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Shaw v. Burke Statement of Interest

Date: 
Tuesday, October 24, 2017
Document Type: 
Statement of Interest

 

JEFFERSON B. SESSIONS III

Attorney General

JOHN M. GORE

Acting Assistant Attorney General

TARA HELFMAN

Senior Counsel

STEVEN MENASHI

Acting General Counsel, Department of Education

THOMAS E. CHANDLER

Deputy Chief, Appellate Section

VIKRAM SWARUUP

Attorney, Appellate Section
U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Ave., N.W.

Washington, DC 20530

Telephone: (202) 616-5633

Facsimile: (202) 514-8490

Email: vikram.swaruup@usdoj.gov

 

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

 

KEVIN A. SHAW, Plaintiff,

v.

KATHLEEN F. BURKE, et al., Defendants.


TABLE OF CONTENTS
                                                                                                                    PAGE
UNITED STATES’ STATEMENT OF INTEREST ................................................1
INTEREST OF THE UNITED STATES ................................................................. 1
FACTUAL AND PROCEDURAL BACKGROUND ............................................. 2
DISCUSSION ..........................................................................................................7
I.  PLAINTIFF ADEQUATELY PLEADED THAT THE DISTRICTAND COLLEGE SPEECH RESTRICTIONS VIOLATE THE FIRST AMENDMENT.....................................................................7
A. The Permitting Requirement Creates An UnconstitutionalPrior Restraint .................................... 9
B.  Pierce College’s Ban On Speech Beyond The 616-Square-Foot Free Speech Area Is, In Any Case, An Invalid Time, Place, and Manner Restriction ...............................................14
CONCLUSION ......................................................................................................21

i

 

TABLE OF AUTHORITIES                                                                                  PAGE

CASES
American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600 (6th Cir. 2005) ................................................................................ 12
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................... 2
Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011) ....................................................................... 8, 19
Boardley v. Dept. of Interior, 615 F.3d 508 (D.D.C. 2010) ................................................................................. 11
Bowman v. White, 444 F.3d 967 (8th Cir. 2006) ............................................................. 11, 15, 16, 19
Burk v. Augusta-Richmond Cty., 365 F.3d 1247 (11th Cir. 2004) ............................................................................ 11
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ............................................................................................... 9
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) ............................................................................................. 11
Cox v. City of Charleston, 416 F.3d 281 (4th Cir. 2005) ................................................................... 11, 12, 13
Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387 (D.D.C. 1990) ............................................................................... 12
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) ............................................................................................... 9
DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) ................................................................................... 9

i

 

Douglass v. Brownell, 88 F.3d 1511 (8th Cir. 1996) ................................................................................ 11
Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123 (1992) .............................................................................. 7, 8, 10, 11
FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) ............................................................................................. 10
Gilles v. Garland, 281 F. App’x 501 (6th Cir. 2008) ......................................................................... 16
Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................................................. 9, 14, 15
Grossman v. Portland, 33 F.3d 1200 (9th Cir. 1994) ................................................................... 11, 12, 13
Hays Cty. Guardian v. Supple, 969 F.2d 111 (5th Cir. 1992) ......................................................................... 16, 18
Healy v. James, 408 U.S. 169 (1972) .................................................................................. 7, 10, 15
Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (1981) ............................................................................................. 18
Justice For All v. Faulkner, 410 F.3d 760 (5th Cir. 2005) ......................................................................... 16, 19
Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012) ................................................................................ 10
Keyishian v. Bd. of Regents of State Univ. of N.Y., 385 U.S. 589 (1966) ............................................................................................... 2
Kovacs v. Cooper, 336 U.S. 77 (1949) ............................................................................................... 18
Kuba v. 1-A Agr. Ass’n, 387 F.3d 850 (9th Cir. 2004) ................................................................................ 18

ii

 

Kunz v. New York, 340 U.S. 290 (1951) ...................................................................................... 10, 11
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) .............................................................................. 10
McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012) ................................................................................ 14
Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) ............................................................................................. 19
N.A.A.C.P. v. City of Richmond, 743 F.2d 1346 (9th Cir. 1984) .............................................................................. 14
Niemotko v. Maryland, 340 U.S. 268 (1951) ............................................................................................... 8
OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012) .............................................................................. 17
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) ...................................................................................... 7, 8, 16
Pine v. City of W. Palm Beach, FL, 762 F.3d 1262 (11th Cir. 2014) ..................................................................... 18, 19
Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) ............................................................................................... 8
Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) ................................................................. 16
Sarre v. City of New Orleans, 420 F. App’x 371 (5th Cir. 2011) ......................................................................... 19
Shelton v. Tucker, 364 U.S. 479 (1960) ............................................................................................... 2
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ............................................................................................. 10

iii

 

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ............................................................................................... 1
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) .................................................................................. 2, 15, 19
Univ. of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 12-155, 2012 WL 2160969 (S.D. Ohio June 12, 2012) ......................... 10, 13
Virginia v. Black, 538 U.S. 343 (2003) ............................................................................................... 9
Ward v. Rock Against Racism, 491 U.S. 781 (1989) .................................................................................. 8, 15, 19
Watchtower Bible & Tract Soc’y v. Stratton, 536 U.S. 150 (2002) ........................................................................................ 8, 13
Widmar v. Vincent, 454 U.S. 263 (1981) ........................................................................................ 1, 19

