WIRTSHAFTER et al v. THE TRUSTEES OF INDIANA UNIVERSITY et al

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JASPER WIRTSHAFTER, et al., 	)
)
Plaintiffs, 	)
)
v. 	) 	No. 1:24-cv-00754-RLY-MKK
)
THE TRUSTEES OF INDIANA
UNIVERSITY, et al.,
)
)
)
Defendants. 	)
ENTRY ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
AND DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT
In April 2024, college campuses across the United States witnessed a wave of
protests responding to the ongoing Israeli-Palestinian conflict. Indiana University was no
exception. This case presents a clash between the First Amendment rights of protestors
and the University's interest in maintaining campus safety.
Plaintiffs herein are University professors, students, and others who have protested
on IU's campus. The dispute began when Indiana University Police Department
personnel issued trespass warnings to Plaintiffs arrested at an encampment established in
Dunn Meadow. IU's Board of Trustees later adopted a policy banning all expressive
activity on IU property between the hours of 11:00 p.m. and 6:00 a.m. After Plaintiffs
sued University officials for violating their First Amendment rights, the Trustees reversed
course. They amended the policy to instead require pre-approval for protests on campus
occurring between 11:00 p.m. and 6:00 a.m. Plaintiffs moved to preliminarily enjoin
President Whitten and the Trustees from enforcing that policy. The court granted that
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 1 of 38 PageID #:
<pageID>

2
motion. The Trustees then removed the overnight restrictions. The University also
rescinded disciplinary warnings that were previously issued to certain Plaintiffs for
violating the original policy.
But Plaintiffs still ask this court for injunctive relief and damages. They request
an injunction that would prohibit President Whitten and the Trustees from enacting the
same or a substantially similar policy in the future and require the University to expunge
the disciplinary actions from their permanent records. They also seek damages from
Pamela Whitten (the President of Indiana University) and Benjamin Hunter (the
Associate Vice President and Superintendent for Public Safety) for the period when the
trespass warnings prohibited them from entering Indiana University property. Both
parties have filed motions for summary judgment. For the reasons set forth below, both
motions are DENIED in part and GRANTED in part.
I. 	Background
A. 	Dunn Meadow Demonstrations and the Trespass Warnings
Dunn Meadow is a large, 20-acre open area on the campus of Indiana University
("IU" or "the University") in Bloomington, Indiana. (Dkt. 80 ¶ 10). In 1969, IU's Board
of Trustees (or "Trustees") designated Dunn Meadow as the Indiana University Assembly
Ground, where "members of the University community may express themselves freely on
all subjects, within the limits of applicable laws and regulations, with or without advance
notice." (Minutes of the Bd. of Trustees of Ind. Univ., July 19, 1963; see Dkt. 80 ¶ 11).1
1 Available at https://webapp1.dlib.indiana.edu/iubot/view?docId=1963-07-
18&doc.view=print&toc.depth=1&toc.id=d1e119&brand=iubot.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 2 of 38 PageID #:
<pageID>

3
Dunn Meadow has since been the site of numerous protests, demonstrations, and other
expression on a variety of issues. (Dkt. 80 ¶ 12).
In late April 2024, protestors planned to make Dunn Meadow the headquarters of
their protest of the war in Gaza by establishing an encampment. (See id. ¶ 14; Dkt. 97-1
¶ 7; Dkt. 97-3 ¶ 7; Dkt. 97-6 ¶ 7). Existing policy required advance permission for the
use of structures in Dunn Meadow from 11:00 p.m. to 6:00 a.m. (Dkt. 80 ¶ 13). But on
April 24, 2024, in anticipation of the encampment's establishment the following day, the
University amended its policy to require advance permission to use structures, like tents
and signage, in Dunn Meadow, regardless of the time of day. (See id. ¶ 14; Dkt. 97-1 ¶ 7;
Dkt. 97-3 ¶ 7; Dkt. 97-6 ¶ 7).
That same evening, university personnel, including Pamela Whitten (the President
of Indiana University) and Benjamin Hunter (the Associate Vice President and
Superintendent for Public Safety), met to discuss the planned encampment in Dunn
Meadow. (Dkt. 97-11 at 1). The meeting included a discussion about IU's "enforcement
of Indiana's criminal trespass statute" against protestors in Dunn Meadow. (Id.; see also
Dkt. 80 ¶ 21). Indiana University Police Department ("IUPD") general order G18.1.1
authorizes IUPD to issue no-trespass orders or "trespass warnings" to "protect University
property and/or members of its community." (Dkt. 122-1 at 1–2). Consistent with
G18.1.1, Superintendent Hunter directed IUPD personnel to issue trespass warnings to
individuals arrested in Dunn Meadow during the planned demonstrations. (Dkt. 80 ¶ 24;
Dkt. 97-11 at 3). President Whitten was aware of IUPD's authority to issue trespass
warnings and that trespass warnings might be issued to protestors in Dunn Meadow.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 3 of 38 PageID #:
<pageID>

4
(Dkt. 80 ¶ 22; Dkt. 97-11 at 2). She also had the ability to prevent these orders from
issuing, although she took no steps to do so. (Dkt. 80 ¶ 23; Dkt. 97-11 at 2).
The anticipated demonstrations took place in Dunn Meadow on April 25, 2024,
and subsequent days. (See, e.g., Dkt. 97-1 ¶ 8). Each of the ten Plaintiffs attended these
demonstrations between April 25 and April 27. (See, e.g., id.). All ten Plaintiffs reside in
Monroe County, Indiana, and have varying connections to the University. Heather Akou,
David McDonald, Sarah Phillips, and Benjamin Robinson are professors. (Dkt. 97-1, ¶ 2;
Dkt. 97-4 ¶ 2; Dkt. 97-7 ¶ 2; Dkt. 97-8 ¶ 2). Anjali Biswas, Bryce Greene, and
Madeleine Meldrum are graduate students. (Dkt. 97-2 ¶ 2; Dkt. 97-3 ¶ 2; Dkt. 97-5 ¶ 2).
Jess Tang is an employee. (Dkt. 97-9 ¶ 2). And Maureen Murphy and Jasper Wirtshafter
graduated from IU but are not currently associated with the University as a student or
employee. (Dkt. 97-6 ¶ 2; Dkt. 97-10 ¶ 2).
The University posted signage no later than "first thing in the morning" on April
25, 2024, showing the as-amended restrictions on structures during all times of the day.
(Dkt. 97-4 ¶ 8; Dkt. 97-8 ¶ 8). The signage confused some Plaintiffs because IU's
website still displayed the previous version of the policy. (Dkt. 97-4 ¶ 8; Dkt. 97-8 ¶ 8).
In any event, on April 25, five of the Plaintiffs—Biswas, McDonald, Meldrum, Murphy,
and Robinson—were arrested for criminal trespass in Dunn Meadow for allegedly
refusing to remove tents or disperse so that tents could be removed. (Dkt. 97-2 ¶ 9; Dkt.
97-4 ¶ 9; Dkt. 97-5 ¶ 9; Dkt. 97-6 ¶ 9; Dkt. 97-8 ¶ 9). After their arrests, they each
received a trespass warning from IU. (Dkt. 97-2 ¶ 10; Dkt. 97-4 ¶ 10; Dkt. 97-5 ¶ 10;
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 4 of 38 PageID #:
<pageID>

