SONNIER v. CRAIN

case, Bank One argues, are more appropriately denominated as financial guarantees than as lease bonds. Moreover, Bank One contends, Lembke's testimony is offered not strictly as to surety issues, but as to broader topics, including (1) custom and practice regarding coverage; (2) underwriting; (3) accounting and claims handling; and (4) the duties of an insurer to its principals, obligees and assignees. With respect to these areas, Bank One asserts, Lembke's qualifications are unchallenged.

According to Bank One, Safeco's attempt to limit the scope of appropriate expertise in this matter to the area of "lease bonds" is an artificial construct based upon the unique facts of this case, and is aimed at excluding well-qualified bank experts. Bank One maintains that Sixth Circuit law prohibits the imposition of an overly narrow test of expert qualifications, see United States v. Barker, 553 F.2d 1013, 1024 (6th Cir. 1977), and argues that this Court should refrain from applying such an excessively restrictive standard here.

Bank One argues that Safeco's motion does not raise grounds for exclusion under Daubert, but rather raises only issues appropriate for cross-examination. Bank One contends that Safeco challenges only a few limited opinions in Lembke's report, most of which are taken out of context. To the extent that Safeco contests Lembke's opinion based on Lembke's alleged failure to consider the testimony of certain Safeco witnesses, Bank One asserts that such a challenge bears only on the weight of Lembke's testimony, not its admissibility. Bank One further asserts that, rather than offer impermissible legal opinions, Lembke's expert report does no more than describe industry standards and customs. Bank One cites numerous cases in

To support this assertion, Bank One relies on various excerpts of Lembke's deposition testimony, in which Lembke stated that his opinions were based upon industry standards rather than legal definitions.

which courts have admitted opinions as to industry standards and practices. See, e.g., Shepherd v. Unumprovident Corp., 381 F. Supp. 2d 608, 611 (E.D. Ky. 2005); ID Sec. Sys. Canada, Inc. v. Checkpoint Sys., Inc., 198 F. Supp. 2d 598, 620-21 (E.D. Pa. 2002). While the application of industry standards may touch upon ultimate issues in the litigation, Bank One asserts that this does not render Lembke's opinions per se inadmissible. See Fed.R.Evid. 704(a).

Finally, Bank One argues that Lembke's testimony is not per se excludable merely because limited portions of Lembke's expert report discuss his belief as to Safeco's state of mind. Bank One relies on the relatively liberal standards of the Federal Rules of Evidence, and reminds the Court that the "rejection of expert testimony is the exception rather than the rule. . . ." Fed.R.Evid. 702, Adv. Comm. Notes (2000).

3. Analysis

Lembke is one of the few experts challenged by the Sureties on "qualification" grounds, rather than merely the "reliability" prong of Daubert. Safeco has argued that Lembke's background and experience are focused on the insurance and reinsurance industries, and that Lembke has insufficient knowledge of the surety law issues underlying these actions. For the reasons set forth herein, Safeco's motion to exclude Lembke's testimony in its entirety pursuant to Daubert is denied.

Initially, the Court notes that Lembke has been proffered only by Bank One to testify in Case No. 02-16014, a case that was not part of this Court's bench trial proceedings. Accordingly, this case is unaffected by the Court's Bench Trial Opinion, and the Court has issued no findings in this case as to the transactional structure or the intended obligee.

As a threshold matter, the Court finds that Lembke is adequately qualified within his discipline, and has knowledge and expertise sufficiently relevant to provide testimony that would be helpful to the trier of fact as to certain issues. Upon review of the parties' arguments and Lembke's curriculum vitae, it appears that Lembke has significant experience in insurance claims handling, as well as some degree of underwriting experience, particularly in the area of financial guarantee bonds. Lembke's experience in claims handling, moreover, appears to be relevant to Bank One's claims under the SSAs, as Bank One has alleged that certain provisions of the SSAs established relevant standards for the processing of bank claims upon the bonds.

In addition, Lembke's testimony may be relevant to the bad faith claims raised by Bank One. Although the Court has granted Safeco summary judgment as to Bank One's bad faith claims in tort (see Doc. 2214), Bank One argues in its brief that it retains contractual claims based upon Safeco's improper handling of Bank One's bond claims.

Particularly in the absence of findings as to the parties' intended transactional structure, or the obligee in the Bank One transactions, the Court is unable to disqualify Lembke at this point on the basis of his education and/or experience. While the Sureties assert that Lembke has limited experience with "surety bonds" or "lease bonds," the Banks correctly point out that this Court has not determined the nature of the underlying transaction in this case. The Sureties have not disputed that Lembke has ample experience with claims handling and/or underwriting with respect to financial guarantee instruments. Therefore, as with several other experts proffered by the Banks, the admissibility and/or scope of Lembke's testimony may be dependent, to some extent, on a determination by this Court on the threshold issues of (1) the structure of these transactions; and (2) the Banks' obligee status.

The Sureties' arguments, however, as to the legal conclusions and personal opinions offered by Lembke stand upon a different footing, and are largely well taken. Upon the Court's review of the expert report authored by Lembke, it is apparent that the scope of the opinions offered by Lembke is broad, encompassing issues ranging from underwriting to bond interpretation to claims handling. A large number of statements and conclusions within Lembke's report involve (1) legal conclusions offered by Lembke; (2) impermissible "weighing" of the evidence; or (3) conclusions as to ultimate issues of fact, which improperly invade the province of the fact-finder. Testimony falling into any of these categories is outside the scope of permissible expert testimony and will be excluded.

Lembke will be permitted to testify as to the content of industry standards governing claims handling and underwriting, to the extent that Bank One can lay sufficient foundation for Lembke's opinions in these areas. As explained previously in this Opinion, however, the Court will not permit testimony by any expert as to ultimate issues of fact — including breach by Safeco of any applicable standards. Lembke will be precluded, therefore, from offering any opinion as to (1) the structure of these transactions as financial guarantees; or (2) the identity of the "obligee" in the Bank One transactions.

For the same reasons, the Court will not allow Lembke to step outside his expert role and render factual findings not based upon any expertise held by Lembke. The Court will, accordingly, preclude testimony as to any of the following matters: (1) statements as to Safeco's intent or state of mind; (2) conclusions as to factual issues such as the fraud of CMC; (3) any purported "interpretations" of the language of the transaction documents; or (4) any determinations that Safeco violated certain statutes or committed fraud as against the Banks.

As previously noted in this Opinion, the expert report submitted by Lembke is extensive, and the Court cannot anticipate every opinion that Lembke may seek to offer, nor every objection that the Sureties may raise. The Court will, however, apply the standards set forth in this opinion to restrict the breadth of Lembke's testimony as proffered by Bank One in the context of a trial.

Safeco's motion to exclude Lembke's testimony in its entirety pursuant to Daubert is denied. As set forth herein, however, the Court establishes certain limitations on the testimony of this expert.

E. Royal Motion re: Testimony of Rolf Neuschaefer [Michael Anthony and Anthony Morgan, Case Nos. 02-16012, 02-16019, 02-16022] (Doc. 2252)

Royal has moved, pursuant to Daubert, to exclude the testimony of Rolf Neuschaefer ("Neuschaefer"), an expert proffered by Michael Anthony and Anthony Morgan Surety Insurance Services, Inc. (collectively, "A M"), in cases 02-16012, 02-16019, and 02-16022. A M has designated Neuschaefer to testify as to two primary issues: (1) the role and responsibilities of a surety agent/broker to his/her client; and (2) compensation to the agent/broker.

As an initial note, during the Daubert hearings conducted on July 17, 2009, this Court heard oral argument with respect to Royal's motion to exclude the testimony of Neuschaefer. At that time, the Court conducted a discussion on the record with counsel for both Royal and A M. A M's counsel agreed that there were certain statements within Mr. Neuschaefer's expert report that exceeded the scope of Mr. Neuschaefer's expertise and constituted impermissible legal conclusions. The Court then directed counsel for Royal and A M to confer and provide the Court with an annotated expert report indicating (1) the opinions that A M would agree to withdraw; and (2) the remaining opinions to which Royal continued to object.