FEDERAL STATUTES

20 U.S.C. § 1011a(a)(2) ............................................................................................. 1
28 U.S.C. § 517 .......................................................................................................... 1

OTHER

Virginia Resolutions (Dec. 21, 1798), in 5 THE FOUNDERS’ CONSTITUTION, 135(Philip B. Kurland & Ralph Lerner, eds., 1987) .................................................... 1 

iv

 

UNITED STATES’ STATEMENT OF INTEREST

The United States respectfully submits this Statement of Interest pursuant to
28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests
of the United States in a suit pending in a court of the United States.” In particular,
the Department of Education is committed to ensuring that “institution[s] of higher
education . . . facilitate the free and open exchange of ideas.” 20 U.S.C. §
1011a(a)(2). In the United States’ view, Plaintiff Kevin Shaw has properly
pleaded that speech regulations imposed by Los Angeles Pierce College (“Pierce
College” or “College”) and the Los Angeles Community College District
(“District”) violated his First Amendment rights.

INTEREST OF THE UNITED STATES

The United States has an interest in protecting the individual rights
guaranteed by the First Amendment. The right to free speech lies at the heart of a
free society and is the “only effectual guardian of every other right.” Virginia
Resolutions (Dec. 21, 1798), in 5 THE FOUNDERS’ CONSTITUTION, 135, 136 (Philip
B. Kurland & Ralph Lerner, eds., 1987). State-run colleges and universities are no exception from this rule, especially since “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981). Thus, public universities have “an obligation to justify [their] discriminations and exclusions under applicable constitutional norms.” Id. at 267.

The United States has a significant interest in the vigilant protection of
constitutional freedoms in institutions of higher learning. As the Supreme Court
has noted, “[t]eachers and students must always remain free to inquire, to study
and to evaluate, to gain new maturity and understanding; otherwise our civilization
will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
In recent years, however, many institutions of higher education have failed to answer this call, and free speech has come under attack on campuses across the

1
 

country. Such failure is of grave concern because freedom of expression is “vital” on campuses. Shelton v. Tucker, 364 U.S. 479, 487 (1960).
It is in the interest of the United States to lend its voice to enforce First
Amendment rights on campuses because “‘[t]he Nation’s future depends upon
leaders trained through wide exposure to that robust exchange of ideas which
discovers truth ‘out of a multitude of tongues, (rather) than through any kind of
authoritative selection.’” Keyishian v. Bd. of Regents of State Univ. of N.Y., 385
U.S. 589, 603 (1966) (citation omitted). “[O]ur history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–509 (1969).

FACTUAL AND PROCEDURAL BACKGROUND

Because the case is before the Court on a motion to dismiss, the Court must
take all of Plaintiff’s well-pleaded allegations as true. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555–556 (2007). Likewise, for purposes of this Statement
of Interest, the United States takes Plaintiff’s well-pleaded allegations as true. The
United States takes no view regarding whether Plaintiff will succeed in proving
these allegations at trial.

According to the Complaint, Plaintiff Kevin Shaw is a student at Los
Angeles Pierce College, one of nine public community colleges within the Los
Angeles Community College District. Doc. 1 (Complaint) ¶¶ 1, 3, 14, 28. Mr.
Shaw brings facial and as-applied challenges to the District’s published speech
policies and the College’s published and unpublished speech policies.
Specifically, Mr. Shaw challenges Chapter IX, Article IX of the Los Angeles
Community College District Rules (“District Rules”), which are promulgated and
maintained by the District’s Board of Trustees. Chapter IX, Article IX contains

2


provisions that govern freedom of speech on campuses (“District Free Speech Policy”):

 All of the District’s colleges, except for designated Free Speech Areas, are non-public fora that are not open to free speech and expression, id. ¶ 35, Ex. A at 31;

 Each college president may designate “Free Speech Areas” on campus “for free discussion and expression by all persons,” subject to content-neutral time, place, and manner restrictions, including “reasonable time restrictions on the use of Free Speech Areas,” id. ¶ 38, Ex. A at 32; and

 Students may distribute literature, including “petitions, circulars, leaflets, newspapers, miscellaneous printed matter and other materials” only in designated Free Speech Areas, id. ¶ 37, Ex. A at 31.

Mr. Shaw alleges that Pierce College “has also adopted and enforced other
policies and practices that severely restrict free speech and expressive activity,
including an apparently unpublished requirement” that students wishing to utilize
the Free Speech Area must first complete a permit application. Id. ¶ 4. This
permit application contains additional rules governing campus speech (“College
Free Speech Area Policy”). These rules can be found only on the permit
application; thus, students like Mr. Shaw are only able to learn of the College’s
particular rules governing free expression after requesting and obtaining an
application form. Id. ¶¶ 43–44. Beyond that form, students “have no public,
generally accessible means to discern any restrictions to which they are subject or
under which they could be punished for engaging in speech or expressive activity”
on campus. Id. ¶ 40.

