                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                               May 27, 2005
                      FOR THE FIFTH CIRCUIT
                      _____________________              Charles R. Fulbruge III
                                                                 Clerk
                          No. 04-50335
                      _____________________

JUSTICE FOR ALL; JEREMY ALDER; A.E. SMITH,

                                             Plaintiffs - Appellees,

                             versus

LARRY FAULKNER, Dr., individually and in
his official capacity as President of the
University of Texas at Austin; MARK YUDOF,
individually and in his official capacity
as Chancellor of the University of Texas
System; CULLEN M. GODFREY, individually and
in his official capacity as Vice-Chancellor
of the University of Texas System; JAMES W.
VICK, Dr., individually and in his official
capacity as Vice President for Student Affairs
of the University of Texas at Austin; JOE
A. POWELL, individually and in his official
capacity as Associate Vice President of the
Employee and Campus Services of the University
of Texas at Austin; TERESA GRAHAM BRETT,
individually and in her official capacity as
Associate Vice President of Student Affairs and
Dean of Students of the University of Texas at
Austin; CHERYL WOOD, individually and in her
official capacity as Senior Student Affairs
Administrator of the University of Texas at
Austin; JEFFERY VAN SLYKE, individually and
in his official capacity as Police Chief of the
University of Texas at Austin Police Department;
CHARLES MILLER, individually and in his official
capacity as Chairman of the Board of Regents of
the University of Texas System; RITA C. CLEMENTS,
individually and in her official capacity as the
Vice Chairman of the Board of Regents of the
University of Texas System; WOODY L. HUNT,
individually and in his official capacity as the
Vice Chairman of the Board of Regents of the
University of Texas System; FRANCIE A. FREDERICK,
individually and in her official capacity as
Counsel and Secretary of the Board of Regents of
the University of Texas System; ROBERT A. ESTRADA,
individually and in his official capacity as a
member of the Board of Regents of the University
of Texas System; JUDITH L. CRAVEN, Dr., individually
and in her official capacity as a member of the
Board of Regents of the University of Texas System;
CYNDI TAYLOR KRIER, individually and in her official
capacity as a member of the Board of Regents of the
University of Texas System; H. SCOTT CAVEN, JR.,
individually and in his official capacity as a member
of the Board of Regents of the University of Texas
System; JAMES RICHARD HUFFINES, JR., Dr., individually
and in his official capacity as a member of the Board
of Regents of the University of Texas System; JOHN W.
BARNHILL, individually and in his official capacity as
a member of the Board of Regents of the University of
Texas System,

                                                 Defendants - Appellants.

__________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
_________________________________________________________________

Before JOLLY, DAVIS, and CLEMENT, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     The University of Texas at Austin (“the University”) is the

flagship campus of the University of Texas System. Justice For All

(“JFA”) is a student anti-abortion group at the University.              JFA

brought   this   action   challenging      the   University’s   “Literature

Policy”, which requires that all printed materials distributed on

campus    bear   the   name   of   a   university-affiliated    person    or

organization responsible for their distribution. JFA contends that

the policy is an unconstitutional restriction on anonymous speech

in a designated public forum.          The University responds that the

policy is a reasonable, viewpoint-neutral regulation of speech


                                       2
within a limited public forum. The district court agreed with JFA,

and issued a permanent injunction barring enforcement of the

Literature      Policy   to   prevent     JFA   from     engaging     in   anonymous

leafleting.

      We AFFIRM the district court’s holding that the Literature

Policy is invalid under the First Amendment.                   As to the specific

remedy     ordered,   however,      we   REMAND   for    further      consideration

consistent with this opinion.

                                          I

      In December 2000, and again in February 2001, JFA submitted to

the University’s Dean of Students an “Application for Use of

University Facilities” requesting permission to erect a 5600 square

foot photographic exhibit on the University’s Main Plaza.                          The

University denied the requests, but gave JFA permission to erect

the exhibit elsewhere on campus on two occasions.

      JFA alleges that, during one of the displays, University

officials attempted to prohibit its members from handing out

leaflets.       The   leaflets      in   question   read,      simply,     “Life   is

Beautiful –- Choose Life”. Although neither party expressly states

as much, it is clear that the intervention occurred solely because

the leaflets did not identify JFA as the organization responsible

for   their     distribution,       as   is   required    by    the    University’s

Literature Policy.

