Petition for Writ of Certiorari — Gilles v. Blanchard (No. 06-1617)

No OFFICE OF THe OLENA

In The

Supreme Court of the United States

JAMES G. GILLES,

Petitioner,

Vs.

BRYAN K. BLANCHARD, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

BENJAMIN W. BULL NATHAN W. KELLUM

ALLIANCE DEFENSE FUND Counsel of Record

15333 N. Pima Rd., Ste. 165 ALLIANCE DEFENSE FUND

Scottsdale, AZ 85260 P.O. Box 11159

(480) 444-0020 Memphis, TN 38111

(901) 323-6672

Attorneys for the Petitioner James G. Gilles

QUESTIONS PRESENTED

For the purpose of sharing his religious beliefs, Petitioner

James G. Gilles visited Vincennes University and initiated a

discussion in an open and accessible part of the campus

resembling a sidewalk and public park. This effort was soon

thwarted by the university officials, however, who barred the

expression as “solicitation.” In consideration of this matter,

Seventh Circuit acknowledges that the subject Solicitation

Policy is vague and supplies unbridled discretion to

university officials, but, in analogizing the sidewalk and

park-like area on campus to private property, upholds the

restriction nevertheless.

The following questions are presented:

1. Is an open area on a public university campus that

resembles a sidewalk and public park and is

compatible with speech, considered public fora or

private property for speech purposes?

2. Is it ever appropriate to give officials unbridled

discretion to regulate speech on public property, even

in a nonpublic forum?

ii

PARTIES TO THE PROCEEDING

Petitioner James G. Gilles brought suit and was a

Plaintiff-Appellant before Seventh Circuit. The following are

respondents and were Defendants-Appellees before Seventh

Circuit: Bryan K. Blanchard, in his official capacity of

President of Vincennes University, and John Livers,

individually and in his official capacity of Dean of Students

for Vincennes University.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Sup. Ct. Rule 29.6, Petitioner James G.

Gilles states that he is not a subsidiary or an affiliate of a

publicly owned corporation.

iil

TABLE OF CONTENTS

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CORPORATE DISCLOSURE STATEMENT .................006. il

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PR ATE arias nish ssthn caciaiintandinieininns aemivasiansabetinlailiaaads |

CONSTITUTIONAL PROVISIONS ...c.ssscccccsccsssnscvesesseasvenes l

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REASONS FOR GRANTING THE WRIT...............:.ccccee 6

I. THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT AMONG CIRCUIT

COURTS OVER THE APPLICATION OF FORUM

ANALYSIS TO OPEN AREAS ON PUBLIC

JURE Y RANGE ET Se PRIME MMEEIEN Sicskssentsennsichinacwnionsaneiessbonns 7

II.

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A. Seventh Circuit’s Refusal to Evaluate Objective

Characteristics of Property Conflicts with Other

Circuit Courts and Decisions of this Court.......... 10

1. Seventh and Fourth Circuits gloss over

Objective characteristics ..............:cccceeseseeeee 1]

2. Fifth, Eighth, Ninth, Tenth and D.C. circuits

emphasize objective characteristics ............ 13

B. Seventh Circuit’s Decision to Jettison Forum

Analysis and Apply Private Property Rules to

Public University Property Conflicts with

ECR OE TN CI aos sccessiteensitsasceveeranccatonoens 16

THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT AMONG CIRCUIT

COURTS OVER THE APPLICATION OF THE

UNBRIDLED DISCRETION DOCTRINE _IN

IONE SPI BRAIN isk neni eciwssionininstecdesecistsnyeaskeninsiintans 20

A. The Seventh Circuit Decision Conflicts with Other

Circuits over Application of Unbridled Discretion

Doctrine in Nonpublic Fora. ...............::ccscccesseeeees 21

1. Federal, First and Seventh Circuits permit

unbridled discretion in nonpublic fora......... 21

2. Fourth, Eighth, Tenth and Eleventh circuits

prohibit unbridled discretion in nonpublic

I saiaicaicihack ccininipceniedncaainiebah inktehila ceaboeabesmadlas 23

B. Seventh Circuit Decision Conflicts with Decisions

of this Court over Application of Unbridled

Discretion Doctrine in Nonpublic Fora ............ 25

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1. Policy that allows unbridled discretion should

be facially mvalidated ...............c0..ccscscccossees 26

2. Unbridled discretion doctrine applies in

IS FUE ie isicicicindcricnacaramenee 27

3. Officials should not be trusted to apply

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TABLE OF AUTHORITIES

CASES

ACLU of Nevada v. City of Las Vegas

Be ee BAP CE GAR DAD Sess cnscsacccsigeonedsnccapncincednses 13

Adderly v. State of Florida

RR BP BE CIE cash pais can daisissasshiceivensadcesaccesvensageubendes 18

Alabama Student Party v. Student Gov't Ass'n

RE Ficdek BO Cl RUE Gals EFT usvchinkasesssinnssiscaisecasseseacas 15

American Civil Liberties Union v. Mote

Be Fe Oe LO Gs PP iaiventscisdschecarnensonnsnsnthsnnanese 10

Arkansas Educ. Television Comm'n v. Forbes

es eee I EE hoitiiesinciicabieskubesinaanindsncianeasogeions ae

Atlanta Journal & Constitution v. City of Atlanta Dep't of

Aviation

Re ee Ce UE AM Mell BI Paiacssssdicanicsscccsinsctvasnsonnon 25

Board of Airport Commissioners v. Jews for Jesus, Inc.

Un I RED cs scccscsiccncinioscaassecesashesiensiakslaenignathebinn 27

Bowman v. White

444 F.3d 967 (8th Cir. 2006) .............0......4. 10, 12, 15, 16

Child Evangelism Fellowship of Md. v. Montgomery County

Pub. Sch.

BF 0 tk SFO Ce is Baas dn svcnssos<ecessesnecnensnvasnuece 24

Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist.

Five

FO Cite BOE CO Bey COO poevsnixensesisessdeesassvacncons 24, 29

Vii

City of Chicago v. Morales

Ee I sb iniiasdsttrininssresannakcinrcagniedignianoniiees 20

Commonwealth v. Davis

AGE BARME, SEPT RGIOR, BOI) ccesasisncnsessessescsninencssesvanectade 20

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.

GTS SAN PA Pep cckinncishvichancatecginncivvesdios LZ, 13, 17,27

Dallas Ass’n. of Cmty. Organizations for Reform Now v.

Dallas Cty. Hosp. Dist.

