Brister, et al v. Faulkner, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50254
_______________
ROBERT BRISTER, ROGER BAKER, ERIC SAMSON, AND WILLIAM MEDAILLE,
Plaintiffs-Appellees-
Cross-Appellants,
VERSUS
LARRY FAULKNER, ETC., ET AL.,
Defendants,
EDWIN R. SHARPE,
IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT FOR ADMINISTRATION AND PUBLIC AFFAIRS
AT THE UNIVERSITY OF TEXAS AT AUSTIN;
DONALD L. EVANS,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
HONORABLE TOM LOEFFLER,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
RITA C. CLEMENTS,
IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
THOMAS C. HICKS,
in His Official Capacity as a Member of the Board of Regents
of the University of Texas System;
LOWELL H. LEBERMANN, JR.,
in His Official Capacity as a Member of the Board of Regents
of the University of Texas System;

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PATRICK C. OXFORD,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
A.W. “DUB” RITER, JR.,
IN HIS OR HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
A.R. (TONY) SANCHEZ, JR.,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
MARTHA E. SMILEY,
IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
AND
LARRY FAULKNER,
IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF TEXAS AT AUSTIN,
Defendants-Appellants-
Cross-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
June 28, 2000
Before POLITZ, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Plaintiffs were handing out leaflets before
an on-campus event at the University of Texas
at Austin’s Frank C. Erwin Jr. Special Events
Center (the “Erwin Center”) when they were
forced to leave the property because they
were interfering with the arrival and departure
of the facility’s patrons. They sued university
officials under 42 U.S.C. § 1983, seeking dam-
ages, declaratory relief, and an injunction
against future First Amendment violations.
The district court entered a declaratory
judgment that the property in question is a
“public forum,” because it is indistinguishable
from the city sidewalks; therefore, the court
held that the university’s total ban on leafleting
by non-students was not a reasonable time,
place, or manner restriction and is un-
constitutional. Because it determined that
these plaintiffs were impermissibly blocking
patrons’ access to the facility, however, the
court ruled that the university’s officers were
justified in requiring plaintiffs to move from

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the property. Thus, the court held that the
university did not violate the plaintiffs’
constitutional rights, and, consequently, that
they were not entitled to damages or injunctive
relief. Accordingly, the court also denied
attorneys’ fees.
The defendants appeal, challenging the de-
termination that the property is a public forum.
The plaintiffs cross-appeal the denial of
nominal damages, injunctive relief, and
attorneys’ fees. Finding no reversible error,
we affirm.
I.
The Erwin Center was designed and is
maintained for use by the public for the benefit
of the university. The center hosts a wide va-
riety of academic, athletic, and auxiliary events
each year. Tickets to these events are sold by
the university to the general public, and events
are sponsored by university organizations and
by groups not affiliated with the university.
The Erwin Center is surrounded on all sides
by public streets: Martin Luther King, Jr.,
Boulevard on the north, Fifteenth Street on the
south, Interstate 35 on the east, and Red River
Street on the west. The City of Austin owns
a nine- to twelve-foot easement along each of
the center’s four sides that serve as the city’s
public sidewalks. A portion of the university’s
property on the center’s Red River Street side
consists of a brown gravel area paved with
small stones that extends from the center’s
public entrance out to the sidewalk. This
property blends in with the city’s sidewalks,
and there is no physical demarcation indicating
where university property ends and the city’s
easement begins.
In January 1996, the Austin Chamber of
Commerce hosted a reception at the Erwin
Center for the delegates to the National Issues
Convention. Members of the Austin Greens
political party, including plaintiffs Brister,
Baker, Samson, and Medaille, attempted to
distribute leaflets to the delegates as they en-
tered the Erwin Center on the Red River
Street side. Only Samson and Medaille were
University of Texas students. Some of the
convention delegates approached the center by
walking along the sidewalk and paved area,
while others were transported to the center by
buses that had pulled into the center’s parking
lot, located on a recessed area cut into the
paved portion of the property.
