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Burnham v. Ianni, No. 95-1962 (8th Cir. 1997)
BEAM, Circuit Judge. In this section 1983 action, Chancellor Lawrence Ianni appeals from the district court's(1) denial of his motion for summary judgment based on qualified immunity. A panel of this court reversed. Our decision to grant en banc review vacated that decision. See Burnham v. Ianni, 98 F.3d 1007 (8th Cir. 1996). We now affirm. I. BACKGROUND Because discovery has not been conducted in this case, the facts are derived from the plaintiffs' pleadings and the affidavits submitted by the parties. Plaintiff Albert Burnham has been a part-time professor in the history department at the University of Minnesota-Duluth (UMD) since 1986. Plaintiff Ronald Marchese is a tenured professor in the University of Minnesota system. He is a professor of humanities, classics and history at UMD and a professor of ancient history and archaeology in the Center for Ancient Studies at the University of Minnesota-Minneapolis. The History Club, active for a number of years on campus, operates under the auspices of the UMD history department. At all relevant times, Professor Burnham was the faculty advisor to the Club. During the fall quarter of 1991, two student members of the History Club, plaintiffs Michael and Louise Kohn,(2) conceived an idea for a project that was intended to publicize some of the areas of expertise and interest of the history department's faculty, while at the same time portraying the instructors in an informal, somewhat humorous way. The Kohns approached Professors Burnham and Marchese as well as other members of the department, all of whom agreed to participate. They agreed to pose for a picture with a "prop" that related to their areas of interest. They also supplied information about their fields of expertise, academic background, and historical heroes, as well as a quotation to be used along with the above information and their photographs. For his photograph, Professor Burnham posed with a .45 caliber military pistol, wearing a coonskin cap. His special interest in American history includes military history in particular. He listed John Adams and Davy Crockett among his historical heroes. Consistent with his professional interests, Professor Marchese elected to hold an ancient Roman short sword while wearing a cardboard laurel wreath. He listed his specialties as "Ancient Greece and Rome, Homeric Literature" and identified Homer and Alexander the Great as his historical heroes. A total of eleven professors posed for or supplied pictures. The Kohns assembled an exhibit that incorporated these photographs along with the written comments submitted by each faculty member. The photographs and the accompanying written material were thought to communicate matters of public interest.(3) The exhibit was intended to be viewed by students and prospective students, as well as any members of the public who might be on the premises. It was designed to impart information about the professors and their attitudes toward history--as reflected, for example, in their choices of historical heroes. The exhibit was put up in the history department's display case, located in the public corridor next to the classrooms used by the department, on March 27, 1992. The case and its contents are seen by students taking classes nearby, faculty members, and members of the general public. The display case is reserved for the use of the history department. It has contained, for a number of years, an exhibit on Roman siege warfare equipment that was assembled by Professor Marchese. The device has been used by members of the History Club as well as by the history department faculty. The case is used only to communicate matters that are considered to be of general interest. It is not used for private communications, like a mailbox or a message system.... On April 10, 1992, Judith Karon, who was then UMD's affirmative action officer, and UMD Police Captain Harry Michalicek came to the history department and viewed the exhibit. This was in response to a complaint by Charlotte Macleod, an assistant professor who was the head of the UMD Commission on Women. Karon went to the departmental secretary, Elizabeth Kwapick, and demanded that the pictures of Professors Burnham and Marchese be removed. The department denied this demand.... On April 27, 1992, Karon sent a memorandum to the Dean of the College of Liberal Arts, John Red Horse, stating that she expected the pictures to be removed immediately because she found them to be "totally inappropriate." Dean Red Horse apparently refused to act on Karon's request. On April 30, 1992, Karon sent Professor Burnham a memorandum explaining her reasons for wanting to remove the photographs of Professors Burnham and Marchese. In her memorandum, Karon again stated that she ordered the exhibit taken down because she found the photographs "insensitive" and "inappropriate." On the morning of April 29, 1992, Louise Kohn, Michael Kohn, Elizabeth Kwapick and Professor Burnham met with Chancellor Ianni to explain the display and protest Karon's attempted censorship of the pictures and the students' work. During that meeting, Ianni said that he personally found nothing wrong with the photographs. On the afternoon of the same day, the history department held a meeting on this issue, which was also attended by Ianni, Karon, and Red Horse. During that meeting, Chancellor Ianni again stated that he personally saw nothing wrong with the photographs, but hinted that he might nevertheless support their removal. When asked to explain why she wanted the photographs removed, Karon tried to connect them to a written threat against Professor Judith Trolander which had been found on March 16, 1992.