Opposition Brief — Gilles v. Blanchard (No. 06-1617)

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No. 06-1617

IN THE

Supreme Court of the United States

JAMES G. GILLES,

Petitioner,

v,

BRYAN K. BLANCHARD, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

DANIEL L. SIEWERS

Counsel of Record

BRENT STUCKEY

Hart Bei, LLC

513 Main Street

P.O. Box 979

Vincennes, IN 47591

(812) 882-8935

Attorneys for Respondents

210219 ce

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

i

QUESTIONS PRESENTED

I. Whether Petitioner presented compelling reasons to

grant the Petition when this Court has provided clear guidance

on the forum classification analysis of public property and

the circuits have consistently classified property based on

the characteristics of the property?

II. Whether Petitioner presented compelling reasons to

grant the Petition when the Seventh Circuit held that

uninvited persons had not been permitted to use the library

lawn for public speaking, that no forum had been opened,

and that the University’s solicitation policy was therefore

not germane to deciding the case?

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

The parties to the proceeding are Petitioner, James G.

Gilles, and Respondents, Bryan K. Blanchard, in his official

capacity of President of Vincennes University, and John

Livers, individually and in his official capacity as Dean of

Students for Vincennes University. The Respondents are

natural persons. .Vincennes University is a public, state

supported university created by the Indiana State Legislature.

See Ind. Code § 23-13-18-1, et seq.

iti

TABLE OF CONTENTS

SE PI Soe Si wid hase xt chaedaeun ss

Parties to the Proceeding and Rule 29.6 Statement ...

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Reasons for Denying the Petition ...............

I. This Court has provided clear guidance

regarding the application of forum analysis

to public properties and there is no conflict

among the Circuit Courts regarding the

application of forum analysis to open areas

on public university campuses. ...........

A. The Seventh Circuit conducted forum

II 6k ccna heehee ks

B. The Seventh Circuit followed this

Court’s clear guidance regarding the

application of forum analysis principles

to open areas on public university

CAMPUSES. 2. ccc cere cserceereccves

iv

Contents

Page

C. No Circuit Court has held that an open

area located within a public university

campus is a traditional public forum. ... 11

D. The Seventh Circuit’s decision does not

conflict with decisions of this Court. .. 15

II. The solicitation policy does not permit

discretion related to speech on the library

Ns ood wk oe AE ee re ea 17

Coenen ...<.. <x. eben nas tee 20

TABLE OF CITED AUTHORITIES

Page

Cases:

ACLU Student Chapter Univ. of Md., College Park

v. Mote, 321 F. Supp. 2d 670 (D. Md. 2004) .... 12

ACLU of Nevada v. City of Las Vegas,

Foo ae LOPES CH. 2008) ice ccc eaecees 6,7

Adderly v. Florida,

Pe ai ee POE 6 6 86a BARR AAS ee RS 10, 11, 16

Alabama Student Party v. Student Govt. Ass’n.,

O67 F.26 1364-011" Cir. F969) oo co ce as 10, 11

American Civil Liberties Union v. Mote,

$23 F.3d 436 (4 Cir, 2005) 2.6 2. eee 5, 6, 11, 13

Arkansas Educ. TV Comm'n. v. Forbes,

ge et rrr eee errr 3,8, 11

Atlanta Journal and Constitution

v. City of Atlanta Dep t. of Aviation,

ae Cae PCE Gt OED bv cv ncscuece tax 19

Bowman v. White,

444 F.3d 967 (8" Cir. 2006) ........ 9,11, 12, 13, 14

Brister v. Faulkner,

214 F.3d 675 (5® Cir. 2000), cert denied,

ee Sac ED: 6 Sb cd Wh tka K SAR dR OS 14,15

vi

Cited Authorities

Page

Child Evangelism Fellowship of MD

v. Montgomery County Pub. Sch.,

ee Sle gg Fe.) Ee ae 19

Cornelius v. NAACP Legal Defense

and Educ. Fund, Inc.,

OTF Wes FA, bs bch eee dseaks 5, 8, 14, 16, 17

First Unitarian Church v. Salt Lake City,

308 F390 BERS? Gr, FOUR) ook s 6 vce cines 6, 7

Greer v. Spock,

BASU. Bee CATO) sow ci ih ha se esen’s 5, 10, 11, 16

Griffin v. Secretary of Veterans Affairs,

288 F.3d 1309 (Fed. Cir. 2002), cert. denied,

ee Sr ee EE 5 oes Ss Cea wb Raa 19

Hayes County Guardian v. Supple,

969 F.2d 111 (5" Cir. 1992), cert denied,

Pe a PT EAE ok a oe basa ts 10, 11, 13, 14

Healy v. James,

Oe Sas CP BP PA) 0 ois Kd oe cones enwe 9

Int’l. Soc. for Krishna Consciousness, Inc. v. Lee,

gi Eo ee Smee rer re 1]