As printed on the permit application, the Pierce College Free Speech Area Policy states the following:

3


 “The college has one (1) Free Speech Area” on campus “designated for free speech and gathering of signatures,” id., Ex. C at 36–37;

 “[D]istribution [of materials] shall take place only within the geographical limits of the Free Speech Area,” id., Ex. C at 38;

 Permitted students may utilize the Free Speech Area from 9:00 a.m. until 7:00 p.m. on Monday through Friday, id., Ex. C at 37; and

 Students wishing to distribute materials in the Free Speech Area must provide to the Vice President of the Student Services Office (“Student Services”) the name and address of the organization, the name(s) of the distributor(s), and the date and time of distribution, id. ¶ 8, Ex. C at 36.

According to Mr. Shaw, the College does not limit in any way the discretion of administrators to approve or reject applications submitted by students. Id. ¶ 50.
The permit application also identifies the location of the Free Speech Area
by reference to dotted lines on an attached map. Id., Ex. C at 37. These lines
delineate an area “comprising approximately 616 feet,” which is “approximately
.003% of the total area of Pierce College’s 426 acres, and approximately .007% of
the main area of campus featured in Pierce’s online campus map.” Id. ¶ 46.
According to Mr. Shaw, the geographic restriction is not tied to any interest of the
College because the College “has many open areas and sidewalks beyond the Free
Speech Area where student speech, expressive activity, and distribution of
literature would not interfere with or disturb access to college buildings or
sidewalks, impede vehicular or pedestrian traffic, or in any way substantially
disrupt the operations of the campus or the college’s educational functions.” Id. ¶ 54.

The College enforces these speech restrictions through its Standards of Student Conduct. Those standards require students to conform to District Rules

4

 

(including the speech rules) and state that violation of the rules will result in disciplinary action. Id. ¶ 55.

Mr. Shaw alleges that the College enforces these rules in a manner that
unconstitutionally limits student speech. On November 2, 2016, Shaw and two
other individuals set up a table on an area of campus known as the “Mall” to
distribute Spanish-language copies of the United States Constitution and to discuss
free speech issues with students. Id. ¶¶ 56–57. Although the table was outside of
the Free Speech Area, Mr. Shaw was not disrupting any campus operations or
interfering with foot traffic while distributing copies of the Constitution. Id. ¶¶ 57–58.

Shortly after Mr. Shaw set up his table, an administrator told him that he was
not permitted to engage in free speech outside the designated Free Speech Area
and that he needed to complete a permit application to use the Free Speech Area.
Id. ¶ 60. The administrator “insisted that Shaw accompany him into a building so
that Shaw could complete a permit application.” Id. Upon asking the
administrator “what would happen if he refused to accompany him into the
building and continued his expressive activity in his current location, he was told
that he would be asked to leave the campus.” Id. ¶ 61. Mr. Shaw complied with
the administrator’s instructions and completed a permit application.
Approximately two weeks after that incident, Mr. Shaw again attempted to
distribute materials outside the Free Speech Area. Id. ¶ 66. He distributed
materials “for several hours in an open, grassy area of campus outside the Free
Speech Area,” uninterrupted by administrators. Id. During this time, Mr. Shaw
witnessed a large protest form outside the Free Speech Area. Id. Mr. Shaw
therefore alleges that the College enforces its speech restrictions “selectively and
unevenly” by allowing speech outside the designated area in some instances but
prohibiting it in others. Id. ¶ 67.

5


Mr. Shaw engaged with administrators at length regarding his desire to
engage in free speech. He informed them that he did not intend to block access to
any buildings, use amplified sound, or disrupt College operations. Id. ¶ 65. He
also sought a copy of the College’s speech policies. Id. ¶ 71. In response to this
request, an administrator informed Mr. Shaw that those who wanted “to use the
free speech area are asked to fill out a free speech use form” and that “[o]nce that
is done a copy of the policy and a permit is handed to each person that comes into
our office.” Id. ¶ 74.

Mr. Shaw attempted on three occasions thereafter to obtain a copy of the
College Free Speech Area Policy and the permit application that he had submitted
on November 2, 2016, from the Associated Student Organization office.
Id. ¶¶ 77–80. According to the Complaint, it was only when Mr. Shaw refused to
leave the office that Defendants begrudgingly provided him with a copy of the
policy and his application. Id. ¶ 80–85.

Mr. Shaw subsequently filed suit, alleging that the College’s enforcement of
its speech rules prevented him from speaking on campus and distributing materials,
and that this conduct infringed on his rights under the First Amendment. Mr. Shaw
further alleges that he wants to petition for signatures and distribute literature on
campus without seeking prior authorization and without being limited to the 616square-
foot Free Speech Area. Id. ¶ 88. But he fears doing so because
enforcement of the College’s policies could result in discipline under the Standard
of Student Conduct or his removal from campus by the sheriff’s office. Id.
In the Complaint, Mr. Shaw challenges, both on their face and as applied, (1)
the requirement that he seek permission before using the Free Speech Area and (2)
the limitation of speech to the small Free Speech Area. Id. Defendants, various
College officials, have moved to dismiss the Complaint. Doc. 22 (Defendants’
Notice of Motion and Motion to Dismiss).

6

 


The United States does not address the Eleventh Amendment, standing, or
qualified immunity issues raised in Defendants’ motion to dismiss. Id. at 3–10,
22–25. Taking the facts alleged as true, the United States is of the view, for the
reasons below, that Plaintiff has stated claims for violations of the First
Amendment.

