        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                    FILED
                                                                 February 10, 2011

                                  No. 09-30186                     Lyle W. Cayce
                                                                        Clerk

                              JEREMY SONNIER

                                             Plaintiff-Appellant
                                        v.

     JOHN CRAIN, Dr., in his official capacity as Interim President of
Southeastern Louisiana University; JIM McHODGKINS, Individually and in
   his official capacity as Assistant Vice President for Students Affairs at
Southeastern Louisiana University; THOMAS CARMICHAEL, Individually
and in his official capacity as Police Officer for University Police Department
                      at Southeastern Louisiana University

                                             Defendants-Appellees



                 Appeal from the United States District Court
                     for the Eastern District of Louisiana


                      ON PETITION FOR REHEARING

Before GARWOOD, DAVIS and DENNIS, Circuit Judges.
PER CURIAM:
      For the following reasons we deny Sonnier’s petition for panel rehearing:
      1. Sonnier acquiesced in the district court’s trial plan to defer presentation
of evidence which could provide context facts to assist the court in deciding a
motion for preliminary injunction. The court did not abuse its discretion in
declining to grant relief to plaintiff on his facial challenge when this challenge
was presented to the court in a vacuum. This is especially true given that the
defendant in the case was a university rather than a city or other public body.
A number of cases have recognized the reduced capacity of a university, whose
primary mission is teaching, to provide for security, crowd control, additional
insurance, etc. related to disruptive events. See Bowman v. White, 444 F.3d 967
(8th Cir. 2006); ACLU Student Chapter v. Bote, 423 F.3d. 438 (4th Cir. 2005).
      2. Sonnier quarrels with our statement that to be successful with his
facial challenge, “the challenger must establish that no set of circumstances exist
under which the Act would be valid.” Sonnier v. Crain, 613 F.3d 436, 443 (2010).
This standard was adopted by the Supreme Court in United States v. Salerno,
481 U.S. 739, 745 (1987), and has been cited by the Supreme Court with
approval in a number of cases, including at least two recent First Amendment
cases. In Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 (2008), the Court stated:
      Under United States v. Salerno, a plaintiff can only succeed in a
      facial challenge by “establishing that no set of circumstances exists
      under which the act would be valid,” i.e., that the law is
      unconstitutional in all of its applications. While some Members of
      the Court have criticized the Salerno formulation, all agree that a
      facial challenge must fail where the statute has a ‘plainly legitimate
      sweep.’ [sic]
Id. (citations omitted).
      In United States v. Stevens, 130 S. Ct. 1577 (2010), an even more recent
First Amendment case, the Court stated that “in a typical facial attack, Stevens
would have to establish ‘that no set of circumstances exists under which [§ 48]
would be valid’ or that the statute lacks any ‘plainly legitimate sweep.’”
      The Court then explained that the “plainly legitimate sweep” test is
primarily concerned with an overbreadth challenge.
      In the First Amendment context, however, this Court recognizes “a
      second type of facial challenge,” whereby a law may be invalidated

                                        2
      as overbroad if a “substantial number of its applications are
      unconstitutional, judged in relation to the statute’s plainly
      legitimate sweep.

Id. (quoting Wash. State Grange, 551 U.S. at 449 (emphasis added). See also
Brazos Valley Coalition for Life, Inc. v. City of Bryan, 421 F.3d 314 (5th Cir.
2005).
      The Court then proceeded to hold that the statute was substantially
overbroad and therefore invalid under the First Amendment.
      As the panel opinion states, Sonnier agreed at oral argument that he was
pursuing a regular facial challenge, not an over breadth challenge. Thus, in the
absence of an overbreadth challenge, the more flexible “plainly legitimate sweep”
standard has no application. See Int’l. Women’s Day March Planning Comm.
v. City of San Antonio, 619 F.3d 346, 356 n. 10 (5th Cir. 2010).
      Therefore, treating the petition for rehearing en banc as a petition for
panel rehearing, that petition is DENIED.