5
Dkt. 97-6 ¶ 10; Dkt. 97-8 ¶ 10). The trespass warnings informed them that they had been
trespassed from all IU properties and further explained as follows:
You are hereby notified that you are banned from reentering the above
described property. Should you be found anywhere on the above described
property at any time between the dates listed below you will be arrested for
the offense of Criminal Trespass under Indiana Code IC 35-43-2-2, which
may result in your being charged with a Class A Misdemeanor or a Level 6
Felony. If you would like to appeal this warning, please contact the Indiana
University Police Department administration.
(Dkt. 97-2 at 6; Dkt. 97-4 at 6; Dkt. 97-5 at 6; Dkt. 97-6 at 6; Dkt. 97-8 at 6). The
warnings provided to each of these Plaintiffs were set to expire on April 25, 2025—one
year after their issuance. (Dkt. 97-2 at 6; Dkt. 97-4 at 6; Dkt. 97-5 at 6; Dkt. 97-6 at 6;
Dkt. 97-8 at 6).
Despite learning about the trespass warnings issued to Dunn Meadow protesters,
President Whitten took no steps to prevent similar warnings from issuing in the future
and took no immediate steps to rescind or suspend the issued warnings or to order their
rescission or suspension. (Dkt 80 ¶ 25).
Two days later, the five remaining Plaintiffs—Akou, Greene, Phillps, Tang, and
Wirtshafter—were arrested in Dunn Meadow for identical reasons. (Dkt. 97-1 ¶ 9; Dkt.
97-3 ¶ 9; Dkt. 97-7 ¶ 9; Dkt. 97-9 ¶ 9; Dkt. 97-10 ¶ 9). They too received trespass
warnings, but the trespass warnings they received banned them only from IU's
Bloomington campus. (Dkt. 97-1 at 6; Dkt. 97-3 at 7; Dkt. 97-7 at 6; Dkt. 97-9 at 6; Dkt.
97-10 ¶ 10). And while Greene's warning did not expire for five years and one day, the
other April 27 warnings expired in one year and one day. (Dkt. 97-1 at 6; Dkt. 97-3 at 7;
Dkt. 97-7 at 6; Dkt. 97-9 at 6; Dkt. 97-10 ¶ 10).
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 5 of 38 PageID #:
<pageID>

6
Each of the Plaintiffs appealed their respective trespass warnings. (See, e.g., Dkt.
97-1 ¶ 14). Between April 29 and May 3, seven Plaintiffs learned that their warnings had
been "stayed" pending their appeals. (Dkt. 97-1 ¶ 14; Dkt. 97-2 ¶ 14; Dkt. 97-4 ¶ 14;
Dkt. 97-5 ¶ 14; Dkt. 97-7 ¶ 14; Dkt. 97-8 ¶ 14; Dkt. 97-9 ¶ 14). But Greene's, Murphy's,
and Wirtshafter's requested stays were denied. (Dkt. 97-3 ¶ 14; Dkt. 97-6 ¶ 14; Dkt. 97-
10 ¶ 14). Later, on May 24, the Interim Chief of IUPD issued identical letters to at least
six Plaintiffs granting their appeals. (Dkt. 97-1 at 7; Dkt. 97-5 at 7; Dkt. 97-6 at 9; Dkt.
97-7 at 7; Dkt. 97-8 at 8; Dkt. 97-10 at 9). The other four Plaintiffs also received notices
that their appeals had been granted and that their trespass warnings had been rescinded,
(Dkt. 97-2 ¶ 15; Dkt. 97-3 ¶ 15; Dkt. 97-4 ¶ 15; Dkt. 97-9 ¶ 15), although Greene's
warning was not rescinded until July, (Dkt. 97-3 ¶ 15). During the pendency of their
appeals, Plaintiffs could not enter IU property and therefore could not return to Dunn
Meadow to participate in the ongoing demonstrations. Neither could they enter IU
property to engage in expressive activity unrelated to the ongoing protests in Dunn
Meadow.
B. 	August 2024 Policy
On July 29, 2024, the Trustees enacted "Expressive Activity Policy – UA-10"
("August 2024 Policy"), which took effect on August 1, 2024. (Dkt. 72-1). The policy's
express goal was to "provide[] the time, place, and manner guidelines for Expressive
Activity on University property" and "ensure[] the University's educational mission is
actualized while preserving the rights guaranteed to Indiana University Community
Members under the U.S. Constitution and IC 21-39-8." (Id. at 5). The August 2024
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 6 of 38 PageID #:
<pageID>

7
Policy prohibited "Expressive Activity" on IU property between the hours of 11:00 p.m.
and 6:00 a.m. (Id.) Violation could result in "immediate action by the University
including but not limited to citation, trespass, and/or interim suspension from campus."
(Id. at 7). Students who violated the policy might also be subject to "suspension or
expulsion from the University," and faculty and other employees might be subject to
"suspension or termination of University employment." (Id.).
After 11:00 p.m. on August 25, 2024, four Plaintiffs—Akou, Greene, Phillips, and
Robinson—participated in a candlelight vigil on IU's campus designed to protest the
August 2024 Policy. (Dkt. 69-2 ¶¶ 7–11; Dkt. 69-4 ¶ 7; Dkt. 69-8 ¶¶ 7–11; Dkt. 69-9
¶¶ 7–9). McDonald participated in a similar vigil on September 8, 2024. (Dkt. 69-5 ¶ 8;
id. at 5). The four professors who participated in vigils received written warnings from
IU for violating the August 2024 Policy. (Dkt. 69-2 ¶ 12; Dkt. 69-5 ¶ 8; Dkt. 69-8 ¶ 12;
Dkt. 69-9 ¶ 10). The letters informed them that IU would keep the warnings in their
permanent personnel files and that "continued violations of [the August 2024 Policy]
and/or other University policies" may result in a variety of additional disciplinary
sanctions, up to and including the termination of their employment. (Dkt. 69-2 at 6; Dkt.
69-5 at 5; Dkt. 69-8 at 7; Dkt. 69-9 at 6). Greene, a graduate student, received a formal
notice indicating that he was being investigated for violating the August 2024 Policy.
(Dkt. 88-1).
C. 	November 2024 Policy
On November 15, 2024, the Trustees amended the August 2024 Policy. (See Dkt.
72-2). The "November 2024 Policy" superseded the August 2024 Policy and took effect
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 7 of 38 PageID #:
<pageID>

8
immediately upon its approval. (Dkt. 80 ¶ 41). It applied to all University property, all
guests and visitors to the University, and to the following "Indiana University
Community Members":
A. 	Any employee of the University, including administrators, academic
appointees, staff, part-time, and student employees;
B. 	All students and student organizations;
C. 	All University units;
D. 	University contractors;
E. 	Any individual using Indiana University resources or facilities or
receiving funds administered by Indiana University; and
F. 	Volunteers and other representatives when speaking or acting on
behalf of Indiana University.
(Dkt. 72-2 at 2–3).
Plaintiffs took particular issue with the "Limited Content-Neutral Overnight
Restrictions" provision, which reads as follows:
1. 	Pursuant to IC 21-39-8-9(b)(4), during the overnight hours of 11:00
p.m. to 6:00 a.m. IU Community Members may spontaneously and
contemporaneously assemble and distribute literature.
2. 	For the protection of the University community and in furtherance of
the educational mission of the University, from the overnight hours of
11:00 p.m. to 6:00 a.m. the activities listed below are prohibited on
University property unless:
a. 	they are part of a scheduled or authorized University activity
extending into that time period, or;
b. 	prior written approval has been obtained from the appropriate
University office . . .
3. 	The Expressive Activities prohibited on University property during
the overnight hours of 11:00 p.m. to 6:00 a.m. are:
• 	protesting;
• 	making speeches;
• 	circulating petitions; and
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 8 of 38 PageID #:
<pageID>