Despite the parties' apparent agreement as to some issues during the July 17, 2009 proceedings, on October 19, 2009, Royal filed an annotated expert report of Rolf Neuschaefer (Doc. 2429), which highlighted the portions of Neuschaefer's expert report to which Royal objected. In that submission, Royal indicated that it had been unable to reach agreement with A M to withdraw any portion of Neuschaefer's expert report. Accordingly, the Court considers Royal's motion as originally filed, and as clarified by Royal's filing of an annotated expert report.

For the reasons set forth herein, Royal's motion to exclude the testimony of Neuschaefer pursuant to Daubert is denied, although the Court establishes certain limits on the testimony of Mr. Neuschaefer.

1. Summary of Expert Testimony

A M has proffered Mr. Neuschaefer to opine as to the role and responsibilities of an agent or insurance broker to his or her client (the insured or principal), as well as to the insurance carrier. Mr. Neuschaefer also seeks to opine as to the compensation to be paid to such agents and brokers in the form of commission and fees, and the applicable industry requirements regarding disclosure of such fees.

Neuschaefer's expert report includes a background, or "summary," discussion of the respective role of a surety vis-à-vis its agent, including the duty of the surety underwriter as "gatekeeper" and decisionmaker with respect to the bonds authorized. Within this summary, Neuschaefer also makes statements as to (1) a surety's inability to assert defenses, including fraud defenses, against its obligee; (2) an obligee's reasonable expectation that it may rely upon the bonds; and (3) the duties imposed upon the underwriter to obtain all necessary information.

Neuschaefer's expert report contains certain statements which appear to (1) contain legal conclusions; or (2) reflect a weighing of the evidence by A M's expert. For example, Royal objects to the following statements (stated below in summary form):

(1) Based upon a review of the transaction documents, there was "no evidence" that A M breached any fiduciary obligations;

(2) Based upon a review of the depositions, A M was given no underwriting authority;

(3) There was "no evidence" that A M was ever informed that it had violated the Sureties' trust;

(4) The commission paid to A M by the Sureties was in the normal or standard range for the surety industry;

(5) Based upon a review of the depositions, A M did not receive profit sharing on the CMC bonds;

(6) Based upon a review of the agency agreements, A M was not prohibited from billing fees to, and receiving payment from, its client, CMC; and

(7) Based upon a review of all evidence, A M's conduct did not fall below the standard of care applicable to an agent or broker.

2. Parties' Arguments

a. Royal

Apparently, Royal does not challenge Neuschaefer's education or experience, nor does it challenge the general thrust of the testimony that Neuschaefer seeks to offer. Royal argues, however, that Neuschaefer's report deviates significantly from the topics for which Neuschaefer was designated and sets forth numerous irrelevant opinions that are impermissible under Rule 702.

First, Royal objects to virtually the entirety of Neuschaefer's general "background" discussion as to underwriting, including the discussion of appropriate surety underwriting. Royal contends that Neuschaefer impermissibly opines as to issues including (1) the absence of defenses where a surety has failed to properly underwrite an account; and (2) a surety's unconditional obligation to an obligee despite fraud in the application process. According to Royal, this commentary is outside the scope of Neuschaefer's designated testimony and irrelevant to Royal's case against A M. While Royal does not dispute that an expert may offer opinions as to duties imposed by custom and practice, Royal contends that Neuschaefer's discussion of industry practice is simply not pertinent to the issues involved in Royal's claims against A M. Moreover, Royal argues, these statements represent impermissible legal conclusions by Neuschaefer.

Based upon Fed.R.Evid. 702 and applicable case law, Royal also objects to certain other statements that allegedly constitute legal conclusions, including Neuschaefer's statements that (1) A M did not breach any fiduciary duties; and (2) certain agency agreements did not prohibit the receipt of certain undisclosed fees by Michael Anthony.

Finally, Royal challenges certain opinions by Neuschaefer that allegedly are based upon a weighing of the evidence or invade the province of the fact finder, including Neuschaefer's conclusions that (1) A M was given no underwriting authority by the Sureties with respect to the CMC account; (2) A M did not receive profit sharing on the CMC bonds; and (3) the range of commissions paid to A M on the CMC account was "normal." Royal asserts that such statements merely summarize Neuschaefer's own view of the evidence and thus are unhelpful to a fact finder.

b. A M

In opposition to Royal's motion, A M argues that Neuschaefer is appropriately qualified to opine on the issues addressed in his expert report, and that the opinions offered are both relevant and helpful to the fact finder in determining the issues involved in Royal's claims against A M. A M points to Neuschaefer's three decades of experience in the insurance industry, as well as his possession of a CPCU designation and other professional certifications. A M further notes that Neuschaefer has published several articles relating to agent/broker rights, responsibilities and standards of care, and has qualified as an expert in two prior cases.

Moreover, A M argues, the opinions offered by Neuschaefer go directly to the issues of agent/broker rights, responsibilities to client and carrier, compensation, standards of care and duties — matters that are directly at issue in the context of Royal's claims against A M. A M contends that Neuschaefer's report is directed to the scope of an agent's duties to an insurance carrier, and thus that it will aid in determining whether A M violated relevant agency standards — a question that is directly relevant to Royal's claims of fraud and breach of fiduciary duty. A M contends that, even where an expert testifies as to a party's compliance with legal standards within a given industry, such testimony is permissible where it is relevant and based upon the customs and practices of a given industry. See, e.g., Calusinski v. Kruger, 24 F.3d 931, 937 (7th Cir. 1994); Haley v. Gross, 86 F.3d 630, 645 (7th Cir. 1996).

c. Analysis

As with many of the other motions filed in these actions, Royal's motion to exclude the testimony of Neuschaefer challenges only the relevance and reliability of the opinions to be offered by Neuschaefer. As such, this motion is more akin to a motion in limine than to a Daubert motion. The Court finds generally that Mr. Neuschaefer is adequately qualified within his discipline, and has knowledge and expertise sufficiently relevant to provide testimony that would be helpful to the trier of fact as to certain matters at issue. Accordingly, Royal's motion to exclude Neuschaefer's testimony in its entirety pursuant to Daubert isdenied.

The proffered testimony is relevant, in a general sense, to Royal's claims against A M and A M's defenses to those claims. Royal has alleged breach of fiduciary duty, fraud and conspiracy to defraud. Presumably, A M seeks to offer the testimony of Neuschaefer to support its assertions that (1) A M dealt with the carriers in a manner consistent with the requirements imposed on agents/brokers by the insurance industry; and (2) A M did not violate any duties to the Sureties. A M also apparently seeks to offer Neuschaefer's testimony that an agent has no underwriting duties to demonstrate that A M had no knowledge of fraud or any other misconduct by CMC, and did not participate in any fraud committed by CMC against the Sureties.

Upon a careful review of the expert report authored by Neuschaefer, the Court finds that, while the opinions expressed by Neuschaefer in his expert report are relevant to the issues described above, portions of the Neuschaefer report do contain statements that stray beyond the permissible scope of expert testimony. In the areas where this occurs, Neuschaefer's testimony either (1) usurps the role of the fact-finder in weighing evidence; or (2) offers legal conclusions that are both inappropriate and unhelpful to the fact-finder. Testimony by Neuschaefer that falls into either of these two categories will be precluded.

Initially, while there is some utility to Neuschaefer's background description of the expected "division of labor" between a surety and its agent/broker, the Court finds that Neuschaefer's testimony in this area must be limited, in order to weed out inappropriate legal conclusions and avoid jury confusion. Thus, while Neuschaefer will be permitted to testify as to the typical division of functions between the surety underwriter and the broker, Neuschaefer will not be permitted to testify as to (1) any legal "duties" allegedly imposed on the underwriter; (2) the reasonableness of a hypothetical obligee's reliance on the underwriting performed by a surety; or (3) a surety's ability to assert fraud defenses in the context of a surety bond or other instrument.

Additionally, Neuschaefer will not be permitted to express any conclusions to the extent that those conclusions are predicated upon Neuschaefer's own evaluation of the evidence, rather than upon any special expertise possessed by Mr. Neuschaefer. Thus, Mr. Neuschaefer may not testify as to his view of the facts in this action (including the amount of commissions received by A M or the underwriting authority given to A M), where the basis for Mr. Neuschaefer's opinions is his "review of the depositions," "review of the transaction documents," or "review of the evidence."