After receiving numerous complaints about
the leafleters, Officer Pascual Marquez, a uni-
versity police officer, approached Brister while
he was distributing leaflets on the paved area,
and informed him of the school’s policy
against non-students’ distribution of literature
on university property. Marquez also
explained that the paved recessed area
belonged to the university, whereas the
sidewalk belonged to the City of Austin, and
told Brister he had to remain south of UT’s
recessed area. Brister continued to leaflet on
the paved area and, after another confrontation
with Marquez, returned to the south of the
university property and joined other Austin
Greens members who were displaying a
banner.
Medaille also was approached by a
university police officer (not Marquez) and
was told that he could not distribute leaflets on
the paved area. Medaille identified himself as
a University of Texas student but nonetheless
was prohibited from distributing the leaflets,
because they did not contain his name or the
name of a student organization, as required by
university rules. The district court found that
other than Brister and Medaille, none of the

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leafleters were approached by the school’s
police.
II.
Plaintiffs sued Larry Faulkner, President of
the University of Texas at Austin; its Vice-
President for Administrative Affairs; and the
members of the University of Texas System
Board of Regents, all in their official
capacities, under § 1983, for prospective relief,
claiming their First Amendment rights to free
speech and assembly were infringed by the pol-
icy prohibiting non-students from distributing
leaflets and other literature on university prop-
erty. Also under § 1983, plaintiffs sought
damages from Buzz Huber, Events Manager
for the Erwin Center; and Marquez and Lieu-
tenant Robert Ewan of the university’s police
department, in their individual and official
capacities.1
The district court dismissed the claims
against Huber and Ewan but otherwise denied
summary judgment for defendants. After a
one-day bench trial, the court concluded that
the university’s rules are unconstitutional as
applied to the paved area along Red River
Street, because that area is a traditional public
forum for First Amendment purposes. The
court further held, however, that the plaintiffs
had suffered no cognizable constitutional in-
jury, because their activities disrupted the dele-
gates and impeded access to the Erwin Center
and, thus, the officers’ actions were
reasonable.
III.
The university2 contends that because the
court found that the plaintiffs had suffered no
constitutional injury regardless of whether the
paved area outside the Erwin Center is a tra-
ditional public forum or a non-public forum,
the court rendered an improper advisory opin-
ion in characterizing the nature of the forum.
In support of its claim, the university points to
the district court’s decision on plaintiffs’ mo-
tion to amend the judgment, in which it stated:
“Even if the Court’s order [holding that paved
area is a traditional public forum] had been in
effect [], it would not have required the
defendants to alter their behavior toward the
plaintiffs. . . . The plaintiffs failed to prove any
actual, compensatory injuries or obtain any in-
junctive relief.” The university asserts that the
court’s ruling on plaintiffs’ injuries mooted the
forum question and thus deprived the court of
jurisdiction over that issue.
The plaintiffs claim, in response, that the
court rendered a valid declaratory judgment,
because each of the plaintiffs presented a via-
ble controversy: Each attempted to distribute
leaflets and was ordered to stop by police, and
each was threatened with arrest if he continued
his activities. Further, plaintiffs argue that the
failure of the district court to award all the re-
lief requested does not render its judgment on
the public forum issue merely advisory.
The university’s position is without merit.
Although the district court stated several times
that the plaintiffs’ constitutional rights were
1 Additionally, the plaintiffs challenged the
University’s rules as applied to the West Mall area
of the main campus, which arose out of an April
1996 incident in which Brister similarly attempted
to distribute leaflets. The district court held that
this area was a non-public forum as applied to the
general public and that UT’s regulations were rea-
sonable content neutral restrictions. That ruling
has not been appealed.
2 Although the defendants are natural persons,
we sometimes refer to them, for simplicity, as “the
university.”

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not violated and that they failed to prove any
actual, compensatory injuries sufficient for in-
junctive relief, those facts did not deprive the
district court of jurisdiction to award
declaratory relief.
In Steffel v. Thompson, 415 U.S. 452
(1974), the Court was presented with a
challenge to the justiciability of a declaratory
judgment action where the plaintiff had not yet
been charged with any crime under the
relevant state criminal trespass statute. The
plaintiff sought declaratory relief, claiming that
application of that law would violate his First
and Fourteenth Amendment rights to distribute
handbills at a shopping center. The Court held
that the case presented an “actual controver-
sy,” that federal declaratory relief is not
precluded when a prosecution based on an as-
sertedly unconstitutional state statute has been
threatened, but is not pending, and that the
plaintiff’s failure to demonstrate irreparable in-
jury and to obtain injunctive relief does not
preclude declaratory relief.