Fe eee Ey LEED sisinecsiiccnsscnesnsninssstiunescosnnenss 12

First Unitarian Church v. Salt Lake City

SOB FSG TES (HOR Cir. BOOZ) on cicvicsscsscncecesosvcnes 9, 13, 14

Forsyth County v. Nationalist Movement

RI: A A FMD saci iescatisitnscsisecianssundaieas 19, 20, 21, 26

Frisby v. Schultz

Re Ae TI CNIED ishrsvesinacichnantinnenstivavsnbecensiignhaanuits 8, 15

Gilles v. Blanchard

EF ee CTE GE, DOTY vcscinsnsiscceveserccnoscasneceet passim

Grayned v. City of Rockford

NE eT enti teitiiecsthtipntsacasvakacivniownnnideomnaneseniinnastan 12

Greer v. Spock

Ss I OUI Sickest cdiniaietiinchasianisicaciahanbaannbiapoaic 8,9

Griffin v. Secretary of Veterans Affa’s

RO Ae Ce AR, DOOD i sesivcresiisasincisseiscctissvereoes 23

Vill

Grutter v. Bollinger

ae NOS). insnsannssisavsnssnieciantsachassipinensdedbananaan 6

Hague v. CIO

UE Se MOE CR IY cscs anvsseciseasnnusash losnbhaveiisscgoeiel 8, 15, 20

Hays County Guardian v. Supple

Pe ie BN Te TIED resis cisccccsnisuicceossonisiaes 10, 15

Healy v. James

MP AS RIOT sisicicinscesincicicsnlchaiunctcdusicwigheauaeiieiae 6, 7

International Soc’y for Krishna Consciousness v. Lee

MOUS CA... ee: 14, 15

Justice for All v. Faulkner

BAF OE TO CR MR BGO) sesiesiciensiscervensvanebibesoncansian 12

Lakeview Associates, Ltd. v. Maes

DRE E Eee RR SPIE: ooccinccsuinipiessenaticicnctinttinniaeneit 19

Lakewood v. Plain Dealer Pub. Co.

Te A a FUE atts tsinsvecaces icvegcctlanalanncencamslesonels passim

Lederman v. United States

BE Eee IA Ns ED vxcisntinésavabindcicstipanasnncnccies 13

Lewis v. Wilson

POE Ae SPEEA, OED sovccnssticnccsesichoesninccbidaiyanns 25

Lloyd Corp. v. Tanner

I Fe I IRON itp basccchsinse havin enieancicassareannrarocdonens 19

Niemotko v. Maryland

Ee ais Re ee Doi taas cacccansiceenceninvincseahceemmesnstansinalids 20

IX

Paulsen v. County of Nassau

Oy Cie, TGP) canes cccncssasosesssicssccsnsseocsscs 8,9

Perry Educ. Ass'n v. Perry Local Educators' Ass'n

ENE Ee IED) scenic sicicniveccsescsenscovivnssovesnesoss gna bn er |

Ridley v. Massachusetts Bay Transp. Auth.

Ee CME GAE, BOG) ne cccsccsccssccsosseccsscenvnsaseseaseenrs 23

Rosenberger v. Rector & Visitors of Univ. of Va.

RM A SB vconcecevandsiniseresninssooronnonsoaseessee 7, 19, 20

Saia v. New York

a ie di suiacuacksdvanpubvavadiannnnossensaiovn 20

Sammons v. American Automobile Association

ee FPF CPO. VIGO) oocssnscccsesscceccscesscsenessesee 18, 19

Schenck v. Pro-Choice Network

TE sisi canscaisnescentsenssssavensesnensive 8, 15

Shelton v. Tucker

i cs cis idcnvassnssuanescandansevsouacases 7

Shuttlesworth v. City of Birmingham

cede cscescaseruesitsersiswisbentnnscsoscsvenes 21

Spartacus Youth League v. Bd. of Trustees

Dee ee. we, 769 (INLD. TE. 19BO)....................00cceeseseee 15

Students Against Apartheid Coalition v. O'Neil

BAW AEP, VR. PDBT) .....ncccescsrcccescsssssenees 15

Summum v. Callaghan

oe TE Ga bp 25

United States v. Grace

Oe Fre a rhisascinaspindesicasiacskbsnnccsvciicnanuercantibes 8, 15

United States v. Kokinda

FE Aaa Fe CRO iin ctesnciclsssnsnprinenesndntcesveteaianahe 9, 10, 15

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.

A EID eesti chcatcsisepeseavnincsl shatadsenderunazandes 20

Widmar v. Vincent

ge dC AE AR PEED pinsecesentspseminassesinncresonnesdsbasieneicnonnies 12

CONSTITUTIONAL PROVISIONS

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STATUTES & RULES

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Nae IE Diodes ekcichs insmplcedbahstos hcltadaacaaianinaicoee l

OTHER AUTHORITIES

Marie A. Failinger, New Wine, New Bottles: Private

Property Metaphors and Public Forum Speech, 71 St.

OE Bi Fee a 8 0 Rsticciostin cians msi soeaaicornninns 9, 10

xi

Steven G. Gey, Reopening the Public Forum from Sidewalks

to Cyberspace, 58 OHIO ST. L.J. 1535 (1998)... ee 8

Nathan W. Kellum, /f /t Looks Like a Duck...Traditional

Public Forum Status of Open Areas on Public University

Campuses, 33 HASTINGS CONST. L. Q. | (2005)................. 16

Rodney Smolla, Academic Freedom, Hate Speech and the

Idea of a University, 53 LAW & CONTEMP. PROBS. 195

as aah aisha ch Versi cnnccncesepesdciced aaaintalabceubatieds “esiseaiainen 12

l

DECISIONS BELOW

The district court’s ruling granting summary judgment

for defendants is reprinted at Appendix (“App.”) 14a-21a.

The decision of Seventh Circuit affirming the district court’s

order of summary judgment is reported as Gilles v.

Blanchard, 477 F.3d 466 (7th Cir. 2007) and is reprinted at

App. la-13a. The decision of the Seventh Circuit denying

rehearing and rehearing en banc is reprinted at App. 22a.

JURISDICTION

The United States Court of Appeals for Seventh Circuit

entered its judgment in this case on February 14, 2007. The

Court of Appeals denied petitioner’s petition for rehearing

and rehearing en banc on March 12, 2007. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States Constitution

provides as follows:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the government for a redress of grievances.

The first section of the Fourteenth Amendment to the

United States Constitution provides as follows:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

2

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without

due process of law; nor deny to any person

within its jurisdiction the equal protection of

the laws.

STATEMENT OF THE CASE

A. Factual Background

Vincennes University (“VU”) is a public state university

located in Vincennes, Indiana. VU’s campus is open to the

public at large. App. 29a. There are no fences preventing

access and no security entrances where identification is

required. App. 28a. Streets, sidewalks, and open areas are

located throughout the campus for public use. App. 106a;

109a-115a; 50a-Sla. In the center of the campus is an area

known as the “library lawn area.” App. 106a. This area

consists of a main sidewalk, abutting grassy knolls, with

connecting sidewalks that run through the campus and into

the community of Vincennes. App. 106a, 109a-1 13a.

Outside groups and individuals have traditionally come

onto VU’s campus for expressive purposes. App. 62a. One

such outside group, a religious group known as the Gideons,

visits VU annually and passes out Bibles in open areas on

campus. App. 6la-64a, 69a-70a. Historically, the Gideons

have enjoyed free reign on the VU campus for their

expressive activity, including uninhibited access to the

library lawn area. App. 69a-70a. Another group, John and

Ellen Duncan (“Duncans”), came to VU in August of 1998

to speak on the campus. App. 117a. At that time, the

Duncans went to the open area of the library lawn and

3

engaged in religious discourse for over four hours. App.

117a, 119a. The Duncans attracted a large number of

students (about 70) who gathered to hear the Duncans

preach. App. 117a-19a. And the Duncans’ expressive

activity did not go unnoticed by VU. Two police officers

came to the library lawn and observed the Duncans’

expression, but no VU official ever attempted to restrict the

Duncans’ speech. App. 118a.