With respect to the legal conclusions allegedly contained in Mr. Neuschaefer's report, this Court has already held that it will not permit any expert to testify to legal standards, or to a party's compliance with those standards. Nor will this Court permit an expert to testify to the requirements imposed upon a party merely by interpreting the governing agreement. Thus, to the extent that Neuschaefer seeks to testify as to (1) the duties imposed upon A M by the agency agreement; or (2) A M's breach of any fiduciary duties or of applicable standards of care, such testimony will not be permitted. Further, Mr. Neuschaefer may not testify as to the legal requirements imposed on A M by California law relating to compensation or disclosure of commissions.

To the extent, however, that Neuschaefer seeks to opine only as to the content of industry standards — including (1) prevailing rates of commission for surety brokers; (2) standard practice as to compensation and disclosure of compensation; (3) the custom and practice in the surety industry relating to the standard of care applicable to brokers; or (4) the fact that the scope of certain duties generally is governed by or memorialized in an agency agreement — Neuschaefer will be permitted to so testify.

Again, while the Court cannot anticipate every opinion that Neuschaefer may seek to offer, nor every objection that the Sureties may raise, the Court intends that the restrictions and limitations set forth in this opinion will govern the testimony of Neuschaefer in future proceedings in these actions.

For the reasons set forth herein, Royal's motion to exclude Neuschaefer's testimony pursuant to Daubert is denied, although the Court establishes certain limits on the testimony of Mr. Neuschaefer.

III. Conclusions

For the reasons set forth herein,

(1) Safeco's Motion to exclude the testimony of Paul Palmer, Charles Kerner and Jerry Hudspeth (Doc. 2254) is denied, although the Court establishes certain limitations on the testimony of these experts.

(2) Royal's Motion to exclude the testimony of Paul Palmer, Charles Kerner, and Thomas Davis (Doc. 2246) is denied. Royal's motion to exclude the testimony of Palmer and Kerner is denied, although the Court establishes certain limitations on the testimony of these experts. Royal's motion to exclude the testimony of Davis is also denied, and the Court finds that the imposition of limitations on Davis's testimony is inappropriate at this point in time.

(3) Safeco's Motion to exclude the testimony of Michael P. Larrick (Doc. 2245) is denied, although the Court establishes certain limitations on the testimony of Larrick.

(4) Safeco's Motion to exclude the testimony of Daniel Cadle (Doc. 2249) is granted.

(5) Royal's Motion to exclude the testimony of Daniel Cadle (Doc. 2248) is granted.

(6) Safeco's Motion to exclude the testimony of Robert Lembke (Doc. 2251) is denied, although the Court establishes certain limitations on the testimony of Lembke.

(7) Royal's Motion to exclude the testimony of Rolf Neuschaefer (Doc. 2252) is denied, although the Court establishes certain limitations on the testimony of Neuschaefer.

IT IS SO ORDERED.

(4th Cir. 2009) (en banc), after considering Salerno and other cases, concluded that "[w]e need not . . . attempt to resolve the uncertainty regarding the appropriate criteria for entertaining facial challenges" because the facial challenge in that case failed even if "no set of circumstances" was not the proper test. Id. at 174.

The "no set of circumstances" passage in Salerno excludes the narrow category of facial challenges under the overbreadth doctrine in the context of the First Amendment. 481 U.S. at 745, 107 S.Ct. 2095. That exception is not at issue here. The majority in this case considers the "no set of circumstances" test to apply to all other facial challenges. Maj. Op. 443 n. 6.

The Court in Stevens wrote:

To succeed in a typical facial attack, Stevens would have to establish "that no set of circumstances exists under which [§ 48] would be valid," United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 . . . (1987), or that the statute lacks any "plainly legitimate sweep," Washington v. Glucksberg, 521 U.S. 702, 740 n. 7, 117 S.Ct. 2258, 138 L.Ed.2d 772 . . . (1997) (STEVENS, J., concurring in judgments) (internal quotation marks omitted). Which standard applies in a typical case is a matter of dispute that we need not and do not address, and neither Salerno nor Glucksberg is a speech case.

130 S.Ct. at 1587. The Court's mention of speech cases is noteworthy here, since it suggests that some Justices may consider the "no set of circumstances" test to be inapplicable to speech cases even if it does apply to facial challenges in some other area of law. However, as will be discussed below, there are also Supreme Court decisions in several other areas of constitutional law that conflict with the "no set of circumstances" test.

See Anderson v. Edwards, 514 U.S. 143, 155 n. 6, 115 S.Ct. 1291, 131 L.Ed.2d 178 (1995); Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990).

See Virginia v. Black, 538 U.S. 343, 375 n. 4, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (Scalia, J., concurring in part and dissenting in part); Stenberg v. Carhart, 530 U.S. 914, 1019, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (Thomas, J., dissenting); Morales, 527 U.S. at 78-81, 119 S.Ct. 1849 (Scalia, J., dissenting); Romer v. Evans, 517 U.S. 620, 643, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (Scalia, J., dissenting); Ada v. Guam Soc'y of Obstetricians Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from denial of certiorari); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 973, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); Kraft Gen. Foods, Inc. v. Iowa Dep't of Revenue Fin., 505 U.S. 71, 82-83, 112 S.Ct. 2365, 120 L.Ed.2d 59 (1992) (Rehnquist, C.J., dissenting); Bowen v. Kendrick, 487 U.S. 589, 627 n. 1, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (Blackmun, J., dissenting).

In Morales, the plurality opinion stated that "the Salerno formulation . . . has never been the decisive factor in any decision of this Court, including Salerno itself." 527 U.S. 41, 55 n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (plurality opinion). Justice Scalia's dissent argued in favor of the "no set of circumstances" test, but tacitly conceded the inability to cite any case in which it had been "the decisive factor." See id. at 80 n. 3, 119 S.Ct. 1849 (Scalia, J., dissenting). While Morales was decided in 1999, my research has not revealed any Supreme Court case before or since then in which the "no set of circumstances" test has been decisive. See supra notes 19-20 (collecting cases in which that test has been mentioned).

Although lower courts should ordinarily take a deferential position toward Supreme Court dicta, this particular dictum is contradicted by the reasoning and the results of several subsequent Supreme Court cases. In addition, our own court has already issued at least four post- Safer no decisions which have directly contradicted the "no set of circumstances" test.

"Of course, we treat the considered dicta of the Supreme Court with greater weight and deference `as prophecy of what that Court might hold.'" Valladolid v. Pac. Operations Offshore, LLP, 604 F.3d 1126, 1131 (9th Cir. 2010) (quoting United States v. Montero-Camargo, 208 F.3d 1122, 1132 n. 17 (9th Cir. 2000) (en banc)). "We do not blindly, however, follow an unconsidered statement simply because it was uttered by the Supreme Court." Id.
"While the dicta of the Supreme Court merits our deference, we also heed Chief Justice Marshall's admonition that:

general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. . . ."

In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 92-93 (2d Cir. 1993) (quoting Cohens v. Virginia, 6 Wheat. 264, 19 U.S. 264, 399, 5 L.Ed. 257 (1821)).

The list of Supreme Court cases contradicting the "no set of circumstances" test includes (but is not limited to) Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988); and Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The Fifth Circuit cases include Service Employees International Union, Local 5 v. City of Houston, 595 F.3d 588 (5th Cir. 2010); Knowles v. City of Waco, 462 F.3d 430 (5th Cir. 2006); Doe v. Santa Fe Independent School District, 168 F.3d 806 (5th Cir. 1999); and Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996). In each of these cases (which will be discussed more specifically below), the courts adjudicated facial challenges by relying on substantive constitutional doctrines that were incompatible with the "no set of circumstances" test. Some of these cases involved intermediate scrutiny, while others involved other constitutional tests — but they were all facial challenges, and in all of them the courts disregarded or rejected the "no set of circumstances" test. These cases, all of which are binding on us, strongly support the conclusion that the "no set of circumstances" test simply is not an accurate statement of the law that governs this case.

The "no set of circumstances" test arose from this sentence in Salerno: "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." 481 U.S. at 745, 107 S.Ct. 2095. This language constitutes dicta, not a holding, because it was not part of the basis for the Supreme Court's decision in Salerno. The respondents in Salerno brought a facial challenge to the Bail Reform Act, but they did not claim that the Act was unconstitutional as applied to them. Id. at 745 n. 3, 107 S.Ct. 2095. Therefore, if Salerno had really held that identifying a single valid application of a law is enough to defeat a facial challenge, the Court could have rejected the facial challenge simply because the Act was not unconstitutional as it had been applied to the respondents in that case. See Morales, 527 U.S. at 55 n. 22, 119 S.Ct. 1849 (plurality opinion) (explaining that the sentence was dicta for this reason).But instead, the Supreme Court decided in Salerno that the Bail Reform Act was facially constitutional, not because it satisfied the "no set of circumstances" test, but because the Act as written was consistent with the Court's interpretation of the Due Process Clause and the Eighth Amendment.

