Appendix — Gilles v. Blanchard (No. 06-1617)

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APPENDIX A

United States Court of Appeals,

Seventh Circuit.

James G. GILLES, Plaintiff-Appellant,

BRYAN K. BLANCHARD, John Livers,

Defendants-Appellees.

No. 06-01441.

Argued October 31, 2006.

Decided February 14, 2007.

Before POSNER, WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

Vincennes University, the oldest institution of higher

education in Indiana (founded in 1806 by future President

William Henry Harrison before Indiana was admitted to

statehood)—and a public institution since its inception—has

its main, and only residential, campus in the town of

Vincennes (population 18,000) in southwestern Indiana.

About 5,000 students, all undergraduate, are enrolled full

time at the Vincennes campus.

James Gilles (“Brother Jim”) (home page

http://www.thecampusministry.org/, visited Feb. 2, 2007) is

a traveling [2 No. 06-1441] evangelist—the latest in a line

of Christian itinerant preachers stretching back to Saint Paul

and prominent in Methodism in nineteenth-century America.

Born near Vincennes, Gilles gives the following account of

his salvation. As a result of Satan’s machinations, he devoted

himself as a youth to drugs, sex, booze, and rock and roll. At

a rock and roll concert at which the well-known Van Halen

band performed, singer David Lee Roth shouted to the

crowd: “Not even God can save your soul at a Van Halen

concert!” Gilles saw the light, called on God to save him and

thus refute Roth, and was saved. The message he preaches,

as summarized in his own words, is “Sinner friend, I have

good news for you, you also can experience nghteousness,

peace and joy in the Holy Ghost if you would only forsake

your sinful, selfish ways and turn to the The Lord And

Savior Jesus Christ.” Neither the record nor Brother Jim’s

home page indicates that he is affiliated with any religious

organization, although in another case in which he was

turned away by a university he is identified as a member of

the Free Pentecostal Holiness Churches, Gilles v. Torgersen,

71 F.3d 497, 499 (4™ Cir. 1995) (dismissed without a

decision on the merits), presumably a reference to the

Pentecostal Holiness Church, a Protestant denomination with

Methodist antecedents. None of this, of course, is important.

There is no reason to doubt either his bona fides or that the

content of his religious advocacy is protected by the First

Amendment. The question is whether the protection extends

to a particular site on the university campus. Vincennes

University and Brother Jim first intersected in 2001, when he

entered the campus uninvited and walked to a lawn in the

middle of the campus, next to the university library. He

preached from the lawn and a [No. 06-1441 3] disturbance

ensued, the nature of which is not revealed by the record,

although the university’s dean of students stated in his

deposition that “when I went there, he [Brother Jim] was in

the grassy area in front of the library. He had had—he was

speaking to a number of students there. There was some—a

disturbance, and at one point the campus police felt like he

was in danger. And they asked him to leave, and he did.”

From another case we learn that “when preaching, [Brother

Jim] uses a confrontational style that includes calling people

in the crowd names, such as whoremonger and drunkard,

once the individuals have answered certain questions that he

poses to them. He has been arrested on numerous occasions

in the past.” Gilles v. Torgersen, No. 92-0933, 1995 U.S.

Dist. LEXIS 8502, at *2 (W.D. Va. Jan. 31, 1995), vacated

for want of standing, 71 F.3d 497 (4th Cir. 1995). Brother

Jim denied that his preaching at Vincennes in 2001 had

caused a disturbance, and in the procedural posture of the

case we must credit his denial.

In reaction to the incident—whatever exactly it

was—the university for the first time adopted a formal policy

governing access to the campus by outsiders to the university

community. Entitled “Sales and/or Solicitation Policy,” the

policy requires prior approval by the dean of students of all

sales on campus. In addition, and more to the point of this

case, the policy also requires the dean’s prior approval of all

“solicitations” on campus. Solicitation is defined as “the act

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

action; or the recruiting of possible sales.” Solicitors, if

approved, are limited to soliciting in the brick walkway

directly in front of the student union.

Here is a satellite photo of the campus, showing the

library lawn and the walkway.

[No. 06-1441 5]

Brother Jim returned to the campus the following

year, proceeded to the lawn, was turned back and told he

could preach only on the brick walkway. He tried to preach

there, but the fact that the walkway is adjacent to a street

makes it a noisy locale for a speech. Unable to attract an

audience, he broke off and left, and filed this suit against the

responsible university officials, contending that the

solicitation policy infringes his nght of free speech. The

district court granted summary judgment for the defendants.

Brother Jim argues that since the lawn is public

property and is suitable for spcechifying, he can no more be

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forbidden to preach there than he could be forbidden to

preach in a public park. That is incorrect. The Justice

Department in Washington has a large auditorium, with a

stage, and so would be a suitable venue for a theatrical

production. But the First Amendment does not require the

department to make the auditorium available for that purpose

even when it is not being used for departmental business.

Public property is property, and the law of trespass protects

public property, as it protects private property, from

uninvited guests. “[T]he Government, ‘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,’

Greer v. Spock, 424 U.S. 828, 836 (1976).” Cornelius v.

NAACP Legal Defense & Educational Fund, Inc., 473 U.S.

788, 800 (1985). Since public and private universities

compete with each other, courts hesitate to impose in the

name of the Constitution extravagant burdens on public

universities that private universities do not bear. Cf. Chicago

Acorn v. Metropolitan Pier & Exposition Authority, 150 F.3d

695, 704 (7th Cir. 1998).

[6 No. 06-1441]

It is not as if requiring a public university to throw

open its grounds to itinerant speakers would merely redress

the advantage that a public university has over a private one

because it has taxpayer support; the requirement would deny

the university control over its facilities. The courts reject the

proposition “that a campus must make all of its facilities

equally available to students and nonstudents alike, or that a

university must grant free access to all of its grounds or

buildings.” Widmar v. Vincent, 454 U.S. 263, 268 n. 5

(1981). “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.” Adderley v. Florida,

385 U.S. 39, 47 (1966); see also United States Postal Service

v. Council of Greenburgh Civic Associations, 453 U.S. 114,

129 (1981).

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.

It wouldn’t have to prove that allowing them in would

disrupt its educational mission. See American Civil Liberties

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

“(Gjovernment may draw _ permissible statusbased

distinctions among different classes of speakers in order to

preserve the purpose of the forum, even when the proposed

uses by those inside the permitted class of speakers and those

outside the permitted class of speakers are quite similar.”

Goulart v. Meadows, 345 F.3d 239, 254 (4th Cir. 2003).

What is true is that a university that decided to permit

its open spaces to be used by some outsiders could not

exclude others just because it disapproved of their mes [No.

06-1441 7] sage. E.g., Rosenberger v. Rector & Visitors of

University of Virginia, 515 U.S. 819, 828-30 (1995). But it

could use neutral criteria for access, such as that an outsider

must be invited to speak on campus by a faculty member or a

student group. American Civil Liberties Union v. Mote,

supra, 423 F.3d at 444. The difference between invited and

uninvited visitors is fundamental to a system of property

rights. “The fact that other civilian speakers and entertainers

had sometimes been invited to appear at’Fort Dix did not of

itself serve to convert Fort Dix into a public forum or to

confer upon political candidates a First or Fifth Amendment

right to conduct their campaigns there. The decision of the

military authorities that a civilian lecture on drug abuse, a

religious service by a visiting preacher at the base chapel, or

a rock musical concert would be supportive of the military

mission of Fort Dix surely did not leave the authorities

powerless thereafter to prevent any civilian from entering

Fort Dix to speak on any subject whatever.” Greer v. Spock,

424 U.S. 828, 838 n. 10 (1976). Coming closer to this case,

we said in Piarowski v. Illinois Community College District

515, 759 F.2d 625, 629 (7th Cir. 1985), that the fact “that

Piarowski sometimes invited artists from outside the college

to exhibit their work in the [college’s art] gallery no more

made the gallery a public forum than a teacher’s inviting a

guest lecturer to his classroom would make the classroom a

public forum.”

Brother Jim places great weight on Bowman v. White,

444 F.3d 967 (8th Cir. 2006), which held that a public

university that allowed anyone to use its outdoor spaces for

public speaking could not limit that use by outsiders to five

days (per outsider) per semester. The limit did not

discriminate against particular viewpoints. It merely gave

preference to insiders, which strikes us as [8 No. 06-1441]

eminently reasonable and leads us to doubt the soundness of

the decision, for in Cornelius v. NAACP Legal Defense &

Educational Fund, Inc., supra, 473 U.S. at 806, the Supreme

Court said that “control over access to a nonpublic forum can

be based on subject matter and speaker identity so long as

the distinctions drawn are reasonable in light of the purpose

served by the forum and are viewpoint neutral”; cf. United

States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality

opinion). Our case is in any event distinguishable from

Bowman because Vincennes University has placed the lawn

completely off limits to uninvited outsiders, and if it can’t do

that without violating the Constitution, public universities

cannot control their property. Confining solicitations to the

walkway in front of the student union is entirely appropriate

because most of the solicitations are of students, and where

better to encounter a steady stream of them than outside the

student union? Letting solicitors into the middle of the

campus would disrupt the campus atmosphere.

But here is the rub. In responding to Brother Jim’s

lawn preaching in 2001 by promulgating a policy limited to

sales and solicitations, the university could be thought to

have thrown open the lawn to all outsiders who were not

selling or soliciting. Brother Jim argues forcefully that he

does neither, and he asks us to infer (or allow a jury to infer)

that the .application of the policy to him was therefore

pretextual and discriminatory. Not that the university

necessarily disapproves of his message. It may just fear a

disturbance. But yielding to a “heckler’s veto” infringes a

speaker’s free speech. Church of American Knights of Ku

Klux Klan v. City of Gary, 334 F.3d 676, 680-81 (7th Cir.

2003), and cases cited there.

[No. 06-1441 9]

Brother Jim certainly is not selling anything. And he

does not solicit or receive contributions or seek to “entice”

members of his audiences to “action.” He tries merely to

save their souls and make them happy. Of course, as he

explains, salvation requires them to give up, as he gave up,

drugs, sex (Brother Jim means fornication and adultery— he

is not a Shaker), booze, and rock and roll. But that is

enticement to inaction rather than to action. It is remote from

what is ordinarily understood by “solicitation.” To solicit, in

law as in ordinary language, is to ask someone to do

something, usually of a commercial or quasi-commercial

character, for the solicitor—so one solicits a prostitute for

sex (or the prostitute solicits one), or solicits donations to a

charity, or solicits a competitor to join in a price-fixing

conspiracy. A priest who urged conversion to the Catholic

Church might be thought to be engaged in solicitation, and

likewise Jehovah’s Witnesses when they go door to door

seeking converts. But the Pope is not soliciting when he

gives a speech from the balcony of St. Peter’s, even though it

is implicit or explicit in his message that the listeners should

conform their behavior to the teachings of the Church. That

is the character of Brother Jim’s preaching. If the Pope and

Brother Jim are solicitors, almost anyone who opens his

mouth to say anything is a solicitor.

