# Petition for Writ of Certiorari — Gilles v. Blanchard (No. 06-1617) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0569%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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 CHUTES THINS PIRI I a siscivnesesivsvnccveesnenssccnscessatanectlves joni PARTIES TO THE PROCEEDING. ...........sccccssssscssossencesesveene ii CORPORATE DISCLOSURE STATEMENT .................006. il SR Ie CA vcs leifestiieaileinntieiabcianinasscshetsbeninnnis ill SAR GA FAP RRR CRIN sccinsesesccavasinsnscenesnsnsecinnnranensatnsed vi LAER IEE TUTE OY ascnsnancernineaiseserinnsincsssnniniaintubnpiaeniasanint l PR ATE arias nish ssthn caciaiintandinieininns aemivasiansabetinlailiaaads | CONSTITUTIONAL PROVISIONS ...c.ssscccccsccsssnscvesesseasvenes l SEA DESIG G COE GRRE CA oincscncsnscisssnsessenasacnennseinsmnostcont 2 Fi, IIE IDOI sinivissisistesKicirincnelccgnaen 2 I TIE vce ovistenaistoncridinceciciskeceearsioaaen 6 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. iV 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 Vv 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 unwritten, vague policies ................ccceeeeeeees 27 SAFIN scnis 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0569%3A1. Public record. Not legal advice.