98 F.3d 1007 (8th Cir. 1996), 95-1962, Burnham v. Ianni

Docket Nº:95-1962.
Citation:98 F.3d 1007
Party Name:Albert BURNHAM; Ronald Marchese; Michael Kohn; Louise Kohn, Appellees, v. Lawrence IANNI, in His Official Capacity as Chancellor of the University of Minnesota at Duluth and in His Individual Capacity, Appellant.
Case Date:October 16, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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98 F.3d 1007 (8th Cir. 1996)

Albert BURNHAM; Ronald Marchese; Michael Kohn; Louise

Kohn, Appellees,


Lawrence IANNI, in His Official Capacity as Chancellor of

the University of Minnesota at Duluth and in His

Individual Capacity, Appellant.

No. 95-1962.

United States Court of Appeals, Eighth Circuit

October 16, 1996

Submitted Dec. 11, 1995.

Order Granting Rehearing and Rehearing En Banc and Vacating

Opinion Dec. 4, 1996.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mark R. Rotenberg, Minneapolis, MN (Julie A. Sweitzer, on brief), for appellant.

Scott W. Johnson, Minneapolis, MN (John H. Hinderaker, on brief), for appellee.

Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.

McMILLIAN, Circuit Judge.

This action was brought in the United States District Court for the District of Minnesota pursuant to 42 U.S.C. § 1983 by Albert Burnham and Ronald Marchese, two history professors at the University of Minnesota at Duluth (UMD), and Michael Kohn and Louise Kohn (the Kohns), two former UMD history students (collectively plaintiffs), against Lawrence Ianni, Chancellor of UMD, alleging that Ianni deprived them of rights protected by the free speech clause of the First Amendment. 1 Ianni appeals from the district court's order denying his motion for summary judgment on the basis of qualified immunity. Burnham v. Ianni, 899 F.Supp. 395 (D.Minn.1995). For reversal, Ianni argues that the district court erred in holding that he violated plaintiffs' clearly established constitutional rights by ordering the removal of two photographs, one of Burnham and the other of Marchese, from a display case located in a hallway outside the UMD history department's classrooms. For the reasons discussed below, we reverse the order of the district court and remand the case to the district court with directions to enter judgment for Ianni.

I. Background

The underlying facts of this case are generally not in dispute. Id. at 397. The two photographs of Burnham and Marchese, which are at the center of this dispute, were originally part of a visual exhibit conceived of and created by the Kohns while they were students at UMD. The Kohns were both members of the UMD history club, for which Burnham was the faculty advisor. The Kohns' objective in displaying the exhibit was to convey to observers the history faculty's diverse interests. In photographing the UMD history professors, the Kohns asked each to pose with a "prop" of his or her own choice, related to his or her areas of interest. The photographs were then juxtaposed with written descriptions of the subject's academic background, historical heroes, and a chosen quotation. Burnham, who has a special interest in American military history, chose to be photographed wearing a coonskin cap and holding a .45 caliber pistol; Marchese, who specializes in ancient Greece and Rome, posed wearing a cardboard laurel wreath and holding a Roman short sword.

On May 5, 1992, an officer with the UMD campus police, acting under instructions from

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Ianni, removed the photographs of Burnham and Marchese from the display case. 2 Ianni ordered the removal of the two photographs because he considered them inappropriate for display in light of events that had occurred over the previous year.

In June of 1991, approximately one year before the photographs of Burnham and Marchese were removed from the display case, Sandra Featherman was appointed to the post of UMD vice chancellor. Shortly thereafter, she began receiving graphically violent threats from an anonymous source or sources using the identities "Deer Hunters" and "Prince of Death," and warning her that if she did not stay away from Duluth, she would be kidnapped or killed. At the same time, a phony memorandum, bearing a forged signature purporting to be Ianni's, was circulated through the UMD mail system and distributed on and around campus. This fraudulent memorandum referred to the "conspiracy to kidnap Sandra Featherman going on at UMD." Appellant's Appendix at 17 (forged memorandum).