James G. Gilles (“Gilles”) is a professing Christian who

travels to public universities throughout the country and

imparts a religious message to college students. App. 105a.

He typically speaks on topics of faith and encourages

dialogue about his faith and other moral issues of the day.

App. 105a-06a. Gilles does not attempt to solicit. App.

107a. He makes no effort to sell any services or products,

nor does he seek to gain anything for himself or any

organization. /d. He does not encourage anyone to join any

organization. /d. Nor does he try to entice anyone to action.

Id. Gilles conveys his message because of a firm religious

conviction to “share the gospel,” or, in other words, to

communicate the good news about Jesus Christ. Jd. He does

not wish for anyone to act, but to believe. Jd. To achieve his

goals, Gilles engages in public speaking, individual

conversations with students, and leafleting. App. 1 08a.

In 2001, Gilles visited the campus of VU and spoke

without interruption in the library lawn area. App. 106a.

The following year, on August 29, 2002, Gilles came back to

VU and attempted to speak in the same library lawn area, as

he did in 2001. /d. But, on this visit, Harold Hensley, Chief

of Police at VU, prohibited Gilles from speaking, and

advised Gilles to fill out a solicitation request with Dean of

Students John Livers (“Livers”). /d. Livers is the VU

official responsible for reviewing and approving solicitation

requests. App. 28a, 38a, 43a, 126a.

Livers instructed Gilles that he must register his speech

in accordance with VU’s “solicitation” policy. App. 106a.

Livers enforced VU’s “solicitation” policy against Gilles,

concluding that Gilles’ speech was “solicitation” because he

thought Gilles would entice someone to action, even though

Livers did not know what Giiles was going to say that day.

App. 55a, 106a, 122a, 128a. VU’s “sales and/or solicitation”

policy reads in part as follows:

Vincennes University also requires prior

approval for all solicitations on campus by any

person or organization. Again, the Dean of

Students will approve the date and time of the

solicitation. He will also notify the appropriate

University personnel regarding the campus

location for the solicitor. The designated area

on campus for solicitation is the brick walkway

directly in front of the Beckes Student Union.

Solicitation is the act of seeking to obtain by

persuasion; to entice a person to action; or the

recruiting of possible sales.

App. 128a, 137a.

Because Livers declared Gilles’s speech to be

“solicitation,” Gilles was forced to speak on the brick

walkway in front of Beckes Student Union rather than the

library lawn area. App. 48a, 56a, 106a, 122a. The

designated brick walkway is adjacent to a public street at a

three-way intersection with another street. App. 46a, 106a-

107a, 114a, 115a. This location is not suited for the type of

expressive activity envisioned by Gilles. App. 106a-07a.

There are very few students in the vicinity and the vehicular

traffic makes the background noise very loud and difficult to

talk over. /d. Gilles attempted to speak on the “brick

5

walkway” but found the effort futile. App. 106a. Gilles left

the area and has not returned to VU or attempted to speak on

VU’s campus for fear of arrest. App. 107a.

The VU Policy defines “solicitation” as “the act of

seeking to obtain by persuasion; to entice a person to action;

or the recruiting of possible sales.” App. 128a, 137a. VU

officials interpret this phrase to mean speech that persuades

someone to do something or speech that persuades someone

to give something. App. 45a-46a.

In application, Gilles is forced to speak at the “brick

walkway” whether his speech actually falls within the

policy’s definition of “solicitation” or not. App. 43a, 54a,

56a. But other speakers, whose speech falls within the

policy’s definition of “solicitation,” need not speak on the

“brick walkway.” App. 30a-35a, 50a-51a, 60a-61a, 78a-80a.

VU permitted the Indiana National Guard to recruit in

front of Morris Hall in April of 2004. App. 80a. VU further

granted the Women of Essence a chance to sell candy '

anywhere on campus ~— including the lawn of the library — in |

April of 2004. App. 82a-83a. VU allowed Black Male

Initiative to hand out flyers for homecoming anywhere on

campus, including the library lawn area, in November of

2003. App. 87a-88a. And VU permitted Sarah Nicholas and

Jena Grosser, for the Kerman and Davis for Indiana

Campaign, to register and encourage students to vote outside

the library in September of 2004. App. 90a-9 la.

During 2003, VU hosted numerous events and expressive

activities. App. 72a-80a, 129a, 137a-39a. These events

attempt to entice persons to action, but VU did not require

any of the outside individuals or entities to fill out a

solicitation request or speak in the brick walkway. App. 79a.

Under the present system, an individual can come onto the

6

VU campus and engage in solicitation without having to fill

out a solicitation request, as long as it is approved by Livers.

B. Proceedings Below

To vindicate his right to speak, Gilles filed his Verified

Complaint for Declaratory and Injunctive Relief and

Damages on April 16, 2004, along with a Motion for

Preliminary Injunction. The district court denied Gilles’

Motion for Preliminary Injunction by Order dated July 29,

2004. After discovery, the parties filed cross-motions for

summary judgment on July 18, 2005. On January 16, 2006,

the district court entered an Order and Judgment denying

Gilles’ Motion for Summary Judgment and granting

Defendants’ Motion for Summary Judgment, dismissing all

claims brought by Gilles. App. 14a-2la. Following this

decision, Gilles filed his Notice of Appeal to Seventh Circuit

Court of Appeals on February 1, 2006.

On February 14, 2007, Seventh Circuit issued its opinion

affirming the district court’s order of summary judgment in

favor of Defendants and against Gilles. App. la-13a. Then,

on February 28, 2007, petitioner filed a Petition for

Rehearing and a Petition for Rehearing En Banc. On March

12, 2007, both petitions were denied. App 22a.

REASONS FOR GRANTING THE WRIT

As this Court has frequently noted, free speech plays a

vitally important role in the university setting and deserves

the utmost protection. See, e.g., Grutter v. Bollinger, 539

U.S. 306, 329 (2003) (“We have long recognized that, given

the important purpose of public education and the expansive

freedoms of speech and thought associated with the

university environment, universities occupy a special niche

in our constitutional tradition”); Healy v. James, 408 U.S.

7

169, 180 (1972) (“{S]tate colleges and universities are not

enclaves immune from the sweep of the First Amendment’);

Shelton v. Tucker, 364 U.S. 479, 487 (1960) (“The vigilant

protection of constitutional freedoms is nowhere more vital

than in the community of American schools”). But the

Seventh Circuit’s dim view of forum analysis threatens this

important role; as does its refusal to acknowledge the

dangers of unbridled discretion in this context. Undermining

the First Amendment on the public university campus, the

Gilles v. Blanchard raling contradicts decisions of other

circuits and this Court. Thus, grant of this Writ of Certiorari

is justified. This Court’s involvement is needed to resolve

the conflict and to preserve space for “creative inquiry in one

of the vital centers for the Nation's intellectual life, its

college and university campuses.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 836 (1995).

Il. THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT AMONG CIRCUIT

COURTS OVER THE APPLICATION OF FORUM

ANALYSIS TO OPEN AREAS ON PUBLIC

UNIVERSITY CAMPUSES

For assessing the propriety of speech regulations on

public property, this Court uses a methodology known as

“forum analysis.” Perry Educ. Ass'n v. Perry Local

Educators’ Ass'n, 460 U.S. 37, 44-46, 49 n. 9 (1983).