Significantly, the petitioner had “been twice
warned to stop handbilling that he claims is
constitutionally protected and [had] been told
by the police that if he again handbill[ed] at the
shopping center and disobey[ed] a warning to
stop he [would] likely be prosecuted.” Id.
at 459. The Court reasoned that “it is not nec-
essary that petitioner first expose himself to
actual arrest or prosecution to be entitled to
challenge a statute that he claims deters the
exercise of his constitutional rights.” Id.3 In
addition to its concerns about unnecessarily
exposing citizens to criminal sanctions, the
Court discussed the unique nature of
declaratory relief:
[E]ngrafting upon the Declaratory
Judgment Act a requirement that all of
the traditional equitable prerequisites to
the issuance of an injunction be satisfied
before the issuance of a declaratory
judgment is considered would defy Con-
gress’ intent to make declaratory relief
available in cases where an injunction
would be inappropriate. . . . Thus, the
Court of Appeals was in error when it
ruled that a failure to demonstrate
irreparable injurySSa traditional
prerequisite to injunctive relief, having
no equivalent in the law of declaratory
judgmentsSSprecluded the granting of
declaratory relief. The only occasions
where this Court has disregarded these
“different considerations” and found that
preclusion of injunctive relief inevitably
led to a denial of declaratory relief have
been cases in which principles of
federalism militated altogether against
federal intervention in a class of
adjudications.
Id. at 471-72.
Similarly, in International Soc’y for Krish-
na Consciousness v. Eaves, 601 F.2d 809 (5th
Cir. 1979), we held that a religious
organization’s anticipatory challenge to a
municipal ordinance regulating the distribution
of literature and solicitation of funds at a city-
owned airport was a justiciable actual
controversy. We noted that “the premise of
Marbury v. Madison requires us to insist that
an anticipatory challenge to a statute’s
constitutionality grow out of a ‘real,
substantial controversy between parties . . . a
dispute definite and concrete.’” Id. at 817
(citations omitted). Thus, to determine
3 See also KVUE, Inc. v. Austin Broadcasting
Corp., 709 F.2d 922, 928 & n.3 (5th Cir. 1983)
(quoting Steffel).

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whether there was a “definite and concrete”
dispute, we asked “whether the plaintiff is
seriously interested in disobeying . . . the
challenged measure.” Id. at 818. And we
summarized the actual-controversy re-
quirement with respect to anticipatory
challenges in the following terms: “We can be
most certain that a constitutional challenge
grows out of a genuine dispute and is not a
contrivance prompted solely by a desire to
enforce constitutional rights if we know that
the allegedly unconstitutional statute interferes
with the way the plaintiff would normally
conduct his affairs.” Id. at 819.
There can be no doubt that plaintiffs were
seriously interested in disobeying the
university’s policy prohibiting non-students
from distributing leaflets on campus. Indeed,
like the petitioner in Steffel, several of the
plaintiffs had been approached more than once
by Marquez and other officers and had been
threatened with arrest if they did not move to
the public sidewalks away from the entrance to
the Erwin Center. Although plaintiffs are not
challenging the constitutionality of a criminal
statute per se, the university’s policy, if
upheld, would allow its police to arrest the
leafleters under a criminal-trespass theory.
Accordingly, there is no distinction between
the conundrum faced by the individuals in
Steffel and Eaves, on the one hand, and the
dilemma faced by the instant plaintiffsSSeither
they risked being criminally punished by
engaging in “conduct which [they] may have
honestly thought was constitutionally
prot ected,” or, else, they would be deterred
from “engaging in protected activity and
enforcing constitutional rights.” Eaves, 601
F.2d at 821.
In no way are plaintiffs’ “threats of
prosecution . . . imaginary, speculative or
chimerical”: The officers were fully prepared
to arrest the protesters if they did not comply
with the officers’ instructions. Thus, plaintiffs
have demonstrated the existence of an Article
III controversy. See High Ol’ Times, Inc. v.
Busbee, 621 F.2d 135, 139 (5th Cir. 1980).
Steffel teaches that it is irrelevant whether
plaintiffs were successful in obtaining
monetary or injunctive awards and that,
instead, declaratory judgment relief is a proper
way for individuals to proceed to ensure that
their constitutional rights are protected.