Beginning in March 1992, UMD history professor Judith Trolander became the target of threats similar to those directed at Featherman. Both Featherman and Trolander had been involved in a program to improve diversity and equality on the UMD campus. A flyer entitled "Target Information" was anonymously posted around campus which said, among other things, "The Imperial Council of Deer Hunters Proclaim Open Season on Judy Trolander Lesbian Feminist Bitch." This document told the reader where to find Professor Trolander's picture and where she lived, and stated the following:

She will be a good target for shooting at long range. The house has large windows and the terrain is clear of obstacles in all directions. Shooting from the beach or even from a boat in the bay or lake Superior is feasible. A 30-60 rifle with 20X2 Bushnell scope would be a suitable weapon with dum-dum bullets dipped in poison. Don't forget to put in a couple of clicks in the crosshairs for windage as the wind is usually strong there. It is recommended that the hunter shoot from behind the Surf and Sand Health Center, if there is return fire from the house it well only kill a few old people. She is the only occupant of the house, so it is OK to shoot silhouettes on drawn shades.

Get cracking you kill crazy buckaroos. Its OK to kill her, the Imperial Counsel rules UMD, the commission on women is dissolved.

Also, all faculty members ordered to participate in Featherman's administrative development project will be sentenced to death along with their pets, children, and spouses if they comply with these orders. Any one who cooperates with Featherman will have their target information published.

The deer hunters need target information on Featherman, just mention where she lives in the faculty club and everything will be taken care of.

Appellant's Appendix at 38.

In an attempt to respond to the tension and widespread fear of violence created by these terroristic threats, Ianni distributed on campus a memorandum dated March 16, 1992, assuring that the matter was being investigated by local and federal authorities, that every effort would be made to bring the perpetrators to justice, and that the school remained committed to improving the conditions of women and minorities on campus.

On or about March 27, 1992, less than a month after the so-called "Target Information" flyer was posted, the photographs of Burnham and Marchese were placed in the display case along with the other photographs and written materials contained in the Kohns' exhibit. Judith Karon, UMD's director of personnel and affirmative action officer, began receiving complaints and anonymous calls objecting to the depictions of the two faculty members holding weapons, particularly the picture of Burnham holding a gun. Professor Trolander, who was extremely upset about the photographs, also contacted Karon. Karon made efforts to have the photographs removed, expressing her belief that they were inappropriate in

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light of the recent events and the atmosphere of tension and fear on campus. Several meetings involving Karon, Ianni, the Kohns, Burnham, Marchese, and other faculty members in the history department, were held to discuss the two photographs. The chairman and other members of the history department steadfastly opposed their removal. See Appellant's Appendix at 50 (internal history department memorandum: "[s]omehow, this ugly trend of History governance by external administrators and bureaucrats must be called into account; if the photo display is our line in the sand, so be it"). On May 4, 1992, Ianni ordered the two photographs removed from the display case.

Plaintiffs filed this § 1983 action alleging that the removal of the photographs violated their First Amendment right of free speech. Ianni filed several motions, including a motion for summary judgment on qualified immunity grounds. The district court denied that motion, explaining:

On the facts of this case, the court finds, without hesitation, that "[t]he contours of the right [were] sufficiently clear [so] that a reasonable official would understand that what he [did] violates that right." ... Ianni asserts that his actions were taken with the intent to "maintain a positive and efficient working and learning environment conducive to the mission of an academic institution." ... Chancellor Ianni is, presumably, an educated and erudite person. It is inconceivable to this court that the Chancellor of a major University could have failed to know that [the] First Amendment forbade, except in the narrowest of circumstances, the type of conduct at issue here.

Burnham v. Ianni, 899 F.Supp. at 400-01 (citations omitted). Having held that plaintiffs' clearly established First Amendment rights had been violated, the district court also denied Ianni's motion to dismiss. Id. at 404. In reaching its conclusion on the merits, the district court noted that the display case was a nonpublic forum. Id. at 403. Therefore, the district court held, the suppression of speech at issue in the case was subject to a reasonableness test. Id. (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49, 103 S.Ct. 948, 957, 74 L.Ed.2d 794 (1983) (Perry )). The district court then determined that the photographs were removed because they were offensive to some viewers and, therefore, the suppression was content-based and not reasonable. Id. at 403-04. The district court stated:

Whether the photographs advocated anything is irrelevant in this context; on the contrary, it was the perception that the photographs somehow advocated support for those [who] had made the threats which motivated their removal...

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