Justice for All v. Faulkner,

S10 Te Peas Go. BNO) vs vaca ewsuvsvees 11, 14

vii

Cited Authorities

Page

Lakewood v. Plain Dealer Publ’g. Co.,

ee Cac PO EE ok aks Saw ee ks eek 17,19

Lederman v. United States,

re ee a Gee Oe) os ic boas heen 6,7

Lewis v. Wilson,

EAS Wee DUTT Ae CR BOON vives cba ensasens 19

Lloyd Corp. v. Tanner,

iF RAEN OTE E Si 0k 4 EEN ES OR Clee 16

Nat’l. Endowment for the Arts v. Finley,

ae Ac OS OED 5 5 401 Oe be 16

Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n.,

WO Che BT CURD oa oink BVA ee Oe ae 3, 8,17

Ridley v. Massachusetts Bay Transp. Auth.,

SPR Ee CORE hs BE Re AS ee eC ee OSes 19

Rosenburger v. Rector & Visitors of the

Univ. of Virginia, 515 U.S. 819 (1995) ........ 5

United States v. Grace,

gE Rees Rt) nae 10, 11, 12, 13, 15

United States v. Kokinda,

hbo e SY kia, | ee ere rare S 10, 11

viii

Cited Authorities

Page

United States v. American Library Ass’n. Inc.,

I RIED Seti e dies seeeesewnn 16

U.S. Postal Service v.

Council of Greenburg Civic Assns.,

NE cn apes ceed eee rv sasee 17

Widmar v. Vincent,

EOE MOED cca cv cet se newceenes passim

Statute:

Be, Come © 23-13-16-1, ef seq. .. 1... csc cee ii

|

STATEMENT OF THE CASE

I. Statement of Facts

Vincennes University is a public institution with 5,000

students at its main campus in Vincennes, Indiana, a town of

18,000. (Pet. App. at la).' James G. Gilles (“Gilles”) is an

itinerant preacher who came to the University campus,

uninvited, and attempted to preach on a lawn in the middle

of campus next to the library. (Pet. App. at 1a-4a). The library

1. Petitioner provides this Court with extensive “facts” in his

Statement of the Case. Many of the facts provided are immaterial to

the consideration of the questions presented for review and other

facts are misstated. Gilles fails to point out in his Statement of Facts

that the Seventh Circuit determined all of the speech activities by

outside groups and individuals, except that of the Duncans in 1998,

were by invitation from members of the University community.

(Pet. App. at 9a). The claim Gilles was forced to speak on the brick

walkway in front of the Student Union rather than the library lawn

because Livers declared his speech to be solicitation is a misstatement

as the library lawn was never opened as a forum to him as discussed

by the Seventh Circuit and in the body of this Response.

Consequeiitly, whether Gilles’ speech was classified as solicitation

or not, it was not permitted on the library lawn. The claim by Gilles

that he spoke on the library lawn in 2001 without interruption is a

misstatement as he was asked to leave. (Pet. App. at 2a). The claim

that other speakers whose speech falls within the policy’s definition

of “solicitation” are permitted to speak places other than the brick

walkway is a misstatement as it fails to recognize that all such persons

are members of the campus community or their invitees. The claims

‘that Gilles did not try to entice anyone to action and that the

designated area is not suitable for Gilles’ expressive activity are

argumentative. Respondents have limited their Statement of Facts

to those that are material in light of the Seventh Circuit’s decision.

Respondent’s Statement of Facts relies upon the District Court and

the Seventh Circuit’s recitation of facts.

2

lawn is not contingent to any public street or sidewalk.

(Pet. App. at 18a). Gilles was told he could preach only on a

brick walkway in front of the Student Union. (Pet. App. at

3a-4a). Gilles preached on the brick walkway, but he found

it not to his liking and filed suit. (Pet. App. at 4a, 15a).

The University Solicitation Policy limited solicitation

to a brick walkway in front of the Student Union. (Pet. App.

at 3a). Uninvited outsiders are permitted to solicit only on

the student union walkway. (Pet. App. at 15a). In contrast,

outside speakers invited by members of the university

community may use university facilities including the library

lawn. (Pet. App. at 10a-1 1a).