The application of the university’s solicitation policy

to Brother Jim brings him to the verge of victory. 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 Brother Jim falls

just short of prevailing because he has failed to show that

any uninvited outsider has ever [10 No. 06-1441] been

permitted to use the lawn for any purpose. No doubt

outsiders wander in from time to time. The campus is not

fenced, and outsiders are not forbidden to visit. They are

classic licensees. But we are given no instance of an

outsider’s being permitted to do more than stroll on the

lawn—no instance of an outsider’s being permitted to give a

speech, to play the bongo drums, to pitch a tent, to beg, to

sunbathe, to play frisbee, or to engage in solicitation—

without an invitation, whether from the university or from a

faculty member or a student group.

This 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 Automobile Association, 912

P.2d 1103, 1105 (Wyo. 1996); Lakeview Associates, Ltd. v.

Maes, 907 P.2d 580, 581-82 (Colo. 1995). So unlikely is it

that a university or any other landowner would, as Brother

Jim contends Vincennes University does, give strangers a

right to roam the campus_ speechifying, begging,

buttonholing, skateboarding, drag racing, etc., that he had to

produce some evidence of that unlikely authorization in

order to create a genuine issue of material fact—some

evidence that would allow a reasonable jury to find that the

university has such a permissive policy and merely denies

Brother Jim the benefit of it lest his incendiary preaching

ignite another disturbance.

Brother Jim does point to numerous expressive

activities that have taken place on the library lawn, including

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religious activities—preaching by a couple named Duncan

and the annual distribution of free Bibles by the Gideon

Society. But of all the expressive activities that have [No.

06-1441 11] taken place on the lawn, the record discloses

only one that was not by invitation. The Duncans had not

been invited. They had preached on the lawn in 1998, three

years before Brother Jim’s first visit, and the circumstances

of their visit are hazy. One unauthorized use of the lawn

would not come close to establishing the absence of a policy

against use of the lawn by uninvited speakers. Maybe no one

complained, and as a result the violation did not come to the

attention of the university authorities—indeed, the dean of

students attested that he had never learned of the matter.

Perfect past compliance with a rule is not a precondition to

being allowed to continue enforcing the rule. Otherwise few

rules could be enforced, and universities would have to fence

their open areas in order to limit access

Brother Jim lists the following speakers or events that

have taken place on the library lawn, in addition to the

Duncans’ preaching and the Gideons’ handing out Bibles:

Women of Essence; Black Male Initiative; Indiana National

Guard; Kernan and Davis for Indiana campaign; Rebekka

Armstrong (an HIV-positive former Playboy Playmate);

Mark Sterner (speaker on drunk driving}; Mentalist Craig

Karges; TB Re-Screening; Student Part Titae Job Fair; The

Man Without a Face (an oral cancer survivor who lost half

his jaw and part of his tongue); Health Screening; Ariana

Huffington; Dr. Peter DeBenedittis (speaker on how the

media manipulate consumers); Manufacturing Job Fair;

Amanda Persinger (pharmaceutical representative); Prentis

Hall Sales Representative; Tupperware Miultihost

Bingo/Party; Kevin Riggins (speaker against athletic

doping); Kelly Craig (speaker against drunk driving); and the

Red Cross Blood Drive. This bewildering miscellany refutes

an inference of dis [12 No. 06-1441] crimination against

disfavored points of view, or of a university administration

lla

fearful of controversy and of the disturbances that might

ensue. As far as appears, any student group can invite any

speaker to speak on the library lawn. The diversity of

speakers mirrors the diversity of the university community.

Of course there would be even greater diversity of

viewpoints if anyone, invited or uninvited, could use the

lawn for expressive activity; for apparently no one in the

Vincennes University community wants to invite Brother

Jim to speak. He wants to turn the lawn into an American

version of Speakers’ Corer in London’s Hyde Park, where

anyone can speak on any subject other than the Royal family

or the overthrow of the British government. The limits that

Vincennes University has placed on the use of the library

lawn are consistent with limiting university facilities to

activities that further the interests of the university

community. The limits are constitutional.

We should note that the defendants wanted us to

pitch our analysis on the distinction that the Supreme Court

has drawn between “traditional public forums,” “designated

public forums,” and “nonpublic forums.” E.g., Good News

Club v. Milford Central School, 533 U.S. 98, 106-07 (2001);

International Society for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672, 678-79 (1992). The first consist of streets and

parks and other public property that are traditional, and, the

Supreme Court has ruled, irrevocable venues for expressive

activity (marches, demonstrations, iarangues, and so forth).

The second consist of public facilities for expression that are

nontraditional, such as public theaters, and used for only

some types of expressive activity even though they could be

used for others as well—a public theater could be used for

political rallies. The Court [No. 06-1441 13] does not require

that they be used for expressive activities for which they

were not intended to be used, provided that there is no

discrimination based on the message of the excluded

speaker, or that their use for expressive activity be

irrevocable. The third category consists of public facilities

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like the Justice Department’s auditorium that could be used

for private expressive activities but are not—and they do not

have to be.

The difficulty with using the “forum” template to

resolve this case—a difficulty that is common enough where

rules are concerned—is that the present case falls into a

crack between the rules. The library lawn is not open to all

outsiders, or closed to all outsiders, or reserved for some

uses but not others. To fill the crack, cases such as Bowman

v. White, supra, 444 F.3d at 975-76; Justice for All v.

Faulkner, 410 F.3d 760, 765-69 (Sth Cir. 2005), and Travis

v. Owego-Apalachin School District, 927 F.2d 688, 692 (2d

Cir. 1991), have carved out a fourth category—a variant of

the second, the “designated public forum.” This fourth

category is variously (and confusingly) termed the “limited

designated public forum” (versus the “true forum”), the

“limited public forum,” or the “limited forum.” The terms

denote a public facility reserved for some speakers but not

others, here members of the university community and their

guests but not uninvited outsiders.

We doubt the utility of multiplying categories in this

fashion, thus adding epicycles to an already complex scheme

and turning the search for sensible results into a

classification game. The issue more simply posed is whether

a university should be able to bar uninvited speakers under a

policy that by decentralizing the invitation process assures

nondiscrimination, and a reasonable diversity of viewpoints

consistent with the univer [14 No. 06-1441] sity’s autonomy

and right of self-governance. We have tried to explain why

the Constitution does not commit a university that allows a

faculty member or student group to invite a professor of

theology to give a talk on campus also to invite Brother Jim

and anyone else who would like to use, however worthily,

the university’s facilities as his soapbox. To call the library

lawn therefore a “limited designated public forum” is an

unnecessary flourish.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—-2-14-07

l4a

APPENDIX B

United States District Court,

W.D. Wisconsin.

James G. GILLES, Plaintiff,

| +.

BRYAN K. BLANCHARD, John Livers,

Defendants.

2:04-cv-083-LJM-WGH.

January 1, 2007.

ORDER ON CROSS MOTIONS FOR SUMMARY

JUDGMENT

This matter comes before the Court on cross motions

for summary judgment by Plaintiff James G. Gilles

(“Gilles”) and Defendants Bryan K. Blanchard and John

Livers (collectively “Defendants”). Gilles brought this suit

challenging Vincennes University’s “sales and/or

solicitation” policy and seeking injunctive relief, declaratory

relief, and damages pursuant to 42 U.S.C. §§ 1983 and 1988.

The parties have fully briefed their arguments and this matter

is now ripe for ruling.

For the reasons stated herein, the Court GRANTS

Defendants’ Motion for Summary Judgment and DENIES

Gilles’ Motion for Summary Judgment.

I. BACKGROUND

Gilles is a traveling evangelist. Complaint, 4 10-12.

He arrived on the campus of Vincennes University (“VU”) in

2001 and preached his message in an open area located in the

middle of campus. Gilles Aff., 4 5; Second Gilles Aff., 4 4,

11-12, Ex. A; Complaint, 4 17. After [Case 2:04-cv-00083-

LJM-WGH Document 64 Filed 01/13/2006 Page 2 of 7] a

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disturbance ensued, Gilles was asked to leave. Livers Depo.,

pp. 27-28.

VU’s Board of Trustees subsequently approved a

“sales and/or solicitation” policy on or about June 26, 2002.

Second Livers Aff., § 3; Livers Depo., Ex. 1. The policy

requires those who wish to engage in solicitation to obtain

prior approval from the Dean of Students on the date and

time of the solicitation, and it designates the brick walkway

in front of the Beckes Student Union as the area for

solicitation. Livers Depo., Ex. 1. The policy was designed

with uninvited outsiders in mind, and no uninvited outside

person or group has been permitted to solicit on the campus

except for in the designated area. Livers Aff., 4] 12; Livers

Depo., p. 25, Il. 6-8. The purpose of the policy is to promote

education and safety, prevent disruption, and to inform VU’s

officials that outsiders are present on the campus. Livers

Aff., | 17; Livers Depo., p. 17, Il. 4-5, 8-10; p. 19, Il. 11-13.

Since the policy’s adoption, no request for solicitation has

been denied. Livers Aff., 4 16; Second Livers Aff., 4 7;

Livers Depo., p. 82, Il. 18-21.

On August 29, 2002, Gilles returned to VU and

attempted to speak at the open area in the middle of campus.

Gilles Aff., 9 5; Second Gilles Aff., § 12 and Ex. A; Livers

Aff., | 6; Livers Depo., pp. 32-33. He was approached by a

VU police officer and informed that he was not permitted to

carry on his speech in the area and that he needed to fill out a

solicitation request with the Dean of Students. Gilles Aff., 4

6; Livers Aff., 4 8. He then went to see the Dean, Defendant

John Livers and filled out a solicitation request, which was

approved. Gilles Aff., § 7; Livers Aff., 4 10; Livers Depo., p.

37 and Ex. 3. Gilles then went to the designated area but

decided that it was not to his liking and left. Gilles Aff., 44 9-

11 Thereafter he filed this lawsuit. [Case 2:04-cv-00083-

LJM-WGH Document 64 Filed 01/13/2006 Page 3 of 7]

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Il. STANDARD

As stated by the Supreme Court, summary judgment

is not a disfavored procedural shortcut, but rather is an

integral part of the federal rules as a whole, which are

designed to secure the just, speedy, and inexpensive

determination of every action. Celotex Corp. v. Catrett, 477

U.S. 317, 327 (1986). See also United Ass'n of Black

Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68

(7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions

for summary judgment are governed by Rule 56(c) of the

Federal Rules of Civil Procedure, which provides in relevant

part:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with the affidavits, if any,

show that there is no genuine issue as to any

material fact and that the moving party is

entitled to a judgment as a matter of law.

