                          UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 09-1892


ROCK FOR LIFE-UMBC, an unincorporated student association,
for itself and its individual members; OLIVIA RICKER,
individually and as an officer of Rock for Life-UMBC;
MIGUEL MENDEZ, individually and as an officer of Rock for
Life-UMBC,

              Plaintiffs - Appellants,

         v.

FREEMAN A. HRABOWSKI, individually and in his capacity as
President of University of Maryland, Baltimore County;
CHARLES J. FEY, in his individual capacity as former Vice
President of Student Affairs at University of Maryland,
Baltimore County; NANCY L. YOUNG, individually and in her
official capacity as Interim Vice President of Student
Affairs at the University of Maryland, Baltimore County; LEE
A. CALIZO, individually and in her official capacity as
Acting Director of Student Life at University of Maryland,
Baltimore County; JOSEPH REIGER, individually and in his
official capacity as Executive Director of the Commons at
University of Maryland, Baltimore County; ERIC ENGLER,
individually and in his official capacity as Acting Director
of the Commons at University of Maryland, Baltimore County;
LYNNE SCHAEFER, individually and in her official capacity as
Vice President of Administration and Finance at the
University of Maryland, Baltimore County; ANTONIO WILLIAMS,
individually and in his official capacity as Chief of Police
for the University of Maryland, Baltimore County Police
Department,

              Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:08-cv-00811-JFM)
Argued:   September 21, 2010          Decided:   December 16, 2010


Before NIEMEYER and KING, Circuit Judges, and Robert J. CONRAD,
Jr., Chief United States District Judge for the Western District
of North Carolina, sitting by designation.


Affirmed by unpublished opinion.     Judge Conrad wrote the
opinion, in which Judge Niemeyer joined.  Judge King wrote a
separate opinion concurring in part, dissenting in part, and
concurring in the judgment.


ARGUED: David Austin French, ALLIANCE DEFENSE FUND, Columbia,
Tennessee, for Appellants.     Sally Lotz Swann, OFFICE OF THE
ATTORNEY   GENERAL   OF   MARYLAND,  Baltimore,  Maryland,   for
Appellees.    ON BRIEF: Joseph J. Martins, Travis C. Barham,
ALLIANCE DEFENSE FUND, Columbia, Tennessee; Steven L. Tiedemann,
JPB ENTERPRISES, INC., Columbia, Maryland, for Appellants.
Douglas F. Gansler, Attorney General, Anne L. Donahue, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
CONRAD, Chief District Judge:

       Rock for Life-UMBC, a registered student organization at

the University of Maryland, Baltimore County (“UMBC”) and two of

its former student-members appeal an award of summary judgment

and judgment on the pleadings to the defendants, UMBC officials,

on    several     First       Amendment    claims    brought      under   42   U.S.C.    §

1983. For the reasons that follow, we affirm.



                                            I.

       UMBC is a public honors university located in Baltimore,

Maryland,         with        an    enrollment       of     approximately         13,000

undergraduate           and    graduate     students.      Rock     for    Life     is   a

registered student organization at UMBC with a stated mission

“to defend the right of the unborn and to awake consciousness

and    awareness        in    the   UMBC   community       about    the   catastrophic

effects of abortion for all persons involved and our moral duty

to stop its practice.” Joint Appendix (“JA”) 17. 1 In April 2007,

Rock       for   Life    submitted    a    request    to    UMBC    to    reserve    non-

       1
       At oral argument, counsel for the defendants informed the
Court that Rock for Life is as of recently no longer a
registered student organization at UMBC. Because the evidence
supporting this factual development was not made clear, nor is
Rock for Life’s current status at UMBC material to a number of
its claims, we assume for purposes of this decision that Rock
for  Life   continues  to   operate  as  a   registered  student
organization.

                                             3
academic campus space in order to display a series of posters

known as the Genocide Awareness Project (the “GAP display”). The

display is described by its sponsor, the Center for Bio-Ethical

Reform, as

       a traveling photo-mural exhibit which compares the
       contemporary genocide of abortion to historically
       recognized forms of genocide. It visits university
       campuses around the country to show as many students
       as possible what abortion actually does to unborn
       children and get them to think about abortion in a
       broader historical context.

Id. at 253, 254-55. There are twenty-four different GAP posters,

and    each    comes   in    a   six-foot     by    thirteen-foot       “standard”   or

four-foot by eight-foot “mini-GAP” display size.

       At     the   time    of   Rock   for     Life’s     initial      request,    UMBC

operated      under    a    facilities      use     policy   designed      to   provide

recognized      student     organizations          with   access   to    academic    and

non-academic university property. UMBC evaluated requests based

on “room appropriateness,” and it reserved the right to deny any

request “dependent upon circumstances.” Id. at 234. The policy

also stated that “[s]cheduling may move an event to a different

location without notice. UMBC is not responsible for any costs

incurred by a user resulting from a change in location.” Id. at

235.

       Rock for Life initially sought permission to present the

GAP display at the University Center Plaza, a facility located
                                            4
at the center of several academic buildings on the western side

of campus. The request was first sent to Lee Calizo, director of

student life, for approval. On April 24th, Calizo emailed then-

acting Rock for Life president Alex Vernet to inform him that

she had viewed a website associated with GAP and was concerned

that placing “7 ft tall by 22 ft wide” signs in front of the

Plaza entrance would restrict access to the building. Id. at

824. In fact, Rock for Life only planned to display four-foot by

eight-foot “mini-GAP” signs. However, it does not appear that

Rock for Life brought this discrepancy to Calizo’s or any other

UMBC official’s attention during their subsequent negotiations.

     As word spread of Rock for Life’s request to show the GAP

display,     UMBC    officials    discussed   how    best   to    handle   the

controversial nature of the event. The plaintiffs allege Chris

Tkacik, UMBC’s in-house counsel, stated that students might feel

“emotionally harassed” by the display, and UMBC had a right to

prevent    such     harassment.   The   plaintiffs   contend     this   alleged

comment implicated two additional UMBC speech policies then in

place. The first is former Article V, Paragraph B(2)(f) of the

Code of Student Conduct, which prohibited “physical or emotional

harassment,” although this term was not further defined. Id. at

62. The second is UMBC’s prohibition against sexual harassment,

defined as



                                        5
     unwelcome sexual advances, requests for sexual favors,
     and other verbal or physical conduct of a sexual
     nature when:

          (1) Such conduct has the purpose or effect of
     unreasonably interfering with an individual’s academic
     or work performance, or of creating an intimidating,
     hostile,   or   offensive    educational  or   working
     environment; or
          (2) Submission to such conduct is made either
     explicitly or implicitly a term or condition of
     employment or for participation in a UMBC-sponsored
     educational program or activity; or

          (3) Submission to or rejection of such conduct by
     an individual is used as the basis for academic or
     employment decisions.

JA 51. A violation of either provision subjects a student to a

range       of   possible   disciplinary       measures,      including   suspension

and expulsion from the university.

     During        a   meeting   between       UMBC,   Rock    for   Life,   and   the

Leadership Institute, 2 Rock for Life presented UMBC with a letter

requesting a uniformed police presence during the GAP display

due to “numerous unprovoked physical attacks from pro-abortion

students” during previous exhibitions. Id. at 270. Further, it

was Rock for Life’s position that the First Amendment required

UMBC to pay the cost of this security measure. The parties,

however, never reached a definite agreement on whether police

should be assigned to the event, and if so, who should pay for

the costs.