Gilles failed to present evidence that the library lawn

has been traditionally devoted to or set aside for expressive

use by the general public or otherwise purposely dedicated

for such purposes. (Pet. App. at 9a-10a; 18a). The Seventh

Circuit reviewed Gilles’ evidence regarding prior use of the

library lawn and found that all the expressive activities by

outsiders that had taken place on campus were conducted at

the invitation ef a member of the Vincennes University

community except for one occurrence in 1998. (Pet. App. at

9a-1 1a). |

II. Course of Proceedings

The District Court entered summary judgment in favor

of the Respondents and against the Petitioner. (Pet. App. at

14a). The District Court first noted that a determination had

to be made regarding the nature of Gilles’ preferred venue as

that determination determined the applicable level of scrutiny.

(Pet. App. at 17a-18a). The District Court reviewed the three

main types of forums identified by this Court being the

5

traditional public forum, the designated public forum, and the

non-public forum. (Pet. App. at 18a) (citing Arkansas Educ. TV

Comm'n. v. Forbes, 523 U.S. 666, 677 (1998)). Next, the District

Court explained that “traditional public fora are defined by the

objective characteristics of the property, such as whether ‘by

long traditional or by government fiat,’ the property has been

‘devoted to assembly and debate,’” and further explained that

designated public fora are created “by purposeful government

action to open the area for expressive activity.” (Pet. App. at

18a) (quoting Perry Educ. Ass’n. v. Perry Local Educators’

Ass’n., 460 U.S. 37, 45 (1983)).

After this review, the District Court found that there was

no evidence that the library lawn has “by long tradition or fiat

been devoted to or set aside for expressive use by the general

public,” and it further found that there was no evidence

Vincennes University purposely dedicated the area for

expressive use by the general public. (/d.). As a result, the district

court concluded that the subject area was not a public space “as

it relates to Gilles, an outsider to the campus and its community.”

(d.).

Given its forum determination, the District Court proceeded

to analyze the solicitation policy pursuant to the non-public

forum standard and concluded that the policy was viewpoint

neutral, reasonable, and tailored to accomplish the University’s

educational mission. (Pet. App. at 19a-20a) (citing Perry, 460

U.S. at 46 (1983)). Notably, as discussed below, the District

Court quoted Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981)

just like nearly all, if not all, courts that have determined the

forum classification of an area.on a public university campus.

The District Court also pointed out that the policy “does not

prohibit any speech at all but instead merely invites all to whom

it applied to solicit in the same designated area.” (Pet. App. at

19a).

4

The District Court indicated that “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 purpose are

to speak to students on moral topics and behaviors with the

hope that they will embrace his religious faith.” (Pet. App.

at 19a). The District Court specifically considered Gilles’

“due process concerns” and found that the Policy was “neither

vague nor ambiguous.” (Pet. App. at 20a n.1). The District

Court further found that the Policy did not vest the Dean of

Students with any discretion but simply required him to

approve the date and time for the solicitation. (See id.).

Gilles appealed the District Court’s entry of summary

judgment, and the United States Court of Appeals for the

Seventh Circuit affirmed the District Court. (Pet. App. at

la-13a). The Seventh Circuit clearly identified the library

lawn as a non-public forum as to Gilles, comparing it to the

large auditorium at the Justice Department in Washington.

(Pet. App. at 5a). In fact, nearly the entire opinion sought to

determine whether the University had opened the library lawn

to expression by uninvited visitors to the University.

(Pet. App. at 6a-lla). The Seventh Circuit ultimately

acknowledged the library lawn was a “limited designated

public forum,” open to expression to those in the University

community and to those invited by the University community,

but indicated that explicitly holding as such was unnecessary.

(Pet. App. at 1 la-12a).

The Seventh Circuit found that no forum had been

opened because there was no evidence uninvited outsiders

had been permitted to use the lawn. (Pet. App. at 8a-9a).

Given this finding, the university could not have intended

for the solicitation policy to open the library lawn to all

outsiders who were not soliciting. (Pet. App. at 7a-9a). The

5

fact that the campus is not fenced and that outsiders are not

forbidden to stroll on the lawn did not serve to open a forum as

these persons were simply authorized to unobtrusively use the

property as a short cut or other pathway and are “classic

licensees.” (/d.). Since no forum had been opened, the University

was free to bar access to the lawn to outsiders just as the

university could bar outsiders from other portions of its property

as “[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),” (Pet. App. at Sa) (quoting Cornelius v. NAACP

Legal Defense and Educ. Fund, Inc. ,473 U.S. 788, 800 (1985)).

Importantly, just like the District Court, the Seventh Circuit

noted that courts reject the proposition “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 grounds or buildings.” (/d.) (quoting Widmar, 454 U.S. at

268 n.5). The Seventh Circuit acknowledged that a university

could not engage in viewpoint discrimination and open its spaces

to be used by some outsiders but exclude others because it

disapproves of their message, but it explained that a university

can use neutral criteria such as that outsiders must be invited to

speak on the campus by a faculty member or a student group.