9
• 	all other unapproved conduct and activities prohibited by this
Policy or applicable law.
(Id. at 5–6).
In January 2025, the University implemented the "University Space Use Pre-
Approval Standard." (Dkt. 69-1 at 17, 86–89). This "establishe[d] the standards and
procedures for approving the use of Indiana University . . . spaces." (Id. at 86). Under
the Pre-Approval Standard, prior approval was required for "[p]replanned events of more
than 50 people between 6:00 a.m. and 11:00 p.m." and "[p]replanned events during the
overnight hours of 11:00 p.m. to 6:00 a.m.," regardless of size. (Id.) Prior approval was
not required for "[p]replanned events of less than 50 people that will not extend into the
overnight hours of 11:00 p.m. to 6:00 a.m.," "[s]pontaneous and contemporaneous
assembly which occurs without prior planning or announcement for the purpose of an
immediate and spontaneous response to a newsworthy occurrence," and "[t]he peaceful
distribution of literature at any time." (Id. at 87). Application for approval had to be
submitted at least ten days in advance and had to include the "[e]xpected number of
attendees." (Id. at 88).
Plaintiffs filed suit under 42 U.S.C. § 1983, alleging that the November 2024
Policy's pre-approval requirement for overnight events violated the First Amendment.
Plaintiffs moved for a preliminary injunction enjoining President Whitten and the
Trustees from enforcing the November 2024 Policy to the extent it "prohibit[ed] the
following activities on Indiana University property if they occur without prior permission
between the hours of 11:00 p.m. and 6:00 a.m.: protesting, making speeches, circulating
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 9 of 38 PageID #:
<pageID>

10
petitions, and all otherwise unapproved conduct and activities otherwise prohibited."
(Dkt. 73 at 1).
D. 	This Court's Preliminary Injunction
On May 29, 2025, the court granted Plaintiffs' motion for a preliminary injunction
and enjoined President Whitten and the Trustees from enforcing the November 2024
Policy. (See Dkt. 102). A few weeks later, on June 12, 2025, the Trustees amended the
November 2024 Policy to remove any overnight restrictions on speech. (Dkt. 122-11).
The policy change coincided with an amendment to the University's Pre-Approval
Standard. (Dkt. 122-12).
In June, the University also rescinded the letters of reprimand it had sent to
Professors Akou, Phillips, Robinson, and McDonald for violating the August 2024 Policy.
(Dkt. 122-4; Dkt. 122-5; Dkt. 122-6; Dkt. 122-7; see also Dkt. 122-3). The rescission
letters informed them that their "letter[s] of reprimand [are] hereby rescinded and no
longer ha[ve] any force or effect." (Dkt. 122-4; Dkt. 122-5; Dkt. 122-6; Dkt. 122-7).
They also stated that "[t]he original letter of reprimand and this letter will remain in your
permanent personnel file to document the rescission and invalidation of the original letter.
This is to provide a clear record of this action for faculty and other parties." (Dkt. 122-4;
Dkt. 122-5; Dkt. 122-6; Dkt. 122-7). Greene received two similar letters in July 2025.
(Dkt. 122-9; Dkt. 122-10). His letters explained that "[t]he original charges, resolution,
and this letter will remain in your conduct file to document the rescission and invalidation
of the underlying incident . . . consistent with the University's records retention
schedule." (Dkt. 122-9; Dkt. 122-10).
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 10 of 38 PageID
#: <pageID>

11
Two days before this court granted Plaintiffs' motion for preliminary injunction,
Plaintiffs filed a Motion for Partial Summary Judgment on their First Amendment claims,
arguing that (1) the August 2024 Policy violated the First Amendment, and Greene and
Professors Akou, McDonald, Phillips, and Robinson are entitled to an injunction
requiring the expungement of disciplinary action taken against them under that policy;
(2) the November 2024 Policy violates the First Amendment and must be enjoined; and
(3) the trespass warnings issued to Plaintiffs in April 2024 violated the First Amendment,
and Plaintiffs are entitled to damages against Superintendent Hunter and President
Whitten in their individual capacities. The Defendants filed a Cross-Motion for
Summary Judgment, arguing that Plaintiffs' claims for injunctive relief are moot and
Superintendent Hunter and President Whitten are entitled to qualified immunity.
II. 	Legal Standard
Summary judgment is appropriate if "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A
genuine dispute about a material fact exists only "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The court views the facts in the light most favorable to the
nonmovant and draws all reasonable inferences in the nonmovant's favor. Johnson v.
Advoc. Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018).
Courts often confront cross motions for summary judgment because Rules 56(a)
and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to
move for such relief. In such situations, courts must consider each party's motion
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 11 of 38 PageID
#: <pageID>

12
individually to determine if that party has satisfied the summary judgment standard.
Sizelove v. Madison-Grant United Sch. Corp., 597 F. Supp. 3d 1246, 1268 (S.D. Ind.
2022). Here, the court has considered the parties' respective memoranda and the exhibits
attached thereto and has construed all facts and drawn all reasonable inferences therefrom
in the light most favorable to the respective nonmovant. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 574 (1986).
III. 	Discussion
A. 	Mootness
The court begins its analysis by considering whether Plaintiffs' claims seeking
injunctive relief in connection with the August 2024 Policy and the November 2024
Policy are moot. Under Article III, "cases that do not involve 'actual, ongoing
controversies' are moot and must be dismissed for lack of jurisdiction." Fed'n of Advert.
Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003)
("Federation") (quoting Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 990–91 (7th
Cir. 2000)). "A question of mootness arises when . . . a challenged [policy] is repealed
during the pendency of litigation, and a plaintiff seeks only prospective relief." Id. "At
that point, there is no longer an ongoing controversy: the source of the plaintiff's
prospective injury has been removed, and there is no 'effectual relief whatever' that the
court can order." Ozinga v. Price, 855 F.3d 730, 734 (7th Cir. 2017) (quoting Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)).
An exception to the mootness doctrine exists, however, for the defendant who
voluntarily ceases their "allegedly wrongful behavior" in hopes of mooting a case.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 12 of 38 PageID
#: <pageID>

13
Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).
Such a change in conduct "does not moot a case or controversy unless 'subsequent events
ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.'" Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 719 (2007) (quoting Laidlaw, 528 U.S. at 189). Otherwise, "a defendant could
engage in unlawful conduct, stop when sued to have the case declared moot, then pick up
where he left off, repeating this cycle until he achieves all his unlawful ends." Already,
LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). Private parties therefore carry a "heavy
burden" to persuade the court that "the challenged conduct cannot reasonably be expected
to start up again." Laidlaw, 528 U.S. at 189.
But this standard differs when the defendants are not private parties but
government officials. "[W]hen the defendants are public officials . . . we place greater
stock in their acts of self-correction, so long as they appear genuine." Federation, 326
F.3d at 929 (quoting Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th Cir.
1991)). "A contrary conclusion would 'put this court in the position of presuming [the
University] has acted in bad faith—harboring hidden motives to reenact the [policy] after
we have dismissed the case—something we ordinarily do not presume.'" Speech First,
Inc. v. Killeen, 968 F.3d 628, 645 (7th Cir. 2020) (quoting Federation, 326 F.3d at 929).
So absent "evidence that the repeal was not genuine"—that is, "evidence creating a
reasonable expectation that the [University] will reenact the [policy] or one substantially
similar"—the complete repeal of a challenged policy renders a case moot. Federation,
326 F.3d at 930; see, e.g., City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 &
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 13 of 38 PageID
#: <pageID>