DISCUSSION

The free speech protections of the First Amendment are as applicable to
State-run colleges as they are to any other government institution. Healy v. James,
408 U.S. 169, 180 (1972). Mr. Shaw’s allegations, if proven, demonstrate that
Pierce College’s speech policies and practices, which the College applied to deny
Mr. Shaw his right to engage in expressive activity in a public forum, imposed
prior restraints that were not narrowly tailored to further a significant government
interest and failed to provide other alternative channels of communications. Mr.
Shaw has therefore stated claims under the First Amendment.

I. PLAINTIFF ADEQUATELY PLEADED THAT THE DISTRICT AND COLLEGE SPEECH RESTRICTIONS VIOLATE THE FIRST AMENDMENT

Under the First Amendment, the power of the government to regulate speech
on college and university campuses is contingent on the character of the forum in
question. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44
(1983) (“The existence of a right of access to public property and the standard by
which limitations upon such a right must be evaluated differ depending on the
character of the property at issue.”). A “public forum” is “public property which
the state has opened for use by the public as a place for expressive activity,” either
by tradition or designation. Id. at 45.

The government may impose permitting requirements on expressive activity
in a public forum to manage competing uses of the space. Forsyth Cty., Ga,. v.
Nationalist Movement, 505 U.S. 123, 130 (1992). However, there is a heavy

7
 

presumption against the validity of prior restraints, id., because “[i]t is offensive— not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so,” Watchtower Bible & Tract Soc’y v. Stratton, 536 U.S. 150, 165– 66 (2002). Thus, the Supreme Court has repeatedly “condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech . . . and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be invalid.” Niemotko v. Maryland, 340 U.S. 268, 271 (1951).

Furthermore, in a “public forum,” the government may impose “[r]easonable
time, place, and manner restrictions . . . but any restriction based on the content of
the speech must satisfy strict scrutiny, that is, the restriction must be narrowly
tailored to serve a compelling government interest and restrictions based on
viewpoint are prohibited.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460,
469 (2009) (citations omitted); see also Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989); Perry Educ. Ass’n, 460 U.S. at 45. In such a forum, even
content-neutral time, place, and manner restrictions must be narrowly tailored to
achieve a significant government interest and “leave open ample alternative
channels of communication.” Perry Educ. Ass’n, 460 U.S. at 45; Ward, 491 U.S.
at 791.

The District Free Speech Policy designates the College’s Free Speech Area
as a public forum “for free discussion and expression by all persons.” Doc. 1, Ex.
A at 30. Because the Free Speech Area has been intentionally opened up for
expression and speech, it is a designated public forum. See Bloedorn v. Grube,
631 F.3d 1218, 1231 (11th Cir. 2011). Pierce College also has adopted an
unpublished Free Speech Area Policy that, together with the District Free Speech

8

 

Policy, limits student expression to the Free Speech Area and requires students to
secure permission to utilize the Free Speech Area from College administrators by
submitting a permit application in advance. Id. ¶ 4, Ex. C.

Taken as true, Mr. Shaw’s allegations state a claim that the College’s speech
restrictions are constitutionally infirm in two key respects. First, they create an
unconstitutional prior restraint on speech in the Free Speech Area. Second, in all
events, they are not valid time, place, and manner restrictions because they are not
narrowly tailored and do not leave open ample alternative channels of
communication.1

A. The Permitting Requirement Creates An Unconstitutional Prior Restraint

Under the First Amendment, there is a heavy presumption against the
validity of prior restraints, which “make[] the peaceful enjoyment of freedoms

 

1 There is no dispute that public educational institutions have a significant
interest in ensuring that speech is not used to jeopardize the ordinary function and
order of classes and other educational activities. See Grayned v. City of Rockford,
408 U.S. 104, 118 (1972). In the light of these significant government interests,
courts have noted that a school policy that “prohibits speech that would
substantially interfere with a student’s educational performance, may” be
constitutionally permissible because “[t]he primary function of a public school is to
educate its students; conduct that substantially interferes with the mission is,
almost by definition, disruptive to the school environment.” DeJohn v. Temple
Univ., 537 F.3d 301, 320 n.22 (3d Cir. 2008). Moreover, certain content-based
restrictions on speech are permissible in any public setting. For example, public
colleges can restrict fighting words, harassing speech that creates a hostile
environment, and true threats. See Chaplinsky v. New Hampshire, 315 U.S. 568,
572 (1942) (defining fighting words as those which “by their very utterance inflict
injury or tend to incite an immediate breach of the peace”); Davis v. Monroe Cty.
Bd. of Educ., 526 U.S. 629, 651 (1999) (establishing liability standards for
damages under Title IX based on school district’s failure to respond to hostile
environment created by student-on-student sexual harassment); Virginia v. Black,
538 U.S. 343, 359 (2003) (defining true threats as speech that intends “to
communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals”) (citation omitted).

9


which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official.” Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969); see also Forsyth Cty., 505 U.S. at 130; FW/PBS, Inc. v. Dallas, 493 U.S. 215, 225 (1990). “A prior restraint is any government restriction that vests an administrative official with discretionary power to control in advance the use of public places for First Amendment Activities.” Univ. of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 12-155, 2012 WL 2160969 at *6 (S.D. Ohio June 12, 2012) (citing Kunz v. New York, 340 U.S. 290, 293–294 (1951)).