(Pet. App. at 6a) (citing Rosenburger v. Rector & Visitors of the

Univ. of Virginia, 515 U.S. 819, 828-830 (1995); American Civil

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

Seventh Circuit noted that the difference between invited and

uninvited visitors is fundamental to a system of property rights

and that the invitation of other civilian speakers and

entertainment to Fort Dix did not convert Fort Dix into a public

forum or confer upon political candidates the constitutional right

to conduct campaigns there. (/d.) (quoting Greer, 424 at 838

n.10 (1976).

6

In conclusion, the Seventh Circuit found that the limits

Vincennes University placed on the use of the library lawn

“are consistent with limiting University facilities to activities

that further the interest of the University community” and as

a result “[t]he limits are constitutional.” (Pet. App. at 11a).

REASONS FOR DENYING THE PETITION

I. This Court has provided clear guidance regarding the

application of forum analysis to public properties

and there is no conflict among the Circuit Courts

regarding the application of forum analysis to open

areas on public university campuses.

A. The Seventh Circuit conducted forum analysis.

The Petitioner strains to show a conflict between the

Seventh Circuit’s decision below and decisions from other

circuits. In doing so, the Petitioner cites to various cases

discussing the factors to be considered in performing forum

analysis and implies that just because the Seventh Circuit in

this case and the Fourth Circuit in Mote, 423 F.3d at 444,

determined that an open area on a public university campus

was a non-public forum with respect to outsiders that these

circuits somehow failed to consider the property’s physical

and objective characteristics. (Pet. App. at 13a) (citing ACLU

of Nevada vy. City of Las Vegas, 333 F.3d 1092, 1099 (9 Cir.

2003); First Unitarian Church vy. Salt Lake City, 308 F.3d

1114, 1125-26 (10° Cir. 2002); and Lederman v. United

States, 291 F.3d 36, 41-44 (D.C. Cir. 2002)). In effect, the

Petitioner is arguing that the Seventh Circuit could not have

considered the objective characteristics of the property since

the conclusion reached was different than the Petitioner

wanted.

7

In fact, the Seventh Circuit’s decision was based entirely

on forum analysis and its determination that the library lawn

is part of a university campus which has not been opened for

speech activities by non-members of the campus community.

(Pet. App. at 5a, 9a-1la). The Seventh Circuit in fact

considered “(1) the actual use and purposes of the property

..., (2) the area’s physical characteristics, including its

location and the existence of clear boundaries delimiting

the area ..., and (3) traditional or historic use of both

the property in question and other similar properties.”

City of Las Vegas, 333 F.3d at 1100-1101.

The cases cited by Gilles are clearly distinguishable on

their facts. First Unitarian Church, 308 F.3d at 1126, and

City of Las Vegas, 333 F.3d at 1102, dealt with government

properties constituting public thoroughfares, and Lederman,

291 F.3d at 41-42, dealt with a sidewalk located on the

grounds of the U.S. Capitol which are a traditional public

forum as a seat of government. When the classification of

open areas on public university campuses is examined, it

becomes completely clear that this Court has provided clear

guidance and that there is no conflict among the circuits.”

2. In a footnote to the Petition, the Petitioner claims that the

Seventh Circuit refused to consider the particular access sought by

the speaker. (Pet. p. 12 n.4). The Seventh Circuit certainly made no

mistake about where Gilles wanted to speak. It clearly discussed the

library lawn rather than other parts of the campus. The Seventh

Circuit did not discuss the classification of all portions of the campus

as to all persons as implied by Gilles. It simply determined-that the

library lawn was a non-public forum as to Gilles.

8

B. The Seventh Circuit followed this Court’s clear

guidance regarding the application of forum

analysis principles to open areas on public

university campuses.

This Court has provided extensive guidance on the forum

classification of public property for First Amendment purposes.

See Arkansas Educ. Television Comm’n. v. Forbes, 523 U.S.

666, 677 (1998); Cornelius v. NAACP Legal Defense and Educ.

Fund, Inc., 473 U.S. 788, 802, 806 (1985); Perry Educ. Ass’n.

v. Perry Local Educators Ass’n., 460 U.S. 37, 45-46 (1983);

e.g. Certainly, this Court cannot provide specific guidance with

respect to each unique piece of public property. The Seventh

Circuit’s decision in this case does not conflict with the guidance

of this Court. Throughout this case and in his Petition, Gilles

has continually refused to acknowledge that a university campus

is objectively different and serves a different purpose than a

public sidewalk or a public park. In contrast, this Court has

recognized the unique characteristics of a university campus

stating as follows:

A university differs in significant respects from

public forums such as streets or parks or even

municipal theaters. 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 and 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 grounds or buildings.