Once a party has made a properly-supported motion

for summary judgment, the opposing party may not simply

rest upon the pleadings but must instead submit evidentiary

materials which “set forth specific facts showing that there is

a genuine issue for trial.” Fed. R. Civ. P. 56(e). A genuine

issue of material fact exists whenever “there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986). The nonmoving party bears the burden

of demonstrating that such a genuine issue of material fact

exists. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh

Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied,

520 U.S. 1116 (1997). It is not the duty of the court to scour

the record in search of evidence to defeat a motion for

summary judgment; rather, the nonmoving party bears the

responsibility of identifying the evidence upon which he

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relies. See Bombard v. Fort Wayne Newspapers, Inc., 92

F.3d 560, 562 (7th Cir. 1996). When the moving party has

met the standard of Rule 56, summary judgment is

mandatory. [Case 2:04-cv-00083-LJM-WGH Document 64

Filed 01/13/2006 Page 4 of 7] Celotex, 477 U.S. at 322-23;

Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290,

1294 (7" Cir. 1992).

In evaluating a motion for summary judgment, a

court should draw all reasonable inferences from undisputed

facts in favor of the nonmoving party and should view the

disputed evidence in the light most favorable to the

nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254,

257 (7" Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The

mere existence of a factual dispute, by itself, is not sufficient

to bar summary judgment. Only factual disputes that might

affect the outcome of the suit in light of the substantive law

will preclude summary judgment. See Anderson, 477 U:S. at

248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270,

273 (7th Cir. 1996). Irrelevant or unnecessary facts do not

deter summary judgment, even when in dispute. See Clifton

v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). “If the

nonmoving party fails to establish the existence of an

element essential to his case, one on which he would bear the

burden of proof at trial, summary judgment must be granted

to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d

1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115

(1997).

Ill. DISCUSSION

Gilles is challenging VU’s “sales and/or solicitation”

policy. He takes issue with the policy because he is not

permitted to use his venue of choice, the open area of

campus. Instead, he has been allowed to use the designated

area, which he considers to be a less desirable venue.

An initial determination must be made regarding the

nature of Gilles’ preferred venue because the level of

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scrutiny applied to a restriction on speech is dependent upon

the classification of the forum. The Supreme Court has

identified three distinct types of fora for the purposes of the

[Case 2:04-cv-00083-LJM-WGH Document 64 Filed

01/13/2006 Page 5 of 7] First Amendment: (1) the traditional

public forum; (2) the designated (or limited) public forum;

and (3) the non-public forum. See Arkansas Educ. T.V.

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

public fora are defined by the objective characteristics of the

property, such as whether, “by long tradition or by

government fiat,” the property has been “devoted to

assembly and debate.” Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983). In contrast,

designated public fora is property that has been created by

purposeful government action to open the area for expressive

activity. Courts look to “the policy and practice of the

government to ascertain whether it intended to designate a

place not traditionally open to assembly and debate as a

public forum.” Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788, 802 (1985).

Here, Gilles’ preferred speaking venue is situated in

the center of VU’s campus and is not contingent to any

public street or sidewalk. Gilles Aff., {| 5; Second Gilles Aff.,

§ 12 and Ex. A; Livers Aff., § 6. There is no evidence that

the area has by long tradition or fiat been devoted to or set

aside for expressive use by the general public. In fact, Dean

Livers is unaware of any uninvited outside persons using the

area for public speaking other than Gilles in 2001. Livers

Aff., | 4; Second Livers Aff., § 5; Livers Depo. p. 17, ll. 13-

23. In addition, there is also no evidence that VU has

purposefully dedicated the area for expressive use by the

general public. The Court therefore finds that Gilles’

preferred venue, the open area of campus, is not a public

space as it relates to Gilles, an outsider to the campus and its

community.

19a

Because the nature of the forum dictates the

applicable standard for First Amendment analysis, the Court

now turns to the nonpublic forum standard for First

Amendment challenges. In such cases, the restraint on

speech must be reasonable and viewpoint neutral. Perry

Educ. Ass’n, 460 U.S. at 46.

[Case 2:04-cv-00083-LJM-WGH Document 64 Filed

01/13/2006 Page 6 of 7]

The relevant portion of the VU policy requires those

who wish to engage in solicitation to obtain prior approval

from VU and it designates the brick walkway in front of the

Beckes Student Union as the area for solicitation. Livers

Depo., Ex. 1. Solicitation is defined as “the act of seeking to

obtain by persuasion; to entice a person to action; or the

recruiting of possible sales.” Livers Depo., Ex. 1. It is

difficult to accept Gilles’ insistence that the policy does not

apply to him given that the circumstances of his visit and his

stated purposes are to speak to students on moral topics and

behaviors with the hope that they will embrace his religious

faith. Gilles Aff., {| 2-4, Second Gilles Aff., 4 3; Complaint,

4 10-12, 14-15. It is the Court’s view that he is therefore

within the application of the policy as his activities are

clearly meant to persuade or entice a person to action.

As this policy applies to Gilles, the question becomes

whether it passes muster under the standard for nonpublic

forum, i.e., whether it is reasonable and viewpoint neutral.

Nothing in the policy expresses that it is aimed at

suppressing a particular viewpoint or is aimed to exclude any

particular person or group. In fact, it does not prohibit any

speech at all but instead merely invites all to whom it applies

to solicit in the same designated area, an area on campus

where students go. The Court therefore concludes that the

policy is viewpoint neutral.

Further, the purpose of the policy is to promote

education and safety, prevent disruption, and to inform VU’s

officials about outsiders present on the campus. Livers Aff.,

20a

4] 17; Livers Depo., p. 17, Il. 4-5, 8-10; p. 19, Il. 11-13. As

the Supreme Court has observed,

a university’s mission is education and

decisions of this Court have never denied a

university’s authority to impose reasonable

regulations compatible with that mission

upon the use of its campus facilities. We

have not held, for example, that a campus

must make all of its facilities equally

available to students and non-students alike,

or that a university must grant free access to

all of its buildings and grounds.

Widmar v. Vincent, 454 U.S. 263, 267, n. 5 (1981). VU’s

solicitation policy is tailored to accomplish [Case 2:04-cv-

00083-LJM-WGH Document 64 Filed 01/13/2006 Page 6 of

7] its educational mission. Accordingly, the Court concludes

that the policy is sufficiently narrow, viewpoint neutral, and

reasonable in light of VU’s purpose for the policy. Gilles’

challenge to the policy must therefore fail.’

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS

Defendants’ Motion for Summary Judgment and DENIES

Gilles’ Motion for Summary Judgment.

' The Court also concludes that Gilles’ due process concerns must fail.

The policy is neither vague nor ambiguous but clearly provides notice to

those who wish to solicit that they must obtain approval of the date and

time of the solicitation and use the designated area.

Moreover, the policy’s terms do not vest the Dean of Students with any

discretion to evaluate the content of speech but simply require him to

approve the date and time for the solicitation. Livers Depo., Ex. 1.

2la

IT IS SO ORDERED this 13m day of January, 2006.

/s/Larry J. McKinney

LARRY J. McKINNEY, CHIEF JUDGE |

United States District Court

Southern District of Indiana

Electronically distributed to:

Nathan Wesley Kellum Daniel Lang Siewers

ALLIANCE DEFENSE FUND HART BELL, LLC

nkellum@telladf.org dsiewers@hartbell.com

Elizabeth Anna Murray Hoyt Brent Stuckey

ALLIANCE DEFENSE FUND HART BELL, LLC

emurray@telladf.org bstuckey@hartbell.com

22a

APPENDIX C

United States Court of Appeals

For the Seventh Circuit.

Chicago, Illinois 60604

March 12, 2007

Before

Hon. Richard A. Posner, Circuit Judge

Hon. Diane P. Wood, Circuit Judge

Hon. Terrance T. Evans, Circuit Judge

No. 06-1441

James G. GILLES, Appeal from the United States

Plaintiff-Appellant, District Court for the Southern

District of Indiana, Terre

v. Haute Division.

BRYAN K. BLANCHARD, et. al., No. 2:04-cv-0083

Defendants-A ppellees.

Larry J. McKinley, Chief

Judge.

ORDER

On February 28, 2007, plaintiff-appellant filed a

petition for rehearing en banc. All the judges on the original

panel have voted to deny the petition, and none of the active

judges has requested a vote on the petition for rehearing en

banc. The petition is therefore DENIED.

23a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

JAMES G. GILLES, )

Plaintiff, :

VS. Case No. 2:04-CV-083-LJM-

) WGH

BRYAN K. BLANCHARD, ie AL., )

)

Defendants. )

**A KE *

The deposition upon oral examination of JOHN

LIVERS, a witness produced and sworn before me, Renee R.

Dobson, Registered Merit Reporter, Notary Public in and for

the State of Indiana, was taken on March 3, 2005,

commencing at 9:30 a.m., at the offices of Hart Bell, 513

Main Street, Vincennes, Knox County, Indiana, pursuant to

notice and the Federal Rules of Civil Procedure. This

deposition was taken on behalf of the Plaintiff in the above-

captioned matter.

**** *

CROSSROADS COURT REPORTING

Renee R. Dobson, CSR, RMR

9733 Sable Ridge Lane

Terre Haute, Indiana 47802

(812) 299-0442

CROSSROADS COURT REPORTING

24a

APPEARANCES

FOR THE PLAINTIFF:

ALLIANCE DEFENSE FUND

Elizabeth Murray

15333 N. Pima Road, Suite 165

Scottsdale, Arizona 85260

and

Nathan W. Kellum

2749 Lombardy Road

P.O. Box 11159

Memphis, Tennessee 38111

FOR THE DEFENDANTS:

HART BELL, LLC

Daniel L. Siewers

513 Main Street

Vincennes, Indiana 47591

CROSSROADS COURT REPORTING [2]

INDEXOFEXAMINATION

DIRECT EXAMINATION,

Questions by Ms. Murray

CROSS-EXAMINATION,

Questions by Mr. Siewers

REDIRECT EXAMINATION,

Questions by Ms. Murray

PAGE

25a

CERTIFICATE PAGE

CROSSROADS COURT REPORTING [3]

INDEXOFEXHIBITS

JOHN LIVERS/March 3, 2005:

Number Identification

1 Sales and/or Solicitation Policy

2 Sales and/or Solicitation Policy with Signature

3 Request for Solicitation Approval

4 Affidavit of John Livers

5 Letter from Scott Shipman

6 11/27/02 Letter

7 Dfts' Answers to Pif's First Set of Interrogatories

8 Verified Complaint

9 Amended Answer

10 3/24/04 Request for Solicitation Approval

ll 3/17/04 Request for Solicitation Approval

12 2/3/03 Request for Solicitation Approval

13 1/12/04 Request for Solicitation Approval

14 11/4/03 Request for Solicitation Approval

15 10/30/03 Request for Solicitation Approval

16 10/2/03 Request for Solicitation Approval

17 8/29/03 Request for Solicitation Approval

18 8/9/04 Request for Solicitation Approval

19 10/26/04 Request for Solicitation Approval

20 8/30/04 Request for Solicitation Approval

21 5/7/02 Agreement

22 Agreement for the Services of Mark Sterner

CROSSROADS COURT REPORTING [4]

Page

26a

| JOHN LIVERS,

2 having been first duly placed under oath, was examined

and

3 testified as follows:

4 DIRECT EXAMINATION

5 By Ms. Murray:

6 Q Good morning.

7 A Good morning.

8 Q Again, my name is Elizabeth Murray, and this is Nate

Kellum

9 for the plaintiff. Thank you for meeting us here today.

