United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on the plaintiff's motion for preliminary injunction. (Doc. 44). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 45, 47, 48), and the motion is ripe for resolution.
The background of this action has been set forth in the Court's order granting in part the defendant's motion to dismiss. (Doc. 49). The plaintiff student organization at the University of South Alabama ("the University") challenges, on First Amendment, due process and equal protection grounds, two policies of the University addressing expressive activity. By the instant motion, the plaintiff seeks to enjoin the defendants from enforcing the First Policy and Section I(B)(1)(b) of the Second Policy. (Doc. 44 at 1). The Court has dismissed as moot "all claims for declaratory or injunctive relief with respect to the First Policy." (Doc. 49). Accordingly, the motion for preliminary injunction is due to be denied as to the First Policy.
The Second Policy provides in pertinent part as follows:
For USA students or employees, all areas of the University campus are open for expressive activities, except for the following:
Areas between the street side of University buildings and facilities on the periphery of campus from the portal of North Drive to the corner of campus at Old Shell Road and University Boulevard and to the portal of Stadium Drive and the public sidewalks....
(Doc. 29-10 at 3-4). This closing of the campus perimeter ("the Perimeter") to expressive activity is the plaintiff's sole challenge to the Second Policy. (Doc. 29 at 24-25; Doc. 45 at 10, 13, 19, 23, 28-29, 30; Doc. 48 at 9-11).
"A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites." American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Board, 557 F.3d 1177, 1198 (11th Cir. 2009) (internal quotes omitted). As the plaintiff acknowledges, (Doc. 45 at 13), "[a] district court may grant [preliminary] injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest." Id. (internal quotes omitted). "Failure to show any of the four factors is fatal, and the most common failure is not showing a substantial likelihood of success on the merits." Id .; accord Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) ("If [the plaintiff] is unable to show a substantial likelihood of success on the merits, we need not consider the other requirements.").
With respect to the plaintiff's First Amendment claim, "the Supreme Court has broadly discerned three distinct (although not airtight) categories of government property for First Amendment purposes: traditional public fora, designated public fora, and limited public fora." Bloedorn, 631 F.3d at 1230. Identifying which is at issue is important, because "the degree of scrutiny we place on a government's restraint of speech is largely governed by the kind of forum the government is attempting to regulate." Id.
"Traditional public fora are public areas such as streets and parks that, since time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Bloedorn, 631 F.3d at 1231 (internal quotes omitted). "A designated public forum is government property that has not traditionally been regarded as a public forum but that has been intentionally opened up for that purpose.... To create a designated public forum, the government must intentionally open up a location... for use by the public at large." Id. (internal quotes omitted). "Just as with a traditional public forum, a time, place, and manner restriction can be placed on a designated public forum only if it is content neutral, narrowly tailored to achieve a significant government interest, and leaves open ample alternative channels of communication." Id. (internal quotes omitted). Access to any other kind of forum (limited public forum or nonpublic forum) is subject to greater restriction. Id.
As noted, the Second Policy explicitly closes the Perimeter to expressive activity, and the plaintiff wisely makes no argument that, in the face of this clear language, the Perimeter could be a designated public forum. Nor does the plaintiff assert that, even if the Perimeter is a limited public forum or a nonpublic forum, the Second Policy's closure of the Perimeter to expressive activity violates the First Amendment under the more relaxed standards applicable to such fora. Instead, the plaintiff argues exclusively that the Perimeter is a traditional public forum, the closure of which fails the strict scrutiny analysis applicable to such fora. (Doc. 45 at 15-16; Doc. 48 at 6, 9-11). Therefore, unless the plaintiff has shown a substantial likelihood of success in demonstrating that the Perimeter is a traditional public forum, it has not shown a substantial likelihood of success on the merits of its First Amendment claim.
The Perimeter, as described by the plaintiff, is a "park-like area with lawns, picnic benches, and trees next to the public sidewalks on Old Shell Road and University Boulevard." (Doc. 45 at 16). The plaintiff argues that the Perimeter is a traditional public forum because of these "physical characteristics" and because "students can socialize there." (Doc. 48 at 11).
The plaintiff cites a number of authorities, but they generally stand only for the proposition that, under the facts presented, a portion of a campus had been affirmatively opened up by the institution as a designated public forum. Because the plaintiff cannot demonstrate that the University has opened up the Perimeter as a designated public forum, and because the plaintiff makes no argument that the University has done so, these authorities are inapposite.
As for traditional public fora, the plaintiff asserts that "[t]he Supreme Court has determined that the outdoor areas of a public university campus, at least for students, are a traditional public forum." (Doc. 48 at 9). The cases on which the plaintiff relies for this proposition, however, do not support it. The Court in Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985), stated that "a university campus, at least as to its students, possesses many of the characteristics of a traditional public forum, " id. at 803, (emphasis added), but it did not say that any part of a college campus is a ...