IV.
On the merits of the forum issue, the
university challenges the district court’s
conclusion that this particular university prop-
ertySSoutside the Erwin Center, between the
public entrance and Red River StreetSSis in-
distinguishable from the Austin city sidewalks
and, for that reason, is a traditional public for-
um. “The Court has identified three types of
fora: the traditional public forum, the public
forum created by government designation, and
the nonpublic forum.” Arkansas Educ.
Television Comm’n v. Forbes, 523 U.S. 666,
677 (1998) (internal quotations and
punctuation omitted). Traditional public fora
“are defined by the objective characteristics of
the property, such as whether, ‘by long
tradition or by government fiat,’ the property
has been ‘devoted to assembly and debate.’”
Id. (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983)).
Thus, the district court correctly observed that
public sidewalks are, by long tradition, public
fora.4
In determining that the university’s paved
area adjacent to the Austin sidewalk is a public
4 The university does not challenge the
conclusion that Austin’s sidewalks are public fora.

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forum, the district court relied primarily on
United States v. Grace, 461 U.S. 171 (1983),
holding that a statute prohibiting displaying “in
the Supreme Court building, or on its grounds,
any flag, banner, or device designed to bring
into public notice any party, organization, or
movement,” was an unreasonable place
restriction on the exercise of free speech and
was unconstitutional. Particularly troubling to
the Court was the fact that the statute’s ban
applied to the public sidewalks surrounding the
Court building, because sidewalks are
traditional public fora. See id. at 178-79. The
Court did not opine on whether the statute
was unconstitutional as applied to the building
and grounds inside the sidewalks, however,
but instead relied on its observation that “the
sidewalks comprising the outer boundaries of
the Court grounds are indistinguishable from
any other sidewalks in Washington, D.C., and
we can discern no reason why they should be
treated any differently.” Id. at 179.
Grace, then, frames the terms of the
dispute. On the one hand, the university seeks
to distinguish the holding that the statute was
unconstitutional as applied to the public
sidewalks. It argues that the district court
incorrectly presupposed the outcome-
determinative conclusionSSi.e., it relied on
Grace to establish that the university’s
grounds were themselves a public sidewalk
and, therefore, a public forum.
The university is in fact correct that Grace
is not a perfect fit for that conclusion, because
there the Court compared the sidewalks in
quest ion to “any other sidewalks in
Washington, D.C..” Notably, the Court did
not compare those sidewalks to the internal
grounds of the Court building; indeed, the
Court expressly refused to make any judgment
as to the building and grounds inside the
sidewalks. See id. at 178-79. Thus, the
university relies on the general rule that “[a]
university differs in significa
nt respects from public forums such as streets
or parks or even municipal theaters.” See
Widmar v. Vincent, 454 U.S. 263, 268 (1981).
On the other hand, plaintiffs argue that
Grace still supports the district court’s
conclusion that the Erwin Center’s grounds
that are adjacent to the Red River Street
sidewalk are a public forum. They point to the
Court’s concern that “[t]here is no separation,
no fence, and no indication whatever to
persons stepping from the street to the curb
and sidewalks that serve as the perimeter of
the Court grounds that they have entered some
special type of enclave.” Grace, 461 U.S. at
180.
Likewise, here there is no indication or
physical demarcation of the public sidewalk,
which is a public forum, and the university
grounds, which typically are not. The
university challenges this assertion, however,
arguing that its police officers provide verbal
warnings sufficient to establish a reasonable
boundary line. It points to the undisputed
facts in the instant case that demonstrate that
Marquez and the other officers repeatedly
informed the plaintiffs of when they
impermissibly had crossed onto university
property.
But these verbal warnings are not sufficient.
First, the facts of Grace undermine the
university’s claim that repeated warnings can
suffice to establish a boundary between public
and non-public fora. The petitioners there had
been threatened with arrest several different
times while they were protesting on the public
sidewalks bordering the Court building, and
each time they left without an incident. Thus,

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they plainly knew that the statute prohibited
demonstrations on these particular sidewalks
outside the Court, but, nevertheless, the Court
held that there was nothing to distinguish these
sidewalks from any other sidewalks in the Dis-
trict of Columbia.