Pursuant to which, the property or “forum” is first classified

into one of three categories: traditional public fora,

designated public fora, or nonpublic fora. Arkansas Educ.

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

Then, in judging the restriction, the standard of scrutiny

attached to the forum classification is applied. /d. at 677-78.

In this matter, Seventh Circuit upholds a restriction on

expression taking place on a sidewalk and park-like venue on

8

a public university campus. Gilles, 477 F.3d at 468-69.

Streets, sidewalks, and parks have long been considered

“prototypical” examples of public fora. Schenck v. Pro-

Choice Network, 519 U.S. 357, 377 (1997). No

“particularized inquiry” is required for such areas since they

are considered “quintessential” fora for expression. Frisby v.

Schultz, 487 U.S. 474, 481 (1988). See generally Steven G.

Gey, Reopening the Public Forum from Sidewalks to

Cyberspace, 58 OHIO ST. LJ. 1535, 1538-39 (1998)

(“[E]very culture must have venues in which citizens can

confront each other’s ideas and ways of thinking about the

world. Without such a place, a pluralistic culture inevitably

becomes Balkanized....”) As this Court observed early on in

formulating forum analysis, “/w/herever the title of streets

and parks may rest, they have immemorially been held in

trust for the use of the public and, time out of mind, have

been used for purposes of assembly, communicating

thoughts between citizens, and discussing public questions.”

Hague v. CIO, 307 U.S. 496, 515 (1939) (emphasis

supplied). Consequently, “streets, sidewalks and parks are

considered, without more, to be ‘public forums.’” United

States v. Grace, 461 U.S. 171, 177 (1983) (emphasis

supplied).

' This begs a preeminent question in this case: What is meant by “more?”

Despite this Court not expressly commenting on the topic, the indication

is that the “more” to be shown is incompatibility with expression. Since

streets, sidewalks, and parks necessarily share the objective

characteristics of openness and accessibility, they are traditional public

fora unless it can be demonstrated that expression interferes with their

intended use. [n isolated situations, streets and sidewalks can be found to

be incompatible with speech, and thus nonpublic fora, such as those

located on military installations. See Greer v. Spock, 424 U.S. 828, 838

(1976) (“[Ijt is...the business of a military installation like Fort Dix to

train soldiers, not to provide a public forum”). In the normal course of

things, this cannot be shown, as streets, sidewalks, parks and similar

venues are naturally compatible with expression. See Paulsen v. County

of Nassau, 925 F.2d 65, 70 (2™ Cir. 1991) (judging area to be public fora,

Forum status of sidewalks and parks situated on a public

university has never been specifically addressed by this

Court. This Court did consider an analogous situation, that

being, the government’s authority as a proprietor to regulate

speech on a sidewalk, in United States v. Kokinda, 497 U.S.

720 (1990) (plurality). Regrettably, that case did not

produce a majority opinion’ and has engendered some

confusion over how to apply forum analysis to areas that

appear to be traditional public fora. See Marie A. Failinger,

New Wine, New Bottles: Private Property Metaphors and

Public Forum Speech, 71 ST. JOHN’S L. REV. 217, 250

(1997) (“From the Kokinda twist to the public forum

doctrine, a conundrum arises with respect to judicial values

distinguished Greer on basis that expressive activity did not threaten

same type of governmental function as that implicated on military base).

Seventh Circuit, however, believes compatibility with expression is of

no import. In refusing to strike down the speech restriction imposed on

Gilles and anyone else depicted as a “solicitor” on the sidewalk and park-

like areas at VU, the appellate court offers that VU “wouldn’t have to

prove that allowing them in would disrupt its educational mission.”

Gilles, 477 F.3d at 470.

* In a fractured decision, a plurality, consisting of Chief Justice Rehnquist

and Justices O’Connor, Scalia, and White, held that the way leading to

the entrance of a post office is a nonpublic forum and a law precluding

volunteers from soliciting contributions and distributing political

information to be a reasonable regulation. Kokinda, 497 U.S. at 730, 737.

Contrariwise, Justices Brennan, Marshall, Stevens, and Blackmun

understood the sidewalk to be a traditional public forum and the law not

narrowly tailored to serve a significant governmental interest. /d. at 740,

755 (Brennan, J. dissenting). In a decisive concurrence, Justice Kennedy

indicated that he thought the path to be a traditional public forum, but

went on to uphold the law as a valid time, place and manner restriction.

Id. at 737-39 (Kennedy, J. concurring). See First Unitarian Church v.

Salt Lake City, 308 F.3d 1114, 1125 n. 6 (10" Cir. 2002) (“We cite

Justice Kennedy’s concurrence [in Kokinda] as controlling Supreme

Court precedent because his concurrence provided the fifth vote on the

narrowest grounds”).

10

of clarity and predictability”). With only mixed signals from

Kokinda to guide them, some circuit courts have taken

liberty to construct their own rules for forum status of areas

resembling sidewalks and parks. Not surprisingly, then,

circuit courts disagree on how to analyze such areas on

public universities and whether such property is public or

nonpublic fora. Compare Bowman v. White, 444 F.3d 967,

977-78 (8th Cir. 2006); Hays County Guardian v. Supple,

969 F.2d 111, 118 (Sth Cir. 1992) with American Civil

Liberties Union v. Mote, 423 F.3d 438, 444 (4th Cir. 2005).

With the Gilles decision, Seventh Circuit has now lent its

unique voice to the debate, advancing the position that all

public university property is to be viewed as private

university property.” In adopting this approach, and refusing

to analyze the objective characteristics of the property at

issue, Seventh Circuit stands in need of correction.

A. Seventh Circuit’s Refusal to Evaluate

Objective Characteristics of Property

Conflicts with Other Circuit Courts and

Decisions of this Court

There is widespread confusion and conflict among circuit

courts over how to apply forum analysis where governmental

entity functions as a proprietor and this is perhaps most

evident in the context of university property. Ninth, Tenth

and D.C. circuits look to the objective characteristics of

property in making the assessment and presume that property

looking and acting like parks, sidewalks, and streets classify

> In its own novel way, Seventh Circuit infuses economics in the

constitutional analysis and essentially proposes that First Amendment be

dictated by market forces. The appellate court draws the unlikely

inference that the Constitution does not fully apply to public university

property “[s]ince public and private universities compete with each

other....” Gilles, 477 F.3d at 470.

11

as public fora. Adhering to this objective analysis, Fifth and

Eighth circuits consider sidewalks and open, park-like areas

on public universities to be public fora. On the other hand,

Fourth Circuit ignores objective characteristics of open areas

on university grounds and brand such property as nonpublic

fora as a matter of course. Similar to Fourth Circuit, Seventh

Circuit in Gilles rejects the objective approach, and this

aversion to objective factors cements a clear circuit split in

want of resolution.

i. Seventh and Fourth circuits gloss over

objective characteristics

For Seventh and Fourth circuits, the objective

characteristics of property play little to no role in forum

analysis. Instead, these circuits rely on the intent of the

government to determine forum status. This is exemplified

in Gilles, where Seventh Circuit gives university officials the

same power to regulate speech in areas compatible with

speech as in areas incompatible with speech. The property’s

physical or otherwise objective characteristics are irrelevant

to Seventh Circuit:

No matter how wonderfully suited the library

lawn is to religious and other advocacy,

Vincennes University could if it wanted bar

access to the lawn to any outsider who wanted

to use it for any purpose, just as it could bar

outsiders from its classrooms, libraries, dining

halls, and dormitories.