See also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) (opinion of Stevens, J., respecting denial of certiorari) (observing that the controversial statement was "unnecessary to the holding in [ Salerno], for the Court effectively held that the statute at issue would be constitutional as applied in a large fraction of cases").

The specific reasoning by which the Supreme Court resolved the facial challenge in Salerno was as follows. As to the Due Process Clause, the Court acknowledged that there is a "`general rule' of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial," 481 U.S. at 749, 107 S.Ct. 2095, but nonetheless held that "this right may . . . be subordinated to the greater needs of society" and that "Congress' careful delineation of the circumstances under which detention will be permitted satisfies this standard," id. at 750-51, 107 S.Ct. 2095. The Court thus balanced the rights of arrestees against the interests of society and decided that the Bail Reform Act, on its face, was constitutional because it did not go too far in "subordinat[ing]" the rights of arrestees.
As to the Eighth Amendment, the Court held that "when Congress has mandated [pretrial] detention on the basis of a compelling interest other than prevention of flight [such as public safety], as it has here, the Eighth Amendment does not require release on bail." Id. at 754-55, 107 S.Ct. 2095. Thus, the Court's reasoning centered on what the Eighth Amendment does and does not require the government to do. It held that the Bail Reform Act was facially constitutional because the Eighth Amendment does not forbid Congress from mandating pretrial detention for arrestees who are thought to pose a danger to the community.
Therefore, the Supreme Court's decision in Salerno was not at all based on the "no set of circumstances" dictum. "In each step of its analysis, the Court measured the Bail Reform Act against the substantive requirements of the Due Process Clause and the Eighth Amendment as articulated in the relevant doctrinal tests. The Salerno defendants lost their facial challenge, not because the Court was able to identify some constitutional applications, but because the Court held that the Act on its face satisfied all of the applicable due process and Eighth Amendment doctrinal tests." Marc E. Isserles, Overcoming Over-breadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359, 399 (1998).

Furthermore, Salerno's "no set of circumstances" language has never played a decisive role in any subsequent Supreme Court case either, as far as my research has shown. See Morales, 527 U.S. at 55 n. 22, 119 S.Ct. 1849 (plurality opinion) (asserting that "the Salerno formulation . . . has never been the decisive factor in any decision of this Court, including Salerno itself'); id. at 80 n. 3, 119 S.Ct. 1849 (Scalia, J., dissenting) (responding to Justice Stevens's claim, but not citing any Supreme Court case in which the "no set of circumstances" language has been decisive). Thus, although some Justices have debated whether the "no set of circumstances" test should be the law, the Supreme Court has never actually held that that language governs all (or any) facial challenges. See also United States v. Stevens, ___ U.S. ___ 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (acknowledging that this issue "is a matter of dispute that we . . . do not address").

In sharp contrast to the absence of any Supreme Court cases in which the "no set of circumstances" test has actually been adopted as the law, there have been a significant number of post-Salerno cases in which the Court has adjudicated facial challenges in a manner that was inconsistent with that supposedly governing test. Our court, too, has done likewise on several occasions.

For instance, the Supreme Court and this court have repeatedly disregarded the "no set of circumstances" test in deciding facial challenges in Establishment Clause cases, because it is inconsistent with the substantive constitutional tests that apply in that area of constitutional law. Only a year after Salerno was decided, the Supreme Court in Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), applied the Lemon test to decide a facial challenge to a statute, and ignored the government's argument that the Court should instead apply Salerno to resolve the facial challenge. The four dissenting Justices expressly agreed with this aspect of the majority's reasoning because the "no set of circumstances" test "is wholly incongruous with the analysis of an Establishment Clause challenge under Lemon." Id. at 627 n. 1, 108 S.Ct. 2562 (Blackmun, J., dissenting).

The Lemon test, which takes its name from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), is a three-part test for deciding whether a law violates the Establishment Clause. See Bowen, 487 U.S. at 602, 108 S.Ct. 2562.

Following Bowen's lead, the Fifth Circuit in Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996), sustained a facial challenge to a school prayer law under the Establishment Clause, holding that the law failed the Lemon test, the "coercion test," and the "endorsement test." Id. at 278-80. Some circuit judges accurately pointed out that the Ingebretsen panel's reasoning and holding were contrary to the "no set of circumstances" test: "It would be ludicrous to assert, and the panel did not attempt to do so, that there is `no set of circumstances' under which the Mississippi prayer statute can be upheld." Id. at 286 (Jones, J., dissenting from denial of rehearing en banc) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). The Supreme Court denied certiorari. 519 U.S. 965, 117 S.Ct. 388, 136 L.Ed.2d 304 (mem.).

Three years later, the Fifth Circuit again disregarded the "no set of circumstances" test and sustained a facial challenge to a school district's policy regarding prayer in Doe v. Santa Fe Independent School District, 168 F.3d 806 (5th Cir. 1999). This time, the Supreme Court granted certiorari and affirmed our court's holding that the school policy at issue was facially unconstitutional. 530 U.S. 290, 316, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). (The policy "impose[d] on the student body a majoritarian election on the issue of prayer" before football games. Id.) The dissents in both the Supreme Court and the Fifth Circuit criticized the majorities for not following the "no set of circumstances" test. 530 U.S. at 318, 120 S.Ct. 2266 (Rehnquist, C.J., dissenting); 168 F.3d at 832 (Jolly, J., dissenting). Chief Justice Rehnquist's dissent showed that it was possible to imagine circumstances in which the school policy could survive an as-applied challenge. For instance, "it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation." 530 U.S. at 321, 120 S.Ct. 2266. Nonetheless, the six-Justice Supreme Court majority declined to apply the "no set of circumstances" test and held that the policy was facially unconstitutional. Id. at 316, 120 S.Ct. 2266 (majority opinion).

The reason that both the Supreme Court and this court rejected the "no set of circumstances" test in Santa Fe, Bowen, and Ingebretsen is readily apparent: the use of that test would have been incongruous with the constitutional tests that courts normally use to decide whether a law violates the Establishment Clause, including the Lemon test, the coercion test, and the endorsement test, see Ingebretsen, 88 F.3d at 279. Those cases presented essentially the same situation as the instant case: the "no set of circumstances" test is incompatible with the test that actually applies here — intermediate scrutiny — so the correct way to decide this case is to apply intermediate scrutiny.

Those Establishment Clause cases are not the only ones in which the Supreme Court has reached decisions that were incompatible with the "no set of circumstances" dictum. Another such case was Morales, in which the Court sustained a facial challenge to a Chicago anti-loitering ordinance because it was unconstitutionally vague and gave too much discretion to the police. See 527 U.S. at 51, 60-64, 119 S.Ct. 1849 (majority opinion). Justice Scalia, in dissent, explained that the majority's reasoning and result were inconsistent with the "no set of circumstances" test because it was possible to imagine a situation in which the ordinance would have survived an as-applied challenge. See id. at 81-82, 119 S.Ct. 1849 (Scalia, J., dissenting) (depicting a scenario out of West Side Story which, under the "no set of circumstances" test, would be enough to "settle the matter of respondents' facial challenge to the ordinance's vagueness"). In Morales, just as in the aforementioned Establishment Clause cases, the application of the "no set of circumstances" test would have been inconsistent with the relevant substantive constitutional doctrine on which the majority relied — namely, "the requirement that a legislature establish minimal guidelines to govern law enforcement," id. at 60, 119 S.Ct. 1849 (majority opinion) (quoting Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)) (internal quotation marks omitted). Justice Scalia's "no set of circumstances" reasoning simply did not answer the dispositive question: whether the ordinance was so vague that it failed to give minimal guidelines to govern law enforcement personnel. The majority therefore properly decided the case on the basis of vagueness and did not apply the "no set of circumstances" dictum, which would have been incompatible with that approach.

