Bowman v. White
| Decision Date | 14 April 2006 |
| Docket Number | No. 04-2299.,04-2299. |
| Citation | 444 F.3d 967 |
| Parties | Gary BOWMAN, Plaintiff-Appellant, v. John A. WHITE, in his official capacity as Chancellor of the University of Arkansas; Donald O. Pederson, in his official capacity as Vice Chancellor for Finance Administration for the University of Arkansas; Larry L. Slammons, in his official capacity as Director of the University of Arkansas Police Department, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before BYE, MELLOY, and COLLOTON, Circuit Judges.
Plaintiff-Appellant Gary Bowman filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 against Defendants-Appellees John A. White, Donald O. Pederson, and Larry L. Slammons as officials representing the University of Arkansas at Fayetteville (collectively hereinafter known as the "University"). Bowman alleges that the University's policy regarding the use of its facilities and space, which contains restrictions on use by non-University entities, unconstitutionally abridges his right to free speech. Following a plenary hearing on the merits of Bowman's request for injunctive relief, the district court dismissed his complaint with prejudice. The district court found that the University's campus was a nonpublic forum and that all the challenged restrictions on speech were reasonable. Bowman now brings this timely appeal.
Gary Bowman is a professing Christian who engages in street preaching about his religious beliefs and convictions as a tenet of his faith. His message typically concerns sin, repentance and a final judgment. He states that he shares his message in the hope of securing salvation for his audience. He employs various means of communication, including the use of signs, public speaking, literature distribution, symbolic speech, and one-on-one conversation.
Bowman particularly wants to share his religious message with college students and others found at public universities because of what he deems to be a moral obligation. To this end, he preaches at many college campuses, including the University of Arkansas at Fayetteville. Bowman considers the University a uniquely suitable place to communicate his message because of its close proximity to his residence in Oklahoma and the significant number of students that can be found in outdoor areas.
The University is the flagship campus of the University of Arkansas System. It has an enrollment of more than 16,000 students. In an attempt to regulate an ever-increasing demand on the use of its facilities, the University enacted Fayetteville Policies and Procedures 708.0, entitled "Use of University Facilities and Outdoor Space" (the "Policy"). The Policy comprehensively governs the use of University outdoor space.1 It contains guidelines and procedures for space allocation and reservations. The Policy applies to all areas within the University's direct control, including its streets, sidewalks, and parks.
The Policy distinguishes between University Entities and Non-University Entities. Under the Policy, Bowman is classified as a Non-University Entity.2 The Policy places a five-day cap per semester per entity on the use of facilities and outdoor space by Non-University Entities. In addition to the five-day cap, the Policy requires Non-University Entities to make reservations in advance of their use of a space. A reservation allows a Non-University Entity to use the outdoor space for one eight-hour day. A reservation is required regardless of the use that will be made of the space, whether that use be speaking, carrying signs, handing out literature, or sitting silently. The Policy does not, however, regulate one-on-one conversations. The Policy also imposes a three-business-day advance notice requirement for the use of space by Non-University Entities. The Policy prohibits a Non-University Entity's use of space from interfering with the educational mission of the University and allows the University to cancel or modify a space reservation in the event that a use does interfere. The Policy further prohibits the use of space by Non-University Entities during so called "dead days," which consist of one quiet study day per semester, all final exam periods, and dates of commencement activities.
In the fall of 1998, Bowman obtained permits to appear twice on campus for speaking purposes. Bowman returned to the University in the fall of 2000, at which time he complained to University officials that the permit requirement was imposing a significant restraint on his speech. According to Bowman, it was more difficult for him to plan the days he wished to speak in advance because he could not determine with any certainty his future work schedule or whether a noteworthy event would prompt him to want to speak on a certain day.
To alleviate these concerns, the University granted Bowman blanket permission to appear on campus and communicate his message during the fall semester. With the blanket permission in place, Bowman spoke approximately twenty times in the fall of 2000. Despite having blanket permission to speak on campus, Bowman discovered he needed a permit for any other form of expression. Bowman was not permitted to hand out literature, use signs, or engage in symbolic protests without first obtaining a permit.
Bowman often used inflammatory language and tactics in his presentations, the nature of which were considered highly offensive by many students. During the fall semester of 2000, several students and faculty members complained of Bowman's presence on campus. Campus police, in response to these complaints, occasionally had to curb violent outbursts and erect barricades to maintain crowd control as Bowman sometimes drew crowds as large as 200 people.
In the spring semester of 2001, the University denied Bowman blanket permission to speak. As a result, Bowman submitted individual requests for permits to speak on selected days. By letter, the University advised Bowman that it would only consider up to three separate space reservation forms at any one time. The letter further indicated that the campus speech policies "are currently under review and are likely to be revised in the future." That semester, Bowman was denied permission to speak on the University's dead days.
For the next fall, Bowman planned a series of presentations entitled "Ten Commandments," which was to be part of a larger series entitled "Forty Things Every Student Needs to Know." During each campus visit, he anticipated covering one Commandment and one "Thing Every Student Needs to Know." Bowman applied for individual permits to cover each of the first six Commandments.
In the meantime, the University formally revised the Policy to its current form. By letter dated August 21, 2001, the University informed Bowman of the revisions and approved, in part, his request for use of the grounds by granting him three days in which to present his message. Bowman, in a letter outlining his concerns regarding the Policy, subsequently requested an additional seven days. The University, citing its new five-day cap, denied Bowman a permit for the additional seven days. Bowman resubmitted his permit application, requesting an additional three days, for a total of six days. The University granted him permission for two days, but denied permission for the third day, citing the five-day cap. Bowman proceeded with his speech on the days he was allowed to speak, covering the first five Commandments. Due to the five-day cap Bowman was precluded from sharing his message for the rest of the fall semester of 2001.
During the spring semester of 2002, Bowman once again utilized his five permitted days. Bowman applied for a sixth visit. His request was denied under the five-day cap.
Later that spring, with the sponsorship of a student organization, Bowman attempted again to speak on a sixth day. The University approved the appearance, but required a representative of the student organization to be with Bowman at all times while Bowman remained on campus. Bowman was forced to cease his expression whenever the representative was not present.
Unable to resolve his differences with the University, Bowman filed the present lawsuit alleging that the permit requirement, five-day cap, three-day advance notice requirement, and dead day ban are unconstitutionally vague, overbroad, and discriminatory as applied to him, in violation of the First and Fourteenth Amendments to the United States Constitution. He sought declaratory and injunctive relief as well as damages under 42 U.S.C. § 1983.
After previously dismissing his claim for compensatory damages, the district court held a plenary hearing pursuant to Fed. R.Civ.P. 65(a)(2), consolidating the preliminary injunction hearing with a trial on the merits of his complaint. At the conclusion of the hearing, the district court dismissed Bowman's complaint because it found the University to be a nonpublic forum and all the challenged restrictions on speech to be reasonable.
Bowman filed a timely notice of appeal pursuant to Fed. R.App. P. 4(a), thereby invoking our jurisdiction over the appeal under 28 U.S.C. § 1291. We review de novo the district court's conclusions of law. Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 621 (8th Cir.2002). There are no material facts in dispute.
"[S]tate colleges and universities are not enclaves immune from the sweep of the First Amendment." Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). However, "the First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Perry...
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