Widmar, 454 U.S. at 267 n.5. Even with respect to students

and members of the campus community, Widmar goes on to

9

affirm the validity of cases such as Healy v. James, 408 U.S.

169, 188-189 (U.S. 1972), “that recognize a university’s right

to exclude even First Amendment activities that violate

reasonable campus rules or substantially interfere with the

opportunity of other students to obtain an education.” Widmar,

454 U.S. at 277. As a result, a university can impose “reasonable

regulations compatible with [its] mission” of education such as

denying access to non-students. Jd. at 267 n.5.

Gilles wants to explain away Widmar by focusing on the

last sentence in footnote 5 and the use of the word “all” claiming

that this Court implicitly recognized Gilles’ right to have access

to at least “some” university property. Vincennes University in

fact did permit Gilles access to some of its property as it

permitted Gilles to preach on the brick walkway in front of the

Student Union where he would encounter a steady stream of

students. (Pet. App. at 3a-4a, 7a). Nevertheless, the clear

meaning of the last sentence in footnote 5 is simply that a

university is entitled to reasonably control its property. The last

sentence in footnote 5 does not impact the clear indication that

university property is to be treated differently than streets or

parks.

The Circuit Courts have not misunderstood the clear

direction of Widmar as none has held that an open area on a

university campus is a traditional public forum when that area

can be distinguished from a municipal sidewalk. See (Pet. App.

at Sa) (quoting Widmar, 454 U.S. at 268 n.5); Mote, 423 F.3d at

443 (quoting Widmar, 454 U.S. at 267 n.5 and recognizing that

“a university differs in significant respects from public forums

such as streets or parks or even municipal theaters”); Bowman

v. White, 444 F.3d 967, 978 (8" Cir. 2006) (quoting Widmar,

454 US. at 268 n.5 and recognizing that “[a] university differs

in significant respects from public forums such as streets or

10

parks or even municipal theaters.”); Alabama Student Party

v. Student Govt. Ass’n., 867 F.2d 1344, 1354 n.5 (11% Cir.

1989) (Tjoflat, J., dissenting) (quoting Widmar, 454 U.S. at

268 n.5 and discussing footnote 5 in depth after a

determination that the campus fell within the “limited public

forum” category of government property); Hayes County

Guardian v. Supple, 969 F.2d 111, 116-117 (5® Cir. 1992),

cert denied, 506 U.S. 1087 (1993) (quoting Widmar, 454 U.S.

at 267 n.5 and holding the that subject areas were designated

public fora for the speech of students).

Widmar'’s direction that the open areas of university

campuses are not traditional public forums is consistent with

this Court’s prior decisions. In Greer v. Spock, 424 U.S. 828,

836-838, 838 n.10 (1976), this Court held that Fort Dix did

not become a public forum because the public was permitted

to freely visit Fort Dix and civilian speakers and entertainers

had been invited to appear at Fort Dix.’ Also, in Adderly v.

Florida, 385 U.S. 39, 47 (1966) this Court held that the open

grounds surrounding a jail were not a public forum.

Subsequent opinions of this Court reinforce Widmar.

United States v. Grace, 461 U.S. 171, 180 (1983), instructs

that streets and sidewalks located within “some special type

of enclave” such as a university are not traditional public

forums. Justice Kennedy‘s controlling concurrence in United

States v. Kokinda, 497 U.S. 720, 730, 738 (1990), does not

call Widmar into question. His concurrence held that a

sidewalk leading to the entrance of a post office was “more

than a non-public forum” as a result of “the wide range of

3. Similarly, as the Seventh Circuit recognized, the library lawn

did not become a public forum because the public was allowed to

visit or because speakers and entertainers were invited by members

of the campus community.

11

activity” that the government had permitted to take place on

the sidewalk as individuals and groups had been permitted

to “leaflet, speak, and picket” on the postal premises. Gilles’

claim that Kokinda held that the sidewalk was a traditional

public forum is simply incorrect. Kokinda does not conflict

with the decision of the Seventh Circuit below as there was

no evidence of customary use of the library lawn by the

general public for First Amendment activities.

Finally, this Court “has rejected the view that traditional

public forum status extends beyond its historic confines.”

Forbes, 523 U.S. at 678 (citing Int’l. Soc. for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 680-681 (1992).

Taken together, Widmar, Greer, Adderly, Grace, Kokinda,

and Forbes conclusively establish that the open areas of a

public university are not traditional public fora.

C. No Circuit Court has held that an open area

located within a public university campus is a

traditional public forum.