14
n.11 (1982) (city announced intent to reenact challenged provision if case dismissed); Ne.
Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.
656, 662 (1993) (city replaced repealed ordinance with substantially similar ordinance).
1. 	November 2024 Policy
Even though the University repealed the November 2024 Policy following this
court's preliminary injunction ruling, Plaintiffs argue that this is the rare case where the
amendment of a governmental policy does not render the challenge moot. But the record
lacks sufficient "evidence creating a reasonable expectation that the [University] will
reenact the [policy] or one substantially similar." Federation, 326 F.3d at 930. Plaintiffs'
challenge to the November 2024 Policy is therefore moot.
Killeen provides an apt starting point for the court's analysis. That case involved a
challenge to a university policy that prohibited students from posting and distributing
materials about candidates for non-campus elections without prior approval. See Killeen,
968 F.3d at 636. Shortly after the plaintiffs filed suit, the university formally repealed the
rule. Id. So the Seventh Circuit dismissed the effort to enjoin the repealed rule as moot.
Id. at 646.
In doing so, the Seventh Circuit distinguished its mootness analysis from "the
Sixth Circuit's more demanding standard," id. at 647, which "takes into account the
totality of the circumstances surrounding the voluntary cessation, including the manner in
which the cessation was executed," Speech First, Inc. v. Schlissel, 939 F.3d 756, 768 (6th
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 14 of 38 PageID
#: <pageID>

15
Cir. 2019).2 The Seventh Circuit's less demanding standard seemingly considers only
whether the government officials formally amended the challenged policy. See Killeen,
968 F.3d at 646. And this standard, unlike the Sixth Circuit's, does not vary the degree of
solicitude a voluntary cessation enjoys "based on whether the regulatory processes
leading to the change involved legislative-like procedures or were ad hoc, discretionary,
and easily reversible actions." Schlissel, 939 F.3d at 768. Rather, Killeen analogized the
university's "formal amendment process, which required a full vote by the Conference on
Conduct Governance and approval by the Chancellor," to "legislation," even though the
university "could repeal the policy in four days' time." 968 F.3d at 646–47.
If formal policy change is sufficient to moot a case against public officials,
Plaintiffs' challenge is clearly moot. The November 2024 Policy is no longer in effect.
(See Dkt. 122-11). On June 12, 2025, while this motion was still pending, the Trustees
amended the November 2024 Policy to remove the overnight restrictions on expressive
activities. The Board's repeal of the challenged provision coincided with changes to IU's
"Space Use Pre-Approval Standard." (Dkt. 122-12). The record clearly demonstrates
that IU has formally repealed the policy that Plaintiffs challenge.
Plaintiffs, relying on Schlissel, nonetheless take issue with the University for
"offer[ing] no commitment—much less a binding one—not to return to its old ways."
2 The Sixth Circuit's approach closely resembles the approach employed by the Fifth Circuit. See
Speech First, Inc. v. McCall, 138 F.4th 219, 223–24 (5th Cir. 2025) (applying three-factor
voluntary-cessation test that considers (1) the absence of a controlling statement of future
intention, (2) the suspicious nature of the change, and (3) the university's continued defense of
the challenged policies).
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 15 of 38 PageID
#: <pageID>

16
(Dkt. 125 at 28). But the Seventh Circuit explained in Killeen that it has "never required
a government actor to issue a promise that it will not return to its prior policy." 968 F.3d
at 647. Indeed, imposing such a requirement would be entirely inconsistent with the
presumption that public officials act in good faith.
Notwithstanding IU's formal policy change, the court does have some concerns
with the University's timing—concerns the court in Killeen did not have to address.
Judge Brennan's separate opinion in Killeen argued that the timing of the university's
repeal "raised suspicions that its cessation was not genuine." Id. at 657 (Brennan, J.,
concurring in part and dissenting in part). The majority discounted those concerns; a
quick comparison to Schlissel explained why. Id. at 647 n.3 (majority opinion). In
Schlissel, the plaintiff challenged a university's definitions of "bullying" and "harassing."
939 F.3d at 761–62. The university's decision to remove the definitions did not moot the
case in part because it had actively used the challenged definitions and there was thus "no
indication . . . that the University was so much as considering changing the definitions"
before it did so. 939 F.3d at 769. In Killeen, by contrast, there was "no evidence the
provision was ever enforced or that the University was even aware it was on the books."
968 F.3d at 647 n.3. Accordingly, the timing of the repeal was "not so suspect." Id. Left
unsaid, however, was the relevance of timing in those circumstances where the provision
has been previously enforced, as in Schlissel.
Plaintiffs clearly believe that timing factors into the analysis, for they focus much
of their argument on the suspicious timing of IU's policy change. And the court agrees
that circumstances here that were absent in Killeen make the timing more suspect.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 16 of 38 PageID
#: <pageID>

17
Unlike the prior approval rule in Killeen, the prohibition on nighttime expressive activity
was enforced previously (against Plaintiffs, to boot). And unlike the university in
Killeen, IU repeatedly defended the constitutionality of its policy. Not until the court
preliminarily enjoined IU from enforcing the November 2024 Policy did IU formally
amend it. Plaintiffs also note that since April 2024 (on the eve of the planned
encampment in Dunn Meadow), the University has amended its policy—a policy that had
not changed in over fifty years—four times. Still, the court reads Killeen as foreclosing
the result Plaintiffs seek. Even if the circumstances here make the timing more suspect
than it was in Killeen, nothing in Killeen suggests that suspicious timing ought to rebut
the presumption that public officials act in good faith.
The difference between the Seventh Circuit's and the Sixth Circuit's standards
ultimately boils down to the evidence a court may consider when a party challenges the
presumption that public officials act in good faith. In the Sixth Circuit, courts can
consider, among other things, whether the government has provided affirmative signals
that a repeal was genuine, whether the formal amendment process was sufficiently
"legislative-like," and whether the timing of a repeal was suspect. Schlissel, 939 F.3d at
768–70. In this circuit, however, "evidence that the repeal was not genuine" is more
limited. Killeen, 968 F.3d at 645. If, for instance, IU were to inform the court that it will
reenact the November 2024 Policy if this court's preliminary injunction expires, the
challenge would clearly not be moot. See Aladdin's Castle, 455 U.S. at 289 & n.11. But
the world of evidence the court may consider does not extend much further. So while
concerned about the timing of the repeal, the court nonetheless refuses to find that IU
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 17 of 38 PageID
#: <pageID>

18
"has engaged in a disingenuous game of 'constitutional cat and mouse.'" Federation, 326
F.3d at 931 (quoting Thomas v. Fiedler, 884 F.2d 990, 995 (7th Cir. 1989)). The
challenge to the November 2024 Policy is moot.
2. 	August 2024 Policy
The injunctive relief Plaintiffs seek, however, does not end there. IU has already
rescinded the formal disciplinary warnings that five Plaintiffs—Akou, Greene, Phillips,
Robinson, and McDonald—received for violating the since-repealed August 2024 Policy.
Those letters of reprimand "no longer ha[ve] any force or effect." (Dkt. 122-4; Dkt. 122-
5; Dkt. 122-6; Dkt. 122-7; Dkt. 122-9; Dkt. 122-10). But the original letters of reprimand
remain in their personnel files. (Dkt. 122-4; Dkt. 122-5; Dkt. 122-6; Dkt. 122-7; Dkt.
122-9; Dkt. 122-10). Those five Plaintiffs therefore seek an injunction requiring IU "to
expunge any disciplinary action taken against [them] as a result of [their] violation of the
[August 2024 Policy]." (Dkt. 97 at 1).
Plaintiffs first argue that the rescissions are "meaningless" and "temporary"
because they are "expressly linked" to the court's preliminary injunction. They seem to
think that without the preliminary injunction, the rescissions lack any effect. But
Plaintiffs' interpretation does not follow from the clear language of the rescission letters.
They read as follows:
On May 29, 2025, the United States District Court for the Southern District
of Indiana issued an ORDER GRANTING PRELIMINARY INJUNCTION
in the matter of Jasper Wirtschafter, et al., v. the Trustees of Indiana
University, 	et 	al., 	No. 	1:24-cv-00754-RLY-MKK. 	The 	preliminary
injunction entered by the court enjoined Indiana University from enforcing
the Expressive Activity Policy to the extent it prohibited certain activities on
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 18 of 38 PageID
#: <pageID>