(4) Members of the department told Karon that they thought her attempt to link the pictures to this deranged message was absurd. Karon also stated that she considered the photographs to constitute sexual harassment. She was unable to explain what she meant by this. She was also unable to state by what authority she could order the removal of a student departmental display. On May 4, 1992, Chancellor Ianni ordered UMD Plant Services Director Kirk Johnson to remove the pictures of Professors Burnham and Marchese. Because Johnson was unable to obtain access to the pictures at that time, Ianni ordered the UMD police to remove the photos. The next day, UMD Police Captain Michalicek removed the photographs from the display. Only the two photographs with weapons were removed. The other nine photographs remained on display. Professors Burnham and Marchese then removed the balance of their contributions to the exhibit. ...Ianni explained that he removed them because Karon had claimed that she had received anonymous complaints about the display which objected to the depiction of faculty members with weapons. Karon also claimed that Professor Trolander had contacted her about the display's upsetting effect on her. Ianni expressed his belief that the campus was enshrouded in an atmosphere of anxiety due to the earlier threats against Trolander and others.(5) He further explained that his removal of the photographs was an attempt to stop the disruption caused by the display and to prevent aggravation of the atmosphere of fear. Plaintiffs dispute that any milieu of concern existed and contend that the campus atmosphere, whatever it may have been, was not aggravated or affected by the two photographs. Plaintiffs, alleging First Amendment violations, filed this 42 U.S.C. ¤ 1983 action against Chancellor Ianni and the University of Minnesota. Defendants moved for summary judgment, which the district court granted in part and denied in part. The court dismissed, with prejudice, all plaintiffs' claims against the University of Minnesota, all plaintiffs' claims for money damages against Ianni in his official capacity as Chancellor of UMD, and the Kohns' claims against Ianni for injunctive relief. The district court denied summary judgment on the remaining contentions, including the issue of qualified immunity for Chancellor Ianni.(6) The district court found that Chancellor Ianni's actions violated the plaintiffs' clearly established First Amendment rights, in a way that an objective university chancellor would have known. Burnham v. Ianni, No. 5-94-6, mem. op. at 10-11 (D. Minn. Mar. 17, 1995). Ianni appeals the denial of summary judgment on this ground, contending that the plaintiffs' First Amendment rights were not clearly established, thereby rendering his actions protected by qualified immunity. We review the district court's conclusion on the qualified immunity issue de novo.... II. DISCUSSION ...Chancellor Ianni's assertion that he is protected by qualified immunity triggers a three-pronged inquiry: (1) whether the plaintiffs have asserted a violation of a constitutional or statutory right; (2) if so, whether that right was clearly established at the time of the violation; and (3) whether, given the facts most favorable to the plaintiffs, there are no genuine issues of material fact as to whether a reasonable official would have known that the alleged action violated that right.... Ianni bears the burden of proving that the plaintiffs' First Amendment rights were not clearly established.... In an attempt to shoulder this burden, Ianni argues that: (1) some restrictions on speech in nonpublic forums are constitutionally acceptable and, thus, which restrictions are acceptable in a given situation is never "clearly established;" and the professors were public employees and their First Amendment rights were subject to the fact-intensive Pickering balancing test, thus, precluding the rights from being "clearly established." These arguments will be addressed in turn. First, however, we note that the expressive behavior at issue here, i.e., the posting of the photographs within the history department display, qualifies as constitutionally protected speech. See, e.g., Spence v. Washington, 418 U.S. 405, 410 (1974); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-06 (1969); Tindle v. Caudell, 56 F.3d 966, 969 (8th Cir. 1995). Nonverbal conduct constitutes speech if it is intended to convey a particularized message and the likelihood is great that the message will be