All circuits that have considered the forum classification

of an open area on a public university campus, which can be

distinguished from a municipal sidewalk, have determined

the area was either a designated public forum or a non-public

forum depending on the relevant facts regarding past access

provided to the property and the identity of the speaker.

See Bowman, 444 F.3d at 977-980; Hayes County, 969 F.2d

at 118, Mote, 423 F.3d at 444; Alabama Student Party, 867

F.2d at 1354; Justice for All v. Faulkner, 410 F.3d 760, 767-

770 (5" Cir. 2005).

The only case discussed in detail by the Pctitioner is

Bowman, 444 F.3d at 978-980. In that case, the plaintiff was

12

represented by the same counsel as Gilles in this case.

See id. at 972. In Bowman, the Eighth Circuit held that three

open areas on the campus of the University of Arkansas were

designated public forums as a result of how the university

had treated the areas especially the fact that the policy

governing the use of university outdoor space permitted

speech by both university and non-university entities.

See id. at 978-980. The policy itself offered strong evidence

that the university intentionally opened the area as a

designated public forum. See id. at 978.

Importantly, prior to reaching its conclusion, the Eighth

Circuit stated that even though the University “‘possesses

many of the characteristics of a public forum’ such as open

sidewalks, ‘[it] differs in significant respects from public

forums such as streets or parks or even municipal theaters.”

Id.. (quoting Widmar, 454 U.S. at 268 n.5). The Eighth Circuit

indicated that the significant difference between a traditional

public forum and a university campus results from the fact

that “a university’s purpose, its traditional use, and the

government’s intent with respect to the property is quite

different because a university’s function is not to provide a

forum for ail persons to “talk about all topics at all times.”

Id. Instead, a university’s mission is education and to act as

a “‘special type of enclave’ devoted to higher education.”

Id. (quoting ACLU Student Chapter Univ. of Md., College

Park v. Mote, 321 F. Supp. 2d 670, 679 (D. Md. 2004) which

was quoting Grace, 461 U.S. at 180; citing Widmar, 454 U.S.

at 268 n.5). As a result, open areas “that might otherwise be

traditional public fora” are not when they are within the

boundaries of a university’s campus. /d.

13

As a result, the “particularly striking,” (Pet. at p. 16),

conflict between the decision of the Seventh Circuit in this

case and that of the Eighth Circuit in Bowman is actually

non-existent. In fact, the cases are strikingly consistent except

for the fact that in Bowman the University of Arkansas had

intentionally opened the subject areas for public discourse.

Therefore, the Seventh Circuit did not in fact take “a

divergent path.” (Pet. at p. 16).*

Similarly to Bowman, the Fourth Circuit in Mote, 423 at

44, determined that the University of Maryland campus “is

not akin to a public street, park or theater, but instead is an

institute of higher learning that is devoted to its mission of

public education.” The mission of the university “necessarily

focuses cn the students and other members of the university

community,” so as a result, the campus has not “traditionally

been open to the public at large, but instead has been a

“special type of enclave’ that is devoted to higher education.”

Id. (quoting Grace, 461 U.S. at 180). Mote specifically noted

that there was nothing in the record to indicate that prior to

the implementation of the challenged policy which limited

outside unsponsored persons and groups to two designated

areas on campus that “the campus was anything but a non-

public forum for members of the public not associated with

the university.” Jd. at 444.

The Fifth Circuit, in Hayes County, 969 F.2d at 116, also

consistently held that the outdoor grounds of the campus such

as the sidewalks and plazas of Southwest Texas State

4. The portion of the Bowman decision questioned by the

Seventh Circuit was the holding that the university could not limit

use of the campus by outsiders to five days once the university

allowed anyone to use its outdoor spaces rather than the forum

analysis itself. (Pet. App. at 7a).

14

University were designated public fora for the speech of

university students. In that case, the university had adopted

a specific policy opening the university grounds to both

students and non-students alike. See Hayes, 969 F.2d at 117.

As a result, Southwest Texas State University took action to

create a designated public forum.’

In contrast to the universities in Bowman and Hayes

County, Vincennes University did not open the library lawn

to non-students who had noi been invited by a member of

the campus community. A designated forum is created “only

by intentionally opening a non-traditional public forum

for public discourse.” Forbes, 523 U.S. at 677 (quoting

Cornelius, 473 U.S. at 802). A designated public forum is

not created through inaction or by permitting limited

discourse. See id.

The only case which has determined that property of a

public university was a traditional public forum is Brister v.

Faulkner, 214 F.3d 675 (5" Cir. 2000), (cert denied, 531 U.S.

