Bloedorn v. Grube

• Citation: 631 F.3d 1218
• Decision Date: 28 January 2011
• Docket Number: No. 10–10168.,10–10168.
• Parties: Benjamin BLOEDORN, Plaintiff–Appellant,v.Dr. Bruce GRUBE, in his official capacity as President of Georgia Southern University, Dr. Teresa Thompson, in her official capacity as Vice President of Student Affairs and Enrollment Management for Georgia Southern University, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

631 F.3d 1218

264 Ed. Law Rep. 638

22 Fla. L. Weekly Fed. C 1728

Benjamin BLOEDORN, Plaintiff–Appellant,

v.Dr. Bruce GRUBE, in his official capacity as President of Georgia Southern University, Dr. Teresa Thompson, in her official capacity as Vice President of Student Affairs and Enrollment Management for Georgia Southern University, et al., Defendants–Appellees.

No. 10–10168.

United States Court of Appeals, Eleventh Circuit.

Jan. 28, 2011.

Nathan W. Kellum, Jonathan Andrew Scruggs, Alliance Defense Fund, Memphis, TN, Charles C. Stebbins, III, Warlick, Tritt, Stebbins & Hau, LLP, Augusta, GA, for Plaintiff–Appellant.Cristina Correia, Michelle J. Hirsch, Devon Orland, Atlanta, GA, for Defendants–Appellees.Appeal from the United States District Court for the Southern District of Georgia.Before HULL and MARCUS, Circuit Judges, and WHITTEMORE,^* District Judge.MARCUS, Circuit Judge:

Benjamin Bloedorn, a Christian evangelical preacher, appeals from the denial of his motion for a preliminary injunction, which sought, on First Amendment grounds, to enjoin Georgia Southern University (“GSU” or the “University”) from enforcing its free speech policies regulating the access of outside, non-sponsored speakers to the university campus and the permitting scheme regulating the conduct of these speakers (collectively the “Speech Policy”). On this preliminary record, Bloedorn has not shown that the district court abused its discretion nor has he established a substantial likelihood of success on the merits. Accordingly, we affirm.

I.

These are the essential facts adduced on the limited record presented to this Court.

On March 28, 2008, Bloedorn, an itinerant preacher who frequently seeks out busy areas on college campuses to broadcast his evangelical message for four to six hours at a time on continuous days, along with several companions, arrived at GSU. Georgia Southern University is a state-funded public university with over 18,000 students located in Statesboro, Georgia. Bloedorn's visit to this large campus was sponsored neither by GSU nor by any affiliated University group or organization.

Bloedorn began preaching from a heavily trafficked grassy knoll next to GSU's Russell Union Student Center and adjacent to the University's Pedestrian Mall and Rotunda. Bloedorn's companions stood in the Pedestrian Mall. The grassy knoll from which Bloedorn chose to speak was, as it turned out, GSU's designated Free Speech Area. Notably, this is the only designated area on campus where outside, non-sponsored speakers drawn from the general public may engage in expressive conduct.

Soon after Bloedorn began preaching, a University official approached Bloedorn and informed him that, before he could use the Free Speech Area, he was required to seek and obtain a permit from GSU. Bloedorn refused to comply with the permitting process, deeming it an “affront” to his beliefs and arguing that it violated his basic constitutional freedoms. Bloedorn resumed preaching. Again, he was approached, this time by GSU Department of Public Safety Corporal George Hemm, who explained that Bloedorn, as an outside, non-sponsored speaker, could not speak on campus without a permit. Still again, Bloedorn resumed preaching despite the officer's warning that he could be arrested for trespass. At that point, Laura McCullough, a Public Safety Captain, arrived on the scene and asked Bloedorn to complete and submit a permit request form. For the third time, Bloedorn refused to apply for a permit, whereupon he was arrested by Corporal Hemm for trespass.¹

GSU's Speech Policy distinguishes between speakers who are members of the GSU community or are sponsored by community members and those who are drawn from outside of the University community and who are not sponsored by a University group or member. The Speech Policy begins this way:

It is the policy of Georgia Southern to permit the use of facilities by the general community in a manner which does not compete with the ongoing programs of the University. Speakers who are not sponsored by a campus organization may request permission to initiate a gathering on campus....

If a non-campus speaker is approved, the University reserves the right to assign space and designate time frequency and length of the proposed activity. A typical length of time for a speaker is one and a half hours. Frequency should be no more than once a month under normal circumstances.