                                       3
DENNIS, Circuit Judge, dissenting from the denial of panel rehearing.
      I respectfully dissent from the majority’s refusal to grant a panel
rehearing. In its order denying rehearing, the panel majority offers a new
line of reasoning which reaffirms and entrenches the majority’s previous
erroneous reliance on the “no set of circumstances” test as a rule of decision
governing all facial constitutional challenges. See Sonnier v. Crain, 613 F.3d
436, 453-70 (5th Cir. 2010) (Dennis, J., concurring in part and dissenting in
part) (citing and discussing numerous Supreme Court and Fifth Circuit
precedents that contradict the majority opinion’s use of the “no set of
circumstances” test). The majority now relies on a plainly inaccurate reading
of the Supreme Court’s recent decisions in United States v. Stevens, 130 S. Ct.
1577 (2010), and Washington State Grange v. Washington State Republican
Party, 552 U.S. 442 (2008) (hereinafter Grange). The majority incorrectly
claims that those cases endorsed the “no set of circumstances” test.
      However, in fact, the Court in both Stevens and Grange expressly
refrained from deciding whether the “no set of circumstances” test is correct.
The Court in both cases acknowledged an ongoing disagreement among the
Justices about the proper method for deciding facial challenges, and set forth
two alternative descriptions or formulations of the facial challenge inquiry
without deciding which of the two was correct. One of the two formulations
was the “no set of circumstances” test from United States v. Salerno, 481 U.S.
739, 745 (1987). The other was what might be called the “plainly legitimate
sweep” formulation. The Court in Stevens explained as follows:
      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.

                                       4
      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.
Stevens, 130 S. Ct. at 1587 (alteration in original). Likewise, in Grange, the
Court stated: “While some Members of the Court have criticized the Salerno
formulation, all agree that a facial challenge must fail where the statute has
a ‘plainly legitimate sweep.’” Grange, 552 U.S. at 449 (quoting Glucksberg,
521 U.S. at 740 n.7 (Stevens, J., concurring in the judgments)).
      It is puzzling that the panel majority characterizes Stevens and Grange
as citing the Salerno “no set of circumstances” test “with approval.” Maj. Op.
2. On the contrary, as quoted above, the Court expressly acknowledged that
the Justices could not agree on the “no set of circumstances” test. The Court
did not employ the test in either case.
      Although the Supreme Court in Stevens and Grange neither endorsed
nor rejected the “no set of circumstances” test, the Court did clearly state that
a facial challenge can succeed only if the challenger at least establishes that
the law at issue lacks a “plainly legitimate sweep.” It is therefore important
to consider what the term “plainly legitimate sweep” means in this context.
      The panel majority further mischaracterizes Stevens and Grange by
conflating the “plainly legitimate sweep” formulation with the separate and
distinct standard that governs facial challenges under the overbreadth
doctrine. The Court in both Stevens and Grange clearly set forth each of
these two standards and did not equate the one with the other. In a facial
challenge that does not rely on the overbreadth doctrine, the “plainly
legitimate sweep” formulation simply requires the court to decide whether the
challenged law has any “plainly legitimate sweep” at all. Grange, 552 U.S. at

                                          5
449 (“[A]ll agree that a facial challenge must fail where the statute has a
‘plainly legitimate sweep.’”). By contrast, in a challenge that does rely on the
overbreadth doctrine, even if a law does have a “plainly legitimate sweep,” the
court must still go on to decide whether the law has a “substantial number of
. . . applications [that] are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.” Stevens, 130 S. Ct. at 1587; Grange, 552 U.S. at
449 n.6. Thus, it is readily apparent that the inquiry under the overbreadth
doctrine is not the same as the inquiry into whether a challenged law has a
“plainly legitimate sweep” in the first place.
        Since the “plainly legitimate sweep” formulation in Stevens and Grange
is not the same as the overbreadth doctrine, we must look elsewhere in order
to understand how to properly determine whether a law has a “plainly
legitimate sweep.” The Court’s reasoning in Grange provides an example of
how to make this determination.1 After announcing that “all [Justices] agree
that a facial challenge must fail where a statute has a ‘plainly legitimate
sweep,’” 552 U.S. at 449, the Grange Court “turn[ed] to the merits of
respondents’ facial challenge,” id. at 451. The Court began by announcing
that it was applying the relevant substantive test for determining the
constitutionality of state election laws under the First Amendment —