19
Indiana University property occurring without prior permission between the
hours of 11:00 p.m. and 6:00 a.m.
Given the Court's order, your letter of reprimand is hereby rescinded and
no longer has any force or effect. The original letter of reprimand and this
letter will remain in your permanent personnel file to document the rescission
and invalidation of the original letter. This is to provide a clear record of this
action for faculty and other parties.
(Dkt. 122-4; Dkt. 122-5; Dkt. 122-6; Dkt. 122-7). The letters suggest that the court's
preliminary injunction had some influence on IU's decision to rescind the disciplinary
warnings. But regardless of the preliminary injunction's lifespan, nothing in the
rescission letters indicates an intent to walk them back. Plaintiffs' argument to the
contrary is unavailing.
Like IU's amendment of the November 2024 Policy, the rescission letters
constitute formal policy change by public officials and thereby warrant the presumption
of good faith. See Federation, 326 F.3d at 929 ("[W]hen the defendants are public
officials . . . we place greater stock in their acts of self-correction, so long as they appear
genuine."). And here, too, Plaintiffs have failed to demonstrate that IU is reasonably
likely to reinstate the disciplinary warnings.
But Plaintiffs also argue that IU has not provided them with all the relief they
seek; they still want IU to expunge the reprimand letters from their disciplinary records.
What is the difference, then, between rescission and expungement? A rescission deprives
a previously issued disciplinary action of "any force or effect." But the original letter of
reprimand remains in the recipient's file. An expungement, on the other hand, would
result in the complete elimination of "all evidence" of the disciplinary action. Flint v.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 19 of 38 PageID
#: <pageID>

20
Dennison, 488 F.3d 816, 824 (9th Cir. 2007). Both measures treat the disciplinary actions
as though they never happened. Only expungement, however, wipes the slate clean. So
even if they lack force or effect, the disciplinary warnings remain a stain on Plaintiffs'
personnel files. See id. ("When a student's record contains negative information derived
from allegedly unconstitutional school regulations, however, that information may
jeopardize the student's future employment or college career.").
The difference between rescission and expungement may be small. But "[a]s long
as the parties have a concrete interest, however small, in the outcome of the litigation, the
case is not moot." Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016) (quoting
Chafin v. Chafin, 568 U.S. 165, 172 (2013)). Such is the case here. See, e.g., Doe v.
Purdue Univ., 928 F.3d 652, 666 (7th Cir. 2019) ("marred" disciplinary record "a
continuing harm for which [an individual] can seek redress"); Flint, 488 F.3d at 824
(ordering expungement of student's record containing evidence of disciplinary sanctions).
The challenge to the August 2024 Policy is not moot.
B. 	First Amendment Challenge to August 2024 Policy
Since Plaintiffs' challenge to the August 2024 Policy is not moot, the court must
consider whether that policy violated the First Amendment. Generally, restrictions on
First Amendment activities on public property necessitate a forum analysis. The court
need not engage in a forum analysis here, however, because the August 2024 Policy is
facially unconstitutional under the First Amendment overbreadth doctrine.
Under that doctrine, "a statute is facially invalid if it prohibits a substantial amount
of protected speech." United States v. Williams, 553 U.S. 285, 292 (2008). A facial
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 20 of 38 PageID
#: <pageID>

21
challenge on overbreadth grounds requires "a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not before
the Court." Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 801 (1984). To be unconstitutional under the overbreadth doctrine, a statute's
overbreadth must be substantial. See N.Y. State Club Ass'n, Inc. v. City of New York, 487
U.S. 1, 11 (1988). A statute is substantially overbroad if "a substantial number of its
applications are unconstitutional, judged in relation to the statute's plainly legitimate
sweep." Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021) (quoting United
States v. Stevens, 559 U.S. 460, 473 (2010)).
On its face, the August 2024 Policy prohibited all expressive activity on IU
property between the hours of 11:00 p.m. and 6:00 a.m. (Dkt. 72-1 at 5). The policy
adopted the definition of "expressive activities" from Indiana Code § 21-39-8-5. (Id. at
6). Those activities include:
(1) 	Participating in speech or conduct protected by the First Amendment to
the Constitution of the United States.
(2) 	Communicating 	by 	any 	lawful 	verbal, 	written, 	audio 	visual, 	or
electronic means.
(3) 	Participating in peaceful assembly.
(4) 	Protesting.
(5) 	Making speeches, including speeches of guest speakers.
(6) 	Distributing literature.
(7) 	Carrying signs.
(8) 	Circulating petitions.
(Id.). The policy thus created a "virtual 'First Amendment Free Zone'" on IU property
between the hours of 11:00 p.m. and 6:00 a.m. Bd. of Airport Comm'rs of City of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987).
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 21 of 38 PageID
#: <pageID>

22
A few specific examples help demonstrate the policy's overwhelming sweep. For
one, the policy prohibited an individual from entering any part of campus late at night
wearing a shirt emblazoned with "Free Palestine" or "Make America Great Again." See,
e.g., Cohen v. California, 403 U.S. 15 (1971). It likewise prohibits a reporter for the
Indiana Daily Student from writing a news article from their dorm room in the early
hours of the morning. "Under such a sweeping ban, virtually every individual who enters
[IU property] may be found to violate the [policy] by engaging in some First Amendment
activity." Jews for Jesus, 482 U.S. at 575 (citation modified). And although the August
2024 Policy is more temporally limited than the regulation in Jews for Jesus, which
prohibited all expressive activity at Los Angeles International Airport at all times of the
day, the distinction is of no importance. Clearly, IU cannot justify such a sweeping ban
on First Amendment-protected activities with a governmental interest, let alone a
compelling or significant one.
The August 2024 Policy violated the First Amendment. The University must
therefore expunge any disciplinary action that resulted from violating that policy from the
records of Akou, Greene, Phillips, Robinson, and McDonald.
C. 	Qualified Immunity
As for Plaintiffs' damages claims against Superintendent Hunter and President
Whitten in their individual capacities, the University argues that both officials are entitled
to qualified immunity.
"Qualified immunity shields a government official from suit for damages under
§ 1983 'when she makes a decision that, even if constitutionally deficient, reasonably
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 22 of 38 PageID
#: <pageID>

23
misapprehends the law governing the circumstances she confronted.'" Sabo v. Erickson,
128 F.4th 836, 843 (7th Cir. 2025) (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004)). "To overcome a qualified immunity defense, plaintiffs must show '(1) that the
official violated a statutory or constitutional right, and (2) that the right was 'clearly
established' at the time of the challenged conduct.'" Id. (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)).
According to the University, Plaintiffs cannot establish either element. Before
addressing whether qualified immunity bars Plaintiffs' claims, however, the court first
considers the University's argument that Superintendent Hunter and President Whitten
cannot be held liable under § 1983 for the trespass warnings.
1. 	Supervisory Liability
"Liability under § 1983 is direct rather than vicarious; supervisors are responsible
for their own acts but not for those of subordinates, or for failing to ensure that
subordinates carry out their tasks correctly." Horshaw v. Casper, 910 F.3d 1027, 1029
(7th Cir. 2018). "The supervisor is therefore liable only if she was personally involved in
the constitutional violation." Taylor v. Ways, 999 F.3d 478, 493 (7th Cir. 2021). And
"[p]ersonal involvement in a subordinate's constitutional violation requires supervisors to
'know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see.'" Id. at 494 (quoting Matthews v. City of E. St. Louis, 675
F.3d 703, 708 (7th Cir. 2012)); see also Chavez v. Ill. State Police, 251 F.3d 612, 652 (7th
Cir. 2001) (supervisory liability attaches "if [a supervisor] directed the conduct causing
the constitutional violation, or if it occurred with [their] knowledge or consent").
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 23 of 38 PageID
#: <pageID>