10 A You're more than welcome.

11 Q This deposition is primarily a factual interview just to

12 give us an idea of how you view the facts and the issues

13 this case. I'm not planning any trick questions. I would

14 appreciate if only one person would speak at a time so

that

15 the answers could be, you know, fully given, both the

16 questions and the answers. And if you would, just

respond

17 verbally rather than saying uh-huh or just nodding.

18 A Okay.

19 Q And then feel free to let ime know if you, you know,

need a

20 break. And, also, I just request that you would answer all

21 the questions unless your attorney instructs you not to.

22 A Sure.

23 Q Thank you. To start off with, I was wondering if you

have

24 been deposed before in any other case?

25 A No.

CROSSROADS COURT REPORTING [5]

27a

1 Q Okay. Could you briefly explain your educational

background

2 for me?

3 A As far as years and where I've been?

4 Q Yes, please.

5 A I graduated from Indiana State in 1979 with a bachelor's

6 degree in therapeutic recreation; most recently completed

7 master's in human resource development, also through

Indiana

8 State.

9 Q Congratulations.

10 A Thank you.

11 Q Who is your present employer?

12 A Vincennes University.

13 Q Okay. And how long have you been employed for

Vincennes

14 University?

15 A Since '93, August of '93.

16 Q Okay. And what is your job title there at the university?

17 Al am the Dean of Students.

18 Q Okay. Now, what are your duties at the university? .

19 A Well, there's many, but what I do is I basically

supervise

20 the Student Center, and in those offices are the Dean of

21 Students office, Judicial Affairs, Student Activities, the

22 Multicultural and International Student Offices.

23 Q Okay. Quite a lot under your direction?

24 A Sometimes, yes.

25 Q As part of your responsibilities are you also--is it also

CROSSROADS COURT REPORTING [6]

| your responsibility to oversee the use of campus grounds

and

2 facilities?

28a

3 A I'm not sure what you mean by that.

4 Q Okay. As far as when different individuals are wanting

5 have different events and hold expressive activities on

6 campus, do you oversee giving permission?

7 A [handle the solicitation requests. I sign off on those as

8 far as giving approval. And then I would supervise

9 activities, student activities so that I would be informed

10 of those, too.

11 Q Okay. Are you--do you oversee any other aspect

except--or

12 rather, besides the solicitation forms as far as different

13 other performance agreements and various other aspects,

14 is it solely the solicitation forms?

15 A To get my approval, it's solicitation, so that would be .

what

16 I would be. I think that's the answer to your question.

17 Q Thank you. Is your permission required then--am I

18 understanding you that your permission is required in

order

19 for--if someone is to come--

20 A On any solicitation agreement, yes.

21 Q All right. As--I would like just a moment to talk about

the

22 campus layout. Is there a fence that surrounds the entire

23 campus?

24 A No.

25 Q Okay. Are there security entrances where ID is

required?

CROSSROADS COURT REPORTING [7]

1 A No.

2 Q Okay. Is the campus open for outsiders to come onto the

3 campus? Can members of the community and citizens from

29a

4 other states just come onto the campus?

5A Yes.

6 Q Could an outsider come onto the campus without getting

7 permission and read the Gettysburg Address?

8 A I'm not understanding.

9 Q Okay. Sometimes I would--it's my understanding that

there

10 are some things that an individual could do on campus

11 without having to fill out a solicitation form. Is one of

12 those activities coming on and perhaps just reading

13 something such as the Gettysburg Address?

14 A I would assume they could do that, sure.

15 Q Okay. All right. Could a person come onto the campus

and

16 without getting permission just hold up a sign and say,

have

17 a great day, students?

18 A Sure.

19 Q Okay. And then one more, could an outsider come onto

the

20 campus and just have a sign around finals that said, study

21 hard?

22 A Sure.

23 Q Okay. Thank you. As of August 2002 what were the

24 guidelines that were in place that would govern your

25 decision of granting permission to--and granting

permission

CROSSROADS COURT REPORTING [8]

| and approval when you would sign the solicitation forms?

2 AI believe that what you're talking about is the solicitation

3 policy that was in place.

4 Q Okay. Were there any other--are there any other policies

5 that relate to speech activities besides the solicitation

6 policy?

30a

7 A As far as--I'm not-- -

8 Q I can clarify.

9 A Okay.

10 Q If there--does some speech occur on campus that is not

11 solicitation or sales?

12 A For--if you're talking about people just--I'm having a

tough

13 time. Are we talking about groups coming on campus, or

are

14 we talking about just people in general being on campus?

15 Are we talking about faculty and staff?

16 A We're talking about all of them, yes, students, faculty

and

17 staff, outsiders. If any of those individuals want to

18 engage in some sort of expressive activity on campus, and

19 doesn't happen to be solicitation or sales, is there another

20 policy that would govern that speech?

21 A It would be the same policy. The university people

would be

22 able to do that; but if an outside group came in, it would

23 fall under the solicitation policy that we have.

24 Q Okay. So is it my understanding that you're saying that

25 faculty and staff are not governed by the solicitation

CROSSROADS COURT REPORTING [9]

1 policy?

2 A That's correct. They would be able to come to have a

forum

3 for speech.

4 Q Okay. And how would they go about doing that?

5 A It depends. If it's in their classroom, or if it's part of

6 the things, that's part of the educational mission.

7 Q Okay.

8 A If they are bringing folks on, or they are, you know,

3la

9 inviting people to the university, normally, that goes

10 through the division offices. It wouldn't necessarily go

11 through our office. But we also--I think you have some of

12 the academic grants that we provide assistance through

the

13 Student Activities Office for stipends for payment, so

14 there's a process that they would register through that

15 through the Student Activities Office.

16 Q Okay. And so the faculty could go through that process

that

17 you were just speaking about; and whether or not the

18 activity was outside on the campus or inside in their

19 classroom, they would not have to fill out the solicitation

20 form?

21 A That's correct; that's correct.

22 Q Okay. Now, do students of Vincennes University, are

they

23 required to fill out a solicitation form?

24 A If they're going to sell some things--

25 Q Okay.

CROSSROADS COURT REPORTING [10]

1 A --or do raffles or fund raisers, then they would. If not,

2 then they would not have to fill out the solicitation.

3 Q All right. What procedure must someone follow from

Start to

4 finish in order to be able to engage in speech?

5 A Are we talking inside of Vincennes community--or a

Vincennes

6 University person or an outside group?

7 Q Let's start with a student.

8 A Okay. If a student were to do that, they could have--they

9 could just speak. Okay?

10 Q Okay.

32a

11 A The same would be for a faculty member or a member

of the,

12 you know, Vincennes University community, if you want

13 call it that.

14 Q A moment ago you mentioned that if a student wanted

15 engage in sales, they would have to fill out a

16 solicitation--a sales and solicitation form.

17 A Uh-huh.

18 Q When would a student have to fill out a solicitation

form if

19 they wanted to solicit rather than engaging in actual

sales?

20 A Can you clarify--give me examples?

21 Q Yes. Okay.

22 MS. MURRAY: Could I--could you enter this as Exhibit

23 1, please?

24 (PLAINTIFF'S EXHIBIT | MARKED)

25 Q Would you take a moment to review that? Do you

know what

CROSSROADS COURT REPORTING [11]

| that is?

2 A Uh-huh.

3 Q What is that?

4 A This is our sales and solicitation policy.

5 Q Thank you. If you look at the second paragraph of the

6 policy, right underneath the sentence regarding the Board

7 Trustees, that paragraph looks to me as if that deals

8 primarily with sales that occur on campus; is that correct?

9 A Uh-huh.

10 Q And then if you look--

11 AI'm sorry. | meant to say yes.

33a

12 Q Thank you. If you look at the paragraph below that,

that

13 appears to me that it addresses solicitation. So I think

14 the university draws a distinction between sales and

15 solicitation; is that correct?

16 A Yes.

17 Q Now, would you look at line 1 of the second--of the

third

18 paragraph, please, and it says that, "Vincennes University

19 requires prior approval of all solicitation on campus by

any

20 person or organization." So it's my understanding what

that

21 sentence is saying that any time any individual wants to

22 engage in solicitation on campus that prior approval is

23 required; is that correct?

24 A I would--looking at this, I'd say yes. Okay.

25 Q Okay. So do students who would want to engage in

CROSSROADS COURT REPORTING [12]

1 solicitation rather than a sale be required to fill out a

2 solicitation form?

3 A Well, again, by solicitation, can you give me an example

4 what you might mean by that?

5 Q Yes. Would you look at the bottom line of paragraph 3?

6 defines, "Solicitation as an act of seeking to obtain by

7 persuasion or enticing a person to action or recruiting of

8 possible sales." Would a student be required to solicit--to

9 fill out a solicitation form if they wanted to engage in

10 something that fell under one of those three definitions

11 that I just read?

i2 A I don't believe so. I think it would be for sales or for

13 raffles or fund raisers.

ererrenr ta ree cae curses cntpasanedeenticideenushceseaiapsadiipsnccchaaseansanneyaaenniaannansiae

34a

14 Q Okay. Thank you. And, again, are there any other

forms

15 besides the solicitation forms that you're aware of that any

16 individual would have to fill out in order to engage in

17 speech activity?

18 A No, this would be it.

19 Q Thank you. Is there any speech activity that you have

seen

20 in your experience at the university that has not fallen

21 within the categories of solicitation or sales?

22 A Again, I'm not--

23 Q Okay. We talked about it--

24 A I'm sorry. Go ahead.

25 Q Okay. Earlier you said that the only policy that you

have

CROSSROADS COURT REPORTING [13]

1 in place relating to speech activity is the sales or

2 solicitation policy that we just looked at ard is marked as

3 Exhibit 1?

4 A Uh-huh.

5 Q Is there any other speech activity that you could foresee

6 that would not fall within the sales or solicitation policy?

7 A For outside groups coming in, [ don't believe so.

8 Q Okay. And is there other speech that you would not

consider

9 sales or solicitation that a student would engage in?

10 A I would think that they would have discussions in

classrooms

11 or things like--is that what you're meaning?

12 Q Yes, thank you.

13 A Okay.

14 Q Is there also speech activity that a student would

engage in

35a

15 outdoors, not in the classroom that you would consider

not

16 sales or solicitation?

17 A Yes.

18 Q What would that be?

19 A Could be classroom activities outdoors, could be just

20 exchange of ideas sitting around a park bench. I would

21 assume that would fall under what you're asking.

22 Q Thank you. Could I draw your attention again to the

exhibit

23 that you have in front of you?

24 A Uh-huh.

25 Q You already said that you recognize that as a sales and

CROSSROADS COURT REPORTING [14]

1 solicitation policy. Were you involved in the drafting and

2 passage of the policy?

3 A I was one of the people who were a part of this, yes.

4 Q Could you describe the process that you went through to

5 draft the policy?