The Speech Policy also codifies the following “General Policies”:

A hearing may be called if it is determined that a speaker or speech will constitute or create a substantial likelihood of material interference with the normal orderly decisions and processes of the University or with the requirements of appropriate discipline. A hearing committee composed of two faculty members appointed by the President, two students appointed by Student Government, and the Vice President of Student Affairs will convene to review the speakers [sic] application. If a request is denied, the organization or the speaker may appeal to the President of the University, whose decision will be final.

A hearing will be called if a speaker or speech advocates a call to action for any of the following:

[1] [t]he overthrow of any government; [2] [t]he willful damage or destruction of property; [3] [t]he disruption of the University's regularly scheduled functions; [4] [t]he physical harm, coercion, or intimidation of the University's faculty, staff or students; [5] [o]ther campus disorder of a violent nature.

The permit request form for outside, non-sponsored speakers directs the applicant to provide the following basic information: name; organization represented, if applicable; permanent mailing address; telephone number; type of requested activity; preferred date(s), hour(s), and duration of requested activity; primary topic or purpose of requested activity; equipment, literature and sound enhancement devices to be used; proof of liability insurance, if applicable; and a signature confirming that the applicant has read and agreed to GSU's policy governing the use of campus facilities. The form is available both online and at the Russell Union Student Center, and is exactly the same form that University groups and members must use to reserve space on the campus. In assigning a date and time to an outside, non-sponsored speaker, apparently it is GSU's undisputed practice to honor the speaker's requested date and time so long as the space is not already reserved by another speaker. Any time an outside, non-sponsored speaker reserves the Free Speech Area, the University's Department of Public Safety is notified, and two public safety officers are assigned to maintain security throughout the duration of the event. From 2006 through August 2009, six outside, non-sponsored speakers completed permit requests for the Free Speech Area, and all six requests were granted.

Pursuant to the terms of the Speech Policy, all outside, non-sponsored speakers (like Bloedorn) may speak only in the designated Free Speech Area after receiving a permit. Throughout the academic year, this prime campus location is utilized by GSU's more than 18,000 students, as well as by University-sponsored programs and by outside, non-sponsored speakers. GSU's Assistant Director for Facilities Susan Nelson explained the primacy of the location this way:

The Free Speech area is located in a grassy area outside of the Russell Union Building and is in very close proximity to the Rotunda. The area has very heavy student traffic, including traffic for eating facilities and a bus stop for the Georgia Southern University bus service.

During the academic year, the Free Speech area and Rotunda are heavily utilized by university students and/or for university programs. Students and university personnel may reserve space in the Rotunda for any number of purposes and events. During the academic year, this area as a whole is in use five out of seven days a week.

Undeniably, the Free Speech Area is situated at the crossroads of the University. Indeed, as Bloedorn himself recognized, the Free Speech Area is “a focal point of student activity,” and its surrounding areas “are excellent locations for [his] message.”

More than a year after he was arrested and removed from the campus, on July 13, 2009, Bloedorn commenced this civil rights action in federal district court, pursuant to 42 U.S.C. §§ 1983 and 1988, against several employees of GSU, including the President of the University, the Vice President for Student Affairs, the Facilities Use Coordinator, the Director of the Public Safety Department, and a Public Safety Corporal. Bloedorn claims that the Speech Policy deprived him of his rights to free speech and due process, as well as the right to be free from unreasonable seizure. Bloedorn says that he has been unable to return to the campus to speak because he is fearful of re-arrest. In his complaint, Bloedorn elaborates that ever since the arrest, he has wanted to return to the campus to speak with students. He argues that the University's Speech Policy violates his expressive rights in four discrete ways: (1) by prohibiting outside, non-sponsored speakers from engaging in expressive conduct on the campus outside of the Free Speech Area; (2) by requiring an outside, non-sponsored speaker to apply for a permit 48 hours in advance; (3) by requiring the outside speaker to disclose basic contact information on the permit request form; and (4) by restricting the speech of an outside, non-sponsored speaker to one-and-one-half hours, once per month.

On November 24, 2009, a district judge in the Southern District of Georgia denied Bloedorn's motion for a preliminary injunction. The district court, evaluating the University campus as a whole, concluded that the entire campus was a “limited public forum” and, as a result, analyzed all of GSU's time, place, and manner restrictions on outside, non-sponsored speakers only for...