24
The University cites Taylor for the proposition that Plaintiffs "cannot show any
constitutional violation from mere warning issuance." (Dkt. 127 at 8). But that case
involved an equal protection race discrimination claim. Taylor, 999 F.3d at 485. And
"personal involvement in the equal protection context requires specific intent to
discriminate." Id. at 494. Without evidence that the plaintiff's supervisors acted on the
basis of race, they could not be held liable under § 1983. Id. at 495. Here, in contrast,
Plaintiffs bring a First Amendment claim with no corresponding intent requirement.
Mere warning issuance is therefore sufficient to establish supervisory liability if the
trespass warnings violated the First Amendment and Superintendent Hunter and President
Whitten were personally involved in their issuance.
The University maintains that Superintendent Hunter and President Whitten lacked
the personal involvement necessary to support liability for issuing the trespass warnings
under § 1983, citing the "varying temporal and physical scopes of the trespass warnings
each Plaintiff ultimately received." (Dkt. 121 at 44). But variation aside, Superintendent
Hunter nonetheless directed IUPD personnel to issue trespass warnings to individuals
arrested during the protests in Dunn Meadow. (Dkt. 80 ¶ 24; Dkt. 97-11 at 3). And
President Whitten did not prevent IUPD from issuing the trespass warnings despite her
ability to do so. (Dkt. 80 ¶¶ 22–23; Dkt. 97-11 at 2). She likewise took no steps to
rescind or suspend the issued trespass warnings. (Dkt. 80 ¶ 25).
Furthermore, Superintendent Hunter and President Whitten did not need to know
specific details about each individual trespass warning to support liability, as the
University contends. They had already provided their approval of the practice. The court
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 24 of 38 PageID
#: <pageID>

25
concludes that Superintendent Hunter "directed the conduct causing the constitutional
violation"—conduct that occurred with President Whitten's "knowledge or consent."
Chavez, 251 F.3d at 652. They can therefore bear personal responsibility under § 1983
for the trespass warnings.
2. 	First Amendment Claim
Plaintiffs claim that the trespass warnings they received in April 2024 violated the
First Amendment. They advance two arguments. First, they argue that the trespass
warnings constituted prior restraints on expressive activity in a public forum and fail
strict scrutiny review. Second, they argue that the trespass warnings are invalid
restrictions on the time, place, or manner of speech. The court addresses each argument
in turn.
i. 	Prior Restraint
Plaintiffs first argue that the trespass warnings constituted prior restraints on
expressive activity in a traditional public forum and are therefore subject to strict scrutiny
under the First Amendment. The University responds that content-neutral trespass
warnings cannot become prior restraints merely by having some effect on expression.
The court agrees with IU that the trespass warnings are not prior restraints.
"The term 'prior restraint' is used to describe 'administrative and judicial orders
forbidding certain communications when issued in advance of the time that such
communications are to occur." Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046,
1051 (7th Cir. 2008) (quoting Alexander v. United States, 509 U.S. 544, 550 (1993)).
Classic examples of prior restraints include permitting and licensing ordinances and
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 25 of 38 PageID
#: <pageID>

26
court-ordered injunctions forbidding speech. See, e.g., Forsyth Cnty. v. Nationalist
Movement, 505 U.S. 123, 130 (1992) (requiring a permit and a fee before authorizing
public speaking, parades, or assemblies on a town's public property); Org. for a Better
Austin v. Keefe, 402 U.S. 415, 415 (1971) ("enjoining petitioners from distributing
leaflets anywhere in the town of Westchester, Illinois"). In such cases, "public officials
. . . forbid[] the plaintiffs the use of public places to say what they want[] to say." Se.
Promotions, Ltd. v. Conard, 420 U.S. 546, 553 (1975).
There is a "time-honored distinction," however, between "prior restraints and
subsequent punishments." Alexander, 509 U.S. at 553–54. For example, the petitioner in
Alexander was ordered "to forfeit his wholesale and retail businesses . . . and almost
$9 million in moneys acquired through racketeering activity" after a jury convicted him
of three RICO offenses predicated on his obscenity convictions. Id. at 547–48. He
argued that the forfeiture order constituted a prior restraint on his speech because it
effectively shut down his adult entertainment business. Id. at 549. But unlike classic
examples of prior restraints, the forfeiture order did not "forbid petitioner from engaging
in any expressive activities in the future, nor [did] it require him to obtain prior approval
for any expressive activities." Id. at 550–51. The Court therefore held that the forfeiture
order "was not a prior restraint on speech, but a punishment for past criminal conduct."
Id. at 553; see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 n.2 (1986) (no prior
restraint where court order closed adult bookstore previously used as a place for
prostitution and lewdness because order had "nothing to do with any expressive conduct
at all").
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 26 of 38 PageID
#: <pageID>

27
The trespass warnings here stemmed from demonstrations in Dunn Meadow on
April 25 and April 27, 2024. (Dkt. 80 ¶¶ 16–17). During these demonstrations, Plaintiffs
were arrested for criminal trespass for their alleged refusal to remove tents or disperse so
that tents could be removed. (See, e.g., Dkt. 97-2 ¶ 9). After their arrests, they each
received a "'no-trespass order' pursuant to Indiana Code § 35-43-2-2" from IUPD
officers. (Dkt. 90 ¶ 20). The trespass warnings read as follows:
You are hereby notified that you are banned from reentering the above
described property. Should you be found anywhere on the above described
property at any time between the dates listed below you will be arrested for
the offense of Criminal Trespass under Indiana Code IC 35-43-2-2, which
may result in your being charged with a Class A Misdemeanor or a Level 6
Felony. If you would like to appeal this warning, please contact the Indiana
University Police Department administration.
(See, e.g., Dkt. 97-2 at 6). The trespass warnings issued on April 25 banned five
Plaintiffs—Biswas, McDonald, Meldrum, Murphy, and Robinson—from entering all
Indiana University properties for one year. (Dkt. 97-2 at 6; Dkt. 97-4 at 6; Dkt. 97-5 at 6;
Dkt. 97-6 at 6; Dkt. 97-8 at 7). The trespass warnings issued on April 27 banned the
other five Plaintiffs—Akou, Greene, Phillips, Tang, and Wirtshafter—only from the
Bloomington campus of Indiana University. (Dkt. 97-1 at 6; Dkt. 97-3 at 7; Dkt. 97-7 at
6; Dkt. 97-9 at 6; Dkt. 97-10 ¶ 10). And while four of the five warnings issued on April
27 expired in one year and one day, (Dkt. 97-1 at 6; Dkt. 97-7 at 6; Dkt. 97-9 at 6; Dkt.
97-10 ¶ 10), Greene's warning did not expire for five years and one day, (Dkt. 97-3 at 7).
The court need not consider IUPD general order G18.1.1—the authority that empowers
IUPD to issue trespass warnings—because the Plaintiffs pursue an as-applied challenge
to the trespass warnings they received, not a facial challenge to the general order.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 27 of 38 PageID
#: <pageID>

28
Plaintiffs claim that the trespass warnings constituted a prior restraint on their
speech because the warnings effectively "prohibit[ed] them from returning to Dunn
Meadow to engage in ongoing protest activity." (Dkt. 125 at 9). But the trespass
warnings did not issue in response to Plaintiffs' anticipated future speech; they did not
ban Plaintiffs from University property to prevent them from "say[ing] what they wanted
to say." Se. Promotions, 420 U.S. at 553. Rather, the trespass warnings issued in
response to Plaintiffs' conduct—their refusal to remove tents or disperse so that tents
could be removed. (See, e.g., Dkt. 97-2 ¶ 9).
Citing Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), Plaintiffs seem to
argue that although the trespass warnings generally regulate conduct, the specific
warnings they received applied to pure speech because they prohibited Plaintiffs from
participating in the ongoing Dunn Meadow protests. But Plaintiffs' reliance on Holder is
misplaced. That case involved a First Amendment challenge to a federal criminal statute
banning the provision of "material support or resources to a foreign terrorist
organization." Id. at 8. In most cases, the law's ban on providing "material support or
resources" regulated conduct rather than speech. Id. at 28. But the plaintiffs wanted to
provide material support to certain organizations "in the form of speech." Id. So "as
applied to plaintiffs[,] the conduct triggering coverage under the statute consist[ed] of
communicating a message." Id. (emphasis added). The Court therefore reviewed the
statute using strict scrutiny. Id.
If this case is like Holder, as Plaintiffs suggest, the question becomes: did the
conduct that triggered their trespass warnings "consist[] of communicating a message"?
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 28 of 38 PageID
#: <pageID>