understood by those who view it, regardless of whether it is actually understood in a particular instance in such a way. Spence, 418 U.S. at 411. Burnham and Marchese, through their photographs, were attempting, at least in part, to convey and advocate their scholarly and professorial interests in military history and in military weaponry's part in their vocation. Michael and Louise Kohn, as well, were attempting to show their creativeness and interest in the scope of the teaching mission of the history department. The display was the Kohns' idea; they organized and exhibited it. Because these messages sufficiently satisfy the Spence test, the photographs and the display qualify as speech. Id. And, we do not understand that Ianni disputes this conclusion. Although the right of free speech is not absolute, the First Amendment generally prevents the government from proscribing speech of any kind simply because of disapproval of the ideas expressed. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Indeed, with a few exceptions, most speech receives First Amendment protection. Cohen v. California, 403 U.S. 15, 24 (1971); see, e.g., New York v. Ferber, 458 U.S. 747, 756 (1982) (child pornography is unprotected speech); Miller v. California, 413 U.S. 15, 23 (1973) (obscene speech is unprotected speech); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (fighting words are unprotected speech). The First Amendment's protection even extends to indecent speech. Sable Communications v. Federal Communications Comm'n, 492 U.S. 115, 126 (1989). It also extends to speech unprotected on one basis (e.g., obscenity) but protected on another (e.g., content in opposition to governmental acts). R.A.V., 505 U.S. at 384-86. Clearly then, plaintiffs' speech is worthy of constitutional protection. Because this case involves Ianni's suppression of plaintiffs' protected speech, plaintiffs have (at least for purposes of summary adjudication) sufficiently established a violation of a constitutional right--unless limitations indigenous to the forum lawfully permit restrictions on plaintiffs' First Amendment privileges. We turn to that inquiry. A. The Forum ... Ianni argues, and the district court found, that the history department display case is a nonpublic forum. Ianni further claims that because the expression occurred in a nonpublic forum, speech restrictions were permissible or, at least, the extent of any permissible restriction was unclear. Thus, Ianni states, plaintiffs' First Amendment rights were extinguished, limited or at a minimum, not clearly established. Therefore, Ianni says, the district court's denial of qualified immunity was error. We disagree. In this case the nature of the forum makes little difference. Even if the display case was a nonpublic forum, Ianni is not entitled to qualified immunity. The Supreme Court has declared that "the State may reserve [a nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, 460 U.S. at 46; see also Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (stating control over access to nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral); United States v. Kokinda, 497 U.S. 720, 732 (1990) (stating constitutionality of regulation must be considered in light of the nature and function of the forum involved). Here, we find that the suppression was unreasonable both in light of the purpose served by the forum and because of its viewpoint-based discrimination. The display case was designated for precisely the type of activity for which the Kohns and Professors Burnham and Marchese were using it. It was intended to inform students, faculty and community members of events in and interests of the history department. The University was not obligated to create the display case, nor did it have to open the case for use by history department faculty and students. However, once it chose to open the case, it was prevented from unreasonably distinguishing among the types of speech it would allow within the forum. See, e.g., Lamb's Chapel, 508 U.S. at 392-93; Widmar v. Vincent, 454 U.S. 263, 267 (1981). Since the purpose of the case was the dissemination of information about the history department, the suppression of exactly that type of information was simply not reasonable. We recognize that UMD "may legally preserve the property under its control for the use to which it is dedicated." Lamb's Chapel, 508 U.S. at 390. However, as the Supreme Court has stated: "[A]lthough a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum . . . or if he is not a member of the class of speakers for whose especial benefit the forum was created . . . , the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Id. at 394 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)). The suppression of this particular speech was also viewpoint- based discrimination. As the Supreme Court has noted, in determining whether the government may legitimately exclude a class of speech to preserve the limits of a forum, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations. ...As Rosenberger illustrates, what occurred here was impermissible. The photographs of Professors Burnham