John McGlone v. Jimmy G. Cheek

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0710n.06
No. 12-5306
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN MCGLONE,
Plaintiff-Appellant,
v.
JIMMY G. CHEEK, in his official capacity as
Chancellor of the University of Tennessee at
Knoxville; MAXINE DAVIS, individually and in her
official capacity as Dean of Students at the
University of Tennessee at Knoxville; and ANGI
SMITH, individually and in her official capacity as
Associate Dean of Students at the University of
Tennessee at Knoxville,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
Before: MARTIN and ROGERS, Circuit Judges; TARNOW, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. John McGlone sued several University of
Tennessee at Knoxville officials, alleging that the University’s policy requiring persons unaffiliated
with the University to obtain sponsorship in order to speak on campus violated his First Amendment
right to free speech and his Fourteenth Amendment right to due process. McGlone also moved to
enjoin the University from enforcing its sponsorship requirement. The University moved to dismiss
the suit, and the district court granted the University’s motion to dismiss and denied McGlone’s
The Honorable Arthur J. Tarnow, United States District Court Judge for the Eastern District*
of Michigan, sitting by designation.

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preliminary-injunction motion. McGlone appeals the district court’s judgment. For the following
reasons, we REVERSE the district court judgment and REMAND for further proceedings.
I.
McGlone describes himself as a committed Christian. In keeping with his Christian faith,
McGlone travels to public universities to share his religious beliefs with college students. He targets
outdoor spaces on campuses and shares his beliefs through dialogue, the distribution of literature,
and the display of signs. McGlone’s message is that “all people need salvation because of their
rebellion against God and God provides salvation to those who repent and believe in Jesus Christ.”
McGlone claims that he “simply wants to expose students to the teaching of Christianity.”
In 2008, McGlone began visiting the University of Tennessee at Knoxville to engage in
expression of his religious beliefs. The University of Tennessee is a large institution, with
approximately 27,000 students and 8,161 faculty members. From 2008 until August 2010, McGlone
visited the University’s campus five times and successfully expressed his religious beliefs without
any interference from the University. He usually used an open-air amphitheater to express his
beliefs. On August 25, 2010, McGlone called the University and left a voice message informing
University officials of his intention to speak on campus the following day, as had been his practice
for all prior visits with the exception of his first visit.
Maxine Davis, the Dean of Student Affairs, and Angi Smith, the Associate Dean of Students,
returned McGlone’s call and explained that McGlone would not be permitted to use any open area
of campus for expressive purposes unless he had a University sponsor. McGlone requested
sponsorship from Deans Davis and Smith, both of whom declined, and McGlone then asked Dean
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Davis for the contact information of the University’s legal counsel. Dean Davis gave him the
telephone number of Matthew Scoggins, the University Assistant General Counsel. Soon thereafter,
McGlone contacted Scoggins, who told McGlone that University policy requires that all speakers
who are not affiliated with the University receive sponsorship from “students, faculty, or staff” in
order to speak on campus. Scoggins told McGlone that the University had a policy limiting its
campus to students, faculty, staff, and invitees and that “this policy was the source of the sponsorship
requirement enforced by [the University.]” Dean Smith called McGlone later that day and explained
to McGlone that she had talked to Scoggins and confirmed that in order for McGlone to speak on
campus, he needed to be “sponsored by a registered student organization, staff, or faculty.”
Scoggins emailed McGlone links to two written University policies: (1) the “Access to
University Property” policy; and (2) the University student handbook, which is called “Hilltopics.”
The “Access to University Property” policy, or policy # 1720-1-2, which was promulgated by the
University Board of Trustees in 1970 under the provisions of the Tennessee Uniform Administrative
Procedures Act, Tenn. Code Ann. § 4-5-101, et seq., reads:
The University’s campuses and facilities shall be restricted to students, faculty, staff,
guests, and invitees except on such occasions when all or part of the campuses,
buildings, stadia, and other facilities are open to the general public.
A section of the student handbook entitled “Access to Campus” contains nearly identical language.
The student handbook defines a guest as “[a] person invited by a university student or employee to
visit the campus at a specific time, place, and occasion.”
The student handbook specifically addresses the University’s sponsorship requirement in a
section entitled “Freedom of Expression and Speech,” which reads:
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The University of Tennessee considers freedom of inquiry and discussion essential
to educational development and recognizes the right of students to engage in
discussion, to exchange thoughts and opinions, and speak freely on any subject in
accord with the guarantees of our state and national constitutions.
The policy goes on to state:
To these ends, registered student organizations on campus may freely select, without
prior restraints, persons they wish to invite as guest speakers. There are no
restrictions to control the point of view expressed by speakers other than those
imposed by local, state, and federal laws. Any person sponsored by a registered
campus organization is free to speak.