        1
           Stevens does not tell us very much about how to decide whether a law has a “plainly legitimate
sweep.” In Stevens, the Court did not decide the facial challenge by determining whether the statute at
issue had a “plainly legitimate sweep,” but instead held that the statute was unconstitutional under the
overbreadth doctrine. Stevens, 130 S. Ct. at 1592 (“[T]he presumptively impermissible applications of §
48 (properly construed) far outnumber any permissible ones. . . . We hold only that § 48 is . . .
substantially overbroad, and therefore invalid under the First Amendment.”). The Stevens Court essentially
assumed for the sake of argument that the challenged law had a “plainly legitimate sweep,” but determined
that the law’s unconstitutional applications outnumbered or outweighed whatever applications of the law
might fall within that “legitimate sweep.” See id.

                                                    6
namely, the flexible standard under Burdick v. Takushi, 504 U.S. 428 (1992).2
Applying Burdick, the Court first asked “whether I-872 severely burdens
respondents’ associational rights,” Grange, 552 U.S. at 452, and eventually
concluded that “[o]n its face, I-872 does not impose any severe burden on
respondents’ associational rights,” id. at 458. Having established that the
statute did not impose a severe burden, the Court went on to the second part
of the Burdick analysis and concluded that “the State’s asserted interest in
providing voters with relevant information about the candidates on the ballot
is easily sufficient to sustain I-872.” Id. The Court therefore concluded that
the challenged law was “facially constitutional.” Id. at 459.
        The Court’s method of reasoning in Grange demonstrates that the way
to determine whether a law has a “plainly legitimate sweep” is simply to
apply the relevant substantive constitutional test. If the law, when
considered on its face, fails the relevant test, then it does not have a “plainly
legitimate sweep” and is facially unconstitutional.3 To put this point another

        2
           The Court in Grange explained: “Election regulations that impose a severe burden on
associational rights are subject to strict scrutiny, and we uphold them only if they are ‘narrowly tailored to
serve a compelling state interest.’” 552 U.S. at 451 (quoting Clingman v. Beaver, 544 U.S. 581, 586
(2005)). “If a statute imposes only modest burdens, however, then ‘the State’s important regulatory
interests are generally sufficient to justify reasonable, nondiscriminatory restrictions’ on election
procedures.” Id. at 452 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). Accord Burdick,
504 U.S. at 434 (setting forth the same “flexible standard,” under which “the rigorousness of our inquiry
into the propriety of a state election law depends upon the extent to which a challenged regulation burdens
First and Fourteenth Amendment rights”).
        3
          There is one passage in Grange which, if taken in isolation, could be misread as relying on the
“no set of circumstances” test. The Court wrote:
        We are satisfied that there are a variety of ways in which the State could implement I-872
        that would eliminate any real threat of voter confusion. . . . Our conclusion that these
        implementations of I-872 would be consistent with the First Amendment is fatal to
        respondents’ facial challenge.
Grange, 552 U.S. at 456-57. This passage has to be read in the context of the whole majority opinion in
Grange, which — as discussed above — relied on the flexible Burdick standard and held that the
challenged law was facially constitutional because it met that standard. Id. at 458. Moreover, the passage