The First Amendment prohibits “regulations that confer unbridled discretion
on a permitting or licensing official,” Long Beach Area Peace Network v. City of
Long Beach, 574 F.3d 1011, 1025 (9th Cir. 2009), because they invite favoritism,
arbitrary enforcement, and viewpoint discrimination, which is often difficult to
detect, Kaahumanu v. Hawaii, 682 F.3d 789, 807 (9th Cir. 2012). Thus, any
permitting requirement that operates as a prior restraint “must contain narrow,
objective, and definite standards to guide the licensing authority.” Forsyth Cty.,
505 U.S. at 131 (internal quotation marks and citation omitted). Indeed, a heavy
burden rests on the college to demonstrate the propriety of any prior restraints.
Healy, 408 U.S. at 184. The Supreme Court has therefore permitted parties to
challenge permitting requirements “in cases where every application creates an
impermissible risk of suppression of ideas, such as an ordinance that delegates
overly broad discretion to the decisionmaker.” Forsyth Cty., 505 U.S. at 129.

As alleged in the Complaint, three aspects of the College’s permitting
requirements for the Free Speech Area are facially unconstitutional. First, Mr.
Shaw alleges that the College’s permitting system gives College administrators
unlimited discretion to grant or deny permits. Doc. 1 ¶¶ 52, 111. Courts have
routinely struck down permitting schemes that, like the scheme at issue here,

10

 

confer unbridled discretion and fail to identify objective and narrow standards for the licensing authority to apply. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988) (“[I]n the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship”) (citation omitted); Kunz, 340 U.S. at 294 (“[W]e have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places”) (citation omitted); cf. Bowman v. White, 444 F.3d 967, 981 (8th Cir. 2006) (upholding permitting scheme because the rule “grants the University the right to deny or revoke a permit for the use of a space by a Non-University Entity only for limited reasons, such as interference with the educational activities of the institution”). This is true because “[i]f the permit scheme involves appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted.” Forsyth Cty., 505 U.S. 123 at 131 (internal quotation marks and citations omitted).

Second, the College’s rules require all speakers to apply for and obtain a
permit, regardless of whether the applicants plan to speak alone or as part of a
group and regardless of whether an applicant’s speech is likely to draw a crowd.
Courts have rejected this sort of “unflinching application” of permitting
requirements to small groups “posing no threat to the safety, order, and
accessibility of streets and sidewalks,” Cox v. City of Charleston, 416 F.3d 281,
285–287 (4th Cir. 2005), on the ground that such rules are not narrowly tailored,
Burk v. Augusta-Richmond Cty., 365 F.3d 1247, 1255 n.13 (11th Cir. 2004). Thus,
courts have invalidated permitting requirements for small groups, Boardley v.
Dep’t of Interior, 615 F.3d 508, 520–523 (D.D.C. 2010), including groups of ten,
Douglass v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996), groups of “six to eight,”

11

 


Grossman v. City of Portland, 33 F.3d 1200, 1205–1208 (9th Cir. 1994), groups of three, Cox, 416 F.3d at 286, and groups of two, Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.D.C. 1990).

In Grossman, the Ninth Circuit addressed the constitutionality of a
municipal ordinance that required a permit for any person “to conduct or
participate in any organized entertainment, demonstration, or public gathering, or
to make any address, in a [public] park.” 33 F.3d at 1201. The city applied that
ordinance to “arrest[] and handcuff[]” a member of a group of “six to eight people”
engaged in “a small, peaceful anti-nuclear protest.” Id. at 1202. That person
brought suit alleging that the ordinance violated his First Amendment rights, and
the Ninth Circuit agreed. Id.

The Ninth Circuit held that the permitting scheme was “a prior restraint” that
“restricted access to the public parks, the quintessential public forums,” Grossman,
33 F.3d.at 1204 (internal quotation marks and citations omitted), and that the
ordinance was not narrowly tailored, id. at 1205–1208. In particular, the Ninth
Circuit concluded that the ordinance was “extremely broad” because it included
“the actions of single protesters” within its sweep. Id. at 1206. Accordingly,
“[r]ather than being narrowly tailored to protect speech, as it should have been,”
the ordinance “was tailored so as to preclude speech.” Id. at 1207.

Similarly, other circuits have held unconstitutional as impermissible prior
restraints permitting schemes that unnecessarily require two or three people
gathered together to acquire a permit before engaging in speech. For example, the
Sixth Circuit invalidated an ordinance as “hopelessly overbroad” because
“virtually any group of two or more persons walking on a public right of way with
a common purpose or goal would presumably be required to possess a permit
under the Ordinance.” American-Arab Anti-Discrimination Comm. v. City of
Dearborn, 418 F.3d 600, 608 (6th Cir. 2005). Likewise, the Fourth Circuit held
unconstitutional an ordinance that criminalized the failure to obtain a permit before

12
 

a group of three people engaged in any sort of expressive conduct. Cox, 416 F.3d at 286

(“Even if their expression does nothing to disturb the peace, block the sidewalk, or interfere

with traffic, the [regulation] renders it criminal.”).