        2
       The Leadership Institute is a non-profit organization that
assisted Rock for Life in bringing the GAP display to UMBC.


                                           6
        On April 25th, 2007, Calizo informed Rock for Life that the

GAP display would not be allowed at the University Center Plaza,

but could be held at the Commons Terrace instead. The Commons

Terrace is a patio area adjacent to the Commons, described as

the “hub of student life on campus,” and its positioning within

the campus makes it a “congestion point” between residence halls

and other campus buildings. Id. at 835, 1356. Rock for Life

found the Terrace to be a desirable location and agreed to this

compromise. However, Joseph Reiger, Executive Director of the

Commons, soon expressed concern that the Terrace was also an

inappropriate place for the GAP display. He described steps on

the Terrace as hazardous because they are not in a “known sight

line.”    (JA     1356).    He    further       stated   that    like    Calizo,   he

understood the GAP display to include about twelve five-foot by

thirteen-foot         signs.     Based    on     these   circumstances,        Reiger

thought the Terrace was an unsuitable venue for three reasons:

(1) the GAP signs were too much of a “visual barrier” for that

location; (2) the GAP display would not leave adequate space for

pedestrians wishing to access the Commons through the Terrace

entrance;       and   (3)   the    area    would     become     too    congested   if

students had to “flee” from a violent altercation resulting from

the display. Id. at 1363. Reiger further stated that his concern

about     violence      arose     because       of   Rock     for     Life’s   letter



                                            7
requesting security, not his past experience with the group or

UMBC’s student body.

     Based largely on Reiger’s recommendation, Charles Fey, Vice

President of Student Affairs, decided to move the GAP display

once more from the Commons Terrace to the North Lawn, an open

space between the Commons, residence halls and main library.

Rock for Life members were informed of this decision by Eric

Engler, acting director of the Commons, on the morning of April

30th as they attempted to set up the GAP display on the Commons

Terrace. Rock for Life then moved the display to the North Lawn,

where     it    was    held    without   a    police    presence     and    without

incident. The plaintiffs contend that surveillance footage from

that day indicates the North Lawn saw less foot traffic than the

Terrace,       and    thus   fewer   students   were    able   to   view   the   GAP

display and its message.

        In November 2007, Rock for Life made a second attempt to

reserve    the       Commons   Terrace    for   an     exhibition    of    the   GAP

display. UMBC responded that as before, the GAP display would be

permitted only on the North Lawn. Rock for Life decided not to

hold the event.

        The plaintiffs later filed suit under 42 U.S.C. § 1983 in

the District of Maryland, alleging that UMBC had violated their

right to free expression through the enforcement of its sexual

harassment policy, its policy prohibiting emotional harassment

                                          8
and, most directly, its facilities use policy. Calizo, Reiger,

Engler and Fey were named in both their individual and official

capacities, as were Freeman Hrabowski, President of UMBC, Nancy

Young, successor to Fey as Vice President of Student Affairs,

Lynne Schaeffer, Vice President of Administration and Finance

and Antonio Williams, University Chief of Police. 3 The complaint

sought permanent injunctive relief against enforcement of all

three policies as well as nominal and punitive damages. UMBC

later       agreed,    however,     to    partially          address   the    plaintiffs’

claims       by   striking       “emotional         harassment”     from     the   list   of

prohibitions          in   its    code    of    conduct       and   replacing      it   with

“failure to cease repetitive unwanted behavior directed toward a

particular individual or individuals.” JA 81. UMBC also revised

its   facilities           use   policy    by       adding    specific     criteria       for

denying or moving an event, but the sexual harassment policy

remained unchanged. After the facilities use policy was revised,

Rock for Life made a third request in October 2008 to reserve

the Commons Terrace for an exhibition of the GAP display. UMBC


        3
       The district court held that Hrabowski, Young, Schaeffer,
and Williams were immune from liability because the plaintiffs
failed to present any evidence of their personal or supervisory
involvement in the state action giving rise to this lawsuit. See
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (only a
supervisor who exhibits “deliberate indifference to or tacit
authorization of” a subordinate’s constitutional violations may
be held responsible under § 1983). The plaintiffs do not
challenge this finding on appeal.


                                                9
granted    this    request,      and    the     GAP    display    was   held       on   the

Commons Terrace without incident.

        In light of these developments, the plaintiffs filed an

amended complaint withdrawing their claims for injunctive relief

against enforcement of UMBC’s code of conduct and facilities use

policy.    The    amended      complaint      alleged     five    causes      of    action

under § 1983, better expressed in terms of the speech policies

they    challenged:      (1)    First   Amendment        and   Due    Process       claims

against     UMBC’s    sexual     harassment        policy,       seeking    injunctive

relief as well as monetary damages; and (2) First Amendment, Due

Process    and    Equal     Protection        claims    against      UMBC’s      code   of

conduct    and    facilities      use     policy,      seeking     monetary        damages

only.

        Finding   that    the    plaintiffs        lacked      standing     to     assert

claims for injunctive relief against the code of conduct and

sexual harassment policy, the district court granted judgment on

the pleadings to the defendants on those claims under Federal

Rule of Civil Procedure 12(c). Rock for Life-UMBC v. Hrabowski,

594 F. Supp. 2d 598 (D. Md. 2009) (hereafter “Rock for Life I”).

After    discovery,      the    parties    filed       cross-motions       for     summary

judgment on the plaintiffs’ remaining claims. The district court

awarded judgment to the defendants, finding that the plaintiffs’

facial challenge to the former facilities use policy was moot,

and the policy had been applied without regard to content as a

                                           10
reasonable time, place, and manner regulation of their speech.

Rock for Life-UMBC v. Hrabowski, 643 F. Supp. 2d 729 (D. Md.

2009) (hereafter “Rock for Life II”).

      The plaintiffs timely appealed the district court’s orders

granting judgment on the pleadings and summary judgment to their

First Amendment claims only. We have jurisdiction pursuant to 28

U.S.C. § 1291.



                                  II.

      We review a district court’s decision to grant judgment on

the pleadings under Rule 12(c) de novo. Independence News, Inc.

v. City of Charlotte, 568 F.3d 148, 154 (4th Cir. 2009). “In

reviewing an award of judgment on the pleadings, we assume the

facts alleged in the relevant pleadings to be true, and we draw

all   reasonable   inferences   therefrom.”    Volvo   Const.   Equip.    N.

Am., Inc., v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir.

2004).

      We also review an award of summary judgment de novo under

the same standard applied by the district court. See Canal Ins.

Co. v. Distrib. Servs., Inc., 320 F.3d 488, 491 (4th Cir. 2003).

Summary   judgment   shall   be   granted     “if   the   pleadings,     the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

                                   11
Fed. R. Civ. P. 56(c). When ruling on a summary judgment motion,

a    court   must    view       the       evidence    and       any   inferences          from   the

evidence in the light most favorable to the nonmoving party.

Anderson     v.     Liberty      Lobby,       Inc.,       477    U.S.    242,       255     (1986).

“‘Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no

genuine issue for trial.’”                  Ricci v. DeStefano, 129 S. Ct. 2658,

2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S.

574, 587 (1986)).