                                                      7
way: The phrase “plainly legitimate sweep” surely requires a court to decide
whether a law’s “sweep” is “legitimate” or not — and the only available tool
for deciding that question is whatever substantive constitutional test applies
to the type of law that is being challenged. Thus, in the present case, the way
to decide whether each of the speech regulations at issue has a “plainly
legitimate sweep” is to apply the constitutional test that governs content-
neutral restrictions on the time, place, or manner of speech. See Knowles v.
City of Waco, 462 F.3d 430, 433-34 (5th Cir. 2006).
        Grange does not mean (and of course I do not contend) that the
distinction between facial and as-applied challenges has no effect whatsoever
or that courts should ignore it. On the contrary, the Grange Court’s
reasoning appropriately took into account the facial nature of the challenge.
The Court explained: “We reject each of [the respondents’] contentions for the
same reason: They all depend, not on any facial requirement of I-872, but on
the possibility that voters will be confused as to the meaning of the party-
preference designation. But respondents’ assertion that voters will
misinterpret the party-preference designation is sheer speculation.” 552 U.S.
at 454. Because Grange involved a challenge to the law on its face, the Court
rejected arguments that went well beyond the facial content of the law itself
and that relied on speculation about the law’s potential effects. Thus, Grange
exemplifies how a court should take into account the distinction between
facial and as-applied challenges without lapsing into mistaken reliance on the




must be read in the context of the Court’s express announcement that it was not relying on the “no set of
circumstances” test: “While some Members of the Court have criticized the Salerno formulation, all agree
that a facial challenge must fail where the statute has a ‘plainly legitimate sweep.’ Washington’s primary
system survives under either standard, as we explain below.” Id. at 449.

                                                     8
erroneous “no set of circumstances” test.4
        Our court’s recent decision in International Women’s Day March
Planning Committee v. City of San Antonio, 619 F.3d 346 (5th Cir. 2010)
[hereinafter International Women’s Day], is like Grange in that the court
decided whether a law had a “plainly legitimate sweep” by applying the
substantive constitutional tests that were relevant to the type of law being
challenged. The panel followed Grange by setting forth, in the alternative,
the “no set of circumstances” test and the “plainly legitimate sweep”
formulation. Id. at 355-56 (citing Grange, 552 U.S. at 449). The panel then
determined that “the only claims properly before us are facial,” id. at 357, and
went on to decide the merits of the facial challenge by applying the relevant
substantive constitutional doctrines. First, the panel reasoned that the city’s
financial support of certain parades and public events was not government
speech. Id. at 359-60. Next, the panel decided that the financial support did
not amount to content-based or viewpoint-based discrimination. Id. at 360-
63. The panel then reasoned that the law did not give excessive discretion to
either the city council or the police department to waive or assess fees for
traffic control for parades. Id. at 363-69. Finally, the panel applied the test
for content-neutral restrictions on the time, place, and manner of speech —
the same test that applies to the regulations in the present case. Id. at 369



        4
          In the present case, I continue to believe that the majority has also erred by refusing to address the
as-applied arguments which the plaintiff raised in the district court and in this court, as explained in my
dissent from the original panel opinion. Sonnier, 613 F.3d at 450-53 (Dennis, J., concurring in part and
dissenting in part). As the Grange Court explained, “[f]acial challenges are disfavored for several
reasons,” 552 U.S. at 450, so it is better for courts to start by addressing as-applied arguments when it is
possible to do so. In this case, the record shows that the plaintiff presented the district court with facts,
evidence, and arguments relating to the manner in which the SLU speech restrictions had been applied to
him. He did not present a facial challenge to the court “in a vacuum,” as the majority now incorrectly
asserts. Maj. Op. 2.