      As    a   result   of   the    incident,    JFA    brought      this   action,

challenging various University policies on First Amendment grounds.

                                          3
In   response,    the   University    amended   or    repealed     some   of   the

policies in question, leaving two claims for the district court to

resolve.    One of the two, which challenged the University’s rules

regarding the erection of stationary exhibits on campus, was

dismissed    by   the   district     court.     JFA   does   not    appeal     the

dismissal.

      The second of JFA’s two claims challenged the Literature

Policy as an unconstitutional restriction on anonymous speech

within a     designated    public    forum.     The   Literature     Policy     is

actually comprised of two discrete rules: Institutional Rule § 13-

404 and Regents Rule § 12.         Regents Rule § 12 applies generally to

the University of Texas System and provides that “[a]nonymous

publications are prohibited, and any individual or organization

publishing or aiding in publishing, or circulating or aiding in

circulating,      an    anonymous    publication      will   be    subject     to

disciplinary action”.       Institutional Rule § 13-404 implements the

Regents Rule on the Austin campus, and states that “all literature

distributed on campus must identify the University person or

organization1 responsible for its distribution”.2

      1
       The term “university person or organization” refers to
registered student, faculty, or staff organizations, and individual
students, faculty members, or staff members. Under § 13-103 of the
Institutional Rules, all other persons and organizations are deemed
“off-campus persons or organizations”.
      2
       We would also emphasize what is not under review in this
case. JFA has not challenged provisions in the Institutional Rules
requiring individuals and groups to identify themselves on signs
posted on University kiosks (§ 13-503(d)) or departmental bulletin

                                       4
      The University has advanced several justifications for the

Literature Policy.       Before the district court, it argued, inter

alia, that the policy was enacted to prevent littering on campus.

On   appeal,     the   University   has     abandoned    the   anti-littering

rationale and contends that the Literature Policy ensures that

literature is not distributed by non-affiliated individuals or

groups, thus preserving the campus for use by students, faculty,

and staff.

      The district court concluded (1) that “the campuses of public

colleges   and    universities”     are    “designated   public   forums   for

student expression” and (2) that the University’s Literature Policy

was not narrowly tailored to serve a significant state interest.3

As such, it granted summary judgment for JFA and permanently

enjoined the University from enforcing the Literature Policy “to

prevent Plaintiffs from engaging in anonymous leafletting”.                The

University now appeals that decision.

                                      II

      JFA contends that the Literature Policy violates the First

Amendment, insofar as it effectively bars anonymous leafleting by

students on the campus of a public university.            Before turning our


boards (§ 13-506(b)). As noted in the district court order, what
is at issue here is the “distribution” of literature –- i.e., the
physical handing out of leaflets and other materials.
      3
       The substantive analysis in this case was done, quite ably,
by Magistrate Judge Austin. Because the district court adopted the
findings and recommendations of the magistrate in full, we refer to
them as being those of the district court.

                                      5
attention to the Literature Policy itself, we must address two

threshold questions.      First, we must determine whether the speech

at issue –- that is, anonymous leafleting –- is protected under the

First Amendment.      If it is, we must determine the proper level of

constitutional      scrutiny     to    apply    to   the   particular    forum   in

question.

                                         A

      As a general proposition, anonymous speech is protected by the

First Amendment.       See, e.g., McIntyre v. Ohio Elections Comm’n.,

514   U.S.   334    (1995);    Buckley    v.    American    Constitutional       Law

Foundation,    Inc.,     525    U.S.    182,    199-200     (1999);     Talley    v.

California, 362 U.S. 60, 64 (1960).             In striking down prohibitions

on anonymous publication, the Supreme Court has noted, inter alia,

the importance of anonymity as a means of permitting “[p]ersecuted

groups and sects” to “criticize oppressive practices and laws”.

Talley, 362 U.S. at 64.

      More   specifically,       the    First    Amendment’s     protection       of

anonymous speech extends beyond traditional publishing to encompass

anonymous leafleting.          In Talley, for example, the Supreme Court

held void a city ordinance barring the distribution of handbills

that did not include the name and address of both the author and

distributor.       See id. at 60-61, 65.        Moreover, the Court observed

in McIntyre that “anonymous pamphleteering is not a pernicious,

fraudulent practice, but an honorable tradition of advocacy and



                                         6
dissent”, which “exemplifies the purpose behind the Bill of Rights,

and of the First Amendment in particular”.    514 U.S. at 357.