       Because      the    plaintiffs’          §    1983       claims       seek   to      recover

damages,     they     must       establish          not    only       that    the     defendants

deprived     them     of    a    constitutional           right,       but     also      that    the

defendants, state actors sued in their individual capacities,

are undeserving of qualified immunity. See Harlow v. Fitzgerald,

457 U.S. 800, 808-09 (1982). Whether a government official is

deserving of qualified immunity from personal liability is a

two-pronged inquiry that requires us to determine: (1) whether

the   official      violated          a    constitutional         right;      and     if    so   (2)

whether the right was “clearly established” at the time of its

violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Recently

the Supreme Court overruled Saucier in part to hold that the

traditional       two-step       inquiry        into      qualified          immunity       is   not

mandatory; “the district courts and the courts of appeals should

be    permitted     to     exercise         their    sound       discretion         in     deciding

                                                12
which    of      the    two     prongs    of     the    qualified         immunity        analysis

should be addressed first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan, 129 S. Ct. 808,

813, 818 (2009). In this case, the district court addressed step

one of the inquiry and, after concluding that the plaintiffs

failed      to    present        sufficient           evidence       of   a    constitutional

violation, found it unnecessary to address step two.



                                               III.

       We     begin     with     the     district       court’s      conclusion           that   the

plaintiffs lack standing to challenge UMBC’s sexual harassment

policy and code of conduct. “[S]tanding jurisprudence contains

two     strands:         Article         III     standing,        which        enforces           the

Constitution’s           case-or-controversy                 requirement        .     .     .     and

prudential        standing,        which       embodies        judicially           self-imposed

limits      on    the        exercise    of    federal        jurisdiction.”          Elk       Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Article III

standing requires a plaintiff to show: (1) injury-in-fact; (2) a

causal connection or traceability; and (3) redressability. Lujan

v.    Defenders         of    Wildlife,       504     U.S.    555,    560-61        (1992).       The

injury-in-fact criteria contemplates that the alleged injury-in-

fact     is      both        “concrete     and      particularized            and    actual       or

imminent.” Id. at 560.                   The term “particularized” means that

“the     injury        must     affect     the        plaintiff      in    a    personal         and

                                                 13
individual way.” Id. at 560 n.1. In addition, “there must be a

causal connection between the injury and the conduct complained

of . . . .” Id. at 560. Stated differently, the injury must be

“fairly traceable” to action by the defendant. Id. Finally, “it

must    be      likely,    as    opposed   to       merely     speculative,          that   the

injury will be redressed by a favorable decision.” Id. at 561

(internal quotation marks omitted).

       A     regulation     that    burdens         speech     creates      a   justiciable

injury if on its face it restricts expressive activity by the

class      to    which     the    plaintiff         belongs,    or    if    its      presence

otherwise        tends    to     chill   the    plaintiff’s          exercise        of   First

Amendment rights. N.C. Right to Life, Inc. v. Bartlett, 168 F.3d

705, 710 (4th Cir. 1999). However, fears of enforcement that are

“imaginary” or “wholly speculative” are insufficient to confer

standing. Babbitt v. United Farm Workers Nat’l Union, 442 U.S.

289,    302      (1979).    To    establish         a   plaintiff’s        standing       under

Article III, the challenged regulation must present a credible

threat     of    enforcement       against      the     party    bringing        suit.      N.C.

Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir.

1999). A plaintiff must establish such a threat with respect to

each    of      the   provisions     it    seeks        to   challenge,         as   standing

regarding one aspect of a policy cannot be bootstrapped into

standing as to the rest.                 See Covenant Media of S.C., LLC v.

City of N. Charleston, 493 F.3d 421, 429-30 (4th Cir. 2007).

                                               14
                                           A.

      The    plaintiffs     argue        that   their    standing           to   challenge

UMBC’s      sexual      harassment          policy       is      rooted          in     its

unconstitutional       overbreadth.        However,      while        the    overbreadth

doctrine permits a plaintiff to “challenge a statute on its face

because it also threatens others not before the court[,]” Bd. of

Airport     Comm’rs    v.   Jews    for    Jesus,     Inc.,     482    U.S.      569,   574

(1987); accord Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973),

it does not circumvent the requirement that a plaintiff suffer

an    individual      injury      from    the   existence       of     the       contested

provision to begin with. Burke v. City of Charlestown, 139 F.3d

401, 405 n.2 (4th Cir. 1998); Gilles v. Torgersen, 71 F.3d 497,

501 (4th Cir. 1995) (citing Sec’y of Md. v. Joseph H. Munson

Co., Inc., 467 U.S. 947, 958 (1984)). To demonstrate a credible

threat that a sexual harassment policy is likely to be enforced

in the future, a history of threatened or actual enforcement of

the   policy   against      the    plaintiff     or     other    similarly-situated

parties will often suffice. See Lopez v. Candaele, --- F.3d ----

, 2010 WL 3607033, at *6 (9th Cir. Sept. 17, 2010); Booher v.

Bd. of Regents, No. 2:96cv135, 1998 U.S. Dist. LEXIS 11404, at

*19-20 (E.D. Ky. July 21, 1998); Doe v. Univ. of Michigan, 721

F. Supp. 852, 859-60 (E.D. Mich. 1989).

      The    plaintiffs     cite     the    recent      Third     Circuit         decision

McCauley v. University of the Virgin Islands, --- F.3d ----,

                                           15
2010 WL 3239471 (3d Cir. Aug. 18, 2010), for the proposition

that   Broadrick        and       its    progeny      confer         standing       to     challenge

speech regulations absent evidence of a chilling effect to the

particular speaker before the court. See id. at *3 (holding that

a   plaintiff     had       standing       to    challenge           a     university’s       sexual

harassment policy despite the fact that he failed to assert that

“his   speech     .     .     .    was    chilled         by    the        Code.”).      Broadrick,

however,       cannot       be     read    so     broadly.           While    the     overbreadth

doctrine relaxes prudential limitations on standing that would

normally prevent a plaintiff from vindicating the constitutional

rights     of    other       speakers,          it    does          not    dispense        with   the

“obligat[ion]      as       an     initial      matter         to    allege    a    distinct      and

palpable injury as required by Article III.” Burke, 139 F.3d at

405 n.2; accord Canatella v. State of California, 304 F.3d 843,

854 & n.14 (9th Cir. 2002) (Broadrick relaxes prudential, but

not Article III, standing requirements).

       Upon review of the facts alleged in the plaintiffs’ amended

complaint, nothing suggests that the plaintiffs face a credible

threat    of    disciplinary            action       under      UMBC’s       sexual      harassment

policy.    As    the     district         court       noted,         no    aspect     of    the   GAP

display    is    readily          applicable         to   the       policy’s       definition      of

“sexual    harassment,”             which       is    limited         to     “unwelcome       sexual

advances,       requests          for    sexual       favors,         and    other       verbal   or

physical conduct of a sexual nature . . . .” Although the GAP

                                                 16
display seeks to convey a message related to abortion, which

necessarily        touches        upon   issues       related       to     gender       and

reproduction, this type of speech is simply not “conduct of a

sexual nature” covered by the policy. Moreover, the plaintiffs

do     not   allege      facts     suggesting        that    UMBC    officials         ever

threatened to punish their speech as sexual harassment. Even if

Tkacik expressed concern, as the amended complaint alleges, that

students       would       feel    “emotionally        harassed”         by     the     GAP

demonstration, he did not express concern that students would

feel    sexually        harassed,    nor   is      there     any    suggestion         that

disciplinary       enforcement      of   the    sexual      harassment        policy    was

discussed at any point. More to the point, Rock for Life has now

shown    the      GAP   display     on   campus      twice    and    has      not     faced

threatened or actual disciplinary action for sexual harassment.