6 A Well, we had the sales and solicitation policy prior to

7 this, and that was prior to 2001-2002 year. When we

looked

8 at this to realign or redo or whatever you want to say with

9 this, we took a look--we wanted to have a way that we

could

10 have an idea of people who were coming on campus. So

what

11 we tried to do was combine the two policies. One would

12 the sales and solicitation that was already in practice and

13 then also a way to review or to recognize people who

wanted

14 to come on campus.

36a

15 Q Okay. Was the prior policy before you developed the

one

16 that's marked as Exhibit 1, did you have an official policy

17 that was written down that the Board of Trustees had

18 adopted? I can state that again.

19 A Yeah.

20 Q The policy in front of you as Exhibit 1, that's a written

21 policy.

22 A Yes.

23 Q Was there a written policy concerning sales and

solicitation

24 prior to that policy?

25 A There was a solicitation policy--sales and solicitation

CROSSROADS COURT REPORTING [15]

1 policy prior to that.

2 Q Okay. Would it be possible for us to get a copy of that?

3 A I'm sure we can find one.

4 Q Okay. Do you know if that's with you today?

5 AI do not have that with me today.

6 Q Okay. Thank you. We'd appreciate that. Did you draft

the

7 actual language of the new policy?

8 A I was not a part of the language drafting.

9 Q Is there a committee involved in the drafting process?

10 A I don't know that you would necessarily call it a

committee,

11 but there were a number of people in student affairs that

12 were a part of that.

13 Q Do you know who they were? Do you know who the

individuals

14 were that were involved in drafting the new policy?

15 A I believe Lynn White, myself. I'm not sure if Dale

Dowden

37a

16 was involved with that, but I would say that he would

have

17 been aware of the policy, and he's the provost.

18 Q Okay. Do you know how long it took to draft the

policy? Is

19 it something that people met on a weekly basis?

20 A I don't remember. | can't say for sure.

21 Q What was your specific involvement in the drafting

process?

22 A Giving ideas, exchanging thoughts, just more or less--I

23 can't--

24 Q That helps me. Okay. What ideas--in your experience

25 campus what ideas did you bring to the drafting process?

CROSSROADS COURT REPORTING [16]

1 A I think what we wanted to look at was the fact that with

the

2 campus for outside groups, we wanted to make something

that

3 was fair for everybody and was consistent with--for all

4 groups to come on; but we also wanted to make sure that

5 had a way of being aware of who was on our campus.

6 Q And what were your reasons for wanting to be aware of

what

7 was going on on campus?

8 A Well, for one, to protect the mission of the university

9 which is educational; and then, two, would be to make sure

10 it's a safe environment for the students.

11 Q Okay. Thank you. Was there a particular event that

12 prompted the policy change?

13 A With Reverend Gilles coming to the university in

August of

38a

14 2001, that was the first time in my recollection that

15 anyone--any outside group just came to the university

16 uninvited. There was some difficulties during that time,

17 that made us take a look to see what we needed to do to

18 more aware of what goes on on our campus.

19 Q Were there other events that you can recall other than

Mr.

20 Gilles's first visit that prompted the policy change?

21 A He's been the only person that's come on the campus

that's

22 uninvited that had not gone through that process. He was

23 the first person that [ can ever remember doing that.

24 Q And how long has Vincennes University been

established?

25 A 1801.

CROSSROADS COURT REPORTING [17]

1 Q 1801? And Mr. Gilles is the only outside group?

2 A No, no, ‘hat's just in my recollection.

3 Q Okay. In your recollection.

4 A Yeah. And, again, I've been there since '93.

5 Q Okay. Have you spoken to others who were there before

you

6 who have had experiences with outsiders who came onto

the

7 campus?

8 A Not that I can remember. Again, when we met, I don't--I

9 can't remember anybouy saying that that had happened

before.

10 Q Okay. Thank you. Are you the official that's

responsible

11 for enforcing the solicitation policy?

12 A Yes.

39a

13 Q Is there another official who is also responsible to

enforce

14 the policy?

15 A In any of the things that we do, there is an appeal

process,

16 and an appeal process would go to Lynn White.

17 Q Okay. Could you describe the appeal process for me?

18 A It would be basically that if they met with me, and they

19 didn't agree with what I said, they would in turn go to

Lynn

20 and talk with her.

21 Q Okay. Did you inform Mr. Gilles of the appeal process

when

22 he visited you on August 29th of '02?

23 A You know, I'm not sure if I specifically said that there's

24 an appeal process, but I know that Reverend Gilles went

and

25 talked with Lynn.

CROSSROADS COURT REPORTING [18]

1 Q Thank you. Were you in the meeting with Lynn and Mr.

2 Gilles?

3 ANo.

4 Q You noted earlier that one of the purposes of the

5 solicitation policy was ensuring the safety of the campus.

6 Are there any other purposes that you're aware of that the

7 policy was written to remedy? I can rephrase that.

8 A Thank you.

9 Q Are there any other purposes that you know of for the

sales

10 and solicitation policy besides the safety of the campus?

11 A For outside groups to come on campus, if they're not

invited

12 by faculty, staff, students, it helps to make us aware of

13 the outside groups that come on, so that's the purpose.

40a

14 Q Thank you. Could you look again specifically at the

15 language of the policy in Exhibit 1? And I'm looking at

the

16 first line about the Board of Trustees, and it states that

17 this particular policy has been adopted by the Board of

18 Trustees. Are all official policies adopted by the Board of

19 Trustees at some time?

20 A That's my understanding.

21 Q Okay. And looking at the first line of the second

22 paragraph, it states that the university, "requires prior

23 approval for all sales on campus by any person or

24 organization." Does this mean that no one engages in a

sale

25 without Vincennes University being aware of it and--

excuse

CROSSROADS COURT REPORTING [19]

| me--and granting prior approval?

2 A To say that no one does, I don't know that I could be that

3 exact. But if anybody on campus has a sales project,

4 whatever, they are required to come to us. That's the

5 policy. You know, | think that pretty much everyone

follows

6 that.

7 Q And is pnor approval required for outsiders, faculty and

8 students? Is prior approval for sales required for faculty,

9 students and outsiders?

10 A Yes, yes.

11 Q Thank you. If you jump down to the line that reads the

Dean

12 of Students--and I'm still in the second paragraph--it

13 states that the Dean of Students--and, again, I assume

14 that's you--

15 A Uh-huh.

16 Q --is that correct?--

4la

17 A Yes, yes. Sorry.

18 Q --that you retain the right of approval of the product or

19 activity as well as a date, time or location. The way I

20 read that is that you have the ultimate authority to

21 determine who can be there and who cannot be there to

engage

22 in sales; is that correct?

23 A That's correct.

24 Q It also states in that same line regarding the Dean of

25 Students that you also determined the date, time and

CROSSROADS COURT REPORTING [20]

1 location of the sales; is that true?

2 A No, I don't determine it, but it's a part of the form. So

3 when they request it, they put the date, time and what the

4 purpose of the sale is.

5 Q Okay. And are there any times where you look at the

date,

6 time and location of the sale, and you change--and change

7 what the students, faculty member or outsider wrote for a

8 sale?

9 A The only reason that we would have a change, a date,

time or

10 location is if there was a previous reservation or the

11 facility that they want to use is already being in use.

12 Q Okay. Are there any--do you recall any situation where

13 student, faculty member or outsider was seeking

permission

14 for a sale where you changed the location, and it was an

15 outside location?

16 A I'm not following.

17 Q Okay.

18 A I'm sorry. Go ahead.

42a

19 Q Okay. The line concerning Dean of Students states that

you

20 have to approve the location of a sale. Has a student ever

21 submitted a sales solicitation request for a sale where you

22 changed the location for them?

23 A I don't remember that happening.

24 Q Okay. Would you look at the third paragraph, first line?

25 It says the university, "requires prior approval for all

CROSSROADS COURT REPORTING [21]

1 solicitations on campus by any person or organization."

You

2 stated earlier that this applied--that students and faculty

3 did not have to fill out a solicitation form. The first

4 line here seems to contradict that. Can you explain why

5 students and faculty do not have to fill out a solicitation

6 form when it says that prior approval is required by any

7 person or organization?

8 A Well, I think the---when we took a look at making the

9 changes in this form, we looked at being--that it would be

10 for groups off campus that were coming onto campus.

And I

11 believe that that is more talking toward a person or an

12 organization that was not affiliated with the university.

13 Q Is there any reason that you know of that the word,

14 outside--by any outside person or organization wasn't

added

15 to the policy?

16 A I do not know.

17 Q Okay. The second line of the third paragraph states,

- 18 "Again, the Dean of Students will approve the date and

time

19 of the solicitation." I believe that, again, refers to the

20 sentence in the paragraph above where it's talking about

the

43a

21 Dean of Students. Do you know if that sentence refers to

22 that previous sentence?

23 A To me?

24 Q Well, it uses--the word, again, is used, so my

understanding

25 is that this sentence would be referring also to the Dean of

CROSSROADS COURT REPORTING [22]

1 Students sentence in the paragraph above?

2 A That would be correct.

3 Q Okay. And it states that you will approve the date and

the

4 time of the solicitation. Is that correct that you do?

5 A I would approve the--yes.

6 Q Okay. Have you ever changed the date and the time of a

7 solicitation request that was submitted to you?

8 A I can't ever remember doing that. I can't remember doing

9 that.

10 Q The next line states that you, "notify appropriate

11 University personnel regarding the campus location for

the

12 solicitor.” [s that correct that you do notify university

13 personnel?

14A Yes.

15 Q Which locations have you notified university personnel

16 concerning use by solicitors?

17 A If it's a university group that would--well, this would be

18 for the outside groups. So if it's an outside group, they

19 would use the brick walkway in front of the university

20 student activities--or the student union.

21 Q Okay. Now, if you look at the next line, it says, "The

22 designated area on campus for solicitation is the brick

23 walkway directly in front of the Beckes Student Union."

44a

24 light of the previous sentence which talks about notifying

25 university personnel of the location, why would it be

CROSSROADS COURT REPORTING [23]

1 necessary to notify the university personnel of the location

2 if it was always the brick walkway?

3 A Again, | think if we have a group that comes, and we're

4 talking about outside groups coming in, we would still

5 notify the appropriate university personnel if we have off-

6 campus groups that will be on campus if that is warranted.

7 Q Okay. If there is one designated area, why would it be

8 necessary to notify concerning their location?

9 A To make them aware that we have someone on campus.

10 Q Okay. Are there any other solicitation requests that you

11 have approved where the speech--where the solicitation

did

12 not occur on the brick walkway?

13 ANo.

14 Q Okay. Would you look at the sentence that reads,

15 "Solicitation is the act of seeking to obtain by persuasion;

16 to entice a person to action; or the recruiting of possible

17 sales." That is the last line in the third paragraph of the

18 policy. What does the word, solicitation, mean to you as

19 related to this policy?

20 A Well, as it says, it's the act of trying to persuade or

21 entice someone to action, and that's the way we've used

that

22 here in this policy.

23 Q What does the term, "seeking to obtain by persuasion,"

mean

24 to you?