     Certainly, the right to “anonymous speech” has a somewhat

different meaning for a student who speaks on the campus of a

public university than it has for a leafleter on a public street.

Public universities can and typically do restrict access to campus

facilities.   Identifying oneself as a student to a designated

university official will often serve as one’s “admission ticket” to

use those facilities for various purposes, including speech.     As

such, on-campus speech –- by virtue of the simple fact that it

occurs within a forum that only certain persons may use –- will

almost never be completely anonymous.

     What remains of a student’s anonymity after he has identified

himself to university officials, however, is significant.   He may,

if he chooses, remain anonymous in relation to other students, as

well as most faculty and staff.   This residual anonymity is no less

critical to the expression of controversial ideas on university

campuses than the right to more complete anonymity is to such

expression in traditional public spheres.      As such, we have no

trouble concluding that the anonymous leafleting prohibited by the

Literature Policy is a form of speech protected under the First

Amendment.

                                  B

     We thus proceed to determine what level of First Amendment

scrutiny to apply in our review of the Literature Policy.        The

                                  7
policy is a restriction on speech on government-owned property –-

i.e., the campus of the University of Texas at Austin.                          The

standards by which regulations of speech on government property

must be    evaluated     “differ      depending     on   the   character   of   the

property at issue”.            See Perry Education Assn. v. Perry Local

Educators’ Assn., 460 U.S. 37, 44 (1983).                As such, our analysis

turns on how the University’s campus is classified as a forum for

protected speech under the Supreme Court’s precedents.

     Broadly speaking, there are three types of forum for purposes

of   First       Amendment     scrutiny:      traditional,      nonpublic,      and

designated.        See   id.    at   44-46.     Restrictions      on   speech    in

traditional public forums, such as streets and parks, receive the

strictest scrutiny.4           Restrictions in nonpublic forums, such as

military installations, receive the most forgiving.5               The campus of

the University of Texas at Austin, however, fits neither category.

It falls instead within the middle category, broadly referred to as

“designated” public forums.

     In recent years, the Supreme Court has made it clear that this

middle category is further divided into two discrete types of

forum:    true    “designated”       forums   and   “limited”     forums.6      The

     4
         See, e.g., Carey v. Brown, 447 U.S. 455, 461 (1980).
     5
         See, e.g., Greer v. Spock, 424 U.S. 828 (1976).
     6
       Although the Supreme Court and the circuits have clarified
the functional difference between designated and limited forums,
the precise taxonomic designation of the latter remains elusive.
As we observed in Chiu v. Plano Independent School District, 260

                                         8
distinction is critical in this case, because restrictions on

speech in a designated forum are subject to strict scrutiny,

whereas such restrictions in a limited forum are reviewed under a

less demanding standard for “reasonableness”.            See Chiu, 260 F.3d

at 346; see also Rosenberger, 515 U.S. at 829.7

     In    Chiu,   this   court   set    forth   a    two-factor   test    for

classifying such intermediate public forums as either designated or

limited.   Under Chiu, we look to “(1) the government’s intent with

respect to the forum, and (2) the nature of the forum and its

compatibility with the speech at issue”.             260 F.3d at 346.     As a

preliminary matter, however, we note that there is some dispute

between the parties as to the precise nature of the “forum” at

issue in this case.       As such, before applying the Chiu test, we

must define the parameters of the forum.

                                     1




F.3d 330, 346 n. 10 (5th Cir. 2001), the Supreme Court at one time
“referred to limited public forums as being a subcategory within a
designated public forum”, but had more recently “used the phrase
‘limited public forum’ to describe a type of nonpublic forum of
limited open access”. Compare Widmar v. Vincent, 454 U.S. 263,
273-74 (1981) with Rosenberger v. Rector & Visitors of the Univ. of
Virginia, 515 U.S. 819, 829 (1995).
     7
        In Rosenberger, the Supreme Court reviewed speech
restrictions in a “limited forum” only (1) for viewpoint
neutrality; and (2) to determine whether the restriction was
“reasonable in light of the purpose served by the forum”. 515 U.S.
at 829. This standard is identical to that which the Court has
applied to nonpublic forums. See, e.g., Perry Education Assn., 460
U.S. at 49.