Although the plaintiffs claim a chilling effect to their speech,

they were unable at oral argument to name any form of expressive

activity that Rock for Life or its members wish to engage in,

but refrain from in fear of violating UMBC’s sexual harassment

policy.      We    hold,    therefore,      that      the    plaintiffs        have     not

demonstrated        a   credible     threat     of    enforcement        under      UMBC’s

sexual harassment policy and are without standing to challenge

its constitutionality.




                                           17
                                        B.

     Tkacik’s alleged comment had more relevance to UMBC’s code

of conduct, which prohibited “emotional harassment” until that

phrase    was    excised   from   the   code    during   the     course   of   this

litigation. As a result, the plaintiffs concede that the code of

conduct    is    no    longer   unconstitutionally       vague    or   overbroad.

Nevertheless, the plaintiffs assert standing to sue for monetary

damages on the theory that Tkacik’s mention of the phrase caused

them to chill their own speech.

     We have recognized that an actual chilling of protected

speech is a discrete infringement of First Amendment rights that

gives rise to a claim under § 1983 for at least nominal damages.

See Reyes v. City of Lynchburg, 300 F.3d 449, 453 (4th Cir.

2002). However, the plaintiffs may not assert claims for damages

against a speech policy that was never actually applied to them.

In order to establish their standing to challenge UMBC’s code of

conduct, the plaintiffs must first demonstrate an injury-in-fact

through the application of that provision. Covenant Media of

S.C., LLC v. City of North Charleston, 493 F.3d 421, 429-30 (4th

Cir. 2007) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

230 (1990)). While the plaintiffs claim that the code of conduct

caused    them    to   chill    their   own    speech,   “[a]llegations        of   a

subjective ‘chill’ are not an adequate substitute for a claim of

specific present objective harm . . . .” Laird v. Tatum, 408

                                        18
U.S. 1, 13-14 (1972). “[F]or purposes of standing, subjective

chill requires some specific action on the part of the defendant

in order for the litigant to demonstrate an injury-in-fact.”

Morrison v. Board of Educ., 521 F.3d 602, 609 (6th Cir. 2008).

      In   this       case,    UMBC     never    undertook           a    “concrete    act”     to

investigate or sanction the plaintiffs for violation of the code

of conduct. Id. at 610. Nor can the plaintiffs characterize the

defendants’ decision to move the GAP display to the North Lawn

as a non-disciplinary enforcement of the code. If the defendants

considered the display to be emotional harassment, then it was

equally so on either the North Lawn or the Commons Terrace. Any

subjective       fear    of    disciplinary         measures         that    the   plaintiffs

might have felt never materialized into an actual, objective

harm.    Nor     is   there     a    credible       threat      of       enforcement      in   the

future, as the sexual harassment policy has been revised so that

it   now   prohibits        specific        conduct       the   plaintiffs         have    never

sought     to    engage       in.    The    plaintiffs’         mere      allegations      of   a

chilling effect, absent any substantiating action taken by UMBC,

cannot          establish           their      standing          to         challenge          the

constitutionality of a now-defunct speech regulation.



                                              IV.

      Unlike      UMBC’s       sexual       harassment      policy         and   its   code     of

conduct,       UMBC    actually       applied       its   facilities         use   policy       to

                                               19
regulate the plaintiffs’ speech. As such, they have standing to

challenge its constitutionality. The plaintiffs assert a facial

challenge     to   the   policy,    alleging          that    its    “dependent    upon

circumstances” and “move without notice” provisions failed to

create “narrow, objective, and definite standards to guide the

licensing authority,” Green v. City of Raleigh, 523 F.3d 293,

300   (4th    Cir.    2008)   (quoting         Forsyth       Cnty.    v.   Nationalist

Movement, 505 U.S. 123, 131 (1992)), as well as an as-applied

challenge to the defendants’ decision to remove the GAP display

from the Commons Terrace.

                                          A.

      Citing our decision in Valero Terrestrial Corp. v. Paige,

211 F.3d 112 (4th Cir. 2000), the district court held that the

plaintiffs’ facial challenge to the facilities use policy was

moot in light of its permanent revisions, which the plaintiffs

concede      are     sufficient     to     render        the         policy   facially

constitutional. Rock for Life II, 643 F. Supp. 2d at 740-41. In

Valero, which addressed the mootness of a plaintiff’s claim for

injunctive     relief      against        enforcement          of      several    state

regulatory     statutes,      we   held        that    “statutory       changes    that

discontinue a challenged practice are ‘usually enough to render

a case moot, even if the legislature possesses the power to

reenact the statute after the lawsuit is dismissed.’” 211 F.3d

at 116 (quoting Native Village of Noatak v. Blatchford, 38 F.3d

                                          20
1505, 1510 (9th Cir. 1994)). Valero, however, is inapposite to a

claim      brought            under     §        1983     to      recover        damages—either

compensatory or nominal—resulting from a prior suppression of

speech.       In       this    context,       we    have       held    that    even    permanent

remedial measures will not moot the claim. See Covenant Media,

493 F.3d at 429 n.4 (citing Henson v. Honor Comm. of the Univ.

of Va., 719 F.2d 69, 72 n.5 (4th Cir. 1983)); Reyes, 300 F.3d at

453.    But     while         the    plaintiffs’         cause    of    action       for    damages

remains       live,       their        claim       that     the       policy     was       facially

unconstitutional is moot.

       We addressed a similar issue in Reyes, where a plaintiff

sought     to      recover          nominal      damages       after    being     charged      with

violating          a    subsequently          repealed      parade      ordinance,          arguing

among other things that the ordinance was facially overbroad.

300 F.3d at 452. We found the plaintiff’s overbreadth challenge

to   the   ordinance           mooted       by     its    repeal,      observing       that    “the

repealed parade ordinance cannot now, if it ever did, reach any

amount of constitutionally protected conduct. The question of

overbreadth does not present a live case or controversy for this

court.” Id. at 453 (footnote omitted). We reached this result

because       a        facial        challenge          premised       on      overbreadth       is

necessarily            forward-thinking:             it     petitions          the     court     to

invalidate an overbroad speech regulation because it has the

potential         to    support       “a    substantial          number     of   impermissible

                                                   21
applications . . . .” New York v. Ferber, 458 U.S. 747, 771

(1982).     When       a    facially    overbroad        regulation     is     subsequently

narrowed within constitutional boundaries, the inherent threat

of content-based discrimination becomes null.

       Here,      the       plaintiffs    allege         the   former     facilities        use

policy      was       facially     unconstitutional             because      it    delegated

“unbridled discretion” to UMBC to grant or deny requests. App.