As alleged, the College’s policies and practices similarly included the
actions of a small group of people within their sweep. Grossman, 33 F.3d at 1206.
Specifically, Mr. Shaw and two other people—a smaller group than the “six to
eight” in Grossman, id. at 1202—“set up a small folding table outside the Free
Speech Area on the Pierce College Mall” and “intended to discuss their political
beliefs with students on the Pierce College Campus,” Doc. 1 ¶¶ 57–58. Mr.
Shaw’s activities did not interrupt the ordinary functions of the College or draw a
large crowd. Id. ¶ 58. To the contrary, he sought to distribute copies of the
Constitution, speak to his fellow students, and collect signatures for a petition by
himself or with one or two others. Id. ¶¶ 56–58, 64. The College’s policies
prohibiting this kind of non-disruptive expressive activity by an individual or small
group are unconstitutionally broad and, instead of “being narrowly tailored to
protect speech,” are “tailored so as to preclude speech.” Grossman, 33 F.3d at
1206–1207.

Third, the requirement that students provide their names, organizational
affiliation, and other information to administrators before engaging in speech
violates the First Amendment because it effectively bans all spontaneous speech.
See Doc. 1 ¶ 48. Courts have struck down restrictions where “there is a significant
amount of spontaneous speech that is effectively banned by the [regulation].”
Watchtower Bible & Tract Soc’y., 536 U.S. at 167; see also Grossman, 33 F.3d at
1206 (noting that broad permitting schemes ban “[s]pontaneous expression, which
is often the most effective kind of expression”); Williams, 2012 WL 2160969, at *6
(“[E]xpansive permitting schemes place an objective burden on the exercise of free
speech. Further, they essentially ban spontaneous speech.”) (citation omitted).
The permitting requirement here prevents students from engaging in spontaneous

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speech, even within the designated Free Speech Area, and is therefore constitutionally suspect. McGlone v. Bell, 681 F.3d 718, 734–735 (6th Cir. 2012) (reversing dismissal of a complaint challenging registration requirement because college had “not explained how the policy at issue maintains order or prevents interruption of an educational mission”).
Mr. Shaw has stated a claim that the permit requirement on its face infringed
on his First Amendment rights. Indeed, he has alleged that the requirement,
together with campus administrators’ enforcement of the policy, has made him
fearful to speak on campus. Doc. 1 ¶ 88. As the Ninth Circuit has recognized,
permitting requirements have precisely this chilling effect because “[t]he simple
knowledge that one must inform the government of [one’s] desire to speak and
must fill out appropriate forms and comply with the applicable regulations
discourages citizens from speaking freely.” N.A.A.C.P. v. City of Richmond, 743
F.2d 1346, 1355 (9th Cir. 1984).

B. Pierce College’s Ban On Speech Beyond The 616-Square-Foot Free Speech Area Is, In Any Case, An Invalid Time, Place, and Manner Restriction

Even if the College’s closure to student expression of all fora outside the
Free Speech Area were not an invalid prior restraint, it still would violate the First
Amendment because it is not a valid time, place, or manner restriction. Time,
place, or manner restrictions are a vital means through which the government
manages competing uses of public fora. “For example, two parades cannot march
on the same street simultaneously, and government may allow only one. A
demonstration . . . on a large street during rush hour might put an intolerable
burden on the essential flow of traffic, and for that reason could be prohibited. If
overamplified loudspeakers assault the citizenry, government may turn them
down.” Grayned v. City of Rockford, 408 U.S. 104, 115–116 (1972) (citations
omitted). However, “[f]ree expression must not, in the guise of regulation, be

14


abridged or denied.” Id. at 117 (internal quotation marks omitted). Thus, it is well-established that “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Ward, 491 F.3d at 791 (internal quotation marks omitted).

Ultimately, “[t]he nature of a place, the pattern of its normal activities,
dictate the kinds of regulations of time, place, and manner that are reasonable.”
Grayned, 408 U.S. at 116 (internal quotation marks omitted). With respect to the
unique characteristics of the educational environment, expressive activity that
“materially disrupts classwork or involves substantial disorder or invasion of the
rights of others is . . . not immunized by the constitutional guarantee of freedom of
speech.” Tinker, 393 U.S. at 513. At the same time, “[c]ollege campuses
traditionally and historically serve as places specifically designated for the free
exchange of ideas.” Bowman, 444 F.3d at 979 (citing Healy, 408 U.S. at 180).
Thus, “[i]n the absence of a specific showing of constitutionally valid reasons to
regulate their speech, students are entitled to freedom of expression of their views”
in State-operated schools. Tinker, 393 U.S. at 511.

Any assessment of the reasonableness of time, place, or manner restrictions
requires an examination of the physical characteristics of the area in question and
its traditional, designated, or habitual uses. See infra pp. 16–17. Yet Pierce
College imposes its speech restrictions without regard for “[t]he crucial
question”—“whether the manner of expression is basically incompatible with the
normal activity of a particular place at a particular time.” Grayned, 408 U.S. at
116. The District Rules indiscriminately convert all areas outside the Free Speech Area—that is, more than 99.9% of the campus, including its Mall, sidewalks, and publicly accessible spaces—into non-public fora without any consideration of the

