Gay Lesbian Bisexual Alliance v. Pryor
| Decision Date | 29 April 1997 |
| Docket Number | No. 96-6143,96-6143 |
| Citation | 110 F.3d 1543 |
| Parties | , 117 Ed. Law Rep. 462, 25 Media L. Rep. 1794, 10 Fla. L. Weekly Fed. C 848 GAY LESBIAN BISEXUAL ALLIANCE, Plaintiff-Appellee, v. Bill PRYOR in his official capacity as Attorney General, of the State of Alabama, Defendant-Appellant, Frederick P. Whiddon, in his official capacity as President of the University of South Alabama; Dale T. Adams, in his official capacity as Dean of Students of the University of South Alabama, Defendants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Thomas F. Parker, IV, Deputy Attorney General, Office of the Attorney General, Criminal Appeals Division, Montgomery, AL, for defendant-appellant.
Fern Singer, Watterson and Singer, Birmingham, AL, Ruth E. Harlow, Marc E. Elovitz, Matthew Coles, American Civil Liberties Union Foundation, New York City, for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Alabama.
Before DUBINA and BLACK, Circuit Judges, and O'KELLEY *, Senior District Judge.
Appellant Attorney General Bill Pryor 1 ("the Attorney General") appeals the district court's judgment that ALA.CODE, § 16-1-28, (1995), violates the First Amendment to the United States Constitution both facially and as applied to Appellee Gay and Lesbian Bisexual Alliance ("GLBA"). Gay Lesbian Bisexual Alliance v. Sessions, 917 F.Supp. 1548 (M.D.Ala.1996). Based upon our review of the record, we affirm the judgment of the district court.
Ala.Code § 16-1-28 provides:
(a) No public funds or public facilities shall be used by any college or university to, directly or indirectly, sanction, recognize, or support the activities or existence of any organization or group that fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of §§ 13A-6-63 to 13A-6-65, inclusive.
(b) No organization or group that receives public funds or uses public facilities, directly or indirectly, at any college or university shall permit or encourage its members or encourage other persons to engage in any such unlawful acts or provide information or materials that explain how such acts may be engaged in or performed.
(c) This section shall not be construed to be a prior restraint of the first amendment protected speech. It shall not apply to any organization or group whose activities are limited solely to the political advocacy of a change in the sodomy and sexual misconduct laws of this state.
The statutes referenced in part (a) criminalize sodomy or "deviate sexual intercourse," which Alabama law defines as "[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another." ALA.CODE § 13A-6-60(2) (1994).
The University of South Alabama ("USA") encourages a wide variety of student activities on campus and has an established procedure for the formation and registration of student organizations. USA has over 100 registered student organizations. These organizations are eligible for certain benefits, including use of campus meeting rooms, on-campus banking services, and funding from the USA Student Government Association ("SGA"). GLBA is an officially recognized student organization whose purpose, according to its constitution, is
to provide a foundation for unification for homosexual and nonhomosexual people of the student population, in order to draw support to further our efforts in educating all members of the university community on the fears and dangers of homophobia and to provide a support system for the University of South Alabama's homosexual students.
Gay Lesbian Bisexual Alliance, 917 F.Supp. at 1551 n. 18.
This case arises from two incidents. First, the district court found that USA effectively denied on-campus banking privileges to GLBA. Following the passage of § 16-1-28, GLBA requested an on-campus bank account to avoid commercial banking fees. Dean Adams of USA advised GLBA that in light of § 16-1-28, USA could freeze GLBA funds placed in an on-campus account. GLBA therefore opened an account off-campus with a commercial bank.