Another example of a case in which the Supreme Court's reasoning and result were contrary to the "no set of circumstances" dictum is Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), in which the Court held that a spousal notification requirement in a state law regulating abortion was "an undue burden, and therefore invalid." Id. at 895, 112 S.Ct. 2791. In dissent, Chief Justice Rehnquist accurately observed that the lead opinion "appears to ignore" Salerno. Id. at 973 n. 2, 112 S.Ct. 2791 (Rehnquist, C.J., dissenting). He explained that under the "no set of circumstances" test, the spousal notification provision could not possibly be facially unconstitutional because "the vast majority of wives seeking abortions notify and consult with their husbands, and thus suffer no burden as a result of the provision." Id. There were any number of circumstances in which the notification provision would have been valid as applied, but the Supreme Court nevertheless held that it was facially unconstitutional. Many federal courts have recognized that the "undue burden" test under Casey contradicts the "no set of circumstances" test. See Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d 361, 368-69 (6th Cir. 2006) (reviewing cases from nine other circuits). In short, the Supreme Court in Casey did the same thing it did in Morales, Santa Fe, and Bowen: it did not follow Salerno'?, "no set of circumstances" dictum, and instead applied the relevant substantive constitutional test — which, the plurality in Casey decided, was the "undue burden" test.

The Supreme Court and our court have also disregarded the "no set of circumstances" test when adjudicating facial challenges raising the very same constitutional question that arises in this case: whether a content-neutral restriction on the time, place, or manner of speech is narrowly tailored to serve a significant governmental interest. The year after Salerno was decided, the Court applied intermediate scrutiny and not the "no set of circumstances" test in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The majority held that the law at issue (an ordinance forbidding picketing in front of residences) was narrowly tailored and was therefore facially constitutional. Id. at 488, 108 S.Ct. 2495. The Court supported its holding not by imagining a single constitutionally valid application of the ordinance (which would be sufficient to defeat a facial challenge under the "no set of circumstances" test), but by considering the entire scope of the ordinance's restriction on speech and determining that it was narrowly tailored. See id. at 485-88, 108 S.Ct. 2495.

Likewise, in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Supreme Court rejected a facial challenge to a content-neutral restriction on the time, place, and manner of speech (a state law restricting protests near health care facilities). See id. at 708, 120 S.Ct. 2480 (noting that this was a facial challenge). The majority and the dissenters disagreed over whether the restriction was narrowly tailored, but none of the Justices even raised the "no set of circumstances" test. The majority held that the law was facially constitutional because it was narrowly tailored, and did not employ the "no set of circumstances" test. See id. at 725-30, 120 S.Ct. 2480 (majority opinion). Justice Scalia, in dissent, argued that the law was not narrowly tailored, and hence was facially unconstitutional, because "with respect to those who are seeking to enter or exit [health care] facilities, the statute does not protect them only from speech that is so intimidating or threatening as to impede access. Rather, it covers all unconsented-to approaches for the purpose of oral protest, education, or counseling. . . ." Id. at 755, 120 S.Ct. 2480 (Scalia, J., dissenting). Thus, Justice Scalia believed that the law could have legitimately been applied to speech that was "so intimidating or threatening as to impede access" to health care facilities. Under the "no set of circumstances" test, this single imagined circumstance under which the law would have been valid as applied would have been enough to uphold the facial constitutionality of the challenged law. Yet Justice Scalia argued that it was facially unconstitutional. Thus, in Hill, all nine Justices completely ignored the "no set of circumstances" test, even though that test would have easily compelled the conclusion that the challenged law was facially constitutional.

Furthermore, the Fifth Circuit has twice sustained facial challenges to content-neutral time-place-manner restrictions, even though those restrictions would plainly have been facially constitutional under the "no set of circumstances" test. In Knowles v. City of Waco, 462 F.3d 430 (5th Cir. 2006), this court held that two municipal ordinances were facially unconstitutional because they were not narrowly tailored to serve a significant governmental interest. The ordinances forbade all "parades" and "street activity" at particular times of day, and imposed a permit requirement at all times. 462 F.3d at 431-32. The ordinances would have been facially constitutional under the "no set of circumstances" test because it would have been trivially easy for the court to imagine particular kinds of "parades" and "street activities" on which the ordinances' time restrictions and permit requirement could validly be imposed. For example, a sizable parade with floats and marching bands could have been subjected to a permit requirement, and could have been prohibited from passing through a school zone around the end of the school day. But this court properly disregarded the "no set of circumstances" test and instead applied intermediate scrutiny, holding that the ordinances were not narrowly tailored and were therefore facially unconstitutional. Id. at 431, 433 (facial challenge); id. at 437 (holding both ordinances unconstitutional).

Just recently, in Service Employees International Union, Local 5 v. City of Houston, 595 F.3d 588 (5th Cir. 2010), this court again sustained a facial challenge to a content-neutral time-place-manner restriction even though the "no set of circumstances" test would have required the opposite result. The court held that an ordinance "confin[ing] downtown weekday parades to two one-hour windows: 10:00 a.m. to 11:00 a.m. and 2:00 p.m. to 3:00 p.m.," id. at 603, was facially unconstitutional. Id. at 604; see also id. at 595 (noting that the plaintiffs had brought a facial challenge). If the court had applied the "no set of circumstances" test, it would have had to hold that the ordinance was facially constitutional because it is possible to imagine a single day on which it might have been valid for the city to confine downtown parades to those two one-hour windows — for instance, a weekday when some kind of festival was scheduled to take place downtown between 11:00 a.m. and 2:00 p.m. But the SEIU v. Houston court did not follow this kind of reasoning; rather, it explained that the restriction was not narrowly tailored: "there is scant connection between the restrictive parade hours and the putative consequences that are the justifications for the Ordinance." Id. at 604. Thus, SEIU v. Houston and Knowles show that this circuit, like the Supreme Court, has quite properly disregarded the supposed "no set of circumstances" test when adjudicating facial challenges under intermediate scrutiny.

The collection of Supreme Court and Fifth Circuit cases discussed here — Bowen, Ingebretsen, Santa Fe, Morales, Casey, Frisby, Hill, Knowles, and SEIU v. Houston — demonstrates whatever authority the Salerno "no set of circumstances" dictum may have once had has not endured. The majority opinion's reliance on that dictum to decide this case is out of step with a large and growing body of authoritative caselaw to the contrary.

* * *

To summarize the foregoing analysis, there are at least three different lines of authority supporting the conclusion that the Salerno "no set of circumstances" dictum does not provide an appropriate standard for adjudicating this facial challenge. First, the "no set of circumstances" test supposedly governs all facial challenges, but the Supreme Court in Citizens United v. FEC has contradicted the erroneous idea that there is one single test for all facial challenges; on the contrary, the facial/as-applied distinction does not have any "automatic effect" on the disposition of a case. ___ U.S. ___, 130 S.Ct. 876, 893, ___ L.Ed.2d ___ (2010). Second, the "no set of circumstances" test is incompatible with intermediate scrutiny because the two tests allocate the burden in opposite ways, require the courts to focus on very different criteria, and ultimately produce incompatible results; thus, by applying the "no set of circumstances" test, the majority contravenes the numerous precedents (such as Ward and Knowles) holding that intermediate scrutiny is the appropriate constitutional test for the content-neutral time-place-manner restriction that is at issue here. Third, the Supreme Court and this court have repeatedly decided cases using reasoning and reaching results contrary to those required by the "no set of circumstances" test, e.g., Santa Fe, Morales, Casey, and Knowles. Therefore, considering all of the above, I believe the majority in this case has erred by using the "no set of circumstances" test as the decisive element in its reasoning.

III. Application of Intermediate Scrutiny

In this case, the plaintiff has brought a constitutional challenge to certain provisions of SLU's policy on speech and assembly. These provisions are content-neutral and regulate the time, place, and manner of speech. Therefore, the test that determines their constitutional validity is the intermediate scrutiny standard as defined in numerous cases such as Ward and Knowles. To pass this test, a law must be narrowly tailored to serve a significant government interest. The remainder of this dissent examines whether the challenged speech restrictions — which require individuals and small groups to apply seven days in advance for permission to speak in public; require the disclosure of significant personal information from everyone who plays any role in a speech event; and limit the speech of any individual or group to two hours per seven days — are narrowly tailored to the significant interests that the government has identified.

The plaintiff's appellate brief argues that the security fee provision is not content-neutral. I do not address that issue here, because I agree with the majority's holding that the security fee provision is unconstitutional. The plaintiff acknowledges that the other provisions he challenges are content-neutral.