The Freedom-of-Expression policy also says that once a speaker receives sponsorship, no other
student or University official has the power to revoke the sponsorship. In an attempt to comply with
the sponsorship requirement, as he understood it, McGlone emailed ten Christian-based student
organizations on April 13, 2011, requesting sponsorship. None of the organizations responded to
McGlone’s request. McGlone has not returned to the University campus since failing to obtain
sponsorship because, according to him, he was “deterred by the process.”
On June 6, 2011, McGlone sent a letter, by way of his attorney, to University officials
expressing his belief that the University’s sponsorship requirement was unconstitutional. McGlone
also asked for assurances that he would be allowed to speak on campus without having to comply
with the sponsorship requirement. Scoggins responded with a letter dated June 17, 2011, in which
he argued that the University’s policy regarding outside speakers is constitutional. The letter said
that the University has limited “expressive activity” in the area where McGlone wanted to speak “to
a certain class of speakers – students, faculty, staff, and their sponsored guests.” The letter also said
that the Freedom-of-Expression policy found in the student handbook “explains the process of
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speaker sponsorship.” Scoggins’s letter concluded by informing McGlone that he is welcome to
speak on campus once he obtains sponsorship.
McGlone filed suit against Davis, Smith, and University Chancellor Jimmy Cheek. He
claimed that the University’s sponsorship requirement was unconstitutionally vague, in violation of
his First Amendment right to free speech as well as his Fourteenth Amendment right to Due Process.
McGlone moved for a preliminary injunction, and the University moved to dismiss the complaint
on the grounds that McGlone failed to state a claim upon which relief could be granted. The district
court held that the sponsorship requirement was not vague, and it granted the University’s motion
to dismiss and denied McGlone’s motion for a preliminary injunction.
II.
This Court reviews a district court’s grant of a motion to dismiss for failure to state a claim
de novo. McGlone v. Bell, 681 F.3d 718, 731 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d
571, 575 (6th Cir. 2005)). In order to survive a motion to dismiss for failure to state a claim, the
plaintiff’s complaint must contain enough facts to state a claim to relief that is plausible on its face.
Paige v. Coyner, 614 F.3d 273, 277 (6th Cir. 2010); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). We must construe the complaint in the light most favorable to the plaintiff and accept as true
all factual allegations therein. In re Southeast Waffles, LLC, 702 F.3d 850, 856 (6th Cir. 2012)
(citing Twombly, 550 U.S. at 570).
McGlone argued that the University’s sponsorship requirement is unconstitutionally vague
because it grants unbridled discretion to University officials and students in granting or denying
sponsorship; however, during oral argument, it became clear that alterative grounds for McGlone’s
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vagueness argument existed. The University contends that its sponsorship requirement clearly
establishes that students, faculty, and staff have the authority to grant sponsorship and relies
primarily on policy # 1720-1-2 for support. However, the Freedom-of-Expression policy, which,
unlike policy # 1720-1-2, explicitly discusses sponsorship, says that student organizations grant
sponsorship and makes no mention of individual students, faculty, or staff. This raises the question
of whether the inconsistency between the policies makes the University’s sponsorship requirement
unconstitutionally vague.
Generally, we do not consider sua sponte arguments not presented or urged by the parties;
however, “‘[e]xceptional cases or particular circumstances may prompt a reviewing court, where
injustice might otherwise result or where public policy requires, to consider questions neither pressed
nor passed upon below.’” Boals v. Gray, 775 F.2d 686, 691 (6th Cir. 1985) (quoting Nuelsen v.
Sorensen, 293 F.3d 454, 462 (9th Cir. 1961)); see also United States v. Szymanski, 631 F.3d 794, 797
(6th Cir. 2011). Because the potential injustice at stake is the unconstitutional circumvention of
citizens’ First Amendment right to free speech, and because McGlone raised a vagueness argument
below, sua sponte review is appropriate.
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). In
Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 551 (6th Cir. 2007), this Court
said:
We have recognized that the vagueness doctrine has two primary goals: (1) to ensure
fair notice to the citizenry and (2) to provide standards for enforcement [by officials].
With respect to the first goal, the Supreme Court has stated that “[a] statute which
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either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law.” Connally v. Gen. Constr. Co., 269
U.S. 385, 391 (1925). With respect to the second goal, the Supreme Court stated that
“if arbitrary and discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law impermissibly delegates
basic policy matters to [officials] for resolution on an ad hoc and subjective basis.”
Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).
Furthermore, the principle of clarity is especially demanding when First Amendment freedoms are
at risk. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)
(“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is
whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the
law interferes with the right of free speech or of association, a more stringent vagueness test should
apply.”); Smith v. Goguen, 415 U.S. 566, 573 (1974) (“Where a statute’s literal scope . . . is capable
of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a
greater degree of specificity than in other contexts.”).
The University’s sponsorship requirement raises both of the concerns highlighted in
Cleveland Firefighters. First, the policy forbids the doing of an act in terms so vague that people
of ordinary intelligence guess at its meaning and differ as to its application. Consistently throughout
its representations to McGlone and to this Court, the University has insisted that, together, policy
#1720-1-2 and the Freedom-of-Expression policy establish the University’s sponsorship requirement.
