Sonnier v. Crain, 09-30186.

613 F.3d 436

Jeremy SONNIER, Plaintiff-Appellant,

v.John CRAIN, Dr., in his official capacity as Interim President of Southeastern Louisiana University; Jim McHodgkins, Individually and in his official capacity as Assistant Vice President for Student Affairs at Southeastern Louisiana University; Thomas Carmichael, Individually and in his official capacity as Police Officer for University Police Department at Southeastern Louisiana University, Defendants-Appellees.

No. 09-30186.

United States Court of Appeals,Fifth Circuit.

July 27, 2010.

COPYRIGHT MATERIAL OMITTED.

Nathan W. Kellum, Jonathan Adrew Scruggs (argued), Alliance Defense Fund, Memphis, TN, for Plaintiff-Appellant.

Linda Law Clark (argued), Dianne M. Irvine, DeCuir, Clark & Adams, L.L.P., Baton Rouge, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, DAVIS and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

The appellant Jeremy Sonnier challenges the denial of a preliminary injunction seeking to enjoin enforcement of the speech policy regulating the time, place and manner, and other matters relating to speech by non-students on the campus of Southeastern Louisiana University (“SLU”). Reviewing the district court's denial of a facial challenge to the regulation, for the following reasons, we AFFIRM in part and REVERSE in part.

I. FACTS

The appellant Sonnier and four other individuals not associated with SLU, entered the SLU campus on November 19, 2007 to express a religious message to students. Prior to his arrival, Sonnier did not seek a permit to speak as required by the SLU speech policy. Defendant Thomas Carmichael, an SLU police officer, asked Sonnier and the others to stop speaking until they obtained permission to continue. Sonnier went to the office of Defendant Jim McHodgkins, the Assistant Vice President of Student Affairs. McHodgkins informed Sonnier that, pursuant to the SLU speech policy, a permit request must be filed seven days before engaging in a public assembly or demonstration on campus. Because Sonnier had not sought a permit seven days earlier, McHodgkins told Sonnier he would be unable to obtain permission to speak on the campus that day. Sonnier and the other individuals left SLU's campus. Since their departure, Sonnier has not filed an application to speak on SLU's campus and has not returned to the campus.

The SLU speech policy states generally that:

Southeastern Louisiana University recognizes that freedom of speech and assembly are basic and essential to both intellectual and social development. These freedoms, guaranteed by the First and Fourteenth Amendments to the United States Constitution, shall be enjoyed by the university community at Southeastern. Free discussion of ideas

of either controversial or non-controversial nature shall not be curtailed.

These freedoms, however, are not absolute. Colleges and universities have well-established rights to regulate time, place, and manner so that activities do not intrude upon or interfere with the academic programs and administrative processes of the university. The university may designate one or more areas on campus where individuals may assemble and engage in speech activities. All speech and assembly activities must be conducted in accordance with university regulations.

The SLU speech policy then provides specific regulations governing the time, ¹ place, ² and manner ³ of speech. The policy also provides provisions regarding payment of security fees in particular situations. ⁴

On November 4, 2008, Sonnier filed an action under 42 U.S.C. §§ 1983, 1988, alleging that the SLU speech policy violates his First Amendment right to free speech. More particularly, Sonnier challenged five provisions of SLU's speech policy: (1) the seven-day notice requirement; (2) the two-hour, once-per-week limitation; (3) the collection of personal information; (4) the security fee requirement; and (5) the limitation of speech to three specific locations. Sonnier instituted a facial and an as-applied challenge to these provisions of SLU's speech policy, seeking injunctive and declaratory relief, as well as nominal damages. At the time he filed his action, Sonnier also moved for a preliminary injunction restraining enforcement of the speech policy. On March 3, 2009, after hearing arguments of counsel, the district court denied Sonnier's motion for a preliminary injunction. Sonnier filed this timely appeal.

II. STANDARD OF REVIEW

We review the denial of a preliminary injunction for an abuse of discretion, but a decision grounded in erroneous legal principles is reviewed de novo. Women's Med. Ctr. v. Bell, 248 F.3d 411, 418-19 (5th Cir.2001); Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998); Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir.1989). See also Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (“But while the standard to be applied by the district court in deciding whether a plaintiff is entitled to a preliminary injunction is stringent, the standard of appellate review is simply whether the issuance of the injunction, in the light of the applicable standard, constituted an abuse of discretion.”) (citing Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973)).

A district court should issue a preliminary injunction only if the plaintiff establishes: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury caused by the denial of the injunction outweighs any harm that will result if the injunction is granted; and (4) that the grant of an injunction will not disserve the public interest. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.2009). In this appeal, the parties only dispute the first requirement; SLU does not dispute that Sonnier has met the other three requirements. Therefore, we only examine whether the district court abused its discretion in finding that Sonnier did not have a substantial likelihood of success on the merits.

In free speech cases, the court must first determine the type of fora. There are three types of fora: the traditional public fora, the designated public fora, and the non-public fora. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). The parties agree that the fora in this case is either a public fora or a designated public fora. Appellant's Brief, at 1821; Appellee's Brief, at 11. We agree. The scrutiny applied to time-place-manner restrictions is the same for both a public fora and a designated public fora. United States v. Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). Therefore, we need not determine whether the locations on SLU's campus that are at issue in this case are public fora or designated public fora.

Content-neutral time-place-manner restrictions are examined under intermediate scrutiny, meaning they are permissible so long as they are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information. Turner Broad. Sys. v. FCC, 520 U.S. 180, 213-14, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997); Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Content-based time-place-manner restrictions are examined under strict scrutiny, meaning they must be narrowly drawn to effectuate a compelling state interest. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Sonnier acknowledges that the first, second, third, and fifth challenged provisions are content-neutral. TR at 188. Sonnier alleges the fourth challenged provision is content-based. Id.

Sonnier agrees that SLU has a significant interest in implementing a speech policy that promotes education and minimizes disruptions to the academic setting. TR at 189. Sonnier's central objection to the policy is that it is not narrowly tailored to serve SLU's interest. We agree that SLU has a strong interest in promoting education. Therefore, we only examine whether the district court abused its discretion in finding that the speech policy was narrowly tailored to serve SLU's interest.

A restriction is narrowly tailored when it does not “burden substantially more speech than is necessary to further the government's legitimate interests.” Ward, 491 U.S. at 798-99, 109 S.Ct. 2746. “In the context of intermediate scrutiny, narrow tailoring does not require that the least restrictive means be used. As long as the restriction promotes a substantial governmental interest that would be achieved less effectively without the restriction, it is sufficiently narrowly tailored.” SEIU v. City of Houston, 595 F.3d 588, 596 (5th Cir.2010) (quoting Ward, 491 U.S. at 798, 109 S.Ct. 2746 (1989)). “What constitutes a reasonable, narrowly tailored regulation depends on a variety of factors, including the character of the place in which the regulation is enforced.” Id. at 599. Thus, we examine all of the restrictions at issue in the context of the location where they are to be enforced: a college campus.

III. SCOPE OF APPEAL

Sonnier argues that the district court erred in denying both his facial challenge to the SLU speech policy and his as-applied challenge. The defendants argue that the district court, without objection from the parties, adopted a trial plan to consider only the facial challenge in its consideration of the preliminary injunction and defer consideration of the as-applied challenge until the evidentiary hearing on the permanent injunction that is scheduled for February 2010.

Under Fed.R.Civ.P. 65(a), a district court has broad discretion in deciding whether to consolidate a preliminary injunction with the hearing of the motion for the permanent injunction. See Dillon...