough to overcome the right to freedom of expression." Id. The
Court further noted that "[i]n our system, state-operated schools
may not be enclaves of totalitarianism." Id. at 511. Freedom of
expression may be regulated only with a specific showing of a
constitutionally valid reason. Id. There had to be a factual
showing that the suppressed conduct would "materially and
substantially interfere with the requirements of appropriate
discipline in the operation of the school." Id. at 509.
As in Tinker, there is no such showing made here by Ianni.
The after-the-act recitation of outside threats made against a
faculty member and a UMD administrator, with no shown or known
connection to the history department display, is simply a "red
herring" drawn across the trail leading from the University
chancellor's suite, via the affirmative action officer's quarters,
to the unconstitutional censorship of two photographs totally
unrelated to the purported concern. The argument that a photograph
of a male, laurel-wreath bedecked UMD faculty member holding a
Roman short sword, as part of a eleven-person faculty display,
somehow exacerbated or threatened to exacerbate a purported, but
unproven, atmosphere of fear on the UMD campus is almost laughable.
There was no valid constitutional basis for the censorship, it was
simply an act of regulation of what Karon believed to be
politically incorrect speech, a display of weapons.
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III. CONCLUSION
Followed to its logical conclusion, the court’s holding simply
permits the suppression of too much speech on arbitrary and
capricious grounds. Indeed, the opinion would even permit
suppression of Sandra Featherman’s advocacy of gender and cultural
diversity at UMD if Chancellor Ianni subjectively felt that such
speech contributed to an inefficient and negative working and
learning environment on the campus because of unlawful or vehement,
but protected, opposition to Featherman’s views. Surely that
cannot be the law in this circuit.
Further, the court grants the motion for summary judgment
based upon qualified immunity because it finds no First Amendment
violation. The court improperly limits the facts it considers,
mistakenly applies a Pickering/Connick balancing test and accepts
self-serving statements by Ianni, unsupported by evidence except
evidence of the political correctness concerns of two faculty
members and an affirmative action administrator. This is error.
I dissent.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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