29
Id. The parties do not dispute that what triggered the trespass warnings was Plaintiffs'
refusal to remove the tents in Dunn Meadow or disperse so that they could be removed.
(See, e.g., Dkt. 97-2 ¶ 9). Did this conduct therefore "communicat[e] a message"?
Holder, 561 U.S. at 28. The court does not think so. Plaintiffs were certainly engaged in
expressive activity when IUPD issued the trespass warnings. But the trespass warnings
resulted from conduct divorced from Plaintiffs' expression—refusing to remove tents or
disperse so that tents could be removed. Plaintiffs therefore conflate an effect of the
trespass warnings—their inability to participate in ongoing Dunn Meadow protests—with
the conduct that triggered their issuance.
The point stands that the trespass warnings did not issue "on the basis of an
advance determination that the distribution" of Plaintiffs' expression is prohibited.
Arcara, 478 U.S. at 705 n.2. This feature alone places the trespass warnings in the
category of subsequent punishments and differentiates them from prior restraints.
ii. 	Expressive Activity in a Traditional Public Forum
Plaintiffs next argue that the trespass warnings are nonetheless unconstitutional
regulations of speech in a traditional public forum.
"[T]raditional public fora are areas that have historically been open to the public
for speech activities." McCullen v. Coakley, 573 U.S. 464, 476 (2014). A law that
restricts access to traditional public fora for expressive activity is therefore subject to
"First Amendment scrutiny." Id. Both parties agree that Dunn Meadow is a traditional
public forum. So although the trespass warnings say "nothing about speech on [their]
face," they are nonetheless subject to First Amendment scrutiny because they "restrict[]
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 29 of 38 PageID
#: <pageID>

30
those who want to engage in protected First Amendment activity from accessing [a]
traditional public forum[]." Nicodemus v. City of South Bend, 137 F.4th 654, 663 (7th
Cir. 2025) (citation modified).
The government's ability to restrict speech in a traditional public forum is "very
limited." United States v. Grace, 461 U.S. 171, 177 (1983). "[G]overnment has no
power to restrict expression because of its message, its ideas, its subject matter, or its
content." Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972). But "even
in a public forum the government may impose reasonable restrictions on the time, place,
or manner of protected speech, provided the restrictions 'are justified without reference to
the content of the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for
communication of the information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (quoting Clark v. Cmty for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
a. 	Content Neutrality
"The principal inquiry in determining content neutrality, in speech cases generally
and in time, place, or manner cases in particular, is whether the government has adopted a
regulation of speech because of disagreement with the message it conveys." Id. "A
regulation that serves purposes unrelated to the content of expression is deemed neutral,
even if it has an incidental effect on some speakers or messages but not others." Id.
"Government regulation of expressive activity is content neutral so long as it is 'justified
without reference to the content of the regulated speech.'" Id. at 791–92 (quoting Clark,
468 U.S. at 293).
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 30 of 38 PageID
#: <pageID>

31
The trespass warnings are facially unrelated to Plaintiffs' speech activities because
they make no mention of Plaintiffs' expressive conduct. (See, e.g., Dkt. 97-2 at 6).
Whether Plaintiffs violate the trespass warnings "'depends' not 'on what they say,' but
simply on where they say it." McCullen, 573 U.S. at 479 (citation omitted) (quoting
Holder, 561 U.S. at 27). And the trespass warnings are "justified without reference to the
content of the regulated speech." Clark, 468 U.S. at 293. That's because they issued in
response to Plaintiffs' failure to remove tents or disperse so that tents could be removed.
The University claims that the warnings thus advanced its interest in "maintaining
campus safety amid escalating tension." (Dkt. 121 at 41). And since the Court has
recognized public safety as a content-neutral concern, see McCullen, 573 U.S. at 480, the
trespass warnings must be treated as content-neutral.
b. 	Standard of Scrutiny
The court next determines the standard of scrutiny applicable to the trespass
warnings. For generally applicable laws and ordinances, content-neutral restrictions on
the time, place, or manner of speech in a public forum are permissible if "they are
narrowly tailored to serve a significant governmental interest" and "leave open ample
alternative channels for communication of the information." Clark, 468 U.S. at 293. But
the trespass warnings are not generally applicable because they apply only to Plaintiffs.
So the trespass warnings operate more like content-neutral injunctions. See, e.g., Madsen
v. Women's Health Ctr., Inc., 512 U.S. 753, 762 (1994) ("An injunction, by its very
nature, applies only to a particular group (or individuals) and regulates the activities, and
perhaps the speech, of that group.").
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 31 of 38 PageID
#: <pageID>

32
No, the trespass warnings are not formal injunctions; they are not issued by
judicial decree. But consider the practical similarities between the trespass warnings here
and the content-neutral injunction in Madsen. The injunction in that case prohibited
protesters from demonstrating "in certain places and in various ways outside of a health
clinic that perform[ed] abortions." Id. at 757. The Court characterized the injunction as
content-neutral because "none of the restrictions imposed by the court were directed at
the contents of petitioner's message." Id. at 763. So too here. The trespass warnings
"appl[y] only to a particular group . . . and regulates the activities . . . of that group." Id.
at 762. They effectively prohibit Plaintiffs from demonstrating "in certain places." Id. at
757. And "none of the restrictions imposed by the [trespass warnings] were directed at
the contents of [Plaintiffs'] message." Id. at 763. These similarities convince the court
that the trespass warnings should be subjected to the same standard applicable to content-
neutral injunctions.
That standard "require[s] a somewhat more stringent application of general First
Amendment principles." Id. at 765. When evaluating the content-neutral injunction in
Madsen, the Court concluded that the "standard time, place, and manner analysis is not
sufficiently rigorous." Id. Instead, the Court considered "whether the challenged
provisions of the injunction burden[ed] no more speech than necessary to serve a
significant government interest." Id. The court therefore analyzes the trespass warnings
using that same standard.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 32 of 38 PageID
#: <pageID>

33
c. 	Narrow Tailoring
Plaintiffs do not dispute that IU has a significant government interest in
maintaining public safety on its campus. Instead, they claim that the trespass warnings
they received were not narrowly tailored to further this interest. The court agrees.
"An order issued in the area of First Amendment rights must be couched in the
narrowest terms that will accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of the public order." Carroll v. President
& Comm'rs of Princess Anne, 393 U.S. 175, 183 (1968). "[B]y demanding a close fit
between ends and means, the tailoring requirement prevents the government from too
readily 'sacrific[ing] speech for efficiency.'" McCullen, 573 U.S. at 486 (quoting Riley v.
Nat'l Fed. of Blind of N.C., Inc., 487 U.S. 781, 795 (1988)). The trespass warnings fail
this tailoring requirement because they burden more speech than necessary to advance
IU's interest in public safety.
Consider first the scope of the trespass warnings. The April 25 warnings were not
limited to Dunn Meadow. In fact, unlike the April 27 warnings, they were not even
limited to IU's Bloomington campus. Instead, they barred the five Plaintiffs who
received them from all IU properties. (See, e.g., Dkt. 97-2 at 6). These Plaintiffs
therefore faced the threat of arrest upon entering any area of any of IU's campuses across
Indiana. True, on their face, the trespass warnings only prevent Plaintiffs from entering
University property. But one cannot speak where one cannot enter. So although content-
neutral, the trespass warnings effectively prohibited every Plaintiff from exercising their
First Amendment rights anywhere on IU's Bloomington campus, regardless of the content
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 33 of 38 PageID
#: <pageID>