Gilles, 477 F.3d at 470. Even though an open lawn is

remarkably different than a library or a classroom, the Gilles

12

court treats all areas on campus the same.’ The sole fact that

VU asserts that all campus property is nonpublic fora is

sufficient for Seventh Circuit.” Government intent is but one

factor in forum analysis. Cornelius, 473 U.S. at 803.

Government intent is not the sole or even most significant

factor. See Grayned v. City of Rockford, 408 U.S. 104, 116

(1972) (“The crucial question is whether the manner of

expression is basically incompatible with the normal activity

of a particular place at a particular time.”). Hence, Seventh

Circuit erred in elevating VU’s legal argument and allowing

it to override VU’s actual actions, policies, and the nature of

* By refusing to consider the particular access sought by the speaker,

Seventh Circuit broke further with the precedent of this Court and sister

circuits. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473

U.S. 788, 801 (1985) (“in defining the forum, we have focused on the

access sought by the speaker’’). Gilles attempts to speak on the sidewalk

and park-like lawn area, not a quiet library, classroom, or, for that matter,

anywhere else on the campus. Governmentally-owned land that contains

different types of property - like a public university campus - cannot be

treated as a singular type of forum. Bowman, 444 F.3d at 976-77; Justice

for All v. Faulkner, 410 F.3d 760, 766 (Sth Cir. 2005); Dallas Ass’n. of

Cmty. Organizations for Reform Now v. Dallas Cty. Hosp. Dist., 670

F.2d 629, 631 (Sth Cir. 1982). See also Rodney Smolla, Academic

Freedom, Hate Speech and the Idea of a University, 53 LAW &

CONTEMP. PROBS. 195, 218 (1990) (“The soundest view is to treat

campus not as one unified forum, but as subdivided into multiple forums

to which different free speech standards apply”).

* Tronically, in way of support, Seventh Circuit quotes Widmar v.

Vincent, 454 U.S. 263, 269 n. 5 (1981), noting the absence of any

requirement “that a campus must make all of its facilities equally

available to students and nonstudents alike, or that a univeisity must

grant free access to all of its grounds or buildings.” Gilles, 477 F.3d at

470. Of course, Gilles does not seek access to “all” of VU’s facilities,

just a select and small portion of the open grounds on campus. In

Widmar, by implication with the word “all,” this Court seemingly

recognizes Gilles’ right to have access to at least some public university

property. See Bowman, 444 F.3d at 987 (Bye, J. concurring) (“The Court

[in Widmar] in no way suggests, and perhaps with its use of the term ‘all’

implies the contrary, all streets, sidewalks and parks on a public

university are non-traditional public fora”).

13

the forum.

In its forum analysis, to the extent any was undertaken,

the Gilles court passes over objective characteristics like the

traditional use of the property, the objective use and

purposes of the space, and the property’s physical

characteristics and location. Expressly rejecting the

reasoning of the Eighth Circuit, and siding with the Fourth

Circuit, the Gilles court declares campus sidewalk and park-

like area to be nonpublic fora just because VU said so.

Gilles, 477 F.3d at 470-71. Thus, Seventh Circuit and Fourth

Circuit approach forum status of university property in

simiiar fashion. They allow governmental intentions - even

those intentions first espoused in litigation - to trump

objective characteristics of the property at issue. This refusal

to give due weight to objective characteristics of public

property runs afoul of analysis employed by other circuit

courts.

s Fifth, Eighth, Ninth, Tenth, and D.C.

circuits emphasize objective

characteristics

In contrast to Seventh and Fourth Circuits, other circuits

tend to analyze the objective characteristics of property when

conducting forum analysis. E.g. ACLU of Nevada v. City of

Las Vegas, 333 F.3d 1092, 1099 (9th Cir. 2003) (analyzed

objective nature of publicly-owned downtown pedestrian

mall); First Unitarian Church, 308 F.3d at 1125-26

(evaluated physical characteristics of pedestrian throughway

on church property); Lederman v. United States, 291 F.3d

36, 41-44 (D.C. Cir. 2002) (considered objective factors of

sidewalk in front of Capitol building). Areas functioning like

sidewalks, streets and parks are presumed to be public fora

because their physical characteristics allow for speech with

minimal disruption of government interests. See

14

International Soc’y for Krishna Consciousness v. Lee, 505

U.S. 672, 699-700 (1992) (Kennedy, J. concurring in

judgment) (urged study of “objective, physical

characteristics” for determining forum status).

Such principles were employed in First Unitarian

Church, supra, where Tenth Circuit deemed church property

to be a traditional public forum because the property

possessed the objective characteristics of a sidewalk and

pedestrian mall. 308 F.3d at 1125. Tenth Circuit discerned

physical characteristics to be more important than

governmental intentions. /d. at 1124-25. As a result, the

appellate court held the property to be public fora despite the

express governmental intent to the contrary. /d. at 1125. For

judging forum status, the following factors where adopted

from Justice Kennedy’s concurrence in Lee:

If the objective, physical characteristics of the

property at issue and the actual public access

and uses that have been permitted by the

government indicate that expressive activity

would be appropriate and compatible with those

uses, the property is a public forum. The most

important considerations in this analysis are

whether the property shares physical similarities

with more traditional public forums, whether the

government has permitted or acquiesced in

broad public access to the property, and whether

the expressive activity would tend to interfere in

a significant way with the uses to which the

government has as a factual matter dedicated the

property.

Id. quoting Lee, 505 U.S. at 698-99 (Kennedy, J. concurring

in judgment).

15

The significance of objective characteristics has also

been recognized in the university environment. In Bowman

v. White, supra, Eighth Circuit labeled sidewalks and open,

park-like areas on a university campus as designated public

fora. 444 F.3d at 978-80. In reaching this conclusion, Eighth

Circuit analyzed the traditional use of the property, the

objective use and purposes of the space, the government

intent and policy with respect to the property, and the

property’s physical characteristics and location. /d. A sister

appellate court has likewise relied on such characteristics to

find public fora on university campus. See Supple, supra,

969 F.2d at 117 (finding certain outdoor areas of university

to be designated public forum). Other jurists rely also on

these objective characteristics as the basis to find certain

university property to be traditional public fora. See

Bowman, 444 F.3d at 988 (Bye, J. concurring) (“If we are to

protect any space as a traditional public forum for expressive

purposes, a public university street, sidewalk or park must be

such a space”); Alabama Student Party v. Student Gov't

Ass'n, 867 F.2d 1344, 1354 n.6 (11th Cir. 1989) (Tjoflat, J.,

dissenting) (“A campus of a major state university is a

microcosm of the community....[S]treets, sidewalks and

park-like areas...are best described as traditional public

fora....”); Spartacus Youth League v. Bd. of Trustees., 502 F.

Supp» 789, 799 (N.D. Ill. 1980) (“This Court believes that

Circle Center and campus walkways are ‘public forums’”’);

Students Against Apartheid Coalition v. O'Neil, 660 F. Supp.