25 A Il would assume it means to persuade someone.

CROSSROADS COURT REPORTING [24]

45a

1 Q Okay. But the words of, "to obtain by persuasion" are

also

2 included. Is it just--you stated earlier that sometimes

3 students are involved in just exchanging ideas. Couldn't

4 that also be a form of obtaining by persuasion that would

5 require them to fill out a solicitation request?

6 A Well, again, when we talked about this, and we put this

7 down, we were looking at the outside groups. We weren't

8 looking at the university groups.

9 Q Okay. And do you require an outsider to actually be

trying

10 to obtain something in order for the solicitation request to

11 be followed? Okay. I can rephrase that.

12 A Thank you.

13 Q One of the definitions for solicitation is seeking to

obtain

14 by persuasion. Do you require an outsider to be obtaining

15 something by persuasion rather than just seeking to

persuade

16 in order to fill out a solicitation request?

17 A I'm not understanding that there's a whole lot of

difference

18 between seeking to obtain or trying to persuade. I'm not

19 clear on the question.

20 Q Well, I'm confused with the words "to obtain by

persuasion."

21 To obtain means to get something. And so if you're not

22 seeking to get something, how would that be seeking to

23 obtain by persuasion?

24 AI guess I can't answer it. I'm not understanding what

25 you're trying to--what you're asking.

CROSSROADS COURT REPORTING [25]

1 Q All right. So basically, whether you're trying to persuade

46a

2 somebody or seeking to obtain something by persuasion,

you

3 consider both covered by the policy?

4 A I'm sorry. I don't mean to be difficult. I'm just having a *

5 tough--I'm not understanding what you're--the question.

6 Q Okay. There could be a situation where somebody is

trying

7 to persuade individuals when they come on campus. And

then

8 other times they're coming--other times individuals could

9 come onto campus to obtain something from students. Do

you

10 require somebody to obtain in order to be covered by the

11 policy?

12 A I'm going to ask you a question. Maybe it will clear it

13 for me. There is speech to persuade someone to do

14 something, or there's speech te persuade them to give you

15 something. Is that what you're asking?

16 Q Yes, that's what I'm asking.

17 A I think this would cover it both then.

18 Q Okay. Thank you. What does the term "enticing a

person to

19 action" mean to you?

20 A Through--it would be to act or to--I guess it would be

21 act, for a person to act.

22 Q Thank you. Approximately, how often do you notify

23 university personnel of solicitors?

24 A We would notify them whenever a policy is applied

for. ,

25 Q Do you mean whenever a request form--

CROSSROADS COURT REPORTING [26]

1 A I'm sorry. Yes, whenever a request is made.

47a

2 Q Okay. And on a weekly basis about how many times

does that

3 occur?

4 A It wouldn't even be on a weekly basis.

5 Q Okay. Do you know where the start and the end of the

brick

6 walkway in front of the Beckes Student Union is?

7 A Where the start and the end is?

8 Q Yes.

9 AI would say from the building to the street.

10 Q The building to the street. And then what about the

length?

11 When does it start, and when does it end? When does the

12 sidewalk start and end?

13 A In front of the union, the area in front of the union is all

14 brick, so it's pretty well laid out just because of the

15 brick itself.

16 Q Does the brick walkway start at the--one side of the

17 building and go to the other side of the building, or does

18 it go beyond the building?

19 A It does not go beyond the building. It's an area right in

20 front of the doors, and, again, it's the brick area.

21 Q Is it the brick area that spans the entire building or just

22 in front of the doors?

23 A I don't think there is any brick that spans the entire

24 building.

25 Q Okay. Do you recall when Jim Gilles visited the

campus in

CROSSROADS COURT REPORTING [27]

1 2001?

2A Yes.

3 Q What do you recall about that event from start to finish?

4 A I would have been notified that he was--that there was a

48a

5 speaker on campus. When I went there, he was in the

grassy

6 area in front of the library. He had had--he was speaking

7 to a number of students there. There was some--a

8 disturbance, and at one point the campus police felt like he

9 was in danger. And they asked him to leave, and he did.

10 Q Was Mr. Gilles disrupting any classes when he was in

11 Vincennes University in 2001?

12 A That's hard for me to say. I'm not an instructor. He

13 wasn't--he was outside, but I don't know if he did or not.

14 Q Do you know the area where Mr. Gilles was at during

his

15 first visit?

16 A Uh-huh, yes.

17 Q Where was that?

18 A It was a grassy area in front of the library and beside

the

19 administration building.

20 Q Are there any classrooms that are in that immediate

21 vicinity?

22 A There's a classroom building probably--there's a

classroom

23 building right next to the library and the classroom

24 building down the street, so it would be less than a block.

25 Q Okay. Did anybody--did any administration or faculty

CROSSROADS COURT REPORTING [28]

1 approach Mr. Gilles when he was at the university in

2001?

2 A Did they approach him?

3 Q Yes.

4 A In what way?

5 Q Did anyone related to the university approach Mr. Gilles

6 when he was there at the campus in 2001?

49a

7 A If you're asking were there faculty or staff present, I

know

8 that there was staff present.

9 Q Who was present when Mr. Gilles was speaking in

2001?

10 A I was there, and the chief of police, Harold Hensley,

was

11 there. I believe--I can't say for sure anybody else, but I

12 know the two of us were there.

13 Q Did any of you--did any of the officials that you just

named

14 speak to Mr. Gilles on that day?

15 A Mr. Hensley did.

16 Q Do you know--did you hear what Mr. Hensley said to

Mr.

17 Gilles?

18 A Yes. He said, I--and this isn't a quote, but I'll

19 paraphrase.

20 Q Thank you.

21 A But basically, he said, I am worried about you; that

there's

22 risk, and I'm asking you to leave the campus.

23 Q Okay. Do you know what the risk was for Mr. Gilles?

24 A He was receiving threats from students.

25 Q Do you know which students--

CROSSROADS COURT REPORTING [29]

1 A No.

2 Q --threatened Mr. Gilles or appeared to threaten Mr.

Gilles?

3 AI don't know names, no.

4 Q Could we jump back to a moment to the designated area

5 front of the student union?

6 A Uh-huh.

50a

7 Q Do you know why that specific area of campus was

designated

8 for solicitation or any request by an outsider to engage in

9 speech?

10 A Why that area?

11 Q Yes.

12 A It's in front of the student union, and it seemed to be a

13 reasonable area for people to be able to speak since it is

14 the union.

15 Q Did you have any concerns about groups gathering and

traffic

16 issues since the brick walkway is in front of a couple

17 different streets?

18 A Did we have any concerns?

19 Q Yes.

20 A We've used that area for other things, and it's worked

out

21 before for large gatherings, and we felt that that was an

22 appropriate place.

23 Q Are there any other areas of campus that you think are

24 appropriate for speech activity by outsiders, students or

25 faculty?

CROSSROADS COURT REPORTING [30]

1 A More appropriate or as appropriate?

2 Q Both, just generally?

3 AI feel very comfortable with the area that we've chosen.

4 Q Is that the area where--what other areas do students--it

5 doesn't have to be all three, but which areas have been used

6 for speech activities on campus by any person?

7 A The humanities, they will have a poetry reading in front

8 the humanities building. There's an area by the dining

9 center where people have had events; and, also, the area

10 next to the student union that there is a large brick patio

S5la

11 kind of place.

12 Q In front of the student union or beside where they're at?

13 A Well, in front of the union, but also beside in the park.

14 Q Okay. Have any other student groups used the library

lawn

15 area to engage in speech activities?

16 A Not to my knowledge.

17 Q Are you aware that Campus Christian Fellowship

handed out

18 free watermelon on August 29, 2002 when Mr. Gilles was

at 3

19 the campus, and they did that on the library lawn?

20 A It wasn't on the lawn. It was in front of the library, but

21 it was not on the lawn.

22 Q Do you know--did you recall the location of the table

of the

23 Campus Christian Fellowship on that day?

24 A It would have been in front of the library, but it would

25 have been on the brick walkway. There's an area right

there

CROSSROADS COURT REPORTING [31]

1 in front of the library.

2 Q Okay.

3 A And the Christian Campus Fellowship is a university

group.

4 It's a club, an organization.

5 Q Okay. Is Scott--do you know Scott Shipman?

6A Yes.

7 Q Okay. And what is his relationship to the university?

8 A He serves as advisor for that group.

9 Q Is he a university employee?

10 A I don't believe he is paid by the university, but I'm not

1i sure of that.

52a

12 Q Do you know if the Campus Christian Fellowship, do

you know

13 how they had Scott Shipman join their group?

14 A He's been with them for as long as I've been at the

15 university.

16 Q Do you know if he's an outside minister?

17 A I'm not--I don't know.

18 Q Okay. Thank you. Do you recall Mr. Gilles's second

Visit

19 to the university in August of 2002?

20 A Yes.

21 Q Could you describe that event from start to finish?

22 A As best I can, he, I think, was in front of the library

23 again, that grassy area at that time--and this was before I

24 came, but he was told to come to the--to my office to fill

25 out the request. I was actually on my way to that area and

CROSSROADS COURT REPORTING [32]

1 met him on the sidewalk between the union and the library.

2 We walked back to my office. He filled out a solicitation.

3 We talked for a little bit, and then he went out to the

4 brick walkway.

5 Q Do you recall the events before he came to your office?

6 A I wasn't around, so [ don't know what occurred.

7 Q Were you told what occurred before Mr. Gilles came to

your

8 office?

9 AI would have been called to say Mr. Gilles was on--in

front

10 of the library, and that would have prompted me to start

11 walking that way.

12 Q Okay. Who called you concerning Mr. Gilles's visit?

13 A Don't know.

14 Q Okay. Were you called and asked to come outside, or

were

53a

15 you just called and given information?

16 A Again, I don't know. I don't remember the phone call

17 specifically.

18 Q Okay. I'm confused. Did you come outside because of

the

19 call, or were you already outside?

20 A No, I was in the office and got the call, and I was

walking

21 over there and then met Reverend Gilles in the way.

22 Q Did you walk outside because you were planning to go

see

23 what Mr. Gilles was doing, or were you on your way to

24 another errand?

25 A No, no, I was going over to talk with Reverend Gilles.

CROSSROADS COURT REPORTING [33]

1 Q Okay. Did you talk to Mr. Gilles--

2 A Ub-huh.

3 Q --outside--outside of your--outside of your office

building?

4 A As we were walking back to the office, yes.

5 Q Do you recall what you said to Mr. Gilles?

6 A No.

7 Q Okay. Do you recall what Mr. Gilles said to you?

8 A In the time outside?

9Q Yes.

10 A No.

11 Q Okay. Do you recall what occurred inside your office

with

12 Mr. Gilles?

13 A 1 do remember him reviewing the policy and him filling

out a

14 solicitation for us.

15 Q Okay. Do you recall--okay.

54a

16 MS. MURRAY: Would you mark this as Exhibit 2,

please? |

17 (PLAINTIFF'S EXHIBIT 2 MARKED)

18 Q Do you recall this document?

19 A Uh-huh.

20 Q What is that documents?

21 A This is our sales and solicitation policy.

22 Q Do you recall giving that document to Mr. Gilles?

23 A Yes.

24 Q When did you give that to Mr. Gilles?

25 A In my office.

CROSSROADS COURT REPORTING [34]

1 Q Do you recall writing--underlining the sentence in the

2 policy?

