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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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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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i, SA GE IOI akc a vc teva eaen'’s
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0569%3A3. Public record. Not legal advice.