985 (2000). That case is clearly distinguishable as it dealt

with university property adjacent to a city sidewalk and along

a city street which is “a unique piece of university property

that is, for all constitutional purposes, indistinguishable from

the Austin city sidewalk.” /d. at 683. Brister explained that

“there is no indication or physical demarcation of the public

5. The Fifth Circuit reached a nearly identical holding in Justice

for All, 410 F.3d at 767-770, where it held that the outdoor open

areas of the University of Texas at Austin were a designated forum

for student expression. In that case, the University had adopted

“Institutional Rules” which evidenced clear intent to create such a

forum. See id. at 770. Whether the University had opened its entire

campus to “unfettered expression by the general public” was not

before the Court. /d. at 767.

15

sidewalk, which is a public forum, and the university grounds,

which typically are not.” Id. at 682 (emphasis added).

The facts in Brister were quite similar to the facts presented

in Grace, 461 U.S. 171 (1983), which dealt with sidewalks

surrounding the grounds of this Court which were

indistinguishable from the sidewalks of Washington, D.C.,

and Brister heavily relied on Grace. In contrast, the library

lawn is in the middle of campus next to the university library

and is not contingent to any public street or sidewalk.

(Pet. App. at 2a, 18a).

As a result, there is uniformity in the treatment of open

areas On university campuses by the Circuit Courts. No circuit

has held that an open area of a campus distinguishable from

a city sidewalk is a traditional public forum. The Circuit

Courts have consistently applied the facts to the forum

analysis principles provided by this Court to determine if a

designated public forum has been opened and if so for whom.

All circuits have classified open areas on university campuses

as a general designated public forum, a limited public forum

for student expression, or a non-public forum depending on

the facts. This uniformity results from the clear guidance of

this Court.

D. The Seventh Circuit’s decision does not conflict

with decisions of this Court.

Gilles attempts to manufacture several conflicts between

the Seventh Circuit’s decision and decisions of this Court,

but none in fact exist. Gilles suggests that the Seventh Circuit

entirely disregarded forum analysis and applied private

property rules in its place. The Seventh Circuit’s decision is

actually based entirely on forum analysis and holds that the

library lawn, on the facts presented, is not a traditional public

forum or a designed public forum for use by the general

16

public. Once that determination was made, the Seventh

Circuit simply pointed out this Court’s repeated indication

that the 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.” (Pet. App. at 5a),

(quoting Greer, 424 U.S. at 836; Cornelius, 473 U.S. at 800;

Adderly, 385 U.S. at 47). The Seventh Circuit certainly does

not suggest that the government can bar public speaking from

traditional public forums as suggested by Gilles. (Pet. at

p. 20).° Regardless, this Court has indicated that forum

principles “are out of place” in certain circumstances which

involve neither a “traditional” nor a “designated” public

forum. United States v. American Library Ass’n. Inc., 539

U.S. 194, 205 (2003); Accord Nat’l. Endowment for the Arts

v. Finley, 424 U.S. 569 (1998).

Gilles incorrectly argues “the rules for private property

cannot be applied to public property.” (Pet. at p. 19) (citing

Lloyd Corp. v. Tanner, 47 U.S. 551, 563 (1972)). Lloyd Corp.

stands for no such proposition and simply held that First

Amendment rights did not extend to private property open

to the public. See id. at 570. Countless if not all rules for

private property apply to public property which has not been

opened as a public forum, and many of the rules for private

property apply to all public property. Gilles’ proposition

would effectively mean that public property could not be

controlled, developed, or transferred.

6. The Seventh Circuit also did not suggest that the Constitution

does not fully apply to public universities as suggested by Gilles.

(Pet. p. 10 n.3). Rather, the Seventh Circuit only noted that the

Constitution did not require public universities to bear extravagant

burdens (not required of private universities) just because they have

taxpayer support as a way of evening things out. (Pet. App. at 5a).

(emphasis added).

17

Because Vincennes University’s solicitation policy did

not open the library lawn as a forum and because Gilles

“failed to show that any uninvited outsider has ever been

permitted to use the lawn for any purpose,” (Pet. App. at

9a), the Seventh Circuit considered common law property

rules. As previously discussed, a public forum cannot be

created by “inaction or by permitting limited discourse, but

only by intentionally opening a non-traditional forum for

public discourse.” Cornelius, 473 U.S. at 802 (citing Perry,

460 U.S. at 46). Gilles has no inherent First Amendment

Right to engage in speech activities on the library lawn as

“the First Amendment does not guarantee access to property

simply because it is owned and controlled by the

government.” Cornelius, 473 U.S. at 803 (quoting U.S. Postal

Service v. Council of Greenburg Civic Assns., 453 U.S. 114,

129 (1981)). Certainly, government property which is a non-

public forum does not become a public forum open to all

expressive conduct simply because of the lack of a written

policy.