and Marchese expressed the plaintiffs' view that the study of history necessarily involves a study of military history, including the use of military weapons. Because other persons on the UMD campus objected to this viewpoint, or, at least, to allowing this viewpoint to be expressed in this particular way, Ianni suppressed the speech to placate the complainants. To put it simply, the photographs were removed because a handful of individuals apparently objected to the plaintiffs' views on the possession and the use of military-type weapons and especially to their exhibition on campus even in an historical context. Freedom of expression, even in a nonpublic forum, may be regulated only for a constitutionally valid reason; there was no such reason in this case. B. Reasonable Public Official Ianni further claims that at the time the photographs were suppressed, a reasonably objective chancellor of a large public university would not have known that the conduct violated the plaintiffs' constitutional rights. We again disagree.(15) As a basic matter, the Supreme Court stated in 1969 "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker, 393 U.S. at 506. Indeed, a year earlier, the idea that a faculty member could be compelled to relinquish First Amendment rights in connection with employment at a public school was "unequivocally rejected" by the Supreme Court. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Applying these long established tenets to this case, we note that our earlier quotation from Rosenberger, 115 S. Ct. at 2517, links its observations on viewpoint discrimination within a nonpublic forum to Perry, 460 U.S. at 46, ... Similarly, the language proscribing viewpoint discrimination found in Lamb's Chapel, 508 U.S. at 394, quotes directly from Cornelius, 473 U.S. at 806, a 1985 decision. In addition, Widmar's holding prohibiting unreasonable discrimination among "types of expression" within a specific forum, clearly made in the context of an analysis of the purpose of the particular forum, was available as early as 1981. Widmar, 454 U.S. at 265-67, 277.... Here, of course, we have long established, binding precedent totally supportive of plaintiffs' claims. The Supreme Court and this court have both clearly and directly spoken on the subject on numerous occasions and in years long prior to the 1992 censorship by Ianni. Accordingly, Chancellor Ianni's "not clearly established" claim must be rejected.... C. Pickering Balancing Argument Finally, Chancellor Ianni seizes upon the two incidents involving threats to Ms. Featherman and Ms. Trolander in an attempt to interject First Amendment precedent not applicable to this dispute. We reject this endeavor.... The Supreme Court, in Pickering, held that in an employee discipline case, a court must determine whether the employee's speech was on matter of public concern, and if so, whether the employee's interest in that speech is outweighed by the governmental employer's interest in promoting the efficiency and effectiveness of the services it performs.... ...Ianni has factually failed to put the Pickering balancing test in play. See, e.g., Kincade, 64 F.3d at 398. As this court recently observed, "it is critical to determine whether the defendants [employers] have put the Pickering balancing test at issue by producing evidence that the speech activity had an adverse effect on the efficiency of the . . . employer's operations." Grantham v. Trickey, 21 F.3d 289, 294 (8th Cir. 1994). As the district court found, "[t]his is not an employment case where there is a threatened disruption to the efficient delivery of services." Burnham, mem. op. at 9; see also Pickering, 391 U.S. at 570 (noting that "no evidence to support [professional damage to the school board and superintendent] was introduced at the hearing" and rejecting the workplace disruption argument of the board.) As in our Kincade decision, we find that Ianni has failed to carry his burden on this prong of the Pickering rationale. Ianni has made no factual showing that the suppressed conduct "substantially" interfered with the efficiency of the workplace or UMD's educational mission. Kincade, 64 F.3d at 398. "In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker, 393 U.S. at 508. It is simply unreasonable, as a matter of law, to assert that a photograph of a cardboard laurel-wreath bedecked faculty member holding a Roman short sword, as part of an eleven- person faculty display, somehow exacerbated an unestablished ambiance of fear on the UMD campus. And, even if the Pickering balancing test were somehow applicable, which it is not, Ianni's defense would fail. As stated earlier, the Pickering balancing test requires a court to determine whether the employee's speech involves a matter of public concern and, if so, how the employee's rights in the speech balance against the occurrence of workplace disruption. Both of these questions are issues of law for the court to decide. Kincade, 64 F.3d at 395. To determine whether the speech at issue here involves a matter of public concern, we examine the "content, form and context" of the speech, given the record as