15

 

variety of fora present on a modern university campus. Doc. 1, Ex. A (“The colleges of the Los Angeles Community College District are non-public forums, except for those portions of each college designated as Free Speech Areas”). That imprecise, blunt labeling of the College’s grounds fails to take into account the various uses of the many spaces on the College, and therefore disregards the corresponding levels of judicial scrutiny. See Bowman, 444 F.3d at 976 (“A modern university contains a variety of fora.”). Because speech restrictions in non-public fora need only be reasonable and viewpoint neutral, see Perry Educ. Ass’n, 460 U.S. at 46, the College is ostensibly free to discriminate on the basis of the content of speech or bar certain speech altogether.
This is particularly troubling because courts have held that outdoor public
spaces on campus are public fora, especially for students such as Mr. Shaw. For
example, the Fifth Circuit held that “outdoor areas of [a] campus generally
accessible to students—such as plazas and sidewalks—[are] public forums for
student speech.” Justice For All v. Faulkner, 410 F.3d 760, 769 (5th Cir. 2005);
Hays Cty. Guardian v. Supple, 969 F.2d 111, 117 (5th Cir. 1992) (finding that a
“campus’s function as the site of a community of full-time residents . . . suggests
an intended role more akin to a public street or park than a non-public forum.”). In
addition, the Eighth Circuit held that campus areas, “including the streets,
sidewalks, and open areas located inside and directly adjacent to the campus,”
were public fora. Bowman, 444 F.3d at 977–978; see also Gilles v. Garland, 281
F. App’x 501, 509–510 (6th Cir. 2008) (discussing Bowman); Roberts v. Haragan, 346 F. Supp. 2d 853, 861–862 (N.D. Tex. 2004) (holding that a campus’s park areas, sidewalks, streets, or other similar common areas “comprise the irreducible public forums on the campus”). To determine whether particular areas are designated public fora, courts must analyze the objective evidence in the record, including the physical characteristics and location of the area, the traditional use of

16

 

the property, the purposes of the space, and the college’s intent and policy with respect to the property. Bowman, 444 F.3d at 978.
Pierce College is no exception to this rule. According to the Complaint,
there are “open areas and sidewalks beyond the Free Speech Area where student
speech, expressive activity, and distribution of literature would not interfere with
or disturb access to college buildings or sidewalks” or otherwise disrupt the
educational mission of the College. Doc. 1 ¶ 54. Mr. Shaw further alleges that, at
the time he was stopped from distributing Spanish-language copies of the United
States Constitution and discussing his political views with willing students, he was
located alongside a “large thoroughfare called ‘the Mall’” and was not “disrupting
campus operations or interfering with foot traffic.” Id. ¶¶ 57–58.

Although the College and District Rules are relevant in determining whether
parts of campus have been designated as public fora for student speech, these rules
are not dispositive in and of themselves. To the contrary, according to the Ninth
Circuit, the College and District must consistently apply those rules if they wish to
convert Pierce College’s public fora into a non-public forum property. The Ninth
Circuit’s decision in OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012),
is instructive. In that case, the court held that in order to “destroy the designation
of a public forum, the government must do more” than merely announce a policy.
Id. at 1063. Rather, it must “consistently apply a policy specifically designed to
maintain a forum as non-public.” Id. (emphasis added).

Mr. Shaw has alleged that the College’s application of its policies was
inconsistent at best because the College allowed students to engage in expressive
activity outside the Free Speech Zone. Specifically, Mr. Shaw alleged that campus
administrators allowed a “large protest that formed outside of the Free Speech
Area” to proceed. Doc. 1 ¶ 66. Indeed, on one occasion, Mr. Shaw was himself
able to distribute materials outside the Free Speech Area unimpeded by Pierce
College officials. Id. Thus, Mr. Shaw has demonstrated that Pierce College did

17

 


not consistently apply the District’s non-public forum policy to areas that would otherwise be public fora, including the campus’s open, grassy areas and sidewalks. See Hays Cty. Guardian, 969 F.2d at 118 (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice”).
The allegations regarding the narrowness of the Free Speech Area give rise
to a sufficient First Amendment claim because it is “the right of every citizen to
‘reach the minds of willing listeners and to do so there must be opportunity to win
their attention.’” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S.
640, 655 (1981) (quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949)). The College
has limited all speech to a 616-square-foot Free Speech Area on a campus that
spans hundreds of acres. Doc. 1 ¶ 46. Moreover, the College bans distribution of
materials and collection of signatures outside of the Free Speech Area. Id. And
the map attached to the Complaint shows that the restriction of speech to the Free
Speech Area prevents students from communicating with peers who traverse other
parts of the campus. Id., Ex. B. Yet the College fails to explain why its stated
interest of “avoiding disruption, insuring safety, comfort, or convenience of the
public, and maintaining grounds that are attractive and intact,” Doc. 22 at 23,
justifies the limitation of free expression to a peculiarly small area of campus.
Specifically, the College does not address why substantial portions of
ordinarily common spaces, including parts of the large thoroughfare known as the
College’s “Mall,” are excluded as alternative fora for student expression.
Doc. 1 ¶¶ 46, 57; see Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 862 (9th Cir. 2004)
(holding that a policy that “relegates communication activity to three small, fairly
peripheral areas, does not sufficiently match the stated interest of preventing
congestion and so is not narrowly tailored to serve the government’s interest”)
(internal quotation marks and citation omitted). “While the First Amendment does
not guarantee the right to employ every conceivable method of communication at

18


all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate.” Pine v. City of W. Palm Beach, 762 F.3d 1262, 1274 (11th Cir. 2014) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984)).