333, 338 (W.D. Va. 1987) (noting similarities between open

campus lawn and traditional public forum like municipal

park, examined regulation on campus lawn as attempt to

regulate speech in public place).°

® Precedents emanating from this Court strongly suggest that some

university property can be considered traditional public fora. A

consistent reading of this Court’s pertinent decisions on forum analysis,

Hague, Perry, Cornelius, Grace, Frisby, Kokinda, Lee, Schenck and

Forbes, points to a traditional public forum being defined as parcel of

16

The conflict between Eighth Circuit (Bowman) and

Seventh Circuit (Gilles) is particularly striking. The Bowman

court examines a host of objective factors to assess forum

status, but none of these factors are considered by the Gilles

court. In the Bowman decision, the appellate court

downplays the role of government intent in forum analysis;

in contrast, the Gilles court relies exclusively on an espoused

governmental intention. And consequently, while the

Bowman court finds sidewalk and park-like area on

university property to be public fora, the Gilles court finds

similarly situated university property to be nonpublic fora.

Doubting the “soundness” of the Bowman ruling, the

Seventh Circuit deliberately takes a divergent path. Gilles,

477 F.3d at 471.

As bore out in these two appellate decisions, as well as

others, clarity is needed to resolve this ever-present conflict

over methodology. Amidst this confusion and sparring over

classification, the right to free speech on public university

campuses hangs in the balance.

B. Seventh Circuit’s Decision to Jettison Forum

Analysis and Apply Private Property Rules to

Public University Property Conflicts With

Decisions of this Court

government property that allows for open access and is compatible with

expression. See supra note 1. Accordingly, university property that meets

this definition, like the open lawn area and sidewalk at VU, constitutes

traditional public fora. See generally Nathan W. Kellum, /f /t Looks Like

a Duck...Traditional Public Forum Status of Open Areas on Public

University Campuses, 33 HASTINGS CONST. L. Q. 1 (2005) (highlights

Supreme Court and appellate court rulings that support recognition of

streets, sidewalks and park-like areas on public university campus as

traditional public fora).

17

Per directive of this Court, forum analysis is the proper

means for judging speech restrictions on government

property:

[T]he Court has adopted a forum analysis as a

means of determining when the Government's

interest in limiting the use of its property to

its intended purpose outweighs the interest of

those wishing to use the property for other

purposes. Accordingly, the extent to which

the Government can control access depends

on the nature of the relevant forum.

Cornelius, 473 U.S. at 800. In the face of this precedent, the

Gilles court refuses to “pitch [its] analysis on the distinction

that Supreme Court has drawn between ‘traditional public

forums,’ ‘designated public forums,’ and ‘nonpublic

forums.’” Gilles, 477 F.3d at 473. According to Seventh

Circuit, forum analysis amounts to nothing more than a

“complex scheme” that has turned “the search for sensible

results into a classification game.” /d. at 474. But while

Seventh Circuit is certainly free to criticize the doctrine, they

are not at liberty to cast it aside. Forum analysis is not a tool

of leisure.

In lieu of applying forum analysis, Seventh Circuit rests

its decision on private property rules. Rejecting the claims

of Gilles, Seventh Circuit reasons that school officials

should be able to control all university property, just like

18

private property owners control their own property. Gilles,

477 F.3d at 472-73.’

Still, the Gilles court had to confront the actual policy

used by VU to regulate Gilles’ speech. Under that policy,

“solicitors” are required to register with VU prior to

speaking on campus. There is no other written policy

regulating speech at VU, and thus, VU must necessarily

label Gilles’ speech as “solicitation” to regulate it. And, as

the Gilles court recognizes, VU’s policy cannot bear such

interpretation, at least, not without it being

unconstitutionally vague. Jd. at 471-72. But rather than

invalidate the policy, the Gilles court invokes an unwritten

“norm” derived from private property law.

This “norm” supposedly allows strangers to visit VU but

prohibits obtrusive use of the property. /d. at 472. Equipped

with this new-found norm, VU officials are now enabled to

ban Gilles from campus, similar to how a private property

owner could ban Gilles from private property:

This [rule against “unobtrusive” land use] has

long been a norm, and not just a practice:

strangers to the university community are not

to use the library lawn for purposes other than

those unobtrusive, implicitly authorized uses

of land (generally as a shortcut or other

pathway) that distinguish a licensee from a

trespasser. E.g., Sammons v. American

” This Court has said: “The State, no less than a private owner of

property, has power to preserve the property under its control for the use

to which it is lawfully dedicated.” Adderly v. State of Florida, 385 U.S.

39, 47 (1966). In accordance with this principle, the State university can

appropriately exclude expression in certain areas on campus, but, as this

Court makes plain, only in those places where expression would disrupt

the “use to which the property is lawfully dedicated.” See supra n. 1.

19

Automobile Association, 912 P.2d 1103, 1105

(Wyo. 1996); Lakeview Associates, Lid. v.

Maes, 907 P.2d 580, 581-82 (Colo. 1995).

Td.

Seventh Circuit defers to this so-called “norm” despite

the utter lack of any factual evidence supporting its

existence.® In lieu of evidence, the Gilles court relies on

some common law notion of a “norm” emanating from the

two cited state cases dealing with private property. Aside

from this reliance being misplaced, it bears emphasis that

Gilles seeks to speak on public property. Though some

government property may appear to be like private property

in many respects, the rules for private property cannot be

applied to public property, irrespective of characteristics,

location and use. See Lloyd Corp. v. Tanner, 407 U.S. 551,

563 (1972) (rejecting similarity between publicly and

privately owned streets for First Amendment purposes). This

assumption that a public university is just like “any other

landowner” belies commonly understood notions of the

forum doctrine, as well as this Court’s appreciation of “the

University setting, where the State acts against a background

and tradition of thought and experiment that is at the center

of our intellectual and philosophic tradition.” Rosenberger,

* VU did not even contend that a “norm” like this exists. As Seventh

Circuit acknowledges, VU regulates Gilles under its Solicitation Policy,

not under some abstract “norm.” Gilles, 477 F.3d at 472 (“The policy as

interpreted by the defendants to cover preaching the Gospel is hopelessly

vague....”) This fact is highly significant because a defendant’s

interpretation of its own’policy should be the authoritative interpretation

in considering a facial challenge. See Forsyth County v. Nationalist

Movement, 505 U.S. 123, 131 (1992) (“In evaluating respondent's facial

challenge, we must consider the county's authoritative constructions of

the ordinance, including its own implementation and interpretation of

it.”). Notwithstanding, Seventh Circuit disregards VU’s express

indications and interpretation regarding its own policy.

os

20

515 U.S. at 835.

Indeed, Seventh Circuit’s use of private property law

reeks of similar logic once advanced by Justice Holmes, who

said: “For the legislature absolutely or conditionally to forbid

public speaking in a highway or public park is no more an

infringement of the rights of a member of the public than for

the owner of a private house to forbid it in his house.”

Commonwealth v. Davis, 162 Mass. 510, 511 (Mass. 1895).

Needless to state, this logic has long been rejected by this

Court, and for good reason. E.g. Niemotko v. Maryland, 340

U.S. 268, 279 (1951); Saia v. New York, 334 U.S. 558, 561

n. 2 (1948); Hague, 307 U.S. at 514-16. Undeterred,

Seventh Circuit resurrects this erroneous reasoning, and, in

doing so, strikes at the very core of forum analysis: the need

to reserve some public property for robust dialogue.