Policy # 1720-1-2 makes no reference to on-campus speakers or sponsorship, but it says that guests
are allowed on campus, and the student handbook defines a guest as “[a] person invited by a
university student or employee to visit the campus at a specific time, place, and occasion.” The
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Freedom-of-Expression policy says that “[a]ny person sponsored by a registered campus organization
is free to speak” on campus. Inexplicably, the University conflates both policies and concludes that
the University’s sponsorship requirement clearly provides that students, faculty, and staff have the
authority to grant sponsorship.
As a result of the inconsistency between the two policies, it is unclear to the ordinary person
who has the authority to grant sponsorship. Furthermore, the record establishes that people of
ordinary intelligence—University officials—have applied the policy differently. For example, on
August 25, 2010, Scoggins told McGlone that he needed to receive sponsorship from “students,
faculty, or staff” in order to speak on campus and, on the very same day, Dean Smith told McGlone
that he needed to receive sponsorship from “a registered student organization, staff, or faculty.”
Presumably, Scoggins’s explanation comes from policy # 1720-1-2, and one can only assume that
Dean Smith’s explanation is the result of an amalgamation of policy # 1720-1-2 and the Freedom-of-
Expression policy. Accepting as true the allegations in McGlone’s complaint, a plausible vagueness
claim exists because the University policy fails to ensure fair notice to the citizenry.
Second, the University’s sponsorship requirement opens the door to arbitrary and
discriminatory enforcement. Between policy # 1720-1-2 and the Freedom-of-Expression policy, the
sponsorship requirement does not clearly specify to whom the decision-making authority has been
delegated concerning sponsorships. Consequently, a University official could rely on the Freedom-
of-Expression policy and require a person who desired to speak on campus to obtain sponsorship
from a student organization and foreclose the option of obtaining sponsorship from an individual
student. Such a decision by a University official would severely limit a potential speaker’s
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sponsorship options considering that in June of 2011 there were 395 registered student organizations
and approximately 27,000 students. This appears to be what happened to McGlone. Dean Smith
told him that he would have to obtain sponsorship from a student organization, and, given the
language of the Freedom-of-Expression policy, McGlone reasonably relied on Dean Smith’s
representation of the sponsorship requirement. Whether or not the ad-hoc nature of Dean Smith’s
enforcement of the policy was arbitrary or discriminatory, it was constitutionally problematic. A
plausible vagueness claims exists because the University policy fails to provide a clear standard for
enforcement.
In addition, vague laws create the danger of having a chilling effect on speech. In Grayned,
the Supreme Court warned that “[u]ncertain meanings inevitably lead citizens to ‘steer far wider of
the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” Grayned,
408 U.S. at 109 (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (citation omitted)); see also
Scull v. Commonwealth of Va. ex. rel. Comm. on Law Reform and Racial Activities, 359 U.S. 344,
353 (1959) (“Certainty is all the more essential when vagueness might induce individuals to forego
their rights of speech, press, and association for fear of violating an unclear law.”). The uncertainty
regarding who has the authority to grant sponsorships could cause people to refrain from attempting
to exercise their First Amendment right to free speech on the University’s campus. McGlone, whose
past experience included inconsistent enforcement of the sponsorship requirement and who received
inconsistent interpretations of and conflicting information about the policy from University officials,
has never returned to campus because he was “deterred by the process.” In addition to failing to
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ensure fair notice to the citizenry and to set out a clear standard for enforcement, the University’s
vague sponsorship requirement threatens to chill speech.
III.
We review district court decisions regarding preliminary injunctions with First Amendment
implications de novo. Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012). In addressing
a motion for a preliminary injunction, a court should consider: (1) the likelihood that the movant will
succeed on the merits; (2) whether the movant will suffer irreparable harm without the injunction;
(3) the probability that granting the injunction will cause substantial harm to others; and (4) whether
the public interest will be advanced by issuing the injunction. Jones v. Caruso, 569 F.3d 258, 265
(6th Cir. 2009).
In cases with First Amendment implications, the “likelihood of success on the merits” factor
is often determinative because “issues of the public interest and harm to the respective parties largely
depend on the constitutionality” of the challenged enactment. Hamilton’s Bogarts, Inc., v. Michigan,
501 F.3d 644, 649 (6th Cir. 2007) (quoting Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888
(6th Cir. 2000)). We have already established that McGlone has a plausible vagueness claim.
According to the University, its sponsorship requirement consists of two policies that are
contradictory on their face. The policy fails to specify clearly to whom the decision-making
authority has been delegated concerning sponsorships, and therefore, its prohibitions are not clearly
defined. It is likely that McGlone would succeed on the merits of a vagueness challenge, and he is
therefore entitled to a preliminary injunction.
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We REVERSE the judgment of the district court and REMAND with instructions to grant
the preliminary injunction.
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