Speech restrictions must allow students the opportunity to engage with a full
cross-section of the campus community. See Sarre v. City of New Orleans, 420 F.
App’x 371, 376–377 (5th Cir. 2011). Furthermore, the alternative forum may not
compromise the “quantity or content” of student expression. Ward, 491 U.S. at
802; cf. Pine, 762 F.3d at 1274–1275 (finding subject ordinance prohibiting
amplified sound “leaves open robust alternative channels of communication”
because it “in no way restricts the use or display of signs or the distribution of
literature, thereby providing reasonable alternative modes of communication”).
Of course, none of the foregoing requires the College to open up its entire
campus for free expression. While regulations of speech must allow for ample
alternative channels of communication, speakers are not entitled to their first
choice of alternative forum. Rather, the regulation must not foreclose the
speakers’ ability to reach their intended audience. Sarre, 420 App’x at 376.
Providing alternative channels of communication is particularly feasible because
“[a] university campus will surely contain a wide variety of fora on its grounds.”
Bloedorn, 631 F.3d at 1232; see also Bowman, 444 F.3d at 977 (“[L]abeling the
campus as one single type of forum is an impossible, futile task.”). In addition to
treating different parts of campus differently, a college also need not treat student
speech identically to non-student speech. See Justice For All, 410 F.3d at 767; see
also Widmar, 454 U.S. at 268 n.5 (“We have not held, for example, that a campus
must make all of its facilities equally available to students and nonstudents alike.”);
Bloedorn, 631 F.3d at 1234 (holding that for non-students, certain outdoor areas of
a public college or university can be deemed a non-public forum if applicable
policies suggest that these spaces are for the exclusive use and benefit of students).

19

 

These limitations, however, are largely inapplicable to the facts pleaded in
the complaint. Mr. Shaw is a student at Pierce College and is seeking to engage in
speech in outdoor areas and sidewalks—not classrooms or other spaces that are
more appropriately characterized as non-public fora. Doc. 1 ¶ 88. These outdoor
areas and sidewalks almost certainly constitute designated public fora as to Mr.
Shaw. Mr. Shaw has alleged that there is no significant interest (such as
interruption of campus operations or educational functions) in banning all
expressive conduct outside of the 616-square-foot Free Speech Area. Id. ¶ 54.
Nevertheless, the College’s rules have proscribed Mr. Shaw from engaging in
speech outside that small area. Id. ¶ 88. Factual development is necessary to
determine the proper character of the outdoor spaces, and such determination is
better suited for the summary judgment or trial phase. Accordingly, Mr. Shaw has
sufficiently pleaded a claim that the College’s limitations on speech outside the
Free Speech Zone violate the First Amendment.

20

 

CONCLUSION

The United States respectfully requests that the Court consider the foregoing
in resolving the pending motion to dismiss.

Dated: October 24, 2017

Respectfully submitted,

JEFFERSON B. SESSIONS III

Attorney General
JOHN M. GORE

Acting Assistant Attorney General
TARA HELFMAN

Senior Counsel
STEVEN MENASHI

Acting General Counsel, Department of Education

THOMAS E. CHANDLER

Deputy Chief, Appellate Section

/s/ Vikram Swaruup

VIKRAM SWARUUP

Attorney, Appellate Section
U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Ave., N.W.

Washington, DC 20530

Telephone: (202) 616-5633

Facsimile: (202) 514-8490

Email: vikram.swaruup@usdoj.gov

21

 

Miscellaneous Filings (Other Documents)

2:17-cv-02386-ODW-PLA Kevin A. Shaw v. Kathleen F. Burke et al

ACCO,(PLAx),DISCOVERY,MANADR

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Notice of Electronic Filing

The following transaction was entered by Swaruup, Vikram on 10/24/2017 at 2:05 PM PDT and filed on 10/24/2017

Case Name: Kevin A. Shaw v. Kathleen F. Burke et al

Case Number: 2:17-cv-02386-ODW-PLA

Filer: United States

Document Number: 39

Docket Text:
STATEMENT of Interest filed by Interested Party United States (Swaruup, Vikram)

2:17-cv-02386-ODW-PLA Notice has been electronically mailed to:
Arthur I Willner awillner@leaderberkon.com, ajiminez@leaderberkon.com, bbailey@leaderberkon.com, gjannace@leaderberkon.com, kpatel@leaderberkon.com, salvarenga@leaderberkon.com

Brynne S Madway brynne.madway@thefire.org
David Salazar dsalazar@leaderberkon.com
Marieke T Beck-Coon marieke@thefire.org
Sharon J Ormond sormond@aalrr.com

2:17-cv-02386-ODW-PLA Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to :

The following document(s) are associated with this transaction:

Document description:Main Document Original filename:N:\ECF\Shaw\2_17-cv-02386 20171024 Shaw U.S. Statment of Interest.pdf

Electronic document Stamp:
[STAMP cacdStamp_ID=1020290914 [Date=10/24/2017] [FileNumber=244349020] [44b0ca878fc3ba12f7a38ef25b445a81050dc081e505e2922d764252a42317650d 082552db84e30c9668c560e37973b7fbc1b36f62ac4d77ed9e9dfb3e67a604]]

https://ecf.cacd.uscourts.gov/cgi-bin/Dispatch.pl?701739761787125                                                                                  10/24/2017

Updated November 17, 2017