                                     9
     The University’s case is based on a general assertion that

“the University campus” is a limited public forum.           The University

suggests that to hold otherwise would render the entire campus “the

equivalent of a public park”, insofar as any regulation of speech

by “students, teachers, or anyone else” would be subject to strict

scrutiny.    Moreover, the University notes that it affirmatively

prohibits speech by “off-campus persons or organizations” –- i.e.,

anyone who is not a student, faculty member, or staff member –- and

contends    that   the   district   court’s   order,    if   upheld,   would

undermine its ability to do so.      The University’s arguments do not

reflect an appreciation of the distinction between limited and

designated public forums as they exist within the university

property.

     The distinction between limited and designated public forums

is not a simple “all-or-nothing” proposition.          The Supreme Court’s

forum analysis jurisprudence does not require us to choose between

the polar extremes of treating an entire university campus as a

forum designated for all types of speech by all speakers, or,

alternatively, as a limited forum where any reasonable restriction

on speech must be upheld.8     Instead, as the Supreme Court indicated

     8
       More generally, we note that a central function of the
limited/designated dichotomy has been to permit courts to strike a
balance between “the necessit[y] of confining a forum to the
limited ... purposes for which it was created” and the requirement
that the state, once it has opened a forum, “respect the lawful
boundaries it has itself set”.      Rosenberger, 515 U.S. at 829
(citing Cornelius v. NAACP Legal Defense and Education Fund, Inc.,
473 U.S. 788, 804-06 (1985)); see also Perry Education Assn., 460

                                     10
in Arkansas Public Television Assn. v. Forbes, a given forum may be

designated for one class of speaker or speech, and still “limited”

with respect to others.9   See 523 U.S. 666, 677-81 (1998) (“If the

government excludes a speaker who falls within the class to which

a designated public forum is made generally available, its action

is subject to strict scrutiny.”).

     As such, the University’s concern that an adverse holding must

necessarily throw open the gates of public universities to any type

of speech by any speaker is unfounded.   We are not called upon in

this case to decide whether the University of Texas at Austin has

opened its entire campus to unfettered expression by the general

public.   Instead, our task is simply to determine whether outdoor

open areas of the University’s campus, accessible to students

generally, have been designated as a forum for student expression.

We now proceed with that inquiry.

                                 2

     We turn, then, to the first element of the Chiu test:     the

government’s intent with respect to the forum.   Government intent


U.S. at 46-48. Such a balancing would be largely impossible were
the designated/limited dichotomy to be treated as a simple binary
choice to be made at a facility-wide (here, campus-wide) level.
     9
       This court has drawn similar distinctions in its own case
law. In Chiu, for example, we noted that “when school district
authorities elect to open public school facilities after school
hours for public meetings during which public issues will be
discussed in a manner similar to a limited-topic school board
meeting, the district officials have designated a public forum for
the limited time and topic of the meeting”. See Chiu, 260 F.3d at
348 (emphasis added).

                                 11
represents “the critical starting point” of forum analysis, as “the

government creates a designated public forum ‘only by intentionally

opening a nontraditional forum for public discourse’”.          Chiu, 260

F.3d at 347 (quoting Cornelius, 473 U.S. at 805).

     The University contends that, by enforcing a “pervasive and

comprehensive     ...   system”   of    speech   regulations,    it   has

demonstrated an intent to establish its campus as a limited public

forum.   The general thrust of these regulations is summarized in §

6.1 of the Regents Rules, which provides that:

           The property, buildings, or facilities owned
           or controlled by the U.T. System or component
           institutions are not open for assembly,
           speech, or other activities as are the public
           streets,    sidewalks,   and   parks.       The
           responsibility of the Board of Regents to
           operate   and   maintain   an   effective   and
           efficient system of institutions of higher
           education requires that the time, place, and
           manner   of   assembly,   speech,   and   other
           activities on the grounds and in the buildings
           and facilities of the U.T. System or component
           institutions be regulated.