Br.    at   55.        This,    too,    is   a       facial    challenge       premised      on

overbreadth.          See    Forsyth,     505    U.S.     at   129   (“[T]he      Court     has

permitted         a     party    to      challenge        an    ordinance         under     the

overbreadth doctrine in cases where every application creates an

impermissible risk of suppression of ideas, such as an ordinance

that        delegates            overly          broad         discretion          to       the

decisionmaker[.]”). The injury alleged by the plaintiffs is not

that Rock for Life’s request was actually denied based on the

content of its speech, for “[f]acial attacks on the discretion

granted      a        decisionmaker       are     not     dependent       on      the     facts

surrounding any particular permit decision.” Id. at 133 n.10

(citing Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,

770 (1988)). Rather, it is an assertion by the plaintiffs that

the facilities use policy granted UMBC such broad discretion

that it created a potential chilling effect on all protected

expression on campus, including their own. Id. at 129. If the

policy was indeed facially overbroad, UMBC’s permanent revisions

                                                22
cured    this     defect       and    removed       any       threat    of      content-based

enforcement in the future. The justiciable issue that remains

before    us    is     not    whether      Rock    for    Life’s       permit     was   denied

pursuant to a facilities use policy that gave UMBC unduly broad

discretion,       i.e.,       a    policy        that     could      have       been    applied

unconstitutionally,            but      whether         impermissible           content-based

discrimination did in fact occur. Because the facilities use

policy    no    longer       poses    an    inherent          threat    of      content-based

discrimination, the plaintiffs’ facial challenge to the policy

is moot notwithstanding the fact that it seeks the recovery of

damages rather than injunctive relief.

                                              B.

       Turning       to      the   plaintiffs’           as-applied         challenge,        the

district       court      correctly     determined            that   the     facilities       use

policy    regulated          access   to     a    limited       public       forum,     and    an

“internal standard” applied because the policy was designed to

provide access to recognized student organizations such as Rock

for Life. Rock for Life II, 643 F. Supp. 2d at 744-45. Under

this     standard,         content-neutral          regulations            of    speech       are

permissible if they are “limited to ‘reasonable restrictions on

time, place, or manner . . . [,] provided the restrictions . . .

are     narrowly       tailored       to     serve        a     significant        government

interest, and . . . leave open ample alternative channels for

communication of the information.’” Warren v. Fairfax Cnty., 196

                                              23
F.3d 186, 193 (4th Cir. 1999) (en banc) (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989)). A narrowly tailored

regulation of speech “need not be the least restrictive or least

intrusive      means    of”   effectuating       the    government’s      interests,

Ward, 491 U.S. at 798, but it may not “burden substantially more

speech than is necessary to further [those] . . . interests.”

Id. at 799. To be sure, “the First Amendment does not guarantee

the right to communicate one’s views at all times and places or

in any manner that may be desired.” Heffron v. Int’l Society for

Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). However,

the plaintiffs contend that whether the facilities use policy

was applied in a content-neutral manner is a question of fact

for the jury. We agree, although the question is a much narrower

one than the plaintiffs suggest.

     The defendants’ stated reasons for moving the GAP display

because of its size and shape are content-neutral criteria for

time, place and manner restrictions, see Am. Legion v. City of

Durham, 239 F.3d 601, 608 (4th Cir. 2001) (“Size . . . is not a

content   criterion.”),       and   the    plaintiffs         fail   to   demonstrate

sufficient evidence that these stated reasons were pretext. The

defendants believed the size and shape of the signs would have

created    a   visual    barrier    obscuring         steps    and   slopes   on   the

Commons Terrace, which Calizo characterized as an “oddly shaped

area.”    JA   715.    They   developed        this    concern   after     their   own

                                          24
internet research about the GAP project led them to believe that

Rock for Life planned to display a row of approximately twelve

six-foot by thirteen-foot GAP signs. In fact, Rock for Life’s

display only included eight four-foot by eight-foot “mini-GAP”

signs, which could be arranged in any shape to accommodate floor

space limitations. However, whether the defendants’ decision was

motivated    by    the    content     of    the   GAP    display     depends   on   the

circumstances as the defendants believed them to be, not as they

actually were. The emails exchanged between the parties should

have alerted the plaintiffs to this mistake and the defendants’

resulting    concerns         for   visibility     and   safety.     The   plaintiffs

never    attempted       to    correct     this   misunderstanding         during   the

challenged enforcement of the facilities use policy, nor have

the plaintiffs otherwise shown that the defendants arrived at

their conclusions about the GAP signs in bad faith. Although the

plaintiffs        have    presented         sufficient       evidence       that    the

defendants were mistaken about the size of the GAP signs, this

is not evidence relevant to the issue before us: whether their

decision was motivated by the content of the plaintiffs’ speech

rather than its manner of presentation.

     The    plaintiffs        also   suggest      that   the   defendants’     above-

stated     logistical         concerns      are    pretext     for     content-based

discrimination because numerous other events that posed similar

concerns were permitted on the Commons Terrace. We note that

                                            25
“[o]nce a limited or designated public forum is established the

government can not exclude entities of a similar character to

those generally allowed.” ACLU v. Mote, 423 F.3d 438, 443 (4th

Cir. 2005). From 2003 to 2008, a number of events with varying

attendance have been held on the Terrace during normal school

hours. 4 But of these events, none were shown to include large

signs similar to those UMBC believed it was dealing with. Thus,

there       is   a   content-neutral   basis   to   distinguish   these    other

events from the GAP display.

     A different matter is presented by the defendants’ stated

reason that they moved the GAP display to provide adequate space

for students to flee in the event of a violent altercation. This

concern was raised by UMBC in response to a request from Rock

for Life to provide a police presence at the GAP display, due to

“numerous unprovoked physical attacks” during prior exhibitions

at   other       campuses.   The   district    court   determined   that    the


        4
       These events include a free concert held from 1:00 p.m. to
2:00 p.m., attended by 50 people; an outdoor prayer service held
from 1:00 p.m. to 1:45 p.m., attended by 75 people; a student
involvement festival held from 11:00 a.m. to 2:00 p.m., attended
by 1,500 people; a study abroad fair held from 10:00 a.m. to
3:00 p.m., attended by 200 people; a “Bealtaine Barbeque” (a
Gaelic pagan festival) held from 12:00 p.m. to 2:00 p.m.,
attended by 25 people; a display erected by the sailing club
from 10:00 a.m. to 3:00 p.m.; a “Teeter Totter-a-thon”
fundraising   event   held  for   24   hours,   attended  by   60
participants; and an environmental fair held from 2:00 p.m. to
10:00 p.m., attended by 50 people and featuring an electric car
placed at the South entrance of the Terrace. JA 1673-90.


                                        26
defendants had not acquiesced to a “heckler’s veto” by moving

the GAP display because their concerns about crowd violence were

first raised by the plaintiffs. Rock for Life II, 643 F. Supp.

2d    at    746-47.      However,     regardless       of    who       raises    the   issue,

“[l]isteners’ reaction to speech is not a content-neutral basis

for regulation.” Forsyth, 505 U.S. at 134. It is difficult if

not    impossible        to    characterize        UMBC’s    heightened         interest      in

providing escape routes from the Commons Terrace as anything but

content-based. See Ovadal v. City of Madison, 416 F.3d 531, 537

(7th Cir. 2005) (a content-based restriction of speech is likely

when       “every      proffered     justification”         for    the    restriction         is

“directly related to the reactions” of the audience). While an

interest in public safety is a content-neutral basis to regulate

speech, see Davenport v. City of Alexandria, 710 F.2d 148, 151

(4th       Cir.   1983)       (en   banc),    safety    concerns         arising       from    a

prediction        of    how    listeners      might   react       to    speech    cannot      be

effectively         de-coupled      from     speech    content.         Although,      as   the

district court noted, the defendants “should not be faulted for

taking seriously the concerns raised by [the plaintiffs],” Rock

for Life II, 643 F. Supp. 2d at 747, those concerns arose from

the content of the plaintiffs’ message.