3 A No, I don't.

4 Q Okay. Do you recall writing the name on the bottom of

the

5 page?

6 A That's not my handwriting.

7 Q Okay. Do you remember what you told Mr. Gilles about

the

8 policy?

9 A No--verbatim, no.

10 Q What do you recall to the best of your recollection?

11 A That we had designated an area in front of the student

union

12 as the spot for him to speak, and he was welcome to

speak

13 there.

14 Q Okay. Can Mr. Gilles--is there anything that Mr. Gilles

15 could say on campus, and it not be considered

solicitation?

16 A I'm not following.

17 Q Okay. In the--can you look at the definition section of

5Sa

18 what solicitation is?

19 A Uh-huh.

20 Q It's in the third paragraph.

21 A Sure.

22 Q Is there anything that Mr. Gilles could say on campus

that

23 would not be--that would not meet that definition of

24 solicitation?

25 A Again, I'm not sure what you're asking. Could he just

come

CROSSROADS COURT REPORTING [35]

1 on and talk to people; is that what you're saying?

2Q Yes.

3 Al assume he would be welcome to come on campus.

4 Q When Mr. Gilles was told to go to the--to your office to

5 fill out a solicitation request, did you know what he was

6 going to say to students on that day?

7 A Do I know? I would not know what he was going to say.

8 Q Okay. Do you know if Mr. Hensley, Chief Hensley,

knew what

9 Mr. Gilles was going to say?

10 A I would not know that.

11 Q Okay. So do you think it was premature to have Mr.

Gilles |

12 fill out a solicitation request without having known what

13 was going to say that day?

14 A No, he was an outside person to come on campus, and

he was--

15 if he's an outside group wanting to come on and speak on

16 campus, he would need to fill this out.

17 Q He would need to fill what out?

18 A I'm sorry. The sales and solicitation request.

56a

19 Q So am I understanding you that it doesn't really have to

20 with whether or not someone's speech is solicitation so

much

21 as if they're an outside group, they're required to fiil out

22 a form?

23 A If it's an outside group that has not been asked to come

24 campus, and they want to come on campus to speak, then

they

25 would fill this out, the sales and solicitation request.

CROSSROADS COURT REPORTING [36]

1 Q All right. What if just--so any group who comes onto

2 campus, any individual who is not--okay. So the way I'm

3 understanding is that any outside group, any outside

4 individual who is coming onto campus, even if their speech

5 doesn't qualify as solicitation, they still need to fill out

6 a solicitation request; is that correct?

7 A No, that's not correct because, again, if they're invited by

8 the university, then they wouldn't have to fill this out.

9 But if it's an outside group that is not invited, then we

10 ask that they fill this out so that we're aware of who is on

11 our campus.

12 Q Okay. Would you take a look at this?

13 MS. MURRAY: And would you please mark it as Exhibit

14 (PLAINTIFF'S EXHIBIT 3 MARKED)

15 Q Do you recall that form?

16A Yes.

17 Q What is that form?

18 A This is the request that Mr. Gilles filled out in 2002.

19 Q Okay. What location did you approve on this--on Mr.

20 Gilles's request for solicitation approval?

~ 21 A The Beckes Student Union.

S7a

22 Q What was Mr. Gilles's preferred location on that day?

23 A He wrote down west library lawn.

24 Q Why didn't you cross that out when you signed the

form?

25 AI don't know.

CROSSROADS COURT REPORTING [37]

1 Q Okay. And, again, did you go by and see the Campus

2 Christian Fellowship's table when they were handing out

3 watermelon on August 29, 2002?

4 AI did not.

5 Q Did you see the table when you were informally

escorting Mr.

6 Gilles back to your office?

7 A [hadn't gotten that far.

8 Q Okay. Were you aware that they were handing out

watermelon

9 on that day?

10 A I can't say for sure that I was.

11 Q Why did you tell Mr. Gilles that he could not engage in

12 speech in the west library lawn?

13 A I was following the policy that we had set up for the

14 designated area on campus for solicitation, which would

15 the brick walkway in front of the union.

16 Q Okay. And looking again at the solicitation policy that

17 states that there is a designated area, the sentence before

18 that states that you can, "notify appropriate university

19 personnel regarding the campus location of a solicitor". Is

20 that correct that the policy reads that?

21 A That's correct.

22 Q Why couldn't you have notified university personnel

that Mr.

23 Gilles wanted to use the library lawn as a place for

24 solicitation?

58a

25 A Because that wasn't part of what the policy states.

CROSSROADS COURT REPORTING [38]

1 Q Is there anything on the--could you refer to Exhibit 3?

2 A This?

3 Q Yes, it is the solicitation form Mr. Gilles filled out.

4A Yes.

5 Q Is there anything on that form that would indicate that

Mr.

6 Gilles wanted to engage in solicitation on the campus?

7 A I believe it states here that it would be an open forum.

8 Q An open forum is to me a descriptive word. What is--

was

9 there anything that would be--state specifically what Mr.

10 Gilles had intended to do on the campus that day?

11 A It doesn't state here. That's the only words on here on

the

12 solicitation request.

13 Q How did you have any knowledge--if there was nothing

on the

14 form to indicate that Mr. Gilles wanted to engage in

15 solicitation, how did you know Mr. Gilles was going to

16 engage in solicitation?

17 A In--without knowing exactly what the conversation

was, |

18 can't say what we talked about.

19 MS. MURRAY: Would you please mark this as Exhibit

20 (PLAINTIFF'S EXHIBIT 4 MARKED)

21 Q Okay. Thank you. Do you recall this exhibit?

22 A Yes.

23 Q What ts this?

24 A This is an affidavit that | had for court.

25 Q Would you turn to page 3, please? Is that your

signature?

59a

CROSSROADS COURT REPORTING [39]

1A Yes.

2 Q Did you affirm that this document is true and correct?

3 A Yes.

4 Q Would you look at paragraph 5, please?

5 A I'm not--

6 Q Line 5, page 1.

7 A Okay.

8 Q The fifth line states that, "In order to carry out its

9 mission of education, Vincennes University has adopted a

10 Sales and/or Solicitation Policy which is attached as

11 Exhibit A.” Is that correct? ,

12 A That's correct.

13 Q How does the Sales and/or Solicitation Policy advance

the

14 educational mission of the university?

15 A In this case it would be a way for us to be aware of the

16 people on campus, and it would allow us reasonable

notice

17 when we're going to have people from the outside groups

18 coming in that weren't invited. |

19 Q Looking back to Exhibit 1--

20 A This one?

21 Q Yes. Is the term, invited or uninvited, in that policy?

22 A No, it's not.

23 Q How did the term, uninvited and invited, come to be a

factor

24 concerning the policy?

25 A Well, when we wrote it, you know, we wrote that with

that

CROSSROADS COURT REPORTING [40]

1 thought in mind.

60a

2 Q Okay. Was there any reason that you just didn't say

policy

3 for outsiders?

4 A No, not that I'm aware of.

5 Q Would you look to paragraph 7 of Exhibit 4? It states

that,

6 "Since the adoption of the policy, the open areas of the

7 campus have not been open to outside speakers."

8 A That's correct.

9 Q Why is that the case?

10 A The outside speakers--and, again, the policy states that

11 would have the designated area in front of the union as

that

12 area on campus.

13 MS. MURRAY: Would you mark this as Exhibit 5,

please?

14 (PLAINTIFF'S EXHIBIT 5 MARKED)

15 Q Do you recognize Exhibit 5?

16 A Yes.

17 Q Do you need a moment to review it?

18 A Please.

19 (WITNESS EXAMINES DOCUMENT)

20 A Okay.

21 Q Does this letter reference the Gideons group?

22 A Yes.

23 Q Are the Gideons an outside group, or are they a student

24 organization?

25 A They are an outside group.

CROSSROADS COURT REPORTING [41]

1 Q In the affidavit that we just referenced, it states that

2 since the passage of the policy, outside groups have not

3 been permitted on campus. This was in paragraph 7 of the

4 affidavit.

6la

5 A They had not been permitted on the open areas; is that

what

6 you mean?

7 Q Well, paragraph 7 of the affidavit says outside speakers

8 have not been permitted following the sales or solicitation

9 policy?

10 A Didn't say not permitted. It says not open to outside

11 speakers.

12 Q Okay. Do you know what activity the Gideons are

involved in |

13 when they visited the campus? ;

14 A The Gideons pass out Bibles.

15 Q Okay. Do you know where the Gideons pass out

Bibles?

16 A There are a couple different locations on campus.

17 Specifically, I don't know.

18 Q Okay. Does the letter specifically identify the area

where

19 the Gideons pass out Bibles?

20 A No, it does not.

21 Q Do you know why Scott Shipman was not required to

identify

22 the Beckes Student Union brick walkway as the location

23 pass out Bibles?

24 A As Christian Campus Fellowship is a student

organization at

25 Vincennes University, they invited the Gideons on

campus to

CROSSROADS COURT REPORTING [42]

1 do this, so they were allowed to be on campus.

2 Q Do you know if this sponsorship possibility or option for

3 outside groups was communicated to Mr. Gilles?

4 A | don't remember that.

62a

5 Q Is the possibility of sponsorship set forth in the policy

6 for solicitation?

7 A No, it was not.

8 Q Do you know why it was not?

9 ANo.

10 Q How long has there been a practice to allow a student

11 organization to sponsor an outside group?

12 AA practice?

13 Q How long has that been going on?

14 A Student groups have brought people on campus for

time. That

15 happens quite a bit.

16 Q Okay. Why weren't the Gideons required to fill out a

17 solicitation form?

18 A They did.

19 Q Were they--did they have to do that--the letter that I

just

20 showed you looks as if Scott Shipman was merely

notifying

21 you of their visit, so it does not appear to be a

22 solicitation form?

23 A This letter is not a solicitation form, but the Gideons

24 would have been required to fill out one, also. But this

25 form would have verified that they were inviting the

Gideons

CROSSROADS COURT REPORTING [43]

1 to campus, this letter.

2 Q Do you consider handing out free Bibles solicitation?

3 A Do I--

4 Q Do you consider handing out free Bibles solicitation?

5 AI would not.

6 Q Okay. So why would the Gideons be required to fill out

7 form if that wouldn't constitute solicitation?

63a

8 A Well, again, it would be an outside group or the

possibility

9 of an outside group; but with Christian Campus Fellowship

10 inviting them, then they were able to do the distribution.

11 Q Do you know where the 2003 solicitation form of the

Gideons

12 is?

13 A No, I do not.

14 Q That was not something that was provided in the

defense

15 disclosures.

16 A I don't know why it wouldn't be in there.

17 Q What activities can an outside group get sponsored for

by a

18 student group?

19 A I'm not--

20 Q Okay. You permitted the Gideons to be sponsored to

enable

21 them to pass out Bibles. What--

22 A That's not something that I--I mean, the relationship

with

23 the Christian Campus Fellowship and the Gideons was

not

24 something that I allowed. I mean, that was just something

25 that was formed. But then the Christian Campus

Fellowship

CROSSROADS COURT REPORTING [44]

| would invite them here. I guess student groups can invite

2 anyone to campus.