The university seeks to distinguish this fact
as well, and it correctly observes that Grace
“does not address the question of whether an
oral warning would serve as a sufficient
‘indication’ of the boundary between the
sidewalk and the plazaSSor, indeed, whether
any ‘physical demarcation’ is required at that
point at all.” It argues that the Austin public
sidewalk cannot reasonably be thought to
extend all the way from the curb to the base of
the building, and it warns that the definition of
constitutional public fora should not turn on
the architectural characteristics of individual
buildings. In other words, if the university had
not chosen to pave the Erwin Center’s
grounds with the same brown stones as those
used for the public sidewalk, there would be
little question that the property in question was
not a public forum.
Yet the university cannot so easily avoid
Grace’s reasoning. In addition to its desire to
protect the traditional public fora, the Court
was concerned with the adequacy of the notice
provided to those who reasonably thought
they were on public grounds. This is evident
from the Court’s prolonged discussion of the
lack of any indicat ion or dividing line that
would inform a protester that he had entered
some special “enclave” where free speech was
not protected. Similarly, here the plaintiffs and
other members of the public cannot be certain
when they have entered the university’s
enclave, and notwithstanding the university’s
concerns about the intricacies of architectural
design, First Amendment cases often turn on
very particular facts.
While both sides make plausible arguments,
and while it could be onerous for the university
to have to open up the entire area outside the
Erwin Center to public discourse, the concerns
with chilling otherwise constitutionally-
protected speech are paramount. If individuals
are left to guess whether they have crossed
some invisible line between a public and non-
public forum, and if that line divides two
worldsSSone in which they are free to engage
in free speech, and another in which they can
be held criminally liable for that speechSSthen
there can be no doubt that some will be less
likely to pursue their constitutional rights, even
in the world where their speech would be
protected.
Moreover, it is of little consequence that
the university’s officers first warn the
protesters before they arrest them. The
constitutional right to free speech suffers
injury when this impermissible amount of
doubt is introduced, and when constitutional
expression is chilled.
Furthermore, the university’s burden is not
so overwhelming as it claims. While the
district court did hold that the Erwin Center’s
grounds, between the base of the building and
the curb of Red River Street, were a public
forum, it nevertheless left the university the
option of reasonable time, place, and manner
restrictions. Thus, the university still can re-
move anyone who interferes with the flow of
traffic to and from the Erwin Center, thereby
ensuring that the university’s interests retain
some protection.
The district court reached the correct con-
clusion based o n the very specific facts set
forth hereSSi.e., a unique piece of university
property that is, for all constitutional purposes,

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indistinguishable from the Austin city
sidewalk. Accordingly, the judgment in that
respect is affirmed.5
V.
On cross-appeal, plaintiffs present three
challenges to the conclusion that they suffered
no violation of their constitutional rights. We
consider each in turn.
A.
Plaintiffs contend that the court committed
clear error in finding that Medaille, Baker, and
Samson impeded access to the Erwin Center
and otherwise disrupted the delegates.6 As a
result, plaintiffs argue that each should have
been awarded nominal damages for prevailing
on his constitutional claim.7 They maintain
that the record is wholly devoid of evidence
that Baker, Samson, or Medaille ever was in
front of the doors to the Erwin Center
restricting the delegates’ access. With respect
to Baker and Samson, the plaintiffs claim the
record reflects that once they were instructed
to get off the sidewalk and, erroneously, that
the university’s property encompassed the en-
tire sidewalk area along Red River, they
proceeded to hand out pamphlets while
standing in the street.
This dispute is primarily factualSSwhether
there was sufficient evidence to support the
finding that the plaintiffs impeded patrons’ ac-
cess to the Erwin Center and, therefore, that
the officers were justified in requiring them to
move pursuant to a reasonable time, place, and
manner restriction. If such evidence is in the
record, plaintiffs concede that they cannot de-
monstrate clear error, even if there is
contradictory evidence supporting their
position. But, plaintiffs argue that there is no
evidence that Medaille, Baker, or Samson ever
was directly in front of the center’s doors or
that any of them in some other way blocked
delegates from getting inside, because neither
Marquez nor any other university officer tes-
tified to such fact.
By contrast, the three plaintiffs point to
Marquez’s testimony that the leafleters, other
than Brister, “were not in the immediate area.”