Il. THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT AMONG CIRCUIT

COURTS OVER THE APPLICATION OF THE

UNBRIDLED DISCRETION DOCTRINE _ IN

NONPUBLIC FORA

The First Amendment forbids laws that give public

officials unbounded discretion to regulate speech. Forsyth

County, 505 U.S. at 133. A law is unconstitutionally vague if

it (1) fails to give fair warning as to the prohibited conduct or

(2) allows for arbitrary and discriminatory enforcement in

the absence of adequate standards. City of Chicago v.

Morales, 527 U.S. 41, 56 (1999). This test is especially

stringent in consideration of free speech because vague

language and undue discretion allows officials to

discriminate against certain viewpoints. Lakewood vy. Plain

Dealer Publ’g Co., 486 U.S. 750, 757, 763-64 (1988);

Village of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 499 (1982). To, avoid such

21

discrimination, this Court requires regulations on speech to

contain narrow, objective, and definite standards to guide the

decision-maker. Forsyth County, 505 US. at 130;

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51

(1969). A regulation that grants unbridled discretion in

controlling protected expression is unconstitutional per se.

Lakewood, 486 U.S. at 757.

This Court has yet to consider application of this

unbridled discretion doctrine in a nonpublic forum. Given

the silence, circuits have derived two conflicting

interpretations: Federal, First, and the Seventh circuits do

not apply the unbridled discretion doctrine in nonpublic fora,

while Fourth, Eighth, Tenth, and Eleventh do. This latter

position is supported by the decisions of this Court. The

unbridled discretion doctrine is utilized to prevent self-

censorship and viewpoint discrimination. And this rationale

applies in all fora, including nonpublic fora. Therefore, this

Court should grant review to resolve the conflict among the

circuit courts and to provide guidance to government

officials and speakers acting in areas depicted as nonpublic

fora.

A. Seventh Circuit Decision Conflicts With Other

Circuits over Application of Unbridled

Discretion Doctrine in Nonpublic Fora

A clear circuit split has arisen over the unbridled

discretion doctrine and its application within nonpublic fora.

# Federal, First, and Seventh circuits

permit unbridled’ discretion in

nonpublic fora

Three circuit courts, Federal and First, and now, Seventh

in Gilles, refuse to invalidate policies granting unbridled

22

discretion in nonpublic fora.” In the Gilles case, Seventh

Circuit explicitly recognizes the existence of unfettered

discretion with the challenged policy. And, in the words of

the Gilles court, the vague policy and its application to Gilles

“brings him to the verge of victory.” Gilles, 477 F.3d at 472.

Yet, the appellate court still upholds the policy because

Gilles had not proven - to the court’s satisfaction - that other

parties had accessed the forum at issue:

The policy as interpreted by the defendants to

cover preaching the Gospel is hopelessly

vague and thus a supple weapon for excluding

‘“. from the university lawn those outsiders

‘whose message the university disapproves of.

But [Gilles] falls just short of prevailing

because he has failed to show that any

uninvited outsider has ever been permitted to

use the lawn for any purpose.

Id."°

On this logic, the doctrine of unfettered discretion is

essentially nullified. By demanding proof of a pattern of

discrimination before a vague policy can be struck down as

unconstitutional, the appellate court overlooks _ that

vagueness and unbridled discretion automatically invalidate

a policy regulating speech. This, of course, is due to the very

® As shown, Seventh Circuit’s error in Gilles was not that it classified

sidewalk and open lawn area on campus as nonpublic fora, as much as it

failed to apply any forum analysis at all. Nevertheless, by default,

Seventh Circuit scrutinizes the restriction as though the property

constitutes nonpublic fora.

'® As an aside, Seventh Circuit is mistaken in saying Gilles failed to show

that any uninvited outsider used the property. The record shows that

“outside” individuals and groups have historically been permitted to use

the property for expressive purposes. App. 60a-63a, 68a-69a, 117a-19a.

23

prospect of viewpoint discrimination. Lakewood, 486 U.S.

at 755-57. Once the government opens a nonpublic forum

via written policy, that policy is not permitted to be vague,

even if no actual speaker has ever accessed the forum. /d.

Federal Circuit committed similar error in Griffin v.

Secretary of Veterans Affairs. 288 F.3d 1309 (Fed. Cir.

2002). There, in Griffin, a veteran facially challenged a

regulation that forbade “the display of any placards, banners,

or foreign flags on [public] property unless approved by the

head of the facility or designee.” /d. at 1315. The Griffin

court admitted that the policy set “no explicit limit on the

discretion of [government] officials to permit exceptions,

and the government has given us little or no reason why this

grant of discretion differs from those that have been struck

down as unconstitutional in the past.” /d. at 1323.

Notwithstanding, Federal Circuit still upheld the policy just

because it applied to speech in a nonpublic forum. /d. Accord

Ridley v. Massachusetts Bay Transp. Auth., 390 F.3d 65, 93

(Ist Cir. 2004) (relying on Griffin to reject vagueness

challenge in nonpublic forum).

In all these cases, Federal, First, and Seventh circuits

confront a regulation that is admittedly vague and engenders

unbridled discretion. In lieu of invalidating these policies on

their face, however, these courts demand further proof of

viewpoint discrimination. In this respect, these circuits

contradict decisions of other circuit courts.

Zz. Fourth, Eighth, Tenth and Eleventh

circuits prohibit unbridled discretion

in nonpublic fora

in contrast with Federal, First, and Seventh circuits, sister

circuits stringently apply the unbridled discretion doctrine in

nonpublic fora. Such stringent application was on display

24

when Fourth Circuit invalidated a policy regulating literature

distribution at public elementary schools. Child Evangelism

Fellowship of Md. v. Montgomery County Pub. Sch., 457

F.3d 376, 386 (4th Cir. 2006). That policy permitted school

officials to exercise broad discretion over flyer distribution.

Id. at 380.

Fourth Circuit declined to classify the public school as a

particular forum because the unbridled discretion invalidated

the policy irrespective of whether the forum classified as

public or nonpublic:

[T]he dangers posed by unbridled discretion--

particularly the ability to hide unconstitutional

viewpoint discrimination--are just as present

in other forums. Thus, there is_ broad

agreement that, even in limited public and

nonpublic forums, investing governmental

officials with boundless discretion over access

to the forum violates the First Amendment.

Id. at 386.

For this reason, Fourth Circuit did not demand any proof

regarding actual access to the forum or the presence of past

viewpoint discrimination. The mere possibility of viewpoint

discrimination (a possibility created by unbridled discretion)

was deemed ample to invalidate the policy. /d. at 388.

The Montgomery County decision is no aberration.

Fourth Circuit reaffirmed the same rationale in Child

Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five

and again announced that the unbridled discretion doctrine

applies tn nonpublic fora. 470 F.3d 1062, 1068-69 (4th Cir.

2006). Indeed, Fourth, Eighth, Tenth, and Eleventh circuits

all agree that the unbridled discretion doctrine should apply

25

in nonpublic fora and that the mere presence of unbridled

discretion is enough to make a policy unconstitutional. F.g.