                                                       9
(“[W]e now address whether the ordinance is ‘narrowly tailored to serve a
significant governmental interest’ and ‘leave[s] open ample alternatives for
communication.’” (quoting Forsyth County, Ga. v. Nationalist Movement, 505
U.S. 123, 130 (1992))). The panel concluded that the challenged law met the
requirements of this test, id. at 369-73, and accordingly “reject[ed] the
plaintiffs’ facial challenges,” id. at 373. Thus, the extensive analysis in
International Women’s Day — which did not rely at all on the “no set of
circumstances” test — again demonstrates that the way to decide whether a
law has a “plainly legitimate sweep” is simply to apply whatever
constitutional doctrines and tests pertain to the type of law that is at issue.5
        In summary, neither Stevens nor Grange nor our court’s jurisprudence
supports the majority’s mistaken assertion that “in the absence of an
overbreadth challenge, the more flexible ‘plainly legitimate sweep’ standard
has no application.” Maj. Op. 3. On the contrary, the Court in both Stevens
and Grange stated that when a facial challenge other than an overbreadth
challenge is at issue, the challenge must fail if the law at issue has a “plainly


        5
           Another instructive recent case in which one of our sister circuits considered how to decide
whether a law has a “plainly legitimate sweep” is General Electric Co. v. Jackson, 610 F.3d 110 (D.C.
Cir. 2010). In that case, the D.C. Circuit first followed Stevens by acknowledging the dispute over the “no
set of circumstances” and “plainly legitimate sweep” formulations. Id. at 117. The court then looked to
Justice Stevens’s dissent in Troxel v. Granville, 530 U.S. 57 (2000), to clarify the meaning of “plainly
legitimate sweep” in this context. The D.C. Circuit read the Troxel dissent as “explaining that facial
invalidation is inappropriate under the ‘plainly legitimate sweep’ standard where the statute’s application
would be constitutional ‘in many circumstances.’” General Electric, 610 F.3d at 117 (quoting Troxel, 530
U.S. at 85 (Stevens, J., dissenting).
         After addressing the meaning of “plainly legitimate sweep” in this way, the D.C. Circuit
immediately went on to announce and apply the relevant substantive constitutional test — “the now-
familiar Mathews v. Eldridge balancing test” — to the statutory provisions that were challenged in that
case. Id. The court rejected the appellant’s arguments and concluded that the provisions were facially
constitutional. Id. at 118-24. Thus, the General Electric case illustrates the same general approach to
facial challenges that was used by the Supreme Court in Grange and by our court in International
Women’s Day, and which we ought to have followed in this case: deciding whether a challenged law has a
“plainly legitimate sweep” by applying the relevant substantive constitutional test.

                                                    10
legitimate sweep.” Stevens, 130 S. Ct. at 1587; Grange, 552 U.S. at 449. The
way to determine whether a law’s “sweep” is “legitimate” is to apply the
relevant substantive constitutional test, which in the present case is the test
that governs content-neutral restrictions on the time, place, or manner of
speech. The Supreme Court’s reasoning in Grange and our own court’s
reasoning in International Women’s Day exemplify the use of this approach to
deciding facial challenges.
      By contrast, the majority’s misreading of Stevens and Grange effectively
disregards the Court’s “plainly legitimate sweep” formulation by wrongly
equating it with the standard governing overbreadth challenges. This
reasoning appears to be intended to support the majority’s continued
insistence on the “no set of circumstances” test, even though that test was
unable to command the support of a majority of Justices in either Stevens or
Grange. As I explained in my dissent from the original panel opinion,
reliance on the “no set of circumstances” test is incompatible with not only
Stevens and Grange, but also numerous other cases of the Supreme Court and
the Fifth Circuit. See Sonnier, 613 F.3d at 453-70 (Dennis, J., concurring in
part and dissenting in part). Moreover, the majority’s application of the “no
set of circumstances” test produces a wrong decision in this case, preventing a
preacher from exercising his First Amendment rights by engaging in non-
disruptive, religious conversations with individuals on an open mall on a
public university campus. See id. at 450-51 (setting forth the facts).
Therefore, I respectfully dissent from the order denying panel rehearing.




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