       Viewing         the    evidence   in    a    light    most      favorable       to   the

plaintiffs, it appears the defendants were motivated by both

content-based and content-neutral reasons when they denied Rock

                                              27
for    Life      access     to     the        Commons      Terrace.     A    content-based

restriction        of    speech    withstands         constitutional         scrutiny    only

when narrowly tailored and necessary to serve a compelling state

interest. Arkansas Educ. Television Comm’n v. Forbes, 523 U.S.

666,   677       (1998).    Even       were     we    to    find    UMBC’s     interest     in

protecting the safety of its students compelling, acquiescence

to a heckler’s veto would still fail under strict scrutiny, for

the defendants must employ the least restrictive means available

to further that interest. United States v. Playboy Entertainment

Group,    Inc.,     529    U.S.        803,    813    (2000).      Providing    a   security

presence      at    the     Commons           Terrace      would    have     been    a   less

restrictive means of ensuring student safety. This is especially

true in light of the fact that the defendants decided to move

the event before the GAP display was even set up, permitting

them   no     opportunity         to    make     an     assessment     of    how    students

actually reacted to the plaintiffs’ speech. The defendants could

not have been certain that any real threat of violence existed.

Given that Rock for Life has now held the GAP display twice on

campus without incident, it most likely did not.

       Although Rock for Life was permitted to present the GAP

display     on     the    North    Lawn,        where      its   message     was    heard   by

students walking across campus, “[a] tax based on the content of

speech does not become more constitutional because it is a small

tax.” Forsyth, 505 U.S. at 136. The plaintiffs have therefore

                                                28
demonstrated a violation of their First Amendment rights unless

the defendants could show, by a preponderance of evidence, that

absent any concerns of violence they would still have moved the

GAP display because of its size and shape. See Mt. Healthy City

School      Dist.   v.    Doyle,    429    U.S.   274,    287   (1977)   (a   First

Amendment violation must be the “motivating factor” behind a

challenged state action; no constitutional violation occurs if

the government can show by a preponderance of the evidence that

it would have taken the same action for other, constitutionally

proper, reasons); see also Daker v. Ferrero, 506 F. Supp. 2d

1295, 1309 (N.D. Ga. 2007) (applying the Mt. Healthy “proximate

cause”   framework        to   a   prisoner’s     First   Amendment      claim   for

suppression of speech).

      Because the plaintiffs have demonstrated a triable issue of

fact on their as-applied challenge to the facilities use policy,

we   hold    that   the    district       court   erred   by    awarding   summary

judgment to the defendants at the first prong of the Saucier

test for qualified immunity.



                                           V.

      Although the district court erred in this regard, we may

nevertheless affirm summary judgment if we determine as a matter

of law that the plaintiffs fail to demonstrate a violation of a

constitutional right that was clearly established. This is a

                                           29
“purely legal question . . . .” Siegert v. Gilley, 500 U.S. 226,

232    (1991).    It    requires       the    court    to    identify          “the   specific

right allegedly violated,” and then decide if “at the time of

the    alleged      violation      the       right    was     clearly          established.”

Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). “The

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer    that     his      conduct     was      unlawful     in    the       situation     he

confronted.” Saucier, 533 U.S. at 202. “To determine whether a

federal     right      was    clearly        established       at    the       time    of   the

defendants’ alleged conduct, we focus not upon the right at its

most    general     or       abstract    level,       but    at     the    level       of   its

application to the specific conduct being challenged.” Jackson

v. Long, 102 F.3d 722, 728 (4th Cir. 1996) (internal quotation

marks omitted). We are advised to resolve the issue of qualified

immunity     at     the      “earliest        possible      stage”        of     litigation.

Pearson, 129 S. Ct. at 815.

       The plaintiffs argue that the we may not address the issue

of    qualified     immunity      while       material      issues        of    fact   remain

concerning the defendants’ conduct or their intent. Generally

speaking,    “summary         judgment       on    qualified      immunity       grounds     is

improper as long as there remains any material factual dispute

regarding the actual conduct of the defendants.” Buonocore v.

Harris, 65 F.3d 347, 359-60 (4th Cir. 1995) (citing Pritchett,

                                              30
973 F.2d at 313). In Jackson, however, we recognized that “[i]f

. . . resolution of the factual dispute is immaterial to whether

immunity is to be afforded,” we may address the question of

qualified    immunity      while      fact    issues     remain     outstanding.       102

F.3d at 727.

      Here, the only issue of fact relevant to the plaintiffs’

as-applied       challenge     that    would      survive    summary        judgment    is

whether    the    defendants’       violence-related         safety    concerns      were

the proximate cause of their decision to remove the GAP display

from the Commons Terrace. While this is a fact issue relevant to

whether    the    plaintiffs      have    suffered       a   deprivation       of    their

First Amendment rights, it is one that we may resolve in their

favor for purposes of determining whether the defendants are

entitled    to    qualified     immunity.         The   defendants     maintain       that

they became concerned about the potential for violence after

Rock for Life presented UMBC with a letter asking for security

and   describing        violent       encounters        on   other    campuses.        The

plaintiffs       have    not   shown     this      concern    was     exaggerated       or

otherwise    not        sincerely      held. 5     Assuming,        then,     that     the

      5
        In briefing submitted to the district court, the
plaintiffs suggested that the defendants’ concern of violence
was not “real.” Doc. No. 60-1 at 37. The plaintiffs supported
this contention by showing that UMBC refused to pay for a
security presence at the GAP display. Id. However, whether UMBC
agreed to pay for security is a separate question from whether
it had concerns for student safety.


                                             31
defendants    made    an    impermissible          content-based       restriction       of

the    plaintiffs’     speech         because      they     anticipated       a     hostile

reaction     from    listeners,        we     exercise       our    discretion        under

Pearson to examine whether this violated a constitutional right

of the plaintiffs’ that was, at the time, clearly established.

       “Historically,      one    of    the       most    persistent    and       insidious

threats to first amendment rights has been that posed by the

‘heckler’s    veto,’       imposed      by    the        successful    importuning       of

government to curtail ‘offensive’ speech at peril of suffering

disruptions of public order.” Berger v. Battaglia, 779 F.2d 992,

1001 (4th Cir. 1985). Courts have recognized a heckler’s veto as

an    impermissible    form      of    content-based         speech    regulation       for

over sixty years. See Terminiello v. City of Chicago, 337 U.S. 1

(1949).     Repeatedly,       courts          have        emphasized     the        state’s

responsibility to permit unpopular or controversial speech in

the midst of a hostile crowd reaction. See, e.g., Ovadal, 416

F.3d at 537; Smith v. Ross, 482 F.2d 33, 37 (6th Cir. 1973);

Grider v. Abramson, 994 F. Supp. 840, 845-46 (W.D. Ky. 1998),

cited in Cheryl A. Leanza, Heckler’s Veto Case Law as a Resource

for Democratic Discourse, 35 Hofstra L. Rev. 1305, 1311 n.49

(2007). In the abstract, at least, the impermissibility of a

heckler’s     veto    is    clearly          established       by     First       Amendment

jurisprudence.