A. Our Time-Place-Manner Precedents

Our cases uniformly hold that the government must justify content-neutral restrictions on the time, place, and manner of speech in a public forum by showing that they are narrowly tailored to serve a significant governmental interest. This is commonly referred to as intermediate scrutiny. See Serv. Employees Int'l Union, Local 5 v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010); Knowles v. City of Waco, 462 F.3d 430, 433-34 (5th Cir. 2006); Beckerman v. City of Tupelo, Miss., 664 F.2d 502, 516 (5th Cir. 1981). "A regulation `is narrowly tailored if it targets and eliminates no more than the exact source of the "evil" it seeks to remedy.'" Knowles, 462 F.3d at 434 (quoting Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). In other words, "[a] regulation is `narrowly tailored' when it does not `burden substantially more speech than is necessary to further the government's legitimate interests.'" Hays County Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). "At a minimum, a regulation cannot be narrowly tailored unless the cost to speech is `carefully calculated' and the fit between the burden and the state interest is `reasonable.'" Id. (quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 481, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)).

As the majority opinion says, Maj. Op. 441, and as the defendants acknowledge, the public, outdoor areas of the SLU campus are either a traditional public forum or a designated public forum. There is no need to decide which of these two types of public forum is at issue because "[t]he state's power `to restrict speakers' access to [a designated] public forum is subject to the same first amendment constraints that apply to traditional public forums.'" Chiu v. Piano Indep. Sch. Dist., 260 F.3d 330, 345 (5th Cir. 2001) (quoting Estiverne v. La. State Bar Ass'n, 863 F.2d 371, 376 (5th Cir. 1989)).

"The government bears the burden of establishing that the regulations are reasonable." Id. That is, the government must identify the significant state interests to which a challenged regulation is narrowly tailored, and "show affirmatively that the[] restriction is narrowly tailored to protect the identified interests." Id. at 119.

This court's method of analysis in Knowles exemplifies the usual and proper way of applying intermediate scrutiny to a restriction on speech. Knowles is on all fours with the instant case in every relevant respect: it involved a challenge to content-neutral restrictions on speech and assembly in a public forum. Moreover, the plaintiffs in Knowles brought purely facial challenges, and the court did not reach the issue of overbreadth. 462 F.3d at 433. Thus, even assuming that the majority is correct in addressing only Sonnier's facial challenge, Knowles is indistinguishable from the present case.

In Knowles, the plaintiffs were anti-abortion protesters who sought to "pray, display anti-abortion signs, distribute literature, and counsel clinic clients on the public sidewalk outside an abortion clinic"; they brought suit "challenging the facial constitutionality of two city ordinances that threaten[ed] their ability" to do so. Id. at 431. This court began its analysis by identifying the significant state interests that had been asserted by the government: "Waco's asserted interests in protecting school children and citizens on public roads are generically significant." Id. at 434. The court then decided whether the two challenged ordinances were narrowly tailored to the government's asserted purposes. The court concluded that "the School Zone ordinance is not narrowly tailored because the ordinance `sweeps far more broadly than is necessary to further the city's legitimate concern' of enhancing the safety and welfare of schoolchildren and others using Waco's public rights of way." Id. at 435 (quoting Ward, 491 U.S. at 801, 109 S.Ct. 2746). It further concluded that the other ordinance, the "Parade Ordinance," was unconstitutional because "ordinances requiring a permit for demonstrations by a handful of people are not narrowly tailored to serve a significant government interest." Id. at 436. Knowles thus followed five other circuits in holding that laws requiring people to obtain permits for public speech and assembly must contain exceptions for small groups and individuals. The court held that the government had failed to carry its burden to show that its restrictions on speech were narrowly tailored. B. Application of Precedents

Berger v. City of Seattle, 569 F.3d 1029, 1039 (9th Cir. 2009) (en banc); Cox v. City of Charleston, 416 F.3d 281, 286 (4th Cir. 2005); Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996); Grossman v. City of Portland, 33 F.3d 1200, 1206-07 (9th Cir. 1994); Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392(D.C. Cir. 1990).

The same method of analysis under intermediate scrutiny — examining whether the government has shown a sufficiently close connection between its means and its ends — has been followed in many other cases. See, e.g., SEW v. Houston, 595 F.3d at 604 ("Houston has barred downtown parades for all but two one-hour periods a day on week-days. Its asserted justification of preventing traffic congestion is arguably confined to the morning and evening rush hours. . . . [T]here is scant connection between the restrictive parade hours and the putative consequences that are the justifications for the Ordinance."); Hays County Guardian, 969 F.2d at 123 ("We find the University's educational goals sufficiently weighty. . . . We also find that the University's financial support for the student-run newspaper is a narrowly tailored means of advancing these interests."); Beckerman, 664 F.2d at 516 ("This ordinance reaches more broadly than is reasonably necessary to protect legitimate state interests."); see also Frisby, 487 U.S. at 484-86, 108 S.Ct. 2495 (first identifying the "significant government interest" served by the challenged ordinance, and then explaining that the ordinance "is narrowly tailored" to that interest); Members of the City Council of LA. v. Taxpayers for Vincent, 466 U.S. 789, 810, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (upholding an ordinance that "curtails no more speech than is necessary to accomplish its purpose"); United States v. Grace, 461 U.S. 171, 182-83, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (considering a challenged law's apparent purpose as well as an additional justification proffered by the government, and holding that the law did not "substantially" or "sufficiently" serve either purpose); Berger, 569 F.3d at 1041 (explaining that this standard requires a reasonable fit between the government's means and ends); Prime Media, Inc. v. City of Brentwood, Tenn., 398 F.3d 814, 821 (6th Cir. 2005) (upholding an ordinance because "[t]he fit between the City's means and ends is a reasonable one"); Chesapeake B M, Inc. v. Harford County, Md., 58 F.3d 1005, 1013 (4th Cir. 1995) ("The `intermediate scrutiny' analysis applicable to content-neutral restrictions on speech . . . is concerned with the ends government can pursue, the means with which it can pursue those ends, and the relationship between them.").

In determining the constitutionality of the challenged provisions of the SLU speech policy, we must apply intermediate scrutiny, as exemplified by Knowles. Thus, the government must (1) identify the significant and legitimate government interests that it asserts as justifying its restrictions on speech, and (2) demonstrate that the SLU policy's speech restrictions are narrowly tailored to further those government interests.

The challenged provisions are quoted in full in the majority opinion. Maj Op. 439-40 nn. 1-4. The restrictions that will be addressed here are (1) the requirement that even individuals and small groups must obtain advance permission to speak in public; (2) the requirement that every person who has any role at all in a speech event must entrust various personal information to SLU; (3) the limitation of speech to a maximum of two hours per seven days; and (4) the requirement that would-be speakers must apply for permits seven days in advance.

1. Identification of Government Interests

In cases like this one, in which speech restrictions at a state university are at issue, the government's legitimate interests undoubtedly include protecting and furthering the university's mission of educating its students. Still, the government must justify its restrictions on speech by showing that they are narrowly tailored to serve specific, legitimate government interests.

" First Amendment rights must be analyzed `in light of the special characteristics of the school environment,'" as the Supreme Court stated in Widmar v. Vincent, 454 U.S. 263, 268 n. 5, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (quoting Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)). "A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of [the Supreme] Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities." Id. Nonetheless, "[w]ith respect to persons entitled to be there, [the Supreme Court's] cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities." Id. at 268-69, 102 S.Ct. 269. Therefore, as we have held in another case involving a state university, "[t]he government bears the burden of establishing that the regulations are reasonable." Hays County Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992).

See also Hill v. Colorado, 530 U.S. 703, 728, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) ("[I]n determining whether a statute is narrowly tailored, we have noted that `[w]e must, of course, take account of the place to which the regulations apply in determining whether these restrictions burden more speech than necessary.' . . . For example, we have recognized the special governmental interests surrounding schools, courthouses, polling places, and private homes.") (footnotes omitted) (quoting Madsen v. Women's Health Center, Inc., 512 U.S. 753, 772, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994)).

The defendants have not argued that Sonnier was not "entitled to be there"; their argument is only that the SLU speech policy, on its face and as applied to Sonnier, is consistent with the First Amendment.