II. The solicitation policy does not permit discretion

related to speech on the library lawn.

Gilles devotes a significant portion of his Petition to

discussion of the “unbridled discretion” doctrine. (Pet. at p.

20-29). This term was used in Lakewood v. Plain Dealer

Publ’g. Co., 486 U.S. 750, 763 (1988), to describe the

discretion given to a government official who decides “who

may speak and who may not” based on content or viewpoint

without “standards governing the exercise of discretion.”

Id. at 763-764. Importantly, in entering into this discussion

Lakewood was discussing “a law or policy permitting

communication in a certain manner for some but not for

others.” /d. at 763. In other words, once the government, by

18

law or policy, opens a public forum to communication,

government officials cannot have unbridled discretion in

determining who may speak and who may not.

The Seventh Circuit determined that the solicitation

policy did not in fact apply to speech on the library lawn.

Because no uninvited outsiders had been permitted to speak

on the library lawn and no forum had been opened, there

was no discretion to be exercised. The Seventh Circuit

determined that the only relevance of the solicitation policy

to this case was whether by promulgating the policy, the

university intended to throw open the library lawn to all

uninvited outsiders who were not soliciting. (Pet. App. at

7a-8a). The solicitation policy became irrelevant when the

Seventh Circuit, using the required forum analysis,

determined that the library lawn had not been opened to

uninvited outsiders. The solicitation policy certainly

“opened” the designated area in front of the Student Union

to solicitation by the general public. If Gilles had been denied

access to the designated area because his speech was

determined not to be solicitation, the language of the policy

would be critical, but Gilles brought suit claiming a right to

speak on the library lawn rather than claiming his rights were

violated in some way with respect to the designated area.

As a result, the Seventh Circuit did not require Gilles to

show “further proof of viewpoint discrimination” as he

claims. (Pet. at p. 23). Rather, the Seventh Circuit required

Gilles to provide some evidence that the library lawn had

been opened to uninvited outsiders. (Pet. App. at 9a). The

Seventh Circuit did not permit a vague policy to be bolstered

by unwritten terms and an assumption of good faith by public

officials. Rather, the Seventh Circuit found that Vincennes

University took no action to open the library lawn to

19

expression by uninvited members of the general public and

that, as a result, Gilles, just like other uninvited members of

the general public, was not entitled to speak on the library

lawn.

Accordingly, the unbridled discretion doctrine is

completely inapplicable to this case. Nevertheless the conflict

between the circuits suggested by Gilles is not present. Some

circuit courts have applied the doctrine to strike down laws

or policies applicable to non-public fora. See Child

Evangelism Fellowship of MD v. Montgomery County Pub.

Sch., 457 F.3d 376, 386 (4" Cir. 2006); Atlanta Journal and

Constitution v. City of Atlanta Dep t. of Aviation, 322 F.3d

1298, 1310-11 (11" Cir. 2003); and Lewis v. Wilson, 253 F.3d

1077, 1079-80 (8" Cir. 2001). But, the lack of the doctrine’s

application by the Federal Circuit in Griffin v. Secretary of

Veterans Affairs, 288 F.3d 1309, 1324 (1% Cir. 2004), cert.

denied, 537 U.S. 947 (2002), and the First Circuit in Ridley

v. Massachusetts Bay Transp. Auth., 390 F.3d 65, 94-95 (Fed.

Cir. 2002), does not create a split in the circuits as these

courts did not indicate that the doctrine is always inapplicable

in a non-public forum. A closer analysis shows that the

doctrine was not applied in these cases because the “threats

to expression identified by Lakewood” were not present.

Griffin, 288 F.3d at 1324; see Ridley, 390 F.3d at 94. In fact,

Child Evangelism, 457 F.3d at 377, approvingly quotes

Ridley, 390 F.3d at 94-95 and approvingly cites to Griffin,

288 F.3d at 1324. As a result, there is no “obvious circuit

split” as claimed by Gilles.

Nevertheless, the simple fact is that the solicitation policy

was not “a law or policy permitting communication” on the

library lawn. Lakewood, 486 U.S. at 763.

20

CONCLUSION

Petitioner has not established any compelling reasons

for this Court to grant the Petition. Therefore, Respondents

respectfully request that the Petition be denied.

Respectfully submitted,

Danie L. SIEWERS

Counsel of Record

BRENT STUCKEY

Hart Be.._, LLC

513 Main Street

P.O. Box 979

Vincennes, IN 47591

(812) 882-8935

Attorneys for Respondents