                                             32
      Our inquiry, however, is not meant to be performed in the

abstract. “Put simply, context matters.” Henry v. Purnell, ---

F.3d ---, 2010 WL 3720411, at *11 (4th Cir. Sept. 24, 2010). As

the United States Supreme Court has stated,

      if the test of “clearly established law” were to be
      applied at this level of generality, it would bear no
      relationship to the “objective legal reasonableness”
      that is the touchstone of Harlow. Plaintiffs would be
      able to convert the rule of qualified immunity that
      our cases plainly establish into a rule of virtually
      unqualified liability simply by alleging violation of
      extremely abstract rights. Harlow would be transformed
      from a guarantee of immunity into a rule of pleading.
      Such an approach, in sum, would destroy “the balance
      that our cases strike between the interests in
      vindication of citizens’ constitutional rights and in
      public officials’ effective performance of their
      duties,”   by  making   it  impossible  for  officials
      “reasonably [to] anticipate when their conduct may
      give rise to liability for damages.”

Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Davis

v. Scherer, 468 U.S. 183, 195 (1984)). Our inquiry into whether

the   defendants   violated    a    clearly     established     right     of   the

plaintiffs’ not to be silenced by a heckler’s veto must account

for the fact that it was the plaintiffs who issued a warning of

crowd violence to the defendants in the first place. Although it

does not render the defendants’ conduct permissible under the

First   Amendment,    the     letter        bears   upon     context    and    the

circumstances as the defendants perceived them.

      The   plaintiffs’    letter   warned      that   the    GAP    display    had

encountered    “numerous    unprovoked        physical     attacks     from    pro-


                                       33
abortion students on the first few campuses it visited . . . .”

JA 270. Public universities are taxed with a dual responsibility

to permit the free expression of ideas on campus while providing

for the safety and security of their students, see S.U.N.Y. v.

Fox,    492     U.S.   469,   475     (1989),      and   the    plaintiffs’       security

concerns put these interests at odds. The proposed location for

the GAP display, the Commons Terrace, posed in the defendants’

minds     an    additional         safety     hazard     in     the    event    of    crowd

violence.        The   plaintiffs’           apparent       expectation        that    such

violence would occur must have left the defendants uniquely on

edge.

        In hindsight, we think the defendants were required by the

First Amendment to address these additional safety concerns by

providing a security presence at the GAP display, or watching

the     event    closely      to    determine       whether         security   was    truly

necessary. However, “[t]he concern of the immunity inquiry is to

acknowledge that reasonable mistakes can be made as to the legal

constraints       on   particular         [government]        conduct.”    Saucier,     533

U.S. at 205. Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v.

Briggs,    475     U.S.   335,      341     (1986).    If     the    defendants      secured

campus safety at too high a cost to the plaintiffs’ right to

free expression, we do not believe they should be made to pay

for this mistake from their own pockets.

                                              34
                                          VI.

       In    summary,   we     conclude        that   all        claims    except    the

plaintiffs’ as-applied challenge to UMBC’s facilities use policy

were     properly    dismissed       on    standing       or      mootness    grounds.

Although the district court erred by holding that the plaintiffs

failed      to   demonstrate   a     triable     issue      of    fact    whether    the

defendants       regulated   their    speech      based     on     its    content,   the

defendants are nevertheless entitled to qualified immunity from

42 U.S.C. § 1983 claims brought against them in their individual

capacities.

                                                                              AFFIRMED




                                          35
KING, Circuit Judge, concurring in part, dissenting in part, and
concurring in the judgment:

     I   write     separately       to    confirm         my    concurrence        in    —     and

admiration for — most of Judge Conrad’s well-crafted majority

opinion, with the exceptions of Parts IV.B and V.                                 Although I

fully agree with the majority that the defendants are entitled

to qualified immunity on the plaintiffs’ as-applied challenge to

UMBC’s   policy       on    facilities     use,      I     would       resolve    that     issue

solely     on   the        first   prong       of        the    Saucier       test.          More

specifically, I would rule that the defendants are entitled to

qualified immunity because no constitutional violation has been

shown.      I therefore dissent as to Part IV.B of the majority

opinion,    which      addresses         the    first          prong     of     Saucier      (the

constitutional violation prong), and have no reason to reach the

second     prong      of     Saucier      (the       clearly        established           prong)

addressed in Part V of the majority opinion.



                                               I.

     The test formulated by the Supreme Court in Saucier v. Katz

required    a    two-pronged        “order          of    battle”        assessment       of    a

qualified immunity claim.               See 533 U.S. 194, 201 (2001).                      After

Saucier was rendered in 2001, a reviewing court was obliged to

assess   the    two    prongs      in    sequence,         asking       first    whether       the

plaintiff       had        sufficiently         established             a     constitutional


                                               36
violation.     If the court’s answer on the first prong was “no,”

then it could not proceed to or address the second prong.                           But

if the answer was “yes,” then the court was obliged to decide

whether      the      violation       was        of   a    clearly        established

constitutional right.          In 2009, however, in Pearson v. Callahan,

the Supreme Court unanimously receded from Saucier’s mandatory

“order of battle,” deciding that a reviewing court was no longer

required to address the two prongs of the Saucier analysis in

sequence, but could exercise its “sound discretion” to decide

the proper order of assessment.                  See 129 S. Ct. 808, 813, 818

(2009).

      The Pearson rule was in large measure predicated on the

Court’s    recognition        that    “[a]dherence        to   Saucier’s       two-step

protocol     departs     from     the     general     rule     of    constitutional

avoidance.”        129 S. Ct. at 821 (citing, inter alia, Ashwander v.

TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The

Court   will   not     pass    upon   a     constitutional      question       although

properly presented by the record, if there is also present some

other ground upon which the case may be disposed of.”)).                            The

Pearson rule, however, also responded to another substantial and

valid     concern    that     arose     from     Saucier’s     mandatory       sequence

protocol — that a defendant could suffer an adverse decision on

the   constitutional        violation       prong,    prevail       on   the   clearly

established prong (and thus secure a favorable judgment), but

                                            37
yet be unable to seek and secure appellate review on the adverse

constitutional violation ruling.                     Id. at 820.

                                                A.