     The Institutional Rules implement the general directives of

the Regents Rules on the Austin campus.            Chapter 13 of the

Institutional Rules, entitled “Speech, Expression, and Assembly”,

begins by guaranteeing the expressive rights of students, faculty,

and staff.      Subchapter 13-100 provides the following “Governing

Principles”:

           a.     The freedoms of speech, expression, and
                  assembly are fundamental rights of all
                  persons and are central to the mission of
                  the University. Students, faculty, and
                  staff have the right to assemble, to

                                   12
                    speak, and to attempt to attract the
                    attention of others, and corresponding
                    rights to hear the speech of others when
                    they choose to listen, and to ignore the
                    speech of others when they choose not to
                    listen.

          b.        Students, faculty and staff are free to
                    express their views, individually or in
                    organized groups, orally or in writing or
                    by other symbols, on any topic, in all
                    parts of the campus, subject only to
                    rules necessary to preserve the equal
                    rights of others and the other functions
                    of the University. ...

The Institutional Rules “preserve ... the other functions of the

University” primarily by designating appropriate locations, times

and/or procedures for the use of, inter alia, signs, banners,

kiosks, tables, “exhibits”, and amplified sound.           They are, as

Regents Rule 6.1 suggests, generally the sort of “time, place, and

manner” regulations that might be enforced in any public forum –-

designated, traditional, or otherwise.10

     In contrast to its relatively comprehensive regulation of the

time, place, and manner of speech, the University imposes only

minimal restrictions on the substance of speech. Section 13-101(c)

of the Institutional Rules provides that “[e]xcept as expressly

authorized     by    subchapter   13-200,   the   University   shall   not

discriminate        on   the   basis   of   the   political,   religious,

     10
       In traditional public forums, “[t]he state may ... enforce
regulations of the time, place, and manner of expression which are
content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of
communication.”   See, e.g., Chiu, 260 F.3d at 345 n.9 (quoting
Perry Education Assn., 460 U.S. at 45).

                                       13
philosophical, ideological, or academic viewpoint expressed by any

person”.    Notably, subchapter 13-200 prohibits only obscenity,

defamation, harassment, commercial solicitation, and incitements to

violate the law, all of which reflect distinctions as to content,

rather than viewpoint.    Moreover, Section 13-305(b) provides that

“even [the] rules [set forth in Chapter 13] are subject to the

constitutional   right   of   free   speech”     and   as   such,   “must   be

viewpoint neutral”.

     Thus, the University’s Institutional Rules mandate that any

substantive restrictions on student speech –- at least in open,

outdoor portions of the campus -- must be both (1) viewpoint

neutral and (2) content neutral, unless one of a small number of

expressly   delineated   exceptions       applies.11    Put   another   way,

although the University’s restrictions on the time, place, and

manner of speech are indeed “comprehensive”, it has nonetheless

affirmatively and expressly guaranteed its students, faculty, and




     11
        As further evidence of its intent to establish a limited
forum, the University points to provisions within the Regents Rules
that deny the above-described protections to non-affiliated
individuals and organizations –- i.e., the general public.       We
agree that the Regents Rules evince a clear intent on the part of
the University of Texas System to restrict the public’s right to
speak on its campuses. The Literature Policy, however, does not
apply to the general public; it applies solely to university-
affiliated individuals and groups.     As noted supra, the narrow
question before us is whether the University has sufficiently
demonstrated an intent to limit speech by the affected class –-
i.e., students, faculty, and staff. The exclusion of other classes
is not relevant to that inquiry.

                                     14
staff virtually all of the rights that the Constitution provides

speakers in traditional public spaces.

     The University’s regulations are not materially different –-

at least, with regard to their treatment of student speech12 –- from

those that we reviewed in Hays County Guardian v. Supple, 969 F.2d

111 (5th Cir. 1992).   In Hays County Guardian, we considered an

earlier version of the Regents Rules, which, much like the current

Institutional Rules, guaranteed students the right to “assemble and

engage in free speech” subject to “reasonable nondiscriminatory

regulations as to time, place, and manner of such activities”. Id.