These plaintiffs assert that the closest
testimony supporting the district court’s
conclusion was Marquez’s statement that he
“noticed approximately five solicitors with a
large banner and passing out leaflets as people
exited the buses.” But, plaintiffs note that
there was no mention that the leafleters were
preventing people from getting off the buses,
nor did anyone identify the plaintiffs as the
particular leafleters Marquez observed.
Thus, plaintiffs contend that they were re-
quired to leave the public sidewalk, not the
university grounds, despite the fact that they
were not impeding anyone’s entry into the Er-
win Center. If this is so, then, plaintiffs argue
5 This holding applies only to the specific prop-
erty at issue on Red River Street and is not to be
interpreted to apply to any other property around
the perimeter of the Erwin Center or elsewhere,
about which we express no opinion.
6 Plaintiffs concede that there is contradictory
evidence in the record to support the district court’s
findings of fact with respect to Brister.
7 See, e.g., Fyfe v. Curlee, 902 F.2d 401 (5th
Cir. 1990); Ryland v. Shapiro, 708 F.2d 967 (5th
Cir. 1983) (plaintiff who prevails on constitutional
claim but who otherwise does not suffer any injury
is entitled to nominal damages). The plaintiffs also
insist that Brister is entitled to nominal damages
because he successfully demonstrated that an un-
constitutional act occurred, even though his own
conduct prevented his suffering any damages.

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that the finding that these three plaintiffs in-
hibited delegates from entering the center is
clearly erroneous, and, therefore, that the find-
ing that their constitutional rights were not
violated should be reversed, for the reason that
this factual finding formed the only basis for
the court’s legal conclusion.
The university responds by noting that the
court simply discounted these plaintiffs’ self-
interested and unbelievable testimony. It con-
tends that the plaintiffs’ account should be dis-
believed because they admitted that their re-
collection of events was hazy, and because that
account is inconsistent with other facts that are
not in dispute. Specifically, the school claims
that this account is not consistent with the fact
that other demonstrators apparently were al-
lowed to distribute literature within the city’s
sidewalk, in full view of university police, and
that no university personnel attempted to stop
them.8 Also, none of the plaintiffs could iden-
tify the officer(s) who allegedly told them that
they could not distribute literature even on the
sidewalk between the Erwin Center and Red
River Street.
Because we are under a clearly erroneous
standard of review, we cannot second guess
the district court’s decision to believe Mar-
quez’s testimony over Brister’s and to
discount the other plaintiffs’ statements that
they were interfering with no one. Also, there
is evidence that Baker and Samson stood in
the recessed area of the university property,
where the buses were dropping off delegates,
and offered leaflets to people as they got off
these buses. While it is uncertain whether this
leafleting inhibited patrons’ access to the
Erwin Center, the court could have concluded
that this was enough for the officers to ask the
plaintiffs to move back to the sidewalk, and it
refutes plaintiffs’ claim that they restricted
their activities to only the sidewalk.
B.
Plaintiffs argue that Medaille, who claimed
to have identified himself as a student to an
unspecified university police officer, imper-
missibly was held to a higher standard than
were other university students, because the of-
ficer asked him to produce documentation that
proved he was authorized to leaflet on
campus. Medaille correctly points out that, as
a student, he is not required to have prior
authorization to leaflet on campus.
But, nevertheless, Medaille failed another
requirement of university policy, namely, that
any leaflet distributed by a student
organization identify that organization on the
face of the document. Because plaintiffs’
pamphlets did not contain any such
identification, Medaille’s claim is moot.9
8 The university also tries to argue that, even if
plaintiffs could prove that university police ordered
them not to distribute materials anywhere on the
Red River sidewalk, “it is legally inconsequential,”
because the only area where they wanted to
distribute leaflets was the space in front of the
Erwin Center’s doors. But this claim is
unsupported by any evidence and is contrary to the
plaintiffs’ complaint that they could not leaflet on
the sidewalk. Obviously, plaintiffs wanted to
leaflet anywhere they could, the closer the better.
9 Notably, plaintiffs do not present an over-
breadth challenge to this aspect of the university’s
regulations, as they are a reasonable time, place,
and manner restriction aimed at ensuring the
university can hold student organizations
accountable for littering and the like. Unless they
can show that Medaille or another student was
treated unfairly, then, plaintiffs have no remaining
claim.