In this case, the defendant government officials have done little to carry their burden to "show affirmatively that [the restrictions are] narrowly tailored to protect [the government's] identified interests." Id. at 119. Indeed, at one point in their appellate brief, the defendants appear to be declining to even attempt to do so: "In this case the specific significant State interests of SLU were not in fact yet identified and remain to be determined in the case in chief." Appellees' Br. 12. That is of course an incorrect statement of the law, since the central issue in this appeal is the constitutionality of SLU's speech restrictions, which cannot be determined without first identifying the legitimate interests that are asserted by the government.

Nonetheless, the defendants' brief does mention some government interests. It states, "as a general principle, the government does have a significant interest in preserving the campuses of public colleges and universities for the use of students." Appellees' Br. 12 (quoting Justice for All v. Faulkner, 410 F.3d 760, 770 (5th Cir. 2005)). In other words, "the University has an interest in reserving [its] resources for University community members." Appellees' Br. 15 (quoting Bowman v. White, 444 F.3d 967, 982 (8th Cir. 2006) (quoting ACLU Student Chapter — Univ. of Md., College Park v. Mote, 321 F.Supp.2d 670, 681 (D.Md. 2004))). The defendants also assert the need "to plan for exigencies such as crowd control and insurance requirements." Appellees' Br. 15. They argue that "the university as a government entity ha[s] a significant interest in protecting the educational experience of the students in furtherance of its educational mission insuring student safety in fostering diversity." Appellees' Br. 16. And they reiterate that "SLU has a legitimate interest in maintaining sufficient order on its campus so that it may conduct its primary mission of providing an education to its students and preventing unnecessary disruption of the academic learning environment." Appellees' Br. 21.

These asserted state interests may be fairly summarized as (1) maintaining public safety, (2) preventing the disruption of education, (3) conserving the university's resources, and (4) fostering diversity. But the defendants have offered little specific explanation of how any of the challenged provisions of the SLU speech policy are narrowly tailored to serve any of these specific interests. For the reasons that follow, the defendants' arguments fall short of demonstrating that the challenged restrictions on speech are narrowly tailored to serve the identified interests.

2. Narrow Tailoring a. Permit Requirement for Individuals and Small Groups

According to Sonnier's uncontradicted affidavit, he and a handful of friends simply stood in a pedestrian mall, with Sonnier holding up a sign, and tried to engage in conversation with passersby. They were peaceable and did not cause any disruption. Under the precedents of the Fifth Circuit and five other circuits, the First Amendment forbids the government from requiring individuals and small groups, like Sonnier and his friends, to obtain advance permission for public speech and assembly. Such permit requirements are not narrowly tailored to serve any legitimate government interest.

SEW v. Houston, 595 F.3d at 603; Berger v. City of Seattle, 569 F.3d 1029, 1039-40 (9th Cir. 2009) (en banc); Knowles, 462 F.3d at 436; Cox v. City of Charleston, 416 F.3d 281, 286 (4th Cir. 2005); Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996); Grossman v. City of Portland, 33 F.3d 1200, 1206-07 (9th Cir. 1994); Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990).

In Knowles, this court recognized that "[o]ther circuits have held, and we concur, that ordinances requiring a permit for demonstrations by a handful of people are not narrowly tailored to serve a significant government interest." 462 F.3d at 436. The permit requirement at issue in Knowles was held to be unconstitutional because it made no exception for small groups. Five other circuits have held like-wise. The SLU regulation that is at issue in this case does exactly what those precedents forbid — it requires a handful of people to obtain a permit before they can speak in a public place. It is therefore unconstitutional.

The court cited Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996); Grossman v. City of Portland, 33 F.3d 1200, 1202-06 (9th Cir. 1994); and Community for Creative Non Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990). Cases from the Fourth and Sixth Circuits also support the same proposition. See supra note 30.

There is a good reason why six circuits have agreed that such permit requirements are unconstitutional: the great majority of individuals and small groups exercising First Amendment rights do not block traffic or disrupt classes, whereas the few who actually intend to be disruptive or to interfere with the rights of others are very unlikely to seek advance permission before doing so. Thus, a permit requirement that applies to small groups and individuals can reasonably be expected to accomplish nothing except burdening the speech of law-abiding, non-disruptive people. Such a requirement therefore "burden[s] substantially more speech than is necessary to further the government's legitimate interests," Ward, 491 U.S. at 799, 109 S.Ct. 2746, and is not narrowly tailored. By contrast, advance permit requirements that apply only to larger groups or to speakers who draw large crowds are far more justifiable, because such groups inherently create logistical problems like traffic and noise that may need to be planned for in advance. Cf. Bowman v. White, 444 F.3d 967, 981 (8th Cir. 2006). But because these justifications do not pertain to small groups, permit requirements that apply to small groups are not narrowly tailored.

See Grayned v. City of Rockford, 408 U.S.104, 119, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("[I]t would be highly unusual if the classic expressive gesture of the solitary picket disrupts anything related to the school, at least on a public sidewalk open to pedestrians."); cf. SEW v. Houston, 595 F.3d at 603 (recognizing that a "careful distinction" between small parades and larger ones "is in accord with principles of narrow tailoring" because small parades have "lesser effects on safety and congestion concerns").

The majority opinion suggests that the requirement of an exception for small groups, which is well established for municipal ordinances, should not apply to public universities because "a university is less able than a city or other entity with police powers to deal with a significant disruption on short notice." Maj. Op. 444 (quoting Bowman, 444 F.3d at 982). But this distinction is factually inapposite here because SLU — like many public universities — has a police force. Indeed, this case arose from an interaction between the plaintiff and a campus police officer.

Moreover, the Fourth and Eighth Circuits have specifically rejected arguments that in small municipalities with limited resources and small police forces, public safety justifies requiring individuals and small groups to obtain advance permission to exercise First Amendment rights. Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005); Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996). There are strong similarities between campuses and municipalities, as this court recognized in Hays County Guardian: "The campus's function as the site of a community of full-time residents makes it `a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment,' and suggests an intended role more akin to a public street or park. . . ." 969 F.2d at 117 (quoting Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 651, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)). SLU is a sizable university with around 15,000 students; Douglas involved a municipality with a slightly smaller total population, and Cox involved a municipality about one-third as large as SLU. The reasoning of Cox and Douglas therefore applies to SLU with at least equal force.

Despite the name of the case, the City of Charleston was not a party to the appeal in Cox v. City of Charleston. The appellee was a small municipality called Travelers Rest, South Carolina, which had a population of 4100 in the year 2000. That is less than one-third of the number of students enrolled at SLU. See http://travelersrestsc.com/community/(Travelers Rest population); Appellees' Br. 14 (SLU enrollment).
Douglas concerned the City of Clive, Iowa, whose current population is around 14,000. See http://www.cityofclive.com/about-clive/. The court rejected the city's argument that its "limited resources and small police force" justified a five-day advance notice requirement for a permit, two days shorter than the advance notice period that is at issue in this case. 88F.3d at 1523-24.

The court in Cox explained that advance permit requirements are not justified by the speculative possibility that a small group engaging in free speech might do something disruptive: "the City fails to explain how a small demonstration that may become inflammatory would tax its police force any differently than, for example, a street fight between two individuals, so as to justify requiring advance warning of all small demonstrations." 416 F.3d at 285. The court also emphasized that small municipalities can do many other things to meet their public safety goals. They "can enforce ordinances prohibiting and punishing conduct that disturbs the peace, blocks the sidewalks, or impedes the flow of traffic," Id. at 286. They "can also pass ordinances that `regulate only the volume, location, or duration of [protected] expression,' rather than subjecting all speech to a permit requirement." Id. (alteration in original) (quoting Cmty. for Creative Non-violence v. Turner, 893 F.2d 1387, 1393 (D.C. Cir. 1990)). And they can enact permit requirements that "do[] not burden small gatherings posing no threat to the safety, order, and accessibility of streets and sidewalks." Id. at 287. SLU, like the small municipalities in Cox and Douglas, is free to take steps such as these to further its legitimate interests in maintaining public safety and preventing the disruption of education. Thus, the reasoning of Cox and Douglas refutes the idea that the size of SLU's police force might justify imposing a permit requirement on individuals and small groups.