at 117. We observed that the Regents Rules “support the conclusion

that the University intended the campus to serve as a public forum

for its students” and held that the campus was a “limited public

forum, designated for the speech of students”.13

     The Institutional Rules, like the regulations in Hays County

Guardian, clearly evince an intent to maintain the Austin campus as

a designated forum for student expression, subject only to time,

     12
         The version of the Regents Rules we considered in Hays
County Guardian extended the right to speak on campus to “[a]ny
group or person, whether or not a student or employee”. See 969
F.2d at 117.
     13
         The University contends that the district court erred in
relying on Hays County Guardian, observing that the case “predated
the recent clarification” of the distinction between designated and
limited forums.    The argument is without merit.     Although the
designated versus limited distinction has been clarified to an
extent in recent years, the court in Hays County Guardian reached
precisely the same result it would reach today –- i.e., that
regulations of student speech on campus were subject to strict
scrutiny –- based on essentially the same substantive analysis.

                                15
place, and manner regulations and a small number of enumerated

content-based restrictions. In short, the University has given its

students too broad a guarantee of expressive freedom now to claim

it intended its campus to function as a limited public forum.

     We turn then, briefly, to the second element of the Chiu test:

the compatibility of the speech being conducted with the forum

created.   This element requires far less extensive analysis than

the intent prong, as a university campus is clearly “an appropriate

place for communication of views on issues of political and social

significance”.    See Chiu, 260 F.3d at 349 (quoting Estiverne v.

Louisiana State Bar Assn., 863 F.2d 371, 378-79 (5th Cir. 1989).

     The   only   plausible   argument   to   the   contrary   is   the

University’s contention that the Literature Policy’s prohibition of

anonymous leafleting functions as a mechanism for excluding non-

university-affiliated leafleters, thus preserving the campus for

student use.      This argument has some intuitive merit, but is

properly considered infra as an argument that the Literature Policy

serves a significant state interest, and thus survives strict

scrutiny, rather than as an argument for avoiding strict scrutiny

altogether.

     In sum, we hold that the University, through its own policies,

has designated the outdoor open areas of its campus generally

accessible to students     -- such as plazas and sidewalks –- as

public forums for student speech. As such, the Literature Policy’s



                                 16
prohibition of anonymous leafleting in such areas is subject to

strict scrutiny.

                                      III

     In order to survive First Amendment strict scrutiny, a content

neutral restriction on speech must be narrowly tailored to a

significant state interest and must leave open ample alternative

channels of communication.14     See, e.g., Perry Education Assn., 460

U.S. at 45.    The University contends that the basic function of the

Literature Policy is to allow University officials to identify the

source of a given piece of literature and thereby prevent non-

affiliated    persons   or   groups   from     distributing    literature   on

campus.    As such, the University argues, the Literature Policy

serves a significant state interest by preserving the campus for

speech by students, faculty, and staff.

     JFA     contends   that   the    University’s     forum    preservation

rationale is largely pretextual. It argues that the Literature

Policy is underinclusive for the purpose of preventing on-campus

speech by non-affiliated persons.           JFA observes that, although the


     14
       JFA contends that the district court erred in classifying
the Literature Policy as a content neutral restriction on speech.
Instead, JFA asserts, the policy is a content-based restriction,
insofar as it requires personal or group identification on the
literature itself, and therefore must be (1) narrowly tailored to
a “compelling government interest” and (2) the least restrictive
alternative available to the government. See, e.g., United States
v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
Because the Literature Policy fails to satisfy either formulation
of strict scrutiny, we will assume, arguendo, that the Literature
Policy is content neutral and that the less demanding test applies.

                                      17
Regents    Rules    prohibit      non-affiliated     persons   from   using   the

University campus for speech of any type, the University’s attempts

to preserve the forum for students by prohibiting anonymous speech

extend only to the distribution of literature.                  Other forms of

anonymous speech, such as signs and oratory, are permitted.

      The space available for distribution of literature by students

is   reduced   to    the   same    extent    where   a   non-affiliated   person

communicates via anonymous picketing, as opposed to anonymous

leafleting.        Because the University prohibits the latter while

permitting the former –- and presents no compelling argument as to

why the two ought to be distinguished for purposes of “forum

preservation” -- we agree that the credibility of its rationale is

diminished.    See City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994).15

      Nonetheless, we are persuaded that, as a general principle,

the government does have a significant interest in preserving the

      15
        The credibility of the University’s rationale is further
eroded by the Literature Policy’s ineffectiveness at accomplishing
even the narrow objective that the University has elected to pursue
–- i.e., preserving the campus forum by prohibiting anonymous
leafleting by non-affiliated persons. The University concedes that
the main practical effect of the Literature Policy is to permit
officials to collect anonymous leaflets “that have been detached
from their speaker” and are “floating around the campus”.