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C.
To challenge the holding that they suffered
no violation of their constitutional rights,
plaintiffs attack what they call the “phantom
time, place and manner restrictions.” They ar-
gue that the court’s finding that the officers
were justified in preventing them from
distributing leaflets, when that distribution in-
terfered with the flow of visitors to and from
the Erwin Center, was erroneous, because the
only place and manner that existed was the un-
iversity’s absolute ban on non-students’
distributing of literature on university
property. Thus, plaintiffs assert that the
university chose not to promulgate time, place,
and manner restrictions that would balance its
interests against those of persons wishing to
exercise their constitutional rights.
But, in their brief, plaintiffs expressly
abandon any void-for-vagueness argument,
and, as a result, we cannot see what they hope
to accomplish. They have not shown, or even
argued, that the ban on leafleting during these
events would be an unreasonable restriction
were it expressly promulgated, nor have they
argued that the university discriminated against
them on the basis of the content of their
message.
Perhaps plaintiffs are trying to contend that
the “phantom” restrictions are not narrowly
tailored to serve a legitimate government inter-
est. But the district court has already struck
down the only restrictions that are codified, at
least with respect to this property, and the uni-
versity correctly points out that it did not have
a more narrow time, place, or manner re-
striction to evaluate because, until the district
court’s decision in the instant case, the
university did not consider the grounds to be a
public forum.
Thus, plaintiffs have not developed their
argument here, and they have identified no re-
versible error. Therefore, we affirm the
district court’s ruling that plaintiffs suffered no
violation of constitutional rights.
VI.
Plaintiffs aver that the court erred in
denying them nominal damages. Part of their
reasoning is based on their contention, rejected
above, that we should reverse the district
court’s determination that their constitutional
rights were not violated. But plaintiffs also
argue that regardless of the ruling that they
sustained no actual injuries, the court still
should have awarded them nominal damages.
Plaintiffs cite cases such as Russell v.
Harrison, 736 F.2d 283, 291 (5th Cir. 1984),
in which we noted that “if upon remand, the
district court finds a denial of procedural due
process, actual damages may be awarded un-
der 42 U.S.C. § 1983, and nominal damages
are appropriate in the event that no actual
damages are shown.” Plaintiffs also reason
that “[b]y making deprivation of such [consti-
tutional] rights actionable for nominal damages
without proof of actual injury, the law
recognizes the importance to organized society
that those rights be scrupulously observed.”
Lewis v. Woods, 848 F.2d 649, 651 (5th Cir.
1988) (quoting Carey v. Phiphus, 435 U.S.
247, 266 (1978)).
These authorities do not support plaintiffs’
contention that they are entitled to nominal
damages, however, because all of them depend
on the pre-existing determination that their
constitutional rights were violated. That is not
the case here, for the district court expressly
held that “none of the plaintiffs’ constitutional
rights were violated because the University
police officers, both Marquez who approached

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Brister and the unidentified officers who ap-
proached the other plaintiffs, were justified in
requiring the plaintiffs to move away from the
Red River doors.” Instead, it was the
university’s policy banning all leafleting by
non-students on university property, and not
its treatment of the individual plaintiffs, that
was unconstitutional.
As a result, the district court fashioned the
appropriate relief, a declaratory judgment that
the policy would be unconstitutional if applied
to the public forum outside the Erwin Center,
on the Red River Street side, without proper
time, place, or manner restrictions. Nominal
damages were neither necessary nor proper in
this circumstance, and the court committed no
error in refusing them.
VII.
Plaintiffs claim that the district court abused
its discretion in denying injunctive relief that
would have forced the university to comply
with its order. They assert that the university
has failed to abide by a prior ruling that held
that the same university regulation was
unconstitutional for overbreadth. Plaintiffs
therefore conclude that the university should
not be trusted to comply with the current
order.
The prior order, in Mencio v. University of
Tex., Civ. Ac. No. A-84-CA-146 (W.D. Tex.,
May 19, 1986), pro vided, in pertinent part,
that the policy was “unconstitutional due to its
overbreadth,” in that it “provide[d] for the ab-
solute prohibition of distribution of leaflets by
non-students, faculty and staff.” The policy
was constitutionally unsound because the uni-
versity had created a “public forum” at which
the First Amendment Rights of non-students
could not be abridged.