Atlanta Journal & Constitution v. City of Atlanta Dep't of

Aviation, 322 F.3d 1298, 1310-11 (11th Cir. 2003) (sale of

newspapers at airport); Lewis v. Wilson, 253 F.3d 1077,

1079-80 (8th Cir. 2001) (vanity license plates); Summum v.

Callaghan, 130 F.3d 906, 919-20 (10th Cir. 1997) (monolith

on courthouse lawn). The Gilles decision - demanding a

pattern of abuse - runs squarely against this consensus,

creating an obvious circuit split over the application of the

unbridled discretion doctrine, particularly, within nonpublic

fora.

B. Seventh Circuit Decision Conflicts with

Decisions of this Court over Application of

Unbridled Discretion Doctrine in Nonpublic

Fora

Though this Court has never applied the unbridled

discretion doctrine in nonpublic fora, this Court has

articulated the rationale for doing so. In Lakewood v. Plain

Dealer Publ’g. Co., supra, this Court explained that

unbridled discretion is problematic for two distinct reasons.

486 U.S. at 757. First, unbridled discretion forces parties to

censor their own speech to avoid punishment, and second, it

allows officials to hide viewpoint discrimination behind

vague guidelines. Jd. These rationales entail three

conclusions: 1) a regulation allowing unbridled discretion

should be facially invalidated 2) the unbridled discretion

doctrine applies in nonpublic fora and 3) courts should not

assume the good faith of officials to apply a vague policy.

In Gilles, Seventh Circuit disregards this Court’s sound

basis for the unbridled discretion doctrine. As a result, the

Gilles court failed to facially invalidate a vague law, failed to

apply the unbridled discretion doctrine in a nonpublic forum,

26

and failed to question the good faith of government officials

applying a vague law. On all these counts, Seventh Circuit

causes a conflict with this Court.

:; Policy that allows unbridled discretion

should be facially invalidated

When officials possess unbridled discretion to control

access to a forum, speakers will often censor their own

expression in order to pander to officials’ opinion and gain

access to that forum. Therefore, a government official can

effectively chill speech by simply retaining unbridled

discretion, even if that official never actually uses that

discretion to silence speakers. To counteract this chill effect,

this Court invalidates vague laws on their face. A plaintiff

need not prove that the law has been enforced inconsistently

or that the law has been enforced: at all: “[T]he mere

existence of the licensor's unfettered discretion, coupled with

the power of prior restraint, intimidates parties into censoring

their own speech, even if the discretion and power are never

actually abused.” Lakewood, 486 U.S. at 757.

This conclusion stands in contrast with Seventh Circuit

decision in Gilles because Seventh Circuit forces Gilles to

prove a pattern of abuse before invalidating the policy. But

as Lakewood makes clear, vagueness and _ unbridled

discretion are enough to facially invalidate a law.

In fact, unbridled discretion is problematic precisely

because it chills speech and permits viewpoint discrimination

in the future. The constitutionality of a policy depends “not

on whether the administrator has exercised his discretion in a

content-based manner, but whether there is anything...

preventing him from doing so.” Forsyth County, 505 U.S. at

133 n. 10.

27

2. Unbridled discretion doctrine applies

in nonpublic fora

Unbridled discretion empowers officials to pick and

choose which viewpoints to allow. With unbridled

discretion, government officials can restrict speech for any

reason and can hide viewpoint discrimination behind the veil

of vague language. Lakewood, 486 U.S. at 758.

This connection between unbridled discretion and

viewpoint discrimination is important because viewpoint

discrimination is forbidden in all forums, even nonpublic

forums. Cornelius, 473 U.S. at 806; Perry, 460 U.S. at 46. If

unbridled discretion is forbidden because it permits

viewpoint discretion, then it necessarily follows that

unbridled discretion should be forbidden in nonpublic

forums. This reasoning is also supported by the connection

between vagueness and unbridled discretion; vague language

often gives government officials the discretion to suppress

certain viewpoints. See e.g. Board of Airport Commissioners

v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987) (“the

opportunity for abuse, especially where a statute has received

a virtually open-ended interpretation, is self-evident.”). As a

result, vague laws that grant unbridled discretion can violate

the First Amendment as well as the due process clause of the

Fourteenth Amendment. Lakewood, 486 U.S. at 769-72.

This link between vagueness and unbridled discretion is

critical because this Court also denounces vague laws in

nonpublic fora. Jews for Jesus, 482 U.S. at 576. When read

together, this Court’s decisions regarding vagueness,

viewpoint discrimination, and unbridled discretion extend

the unbridled discretion doctrine to nonpublic fora.

3. Officials should not be trusted to

apply unwritten, vague policies

28

At its core, the unbridled discretion doctrine demands the

existence of written policies or well-established practices to

limit government discretion to regulate speech. A court

cannot rely on the supposed good faith of a government

official to apply a vague, unwritten policy.

Other than VU’s Solicitation Policy, there is no other

written policy regulating speech on the campus. To regulate

Gilles, VU promulgated and enforced its Solicitation Policy.

In light of the vagueness attached to it, the appellate court, in

turn, relies on this unwritten “norm” as a supplement to

VU’s written policy, so as to remedy the vagueness problem.

This is, in essence, the same defense proffered by the

municipal defendants in Lakewood. When their policy was

challenged as vague, the Lakewood defendants argued that

unwritten terms and procedures supplemented and limited

the breadth of their written policy. This Court quickly

disposed of that argument:

The city asks us to presume that the mayor

will deny a permit application only for

reasons related to the health, safety, or

welfare of Lakewood citizens, and that

additional terms and conditions will be

imposed only for similar reasons. This

presumes the mayor will act in good faith and

adhere to standards absent from the

ordinance's face. But this is the very

presumption that the doctrine forbidding

unbridled discretion disallows. The doctrine

requires that the limits the city claims are

implicit in its law be made explicit by textual

incorporation, binding judicial or

administrative construction, or well-

29

established practice. This Court will not write

nonbinding limits into a silent state statute.

Lakewood, 486 U.S. at 770 (citations omitted). See also

Anderson Sch. Dist. Five, 470 F.3d at 1074 (noting that First

Amendment rights could not “be made to depend solely upon

the good faith of state officials”). The Gilles court does

exactly what the Lakewood defendants attempted to do:

justify a vague written policy by incorporating unwritten

terms and by assuming good faith on the part of officials to

comply with those unwritten rules.

There is no reason to take such a leap of faith here. If

anything, the importance of First Amendment freedoms

requires courts to assume the opposite. Unwritten rules

cannot remedy vaguely written laws, government officials

cannot be assumed to act in good faith when regulating

speech, and courts cannot re-write written policies to comply

with the First Amendment. In all these respects, the Gilles

court strayed from this Court’s precedent.

CONCLUSION

For the forgoing reasons, this Court should grant this

Petition and reverse the judgment of Seventh Circuit Court

of Appeals.

Respectfully submitted,

BENJAMIN W. BULL NATHAN W. KELLUM

ALLIANCE DEFENSE FUND Counsel of Record

15333 N. Pima Rd., Ste. 165 © ALLIANCE DEFENSE FUND

Scottsdale, AZ 85260 P.O. Box 11159

(480) 444-0020 Memphis, TN 38111

(901) 323-6672

Attorneys for the Petitioner James G. Gilles