     Removing abandoned literature after it has been distributed
does little to free up space for legitimate distribution by
students.    Indeed, it would appear that a more plausible
explanation for the Literature Policy is the University’s interest
in the prevention and removal of litter –- a justification the
University advanced before the district court but abandoned on
appeal.



                                        18
campuses of      public    colleges   and    universities     for    the   use   of

students. As such, we will assume that the narrow purpose actually

served by the Literature Policy –- i.e., preserving outdoor areas

of the campus specifically for leafleting by students –- likewise

represents a significant state interest.

     In addition, it is clear that the Literature Policy leaves

open “ample alternative channels of communication” for students.

See Perry Education Assn., 460 U.S. at 45.                As JFA acknowledges,

numerous forms of anonymous speech –- including oratory, public

displays, and signs –- remain available for students who wish to

employ them.

     The   crux       of   our   analysis    is     the    “narrow    tailoring”

requirement.     A regulation is narrowly tailored when it “does not

burden substantially more speech than is necessary to further the

government’s legitimate interest”.           Hays County Guardian, 969 F.2d

at 118 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799

(1989)).   Even a legitimate interest cannot justify a restriction

if the latter accomplishes its goal at “an inordinate cost to

speech”.   Id.

     The University contends that the Literature Policy is narrowly

tailored because “the campus forum is defined by who can speak”,

and thus, a speaker’s identity “is the necessary admission pass to

use this forum at all”.          This argument misses the finer point at

issue.     It    is    undoubtedly    true   that    the    Literature     Policy

represents one method of identifying a given speaker.                The “narrow

                                       19
tailoring” inquiry, however, asks whether that particular method

burdens substantially more speech than is necessary. In short, the

relevant question today is not whether the university may require

an “admission pass” to leaflet on campus, but whether that “pass”

need be printed on every leaflet that a student distributes and

reveal his identity to everyone.

     We hold, as we must, that the Literature Policy is not

narrowly tailored to the state’s interest in “forum preservation”.

The essence of the University’s “forum preservation” rationale is

the need of certain University officials to know whether a given

leafleter is or is not affiliated with the University, such that,

if he is not, he (and his leaflets) can be removed.    By contrast,

the Literature Policy requires that the speaker identify himself,

not just to certain University officials, but to every person who

receives the literature being distributed.    As the district court

observed:

            There are far more direct means through which
            the University can prevent non-students from
            leafleting on the UT Campus, which would be
            far less burdensome on speech. ... In order
            to enforce its policy, the University could
            direct its staff to ask suspected non-students
            engaging in leafleting to show a University
            identification card.    If the distributor of
            the leaflet is a non-student, then the
            University could ask that individual to leave
            campus.

Although the procedure outlined by the district court might require

a student distributing leaflets to identify himself to a University


                                 20
official, it would burden substantially less speech than the

Literature Policy’s requirement that every leaflet handed out

identify the student.

      We recognize that any alternative policy aimed at preserving

the campus for student use will likewise involve some loss of

speaker anonymity.         Moreover, alternative policies may yield new

administrative challenges.        The University contends, for example,

that requiring leafleters to show identification to University

officials might (1) lead to claims of selective enforcement, and

(2)   increase      the   frequency   of   confrontations     with   University

police.

      We do not presume to tell the University precisely how it

should go about preventing unauthorized use of its campus.                   In

response to the concerns raised above, however, we make two general

observations.       First, the University is responsible for ensuring

the even-handed enforcement of all of its regulations relating to

speech. To the extent that a change in policy creates a perception

of selective enforcement, transparency and open dialogue would

appear    to   be   better   remedies      than   overbroad   restrictions   on

expression.