UT responds by asserting that it has not
violated that order, because its reasoning
demonstratedSSby reference to an earlier rul-
ing in the same caseSSthat the “public forum”
the university had created was time-limited as
well as fact-specific:
In the fact situation presently before the
Court, the University has invited several
well known individuals to participate in
a seminar. The record reflects that the
seminar was open to the public and that
the public would be invited to verbally
participate in the seminar. In light of
these circumstances and the applicable
case law, it is clear t hat the University
created a “public forum” at this
particular place and at this particular
time. Consequently, the first
amendment rights of non-students
would be abridged if they were not
allowed to distribute literature along
with University students.
In contrast to the circumstances that
motivated the prior order, the university points
out that the current controversy centers on
whether the Erwin Center’s grounds are a
traditional public forum, not on whether the
university created a “designated public forum”
by inviting individuals to attend any events.10
Consequently, the university reasonably
thought that its ban on non-student leafleting
did not apply to the Erwin Center grounds,
because if it were not a traditional public
forum (and no court had previously held that
it was), it would have been either a non-public
forum or not a forum at all. Thus, the district
court properly determined that no injunction
10 See, e.g., Arkansas Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 677 (1998)
(discussing the creation of designated public fora).

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was necessary to ensure future compliance,
because there is no merit to plaintiffs’ assertion
that the university wilfully ignored a court
order.
VIII.
Plaintiffs contend they are entitled to
attorneys’ fees under 42 U.S.C. § 1988 as
prevailing parties, because they were awarded
declaratory relief on their constitutional claim
and because the court’s ruling “materially
alters” the legal relationship between the
parties.11 It is of no consequence, according to
the plaintiffs, that they did not prevail on any
of their claims for damages or injunctive relief,
because the declaratory judgment in their favor
should be sufficient to establish them as a “pre-
vailing party” under Farrar v. Hobby, 506
U.S. 103 (1992).
The university counters that fees are not
justified, because the plaintiffs suffered no con-
stitutional injury. While the Court in Farrar
liberally construed the term “prevailing party”
under § 1988, the Court did contemplate there
will be limits on the awards of fees. For
instance, it noted that “a judicial
pronouncement that the defendant has violated
the Constitution, unaccompanied by an
enforceable judgment on the merits, does not
render the plaintiff a prevailing party.” Id. at
112. The Court observed that a plaintiff who
wins either compensatory or nominal damages
is a prevailing party, but this is so because
there is necessarily a determination that his
constitutional rights have been violated.
Here, as the district court expressly found,
plaintiffs’ constitutional rights were not vio-
lated. Although, they did obtain a declaratory
judgment that the policy banning all leafleting
by non-students at the Erwin Center was un-
constitutional, that judgment did nothing to al-
ter the legal relationship between these parties.
That is, plaintiffs still could not leaflet at the
time, and in the manner, that they sought.
Instead, the judgment put the university on
notice that in the future, it could impose only
reasonable time, place and manner restrictions
on leafleting in this traditional public forum.
Nor are plaintiffs saved by their reliance on
Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d
806 (5th Cir.), cert. granted, 120 S. Ct. 494
(1999), which they cite for the proposition that
a declaration that a policy is unconstitutional is
sufficient for entitlement to fees. But the uni-
versity correctly observes that the court in
Santa Fe awarded attorneys’ fees because the
plaintiffs there “obt ained a judgment
vindicating the Santa Fe students’ important
First Amendment Rights in both graduation
ceremony and football game contexts.” Id. at
823. In other words, the court found that the
student-led prayer violated other students’
constitutional rights to be free from pro-
selytizing at these school-sanctioned events.
Thus, for the same reasons that Farrar is
inapposite, so is Santa FeSSboth involved vio-
lations of the plaintiffs’ constitutional rights,
while the instant case does not. Therefore, the
district court did not err in denying attorneys’
fees.
AFFIRMED. 11 The plaintiffs’ demand for attorneys’ fees is
also premised on their contention that the district
court erroneously denied them nominal damages
and injunctive relief. Because we have rejected
both of these claims, however, we need not
reconsider them here.

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