3 Q Do you place any restrictions on who a student group

yan

4 sponsor to engage in activity on the campus?

5 A We have not.

64a

6 Q Since a location was not specified in the Gideons--for

the

7 Gideons in that letter, could the Gideons have passed out

8 Bibles anywhere on campus?

9A Yes.

10 Q Would that include the library lawn area?

11 A It could.

12 Q Do you know if it did?

13 AI do not know.

14 Q Do you know the exact date the solicitation policy that

15 looked at as Exhibit 1 was put into effect?

16 A I don't know the exact date. That might be something

that

17 we have here on file.

18 Q What is your best recollection of when that occurred?

19 A It seems it was the summer of 2002. Go over the

minutes or

20 something.

21 MR. SIEWERS: It was June 26th of '02.

22 MS. MURRAY: Thank you.

23 MR. SIEWERS: Here's the document, if you want.

24 MS. MURRAY: Okay. Thank you.

25 Q I don't recall if you stated whether or not the Gideons

CROSSROADS COURT REPORTING [45]

1 filled out a request for 2003 or just if you didn't have

2 that; do you recall?

3 A What I said was I do not recall if they did or not or why

4 was not there.

5 Q Okay. When were the 2002 solicitation requests

discarded?

6 A We would have gotten rid of those at the end of the year.

7 Q Okay.

65a

8 A We usually keep--we kept them through the year, during

the

9 school year.

10 Q Are you aware of the letter that your attorney sent to

our :

11 office in the fall of 2002?

12 A No, I'm not.

13 Q Okay.

14 A No.

15 MS. MURRAY: Can you mark this, please?

16 (PLAINTIFF'S EXHIBIT 6 MARKED)

17 Q Would you read the first line of that letter? And, first of

18 all, would you take a moment to see who signed it?

19 A Uh-huh. Okay.

20 Q Okay. Do you recall reviewing that letter at any point?

21 AI don't remember.

22 Q Would you read the first line?

23 A "Our office represents Vincennes University. I am

writing

24 in response to your November 7, 2002 correspondence

25 regarding James Gilles.”

CROSSROADS COURT REPORTING [46]

1 Q Would you also look on the second page where a

courtesy copy

2 was provided to you?

3 A Uh-huh.

4 Q If you were put on notice concerning possible litigation

due

5 to Mr. Gilles's 2002 visit, why were the 2002 forms

6 discarded?

7 MR. SIEWERS: I'll object that he was put on--to the

» characterization that he was put onto notice as to

9 possible litigation, but go ahead and answer.

66a

10 A I don't have a reason why they weren't. We had never

kept

11 them before.

12 Q How long would you keep a solicitation?

13 A For the academic school year.

14 Q The academic school year. So that means in May--does

that

15 mean in May of 2003 the 2002 forms were discarded?

16 A As a practice, that would be about right.

17 Q Okay. Thank you. Would you refer back to your

affidavit

18 that we had looked at a moment ago? I believe that's

19 Exhibit 3.

20 A Hold on here. Yes.

21 Q Would you mind looking at paragraph 17, please?

22 A Yes.

23 Q Paragraph 17 states that the solicitation policy was

24 designed to prevent disruption. Do you know if the term,

25 disruption, appears in the solicitation policy?

CROSSROADS COURT REPORTING [47]

1 A i do not see it.

2 Q Does the policy define disruption at all?

3 ANo.

4 Q Does the policy discuss solicitation or sales that could be

5 disruptive?

6 A I'm sorry. I didn't hear.

7 Q Does the policy--is there other speech that could become

8 disruptive on campus that may not be sales or solicitation?

9 A Is that started here in this policy?

10 Q Yes.

11 A It is not stated in this policy.

12 Q Okay. Is there any other university policy that

addresses

13 disruptive speech?

67a

14 A There would--the student conduct code would address

15 disrupting university events or different things like that.

16 Is that what you are asking?

17 Q [ am asking concerning any policy that you're aware of

that

18 discusses disruption?

19 A The student conduct code, I know, does.

20 Q Does that address student conduct or outside conduct?

21 A It's a student conduct code.

22 Q Is there any other policy that defines either faculty

23 disruption or outsider disruption?

24 A Not that I'm aware of.

25 MS. MURRAY: Excuse me just a second.

CROSSROADS COURT REPORTING [48]

1 MR. SIEWERS: Can we take about a two-minute break,

2 rest room break?

3 MS. MURRAY: Sure.

4 MR. KELLUM: Sure.

5 (A SHORT BREAK WAS TAKEN)

6 Q The next exhibit I want you to look at, please, is

7 Defendants’ Answers to Plaintiff's First Set of

8 Interrogatories. | was wondering maybe if your attorney

9 would have that.

10 MS. MURRAY: Do you know?

11 MR. SIEWERS: Yeah.

12 MS. MURRAY: Thank you.

13 (PLAINTIFF'S EXHIBIT 7 MARKED)

14 Q Okay. Let me take this one back from you. Would you-

-do

15 you recognize the document you're looking at?

16 A Yes.

17 Q Would you look at page 4, please?

18 A Is that your signature on page 4?

19 A Yes, it is.

68a

20 Q Did you certify that this document is true and correct?

21 A That is correct.

22 Q And what is this document?

23 A This is the interrogatories again regarding questions

24 concerning this case.

25 Q Thank you. Would you look at interrogatory number

12,

CROSSROADS COURT REPORTING [49]

1 please? In interrogatory number 12 you identified

2 individuals, entities and organizations that had engaged in

3 expression on Vincennes University campus over the last

five

4 years who were not sponsored by anyone affiliated with

the

5 university or a student organization registered with

6 Vincennes University; is that correct?

_ 7A That's correct.

8 Q In your answer you identified in "C" the Gideons as a

group

9 that had engaged in expressive activity without being

10 sponsored?

11 A That is correct.

12 Q What do you recall about the Gideons's visit when they

were

13 not sponsored?

14 A They were asked to stay in front of the student union on

the

15 brick walkway.

16 Q When was the visit of the Gideons prior to them being

17 sponsored by another group?

18 A When was it?

19 Q Please.

20 A It would have been--i don't know for sure. I would say

21 2002.

69a

22 Q Okay. When the Gideons were at the campus in 2003,

we just

23 looked at the letter from Scott Shipman. So it would have

24 to be, I would assume, before 2003?

25 A That would be my guess.

CROSSROADS COURT REPORTING [50]

1 Q Okay. When the Gideons were there in what you assume

to be

2 2002, or previous--do you think it was 2002, or do you

think

3 it's previous to 2002?

4 A I believe they'd been there prior, but 2002 would have

been

5 after the new policy came into effect.

6 Q Okay. Were the Gideons there prior to 2002?

7 A They came every year.

8 Q Okay. And what do you recall about the event when the

9 Gideons were on campus in 2002?

10 A I remembered that they contacted our office, and we

11 requested that they stay in front of the union.

12 Q Okay. Did the Gideons fill out a solicitation form in

2002?

13 AI would say they would have.

14 Q Okay. And where do you recall the Gideons handing

out

15 Bibles in 2002?

16 A In front of the union.

17 Q Okay. Do you know when in 2002 the Gideons passed

out

18 Bibles?

19 A I wouldn't know.

20 Q Okay. Before the passage of the solicitation policy that

21 was marked as Exhibit |, did the Gideons engage in

speech in

70a

22 areas other than the student union and other than the brick

23 walkway at the student union?

24 A When you say engage in speech, do you mean the

passing out

25 of the Bibles?

CROSSROADS COURT REPORTING [51]

1A Yes.

2 Q They would have--prior to the passage, they would have

done

3 that in other areas besides the union.

4 Q Were you the one who came up with the idea that the

brick

5 walkway should be the designated spot for groups to

solicit?

6 A I don't think that was me. That area was brought up or

7 assigned through discussion.

8 Q And what do you recall about that discussion?

9 A We wanted it to be a reasonable place where students

would

10 be, and we felt the student union was that reasonable spot.

11 Q And how is the brick--the designated brick walkway in

front

12 of the student union more ideal than other areas of

campus?

13 A It's not necessarily more ideal. We just felt it was

14 reasonable.

15 Q Okay. Do you think that the student union area--the

brick

16 walkway at the student union is more reasonable than the

17 library lawn?

18 A I'm not--

19 Q I'll rephrase that. Do you think that the designated brick

20 walkway in front of the student union is an area that's

Tila

21 suited for speech than the library lawn? .

22 A I don't know that it would be more, but it did provide us

23 with some other things as far as being aware. Our campus

24 police is right next door. My office is in the student

25 union. So it seemed to be a reasonable area for us to be

CROSSROADS COURT REPORTING [52]

1 able to use for free speech.

2 Q Do you know what other areas were brought up in the

3 discussion in choosing a location to designate as a place

4 for solicitation?

5 A I really don't remember any other areas that we

discussed.

6 Q Do you know if the west library lawn was discussed as a

7 possible location to engage in speech?

8 A I don't believe it was.

9 MS. MURRAY: Would you mark another exhibit, please?

10 And actually, I only have one copy, also. This is a

11 Verified Complaint.

12 MR. SIEWERS: Your complaint?

13 MS. MURRAY: Yes, our Verified Complaint and then

also

14 your amended answer if you don't mind.

15 MR. SIEWERS: Okay.

16 MS. MURRAY: I'm sorry. I didn't have copies. You can

17 mark mine. Thank you.

18 (PLAINTIFF'S EXHIBIT 8 MARKED)

19 MR. SIEWERS: | have notes on my copy of the

complaint,

20 so--

21 MS. MURRAY: Okay. She marked mine, so he just has

22 be able to look at it unless you don't want him--

23 MR. SIEWERS: Yeah, it's fine if John looks at it.

24 MS. MURRAY: Yeah.

72a

25 MR. SIEWERS: I don't necessarily want you to look at

CROSSROADS COURT REPORTING [53]

1 it.

2 MS. MURRAY: No, I won't.

3 MR. SIEWERS: Okay.

4 Q Would you turn to paragraph 27 of the complaint?

5 A Okay.

6 Q Paragraph 27 states that, "During the course of the

calendar

7 year of 2003, Vincennes University hosted numerous

events

8 and expressive activities that could constitute an act of

9 ‘enticing a person to action." And then it goes on to list

10 various events. Next, could we look at the Amended

Answer?

11 MS. MURRAY: Could you mark this, also?

12 (PLAINTIFF'S EXHIBIT 9 MARKED)

13 Q Do you recognize the Amended Answer?

14 A Yes.

15 Q Even though your signature is not on the Amended

Answer, do

16 you recall approving this document before it was sent to

the

17 court?

18 A I remember looking at this, yes.

19 Q Okay. Would you look at paragraph 27--

20 A Yes.

21 Q --of the Amended Answer? It states that, "The

defendants

22 admit that numerous events including those listed were

held

23 on the Vincennes University campus which were