a whole. Connick, 461 U.S. at 147-48. To be considered speech on a matter of public concern, the discourse must relate to a "matter of political, social, or other concern to the community." Id. at 146; see also Kincade, 64 F.3d at 396. That definition includes many types of speech, excluding mainly speech relating merely to internal office grievances. Connick, 461 U.S. at 148-49; see also Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 672 (8th Cir. 1986). The history exhibit, displayed for public viewing, was intended, at least, to inform the University and surrounding community of the views and specialties of the history department and its faculty. As such, the speech involved more than a mere internal office grievance. See, e.g., Cox, 790 F.2d at 673 (stating "educational theories and practices employed by school administrators is clearly a question of public concern . . . [h]ow we teach the young, what we teach them, and the environment in which we teach them are of the most central concern to every community in the nation"). See also Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 314 (8th Cir. 1986) (holding speech involving proposed transfer of teacher was on matter of public concern due to large turnout at meeting regarding transfer and teacher interest in the subject); Roberts v. Van Buren Pub. Schs., 773 F.2d 949, 955 (8th Cir. 1985) (holding speech involving content of rules governing fifth grade field trip was on matter of public concern due to parental dissatisfaction with and interest in the subject). Admittedly, the speech at issue here is not of the utmost public concern when compared with an assassination attempt against the President, as in Rankin. 483 U.S. at 381. However, when balancing an employee's interest against an employer's interest, the constitutional standard takes proportionality into account. "[T]he closer the employee's speech reflects on matters of public concern, the greater must be the employer's showing that the speech is likely to be disruptive before it may be punished." Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.), cert. denied, 116 S. Ct. 173 (1995). The converse is also true. When weighed against the meager evidence of workplace disruption, the plaintiffs' speech clearly addresses matters of public concern within the meaning of the Pickering test. See supra n.3. Our next consideration is whether UMD's interest in suppressing the speech, to purportedly control workplace disruption, outweighs the plaintiffs' First Amendment rights in the display. See, e.g., Barnard v. Jackson County, Missouri, 43 F.3d 1218, 1224 (8th Cir.) (stating pertinent considerations for Pickering balancing test are "whether the employee's speech has a detrimental impact on working relationships where personal loyalty or confidence is necessary, and whether the speech impedes the efficient operation of the governmental entity's function"), cert. denied, 116 S. Ct. 53 (1995). The government employer must make a substantial showing that the speech is, in fact, disruptive before the speech may be punished. Waters, 511 U.S. at 673. We recognize that the government, as an employer, has broader powers in suppressing free speech than the government as a sovereign. Indeed, we have given some deference to an employer's predictions of workplace disruption. Id. However, we have never granted any deference to a government supervisor's bald assertions of harm based on conclusory hearsay and rank speculation. As stated above, the procedural posture of this case requires us to view the facts in the light most favorable to the nonmoving party, i.e., the plaintiffs. In so doing, we note that both Burnham and Marchese, by affidavit, expressly dispute that a "climate of fear and violence" existed on the campus, stating that campus life continued as normal, no classes were suspended or schedules altered and not a single act of violence occurred on UMD premises. Even if we were to attempt to balance the plaintiffs' free speech rights against the purported disruption of the pedagogical tasks of UMD, it is clear that the impact of the speech on UMD's mission is totally unproven and unaddressed except in the most conclusory fashion. There is simply no evidence that establishes a nexus between the two photographs and an exacerbated climate of fear on the campus or, more importantly, that establishes a relationship between the photographs and a decrease in the efficiency and effectiveness of UMD's educational mission. In sum, then, upholding Ianni's approach to the First Amendment would permit the suppression of too much speech on arbitrary and capricious grounds. Finally, we hold that Ianni's failure to establish workplace disruption or, at least, to make a connection between the plaintiffs' speech and the workplace atmosphere, is fatal to his claim of qualified immunity under a Pickering analysis... III. CONCLUSION The district court correctly found that Ianni is not entitled to qualified immunity from a suit seeking money damages for the violation of plaintiffs' First Amendment rights. Accordingly, we affirm.
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