       In   this    case,     the     majority’s           ruling   on    Saucier’s        first

prong — the constitutional violation question addressed in Part

IV.B — is patently incorrect.                        Before elaborating, however, I

must   emphasize      and     address          a    more     fundamental      flaw    in    the

majority’s     resolution           of      this      appeal.          Put     simply,      the

majority’s         ruling     on       Saucier’s           first     prong      constitutes

unnecessary dicta on a constitutional question, contravening the

principles     spelled        out      in      Pearson.         Indeed,       the    majority

recognizes    in     Part    V   of      its       opinion    (under      Saucier’s    second

prong) that the constitutional right it identifies in Part IV.B

is not clearly established.                 Under the Pearson rule, therefore,

the    majority      should      not     have        addressed      the    merits     of    the

constitutional       violation         issue        (under    Saucier’s       first    prong)

absent some good reason, such as a compelling need to “promote[]

the development of constitutional precedent.”                                129 S. Ct. at

818.    In my view, no such compelling need or other good reason

is present here.            Thus, the proper course for the majority was

simply to assume that a constitutional violation had occurred,

and then proceed to address the “clearly established” prong of

Saucier, granting qualified immunity and summary judgment on the

basis of its Part V ruling.                  In proceeding as it does, however,

                                                38
the    majority          has   departed      from        the       post-Pearson           settled

practice.          See Walker v. Prince George’s Cnty., 575 F.3d 426,

429 (4th Cir. 2009) (O’Connor, J.) (“Here, we think it is plain

that       [the]      constitutional        right        .     .    .     is       not     clearly

established.              We   thus    decline           to     invest         a    substantial

expenditure         of   scarce    judicial       resources         by    engaging         in    the

essentially academic exercise of determining whether that right

exists at all.”). 1

       To      make      matters      worse,       the         majority’s           unwarranted

constitutional           discussion    in    Part        IV.B      will    deny          UMBC   any

meaningful opportunity to seek or secure appellate review of the

adverse constitutional violation ruling made by the majority.

As    the     Supreme     Court    explained        in       Pearson,      the      “procedural

tangle” created by the Saucier rule “ar[ises] from the Court’s

settled refusal to entertain an appeal by a party on an issue as

to    which    he     prevailed    below,     a   practice          that       insulates        from

review adverse merits decisions that are locked inside favorable

qualified immunity rulings.”                 Pearson, 129 S. Ct. at 820 n.2.

As Justice Alito explained for the unanimous Pearson Court, “the

       1
       Cf. Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597
F.3d 163, 169-70 (4th Cir. 2010) (“Because we believe this case
will clarify and elaborate upon our prior jurisprudence in
important   and   necessary   ways,   we  will   first   address
[plaintiffs’] constitutional rights . . . prior to addressing
whether any such rights were clearly established at the time of
the alleged wrongdoing.”).



                                             39
‘prevailing’ defendant [here, UMBC] faces an unenviable choice:

comply       with    the    lower        court’s      advisory        dictum       without       an

opportunity to seek appellate or certiorari review, or defy the

views of the lower court, adhere to practices that have been

declared      illegal,       and     thus      invite        new    suits     and    potential

punitive damages.”           Id. at 820 (emphasis added).

                                                B.

       The majority’s Part IV.B assessment of the constitutional

violation question is not only “advisory dictum,” see Pearson,

129    S.    Ct.    at    820,     but   also    (as       previously       noted)       patently

incorrect.          Simply       put,    the    relevant       facts        fail    to    show    a

constitutional           violation,      and     I   would     therefore       resolve         this

case    on    Saucier’s      first       prong       only.         Unlike    the    majority’s

approach, such a resolution would not result in the “procedural

tangle” created by Saucier, where the constitutional violation

ruling is “insulate[d] from review” by the determination that

the asserted constitutional right was not clearly established.

See Pearson, 129 S. Ct. at 820 n.2.

       Turning       to    the   merits     of       the    majority’s       ruling       on   the

constitutional violation issue, the six words on which these

plaintiffs rely are much too thin a supporting reed for their

as-applied First Amendment challenge.                          Indeed, that challenge

hinges on a single line in an electronic Google Desktop notice,

reminding      Mr.       Tkacik,    UMBC’s      in-house       counsel,       of    a     meeting

                                                40
scheduled with Mr. Vernet, the student president of Rock for

Life, on April 27, 2007.             That line contains only these six

words:     “re: controversial exhibit; Rock for Life.”               J.A. 1622.

I reject the view that these words provide sufficient support

for a First Amendment violation.

      As the district court correctly recognized, “reference to

the   exhibit    as    controversial       arose   from    Plaintiffs’    letter

alerting Defendants to the controversial nature of the display

and the need for security.”            Rock for Life-UMBC v. Hrabowski,

643 F. Supp. 2d 729, 746 (D. Md. 2009).                   The letter to which

Judge Motz referred was first delivered by the plaintiffs to the

UMBC police department on April 19, 2007, and was faxed to Mr.

Tkacik in advance of the April 27 meeting. 2                  The plaintiffs’

letter    asserted     that,    “because    [the   Center    for     Bio-Ethical

Reform,    one   of    Rock    for   Life’s    ‘supporting     organizations’]

suffered numerous unprovoked physical attacks from pro-abortion

students    on   the    first    few   campuses     it    visited,    [it]   now

transport[s] and employ[s] [its] own crowd-control barricades.”

      2
       In this regard, the majority recognizes only that the
letter was given to Mr. Tkacik at the April 27, 2007 meeting.
See ante at 6. There is, however, more to the story. Although
Tkacik may have been provided with an additional copy of the
letter at the April 27 meeting, the record reflects that he
received the letter beforehand.     Specifically, the letter was
provided to the UMBC police department on April 19, see J.A.
821, 1148, and it was faxed to Tkacik by the police department
on either April 24 or April 26, see id. at 1454, 1457.



                                       41
J.A. 821.        Put simply, I wholeheartedly agree with Judge Motz

that the “Defendants should not be faulted for taking seriously

the concerns raised by Plaintiffs.”                          Rock for Life-UMBC, 643 F.

Supp. 2d at 746-47.

       By     dismissing       as     irrelevant            the   fact    that      it   was    the

plaintiffs who first raised the security issue, the majority has

also       created    something          akin      to   a    “reverse         heckler’s     veto.”

Under      the   Part     V   ruling,         an     educational      institution         has    no

choice but to address a student group’s security concerns. 3                                    But

in addressing those concerns, under the Part IV.B ruling the

institution       risks       being      seen      as    engaging        in    a   content-based

speech restriction — inevitably creating a jury question when

the    institution        asserts        an     alternative       content-neutral           reason

for its conduct.              The educational institution is thereby faced

with a Hobson’s choice:                  (1) violate the First Amendment by not

addressing a student group’s security concerns; or (2) lose any

chance      of   prevailing         on    summary        judgment        by    addressing      such

concerns.            By   preventing            an      educational           institution      from

prevailing on summary judgment, the majority’s rule tramples on


       3
       Pursuant to Part V of the majority opinion, an educational
institution in this Circuit is now “required by the First
Amendment to address th[e] additional safety concerns by
providing a security presence . . . or watching the event
closely to determine whether security [is] truly necessary.”
Ante at 34.



                                                   42
the   settled    principle    that    the       issue   of    qualified    immunity

should   be     resolved     “at     the        earliest     possible     stage   of

litigation.”      Pearson, 129 S. Ct. at 815.                  This result also

inappropriately         impinges     on     an     educational      institution’s

manifest interest in the security of its students.                     See Healy v.

James, 408 U.S. 169, 184 (1972) (“[A] college has a legitimate

interest in preventing disruption on the campus.”).



                                          II.

      Consistent with the foregoing, I agree with the majority

that we should award qualified immunity to the defendants on the

as-applied      First    Amendment        challenge     to    UMBC’s    policy    on

facilities use, but I would get there by a different route —

namely, by concluding that a First Amendment violation has not

been shown.       Because there was no constitutional violation, I

would rely solely on Saucier’s first prong and award qualified

immunity to the defendants on that basis.




                                          43