Second, USA denied funding to GLBA based on § 16-1-28. The district court based this conclusion on three events. In the fall of 1992, GLBA requested funds to purchase posters publicizing "World AIDS Day" activities. Dean Adams refused to fund GLBA until he received an opinion from the Attorney General on § 16-1-28's application. In an effort to accommodate GLBA without violating § 16-1-28, Dean Adams instructed the SGA to buy the World AIDS Day posters. In the winter of 1993, GLBA requested funds to bring a guest speaker to campus. Dean Adams instructed the SGA to table the request because USA could not fund GLBA until it received an opinion from the Attorney General interpreting § 16-1-28. In the spring of 1993, GLBA again requested funds for a speaker. This time the SGA approved the request. However, Dean Adams refused to approve final payment of this money. In July 1993, the Attorney General issued a letter opinion stating that GLBA could not receive funds. The Attorney General's opinion did not specify how or why GLBA violated § 16-1-28. It is clear from the record that USA officials made efforts to accommodate GLBA without violating § 16-1-28. However, it is also clear that USA officials felt compelled, by virtue of § 16-1-28, to deny funding to GLBA on the three occasions mentioned above.
GLBA filed suit against the Attorney General and two USA officials alleging that § 16-1-28, on its face and as applied to it, constituted impermissible viewpoint discrimination in violation of the First Amendment. GLBA also raised Equal Protection Clause and First Amendment vagueness challenges to the statute. The parties submitted the case for final resolution on a joint written record, supplemented by briefs and oral argument. The district court held that § 16-1-28 violated the First Amendment both on its face and as applied to GLBA. The district court did not reach the equal protection or vagueness claims. Only the Attorney General appealed.
The constitutionality of a statute is a question of law subject to de novo review. United States v. Harden, 37 F.3d 595, 602 (11th Cir.1994). We review the district court's underlying factual findings for clear error. FED.R.CIV.P. 52(a); Anderson v. Blue Cross/Blue Shield of Ala., 907 F.2d 1072, 1075 (11th Cir.1990).
The evidence is undisputed because the parties submitted this case on a joint written record. Nevertheless, the Attorney General argues that the district court mischaracterized some of the evidence. If evidence is capable of different reasonable interpretations, however, findings based on one of them are not clearly erroneous. L & C Marine Transport, Ltd. v. Ward, 755 F.2d 1457, 1461 (11th Cir.1985). We have examined the record and conclude that, on balance, the district court's findings are not clearly erroneous. However, one of the district court's findings requires some discussion.
The district court found that USA engaged in an improper investigation into the personal lives of GLBA group members. In July 1993, the Attorney General released a letter opinion regarding the application of § 16-1-28 to GLBA. The Attorney General concluded, without analysis or explanation, that GLBA could not receive funds from the SGA. Because the Attorney General provided no guidance on the meaning of "fostering" or "promoting," USA established a fact-finding committee to determine if GLBA violated § 16-1-28 by fostering or promoting actions prohibited by the sodomy or sexual misconduct laws. The district court characterized this action as "intrusive and highly personal." Gay Lesbian Bisexual Alliance, 917 F.Supp. at 1552.
The Attorney General correctly points out that the committee actually never began an investigation due to GLBA's filing of this lawsuit. The district court therefore mischaracterized the fact-finding committee. The committee could not have been "intrusive and highly personal" because it had yet to begin its work. We conclude that this finding of the district court is clearly erroneous but we do not consider the proposed work of the fact-finding committee material to this appeal. Despite our disagreement with the district court on this point, the remaining factual findings are based on a reasonable interpretation of the facts and are not clearly erroneous.
Appellant argues that the expression affected by § 16-1-28 is not constitutionally protected speech because the statute only outlaws speech advocating violation of the sodomy or sexual misconduct laws. We disagree. It is well-established that the First Amendment protects advocacy to violate a law. Brandenburg v. Ohio, 395 U.S. 444, 448-49, 89 S.Ct. 1827, 1830-31, 23 L.Ed.2d 430 (1969). That protection is limited in one important respect: The First Amendment does not "permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 447, 89 S.Ct. at 1829 (emphasis added); see also Healy v. James, 408 U.S. 169, 188-89, 92 S.Ct. 2338, 2350, 33 L.Ed.2d 266 (1972); Noto v. United States, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 1520-21, 6 L.Ed.2d 836 (1961).
The Attorney General argues that we should interpret § 16-1-28 to fit within Brandenburg 's narrow exception to the general...
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