34
of their speech. It goes without saying that such a broad ban burdens more speech than
necessary to promote public safety on IU's campus.
Consider also the breadth of the trespass warnings. Except for Greene, the
trespass warnings prohibited Plaintiffs from entering the IU Bloomington campus for at
least one year. (See, e.g., Dkt. 97-1). And the trespass warnings provided no exception
during that period for First Amendment expression. Contrast the trespass warnings here
with the trespass warning issued in Wright v. City of St. Petersburg, Fla., 833 F.3d 1291
(11th Cir. 2016). In Wright, a city ordinance authorized police officers to issue trespass
warnings "to any individual who violates any City ordinance or State law which was
committed while on or within a City facility, building, or outdoor area, including
municipal parks." Id. at 1293. After his arrest in a city park for obstructing a police
investigation and resisting arrest, the plaintiff received a trespass warning that prohibited
him from re-entering the park for one year. Id. at 1293–94. But a different provision of
the ordinance allowed the City to suspend a trespass warning and permit the offender
back onto the property to exercise his First Amendment rights. Id. at 1298.
The trespass warnings here are more troubling because they lacked a similar
carveout for First Amendment expression. Surely allowing Plaintiffs to return to Dunn
Meadow—or, for that matter, anywhere on IU's Bloomington campus—for the sole
purpose of exercising their First Amendment rights would not undermine the University's
interest in public safety. And yet the trespass warnings here precluded even that. See
Madsen, 512 U.S. at 773 (striking down injunction provision banning all "observable
images" within 300 feet of abortion clinic); McCullen, 573 U.S. at 490 (striking down
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 34 of 38 PageID
#: <pageID>

35
statute establishing 35-foot buffer zone around abortion clinics); cf. Clark, 468 U.S. at
296–98 (upholding prohibition on camping in public park as valid time, place, or manner
speech restriction because prohibition limited only manner of demonstration).
Since they foreclosed any possibility of First Amendment expression anywhere on
IU's Bloomington campus for at least one year, the trespass warnings burdened more
speech than necessary to advance IU's public safety interest. The trespass warnings, as
applied to Plaintiffs, violated the First Amendment.
3. 	Clearly Established
Having determined that the trespass warnings violated the First Amendment, the
court now considers whether the right that IU officials violated was clearly established.
"A constitutional or statutory right is clearly established when the law is sufficiently clear
that every reasonable official would understand that what he is doing is unlawful." Sabo,
128 F.4th at 843–44 (internal quotation marks omitted). "[T]o clearly establish a right,
existing precedent must place the constitutional or statutory question 'beyond debate.'"
Id. at 844 (quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018)). Since "the crucial
question" at the core of any qualified immunity analysis is "whether the official acted
reasonably in the particular circumstances that he or she faced," Plumhoff v. Rickard, 572
U.S. 765, 779 (2014), the court does not "define clearly established law at too high a
level of generality," City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021). Instead, "the
clearly established law must be 'particularized' to the facts of the case." Gill v. City of
Milwaukee, 850 F.3d 335, 340 (7th Cir. 2017) (quoting White v. Pauly, 580 U.S. 73, 79
(2017)). So "[i]t is not enough that the rule is suggested by then-existing precedent."
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 35 of 38 PageID
#: <pageID>

36
District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). Rather, [t]he precedent must be
clear enough that every reasonable official would interpret it to establish the particular
rule the plaintiff seeks to apply." Id.
Based on the record here, Superintendent Hunter and President Whitten are
entitled to qualified immunity because the First Amendment rights they violated were not
clearly established under the circumstances presented. The law was not sufficiently clear
such that a reasonable official in Superintendent Hunter's or President Whitten's shoes
would have known that the directive to IUPD to issue trespass warnings to Plaintiffs
violated their First Amendment rights.
Plaintiffs fail to point to a closely analogous case that would have placed
Superintendent Hunter and President Whitten on notice that their actions were unlawful.
See Est. of Escobedo v. Bender, 600 F.3d 770, 780 (7th Cir. 2010) ("[A plaintiff] can
demonstrate that the right was clearly established by presenting a closely analogous case
that establishes that the Defendants' conduct was unconstitutional."). And this is not a
"rare" case where the constitutional violations are so plain that Plaintiffs are not required
to point to an analogous case establishing the rights at issue. Cf. Taylor v. Riojas, 592
U.S. 7, 9 (2020) (confining an inmate to a frigid, feces-covered cell for days violated
Eighth Amendment's prohibition on cruel and unusual punishments).
Indeed, Plaintiffs err by focusing much of their argument on "general
proposition[s]" and not "the specific factual situation that confronted the defendant
official[s]." Wernsing v. Thompson, 423 F.3d 732, 750 (7th Cir. 2005). Of course, this is
"exactly what the Supreme Court has instructed courts not to do." Id. Plaintiffs also rely
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 36 of 38 PageID
#: <pageID>

37
almost exclusively on prior restraint cases. But the court has already explained why the
trespass warnings are not prior restraints but content-neutral restrictions on expressive
activity in a traditional public forum. Prior restraint cases aside, Plaintiffs offer only one
case to support their argument that the trespass warnings—once accepted as content-
neutral restrictions on the time, place, or manner of speech—clearly violated the First
Amendment. But even that case misses the mark.
Plaintiffs claim that Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir.
2003), clearly establishes that officials must demonstrate that "harms are real, not merely
conjectural, and that the regulation will in fact alleviate these harms in a direct and
material way." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). But that case
involved a First Amendment challenge to a local ordinance that prohibited the sale, use,
or consumption of alcohol on the premises of "Sexually Oriented Businesses." 316 F.3d
at 704. So not only did the facts of that case differ vastly from the circumstances
presented here, but the Seventh Circuit identified the Ben's Bar ordinance as a "content-
based time, place, and manner restriction." Id. at 724 (emphasis added). A case about the
constitutionality of a content-based, adult entertainment liquor regulation could not
possibly have put President Whitten and Superintendent Hunter on notice that their
conduct violated clearly established law.
The record demonstrates that IU officials faced a challenging situation in April
2024. A reasonable official facing the particular facts of this case could reasonably have
believed that their conduct was permissible. Superintendent Hunter and President
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 37 of 38 PageID
#: <pageID>

38
Whitten are therefore entitled to qualified immunity on Plaintiffs' First Amendment
claims.
IV. 	Conclusion
For the reasons discussed above, the court DENIES as moot Plaintiffs' claim for
injunctive relief under the November 2024 Policy in their Motion for Partial Summary
Judgment (Dkt. 97). The court GRANTS Plaintiffs' other claim for injunctive relief
under the August 2024 Policy. Defendants are hereby ordered to expunge any
disciplinary action taken against Plaintiffs because of Plaintiffs' violation of the August
2024 Policy. The court DENIES Plaintiffs' claim for damages against Superintendent
Hunter and President Whitten in their individual capacities. And the court GRANTS in
part and DENIES in part Defendants' Cross-Motion for Summary Judgment (Dkt. 120).
The injunction and final judgment shall be set forth in a separate order.
IT IS SO ORDERED this 8th day of January 2026.
s/RLY
Distributed Electronically to Registered Counsel of Record.
Case 1:24-cv-00754-RLY-MKK Document 132 Filed 01/08/26 Page 38 of 38 PageID
#: <pageID>