The United States Court of Appeals for the Sixth Circuit recently decided to publish its April decision (PDF) in McGlone v. Bell, an important case for campus speech rights. It's worth taking a closer look at the case and its implications for free speech zones maintained by universities nationwide.
In McGlone, the Court ruled that Tennessee Technical University (TTU) violated the rights of John McGlone, an evangelical Christian who travels to university campuses to speak about his beliefs and distribute literature when it refused to let him speak or distribute literature anywhere on the public university campus outside of a small patio unless he gave 14 days notice, identified himself and his message, and then obtained permission. When McGlone attempted to speak with students outdoors and distribute his literature without first registering himself and getting permission, he was chased away by campus police. When he relocated to a sidewalk at the edge of campus, he was approached by an administrator and warned that he wasn't allowed to speak there without the university's permission.
In response to TTU's actions, McGlone filed a motion for preliminary injunction with the United States District Court for the Middle District of Tennessee. The district court denied the injunction and dismissed the case. The Sixth Circuit in McGlone reversed the district court, however. In its ruling, the Sixth Circuit determined that the campus grounds were designated public fora; as such, the government's restrictions on expression in those spaces needed to be content-neutral, be narrowly tailored to serve a significant government interest, and leave alternative channels of communication open. The long advance notice and the registration of a speaker's identity and message with the university, the court ruled, failed to meet the requirements of narrow tailoring, and the university didn't identify a significant government interest. As a result, the court invalidated the university's restrictions.
Designating this opinion for publication has far-ranging implications for future cases. Historically, courts have left opinions unpublished when they wanted to avoid giving the decision precedential value that other courts will be bound to follow. Numerous federal courts of appeals had rules until 2007 that forbade even citing an unpublished opinion in briefs submitted to the court. Even though federal courts of appeals are now required to allow citation to unpublished opinions that are issued after January 1, 2007, courts are under no obligation to treat those decisions as binding precedent, and the Sixth Circuit has said its own unpublished decisions are not binding on the court. See Crump v. Lafler, 657 F.3d 393, 405 (6th Cir. 2011) ("Unpublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent panels"). Additionally, this new rule allowing citation of unpublished opinions doesn't apply to federal district courts, and state courts still vary in their approaches to unpublished opinions. In publishing this decision, the Sixth Circuit has made it binding precedent on the circuit and has legitimized the decision in the eyes of other courts.
Indeed, we've already seen the consequences of this publication: an Ohio federal district court cited McGlone in its June 12 decision (PDF) ruling unconstitutional the University of Cincinnati's free speech zone and other restrictions on protected activity. FIRE assisted in coordinating the case, and the judge's rejection of the university's argument that the entire campus was a limited public forum rang as a vindication of the rights of university students. And the University of Cincinnati isn't the only public institution of higher education asserting that its entire campus is a limited public forum. Sinclair Community College, a public college in Dayton, Ohio, has also defended a restrictive campus expression policy by claiming its entire campus (PDF) constitutes a limited public forum, a position the school stated in response to FIRE pressure and will have to justify in light of a recently filed federal lawsuit. McGlone offers a compelling response to this overreaching assertion of power.
The McGlone decision is a great case for free speech and a welcome counterpoint to the oft-cited decision in ACLU v. Mote, 423 F.3d 438 (4th Cir. 2005). In Mote, the Fourth Circuit ruled that the open spaces on the University of Maryland – College Park campus were a limited public forum, which meant the public university could impose any restrictions that were reasonable and viewpoint-neutral on people not associated with the university, a much lower standard to meet and one that protects First Amendment rights much less than the rules for designated public fora.
There are reasons to doubt the continued applicability of Mote. The court in Mote failed to distinguish between designated public fora and limited public fora, a legal topic that was still hotly contested at the time of the decision. Since then, however, the United States Supreme Court has issued several decisions that clarify the difference between the two fora, including Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009) and Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2984 (2010). These opinions suggest that, if a university opens up its property to expressive use by uninvited individuals who are unaffiliated with the university, the property may then become a designated public forum and not a limited public forum. This would subject universities' restrictions on expressive activity to much closer scrutiny.
In light of the Supreme Court's recent clarification of public fora distinctions and the Sixth Circuit's designation of McGlone as precedential law, public universities should be getting nervous about maintaining policies that infringe on the First Amendment rights of visitors to their campuses.