      Second, as to concerns regarding increased confrontation with

University police, the University is perfectly capable of providing

students with alternatives –- that is, with some choice as to the

means of identification. In particular, we do not suggest that the

method of identification prescribed by the Literature Policy would

                                        21
be constitutionally impermissible if alternate, less intrusive,

means were also made available to students.             By the University’s

own admission, a majority of student organizations voluntarily

identify   themselves   on   the   literature    they    distribute.     The

minority who choose not to do so might be given the choice of

showing    identification    at    the   point     of    distribution,   or

alternatively, advising a single designated officer beforehand that

a distribution will occur at a given time and place, thereby

eliminating the need to interrupt the act of distribution itself.

Regardless of the precise method or methods employed, however, the

University must offer student leafleters some choice as to the

means of identification that does not involve disclosing name or

organizational affiliation to all who receive the message.

     In sum, we reiterate that, where the government designates a

forum for use by a given class of speaker, it is nearly inevitable

that those who wish to make use of the forum will be required to

sacrifice some measure of anonymity.             The Literature Policy’s

requirement that speakers identify themselves to every person who

receives their message, however, sacrifices far more anonymity than

is necessary to effectively preserve the campus forum for its

intended beneficiaries.      As such, the Literature Policy is not

narrowly tailored to a significant government interest, and thus,

is invalid under the First Amendment. Accordingly, the judgment of

the district court is affirmed in this respect.

                                    IV

                                    22
     Finally, having concluded our First Amendment analysis, we

turn to the remedy ordered by the district court.             Although JFA

asked     the   district   court   to    declare   the   Literature   Policy

unconstitutional on its face, the court enjoined enforcement of the

policy only as it applied to JFA.

     In its brief, JFA asks this court to alter the district

court’s ruling on the breadth of its holding, direct the district

court to declare the Literature Policy unconstitutional on its

face, and order the Literature Policy permanently enjoined across

the board.      Because JFA did not cross-appeal from the district

court’s judgment, however, we lack jurisdiction to expand the scope

of the remedy ordered.       See Ayers v. United States, 750 F.2d 449,

457 (5th Cir. 1985); United States v. American Rwy. Express Co.,

265 U.S. 425, 435 (1924) (absent cross-appeal, “appellee may not

attack the decree with the view either to enlarging his own rights

thereunder or of lessening the rights of his adversary”).

     Nonetheless, we express two basic concerns as to the district

court’s remedy.     First, it is apparent that a facial challenge to

the Literature Policy was appropriate and was made in this case.16

     16
       See Board of Airport Commissioners v. Jews for Jesus, Inc.,
482 U.S. 569, 574 (1987) (“an individual whose own speech or
conduct may be prohibited is permitted to challenge a statute on
its face because it also threatens others not before the court”);
see also Watchtower Bible & Tract Society of New York, Inc. v.
Village of Stratton, 536 U.S. 150, 167 n.14 (2002) (“We may,
therefore, consider the impact of this ordinance on the free speech
rights of individuals who are deterred from speaking because the
registration provision would require them to forgo their right to
speak anonymously.”).

                                        23
Nowhere in the court’s order or in the magistrate judge’s rather

extensive report, however, is the rationale set forth for rejecting

JFA’s facial challenge.            Our review of the record has discerned no

material differences between the Literature Policy’s impact on JFA

and its impact on other students or student organizations.                            We

therefore see no clear reason why an “as applied” invalidation was

ordered in this case.

      Equally unclear is how the University might cease enforcement

of   the   Literature        Policy   against     JFA    in   particular       without

abandoning        the    policy    altogether.      How,      for   example,     is   a

University        official    to    respond   if    he     encounters      a   person

distributing literature that does not identify its source?                            It

would appear that, in all such cases, the official would have to

assume     that    the    distributor    is   a    member     of    JFA,   acting     in

accordance with the district court’s order.                As such, it seems that

an injunction barring enforcement of the Literature Policy “as

applied” to JFA would operate as a de facto facial invalidation.

      Given this rather strange result, we think it prudent to

remand the case to the district court.                   The court may wish to

reconsider JFA’s injunction request.

                                          V

      For the reasons set forth above, we AFFIRM the holding and

judgment of the district court that the Literature Policy violates

the First Amendment, but REMAND to the allow the district court, at



                                         24
its option,   to   alter   its   injunction   to   bar   the   University’s

Literature Policy across the board.

                                                   AFFIRMED and REMANDED.




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