The majority opinion cites two cases in support of the view that public universities can impose advance permit requirements on small groups. Maj. Op. 445. However, neither case is actually relevant to that issue. In Bowman v. White, 444 F.3d 967 (8th Cir. 2006), the plaintiff was a speaker who drew crowds as large as 200 students. Id. at 981. The Eighth Circuit specifically explained that any argument for a small group exception would be inapposite because the speaker regularly drew such large crowds. Thus, the Bowman court had no occasion to even consider whether such a permit requirement would be constitutional if imposed on an individual or a handful of people. If anything, the opinion's emphasis on the size of crowds suggests that the court would have decided the case differently in the absence of Bowman's "demonstrated . . . capacity to attract a crowd." Id. at 981. There is no evidence in the instant case to suggest that Sonnier draws sizable crowds when he speaks; rather, his uncontradicted evidence is that he merely carries signs and attempts to engage individual passersby in conversation.

The Bowman court explained:

Bowman argues that the Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 [L.Ed.2d 783 (2002)] and Grossman v. City of Portland, [ 33 F.3d 1200 (9th Cir. 1994)] analyses are not applicable to him because he is a single speaker. This argument fails because regardless of whether Bowman is speaking alone or with others, carrying a sign, or handing out literature, he has demonstrated the capacity to attract a crowd and disrupt the unique educational environment. See [ACLU Student Chapter — Univ. of Md., College Park v.] Mote. 321 F.Supp.2d [670,] 679 [(D.Md. 2004)]. In fact, the majority of Bowman's space reservation requests listed an estimated attendance of between fifty and one hundred people, analogous to the situation in Thomas. The actual attendance at his events has run as high as two hundred people. Under these circumstances, the permit requirement is justified to "coordinate multiple uses of limited space," "assure preservation of the [campus]," "prevent uses that are dangerous" to students or other people, and "to assure financial accountability for damage" caused by Bowman's event. Thomas. 534 U.S. at 322, 122 S.Ct. 775. . . .

Bowman, 444 F.3d at 981.

The majority opinion also relies on Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). In that case, a college took disciplinary action against students who took part in a 16-person demonstration at an ROTC ceremony, in which the demonstrators deliberately interfered with the audience's view of the ceremony. Id. at 77-78. The Second Circuit's opinion explained that "the suspensions in this case were not bottomed on a failure to furnish notice to the administration" as required by the college's 48-hour advance notice requirement. Id. at 84. Rather, the demonstrators were suspended for engaging in disruptive civil disobedience. Thus, the Powe case did not actually involve a challenge to a policy requiring permission in advance for speech or assembly; a fortiori, the case did not come close to raising the issue of whether such a policy was required to contain an exception for individuals or small groups.

The bottom line is simply that when the government requires every individual or handful of people to seek advance permission before exercising their First Amendment rights in public, it suppresses a far greater amount of speech than is necessary to serve any legitimate governmental purpose. Occasionally a particular protester may act in a way that interferes with a university's educational functions, but — as the Fourth Circuit said in Cox — that is not really different from the occasional outbreak of a fight, an out-of-control party, or another small disturbance. If the police can handle other small incidents of unruly behavior that happen without advance warning, then they are equally capable of handling an occasional disruptive protester or handful of demonstrators without advance warning. As this circuit and five others have recognized, requiring individuals and small groups to seek advance government permission before speaking in a public place is "too high a cost" because it unnecessarily burdens a substantial amount of peaceful, harmless, constitutionally protected speech. Cox, 416 F.3d at 285 (quoting Turner, 893 F.2d at 1392). Under these precedents, SLU's advance permit requirement is unconstitutional.

b. Other Challenged Restrictions

The government has also failed to carry its burden to justify the other challenged elements of the SLU speech policy: the requirement that significant personal information be collected from every single participant in an event; the provision limiting speech to no more than two hours per seven days; and the provision requiring seven days' advance notice to obtain a permit.

The SLU speech policy imposes a rather sweeping requirement that personal information, including social security numbers, dates of birth, addresses and phone numbers, be collected from every single individual who has any role at all in a speech event — including people who merely set up equipment, hold signs, or pass out pamphlets. Such a broad requirement is not necessary to further any legitimate interest that the government has identified. It is likely that a much narrower version of this policy could be justified under some circumstances: for instance, as the majority opinion states, it would be reasonable for planning purposes (at least for events of any substantial size) for the university to want to know "the identity of speakers on campus, where they intend to speak, and their purpose." Maj. Op. 447. Furthermore, the university has good reason to obtain identifying information from at least one responsible person in order "to assure financial accountability for damage caused by the event." Thomas v. Chicago Park Dist., 534 U.S. 316, 322, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). But neither of these considerations, nor any others that have been identified, provide any justification for SLU's much broader and more burdensome requirement that everyone involved with an event must entrust their social security numbers and other personally identifying information to SLU officials. The majority opinion does not specifically explain why this requirement should be considered narrowly tailored. If there is no way to justify it as being narrowly tailored, then our court ought to acknowledge that it is simply unconstitutional.

As for the regulation limiting speech to two hours per seven days, it plainly restricts speech far more severely than is necessary to serve the university's legitimate interest in "fostering a diversity of viewpoints and preventing one speaker from monopolizing space." Maj. Op. 446. The same goals could be accomplished just as successfully by a policy that would merely give priority to speakers who had not already spoken for two hours in a given week. Such a policy might have the effect of limiting everyone to two hours if there was a week of extraordinarily high demand for speaking time — but, unlike the policy that is at issue here, it would not purposelessly restrict speakers to two hours even during weeks when there were no competing demands for space or time. The Eighth Circuit made the very same point concerning a similar restriction in Bowman:

The University's interest in fostering a diversity of viewpoints and avoiding the monopolization of space serves a significant interest. However, the five-day cap is not sufficiently narrowly drawn to achieve that interest. The Policy as written does not by itself foster more viewpoints; it merely limits Bowman's speech. If no one else wants to use the space after Bowman has used his five permits, the space will go unused even if Bowman still wants to use the space. A more narrowly tailored policy might grant Bowman more than just five days per semester to speak if the space is not being used, but give preference to other speakers who have not already obtained five permits.

444 F.3d at 981-82. The SLU policy restricts a speaker's speech to one two-hour block per week (32 hours per semester), rather than the five eight-hour blocks (40 hours) per semester in Bowman, id. at 981, but the Bowman court's logic applies equally well. The SLU policy, like the policy in Bowman, "does not by itself foster more viewpoints; it merely limits [Sonnier's] speech." Id. Because this restriction is no more effective at serving legitimate government interests than a much less restrictive alternative policy would be, it is not narrowly tailored.

Finally, the SLU speech policy requires all speakers to apply for permits seven days in advance. The majority opinion defends this advance notice requirement as being necessary to allow the university to prepare for events involving large numbers of people, or to allow SLU administrative staff to arrange their own schedules so that they can attend events. But there is no reason why a few people holding signs on a street corner, or a street preacher trying to converse with passersby about the Bible, would require SLU to engage in anything close to seven days of logistical preparation. Nor is it realistic to suppose that the University would expend its resources by having an administrator rearrange his or her schedule to spend hours watching a small group or an individual street preacher, when campus police officers can see that the peace is kept as part of their regular jobs. If the small group of anti-abortion speakers in Knowles could not be subjected to an advance permit requirement for security or logistical reasons, then there is likewise nothing justifying the imposition of a permit requirement on the speakers in this case.

The seven-day notice requirement that is challenged in this case might perhaps be narrowly tailored if it applied only to large groups, but there appears to be no case that even comes close to saying so; a seven-day notice period is more than twice as long as the three-day notice period that was upheld in Bowman for a speaker who drew as many as 200 people. Therefore, I would avoid deciding whether a seven-day notice period would be too long to be justifiable if it applied only to large groups. Instead, I would simply conclude that it is unconstitutional as applied to individuals and small groups.

* * *

In summary, I respectfully dissent from the majority's decision not to hold unconstitutional, as applied to the plaintiffs speech, the governmental restrictions on speech that are at issue in this case (except for the security fee provision, which I agree is unconstitutional). I do so for three reasons: first, this appeal properly involves an as-applied challenge as well as a facial one; second, regardless of whether this suit involves a facial or as-applied challenge or both, the constitutional test that must be applied to these speech restrictions is intermediate scrutiny, not the "no set of circumstances" test; and finally, the government has failed to show that the challenged speech restrictions are narrowly tailored to serve any legitimate governmental interest.