UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-1307
JAMES G. GILLES,
Plaintiff- Appellant,
v.
PAUL E. TORGERSEN, Acting
President, Virginia Polytechnic
Institute and State University;
ROLAND M. WHEELER, Director of
University Services, Virginia
Polytechnic Institute and State
University; ANN SPENCER, Associate
Vice President for Personnel and
Administrative Services, Virginia
Polytechnic Institute and State
University; CLARRESSA M. MORTON,
Assistant Director for Event
Planning, Virginia Polytechnic
Institute and State University; THE
BOARD OF VISITORS, Virginia
Polytechnic Institute and State
University; RICHARD M. BAGLEY;
JOSEPH H. BARLOW; WILLIAM C.
BROADDUS; HENRY J. DEKKER;
BUFORD L. DRISKILL, JR.; HORACE G.
FRALIN; CLIFTON C. GARVIN, JR.;
ROBERT J. GREY, JR.; MICHAEL M.
HAWES, Vice President for Finance
and Administration;
W. PAT JENNINGS, SR.; CECIL R.
MAXSON, JR., Facilities Executive
Officer Corporate Facilities
Manager NationsBank Service
Corporation; RHEA F. MOORE, JR.;
ROSE MILES ROBINSON; SUE ELLEN
ROCOVICH; ROBERT MORGAN, Student
Member; TOM GOODALE, Vice
President for Student Affairs,
Virginia Polytechnic Institute and
State University,
Defendants- Appellees,
and
BEVERLY H. SGRO, Dean of Students,
Virginia Polytechnic Institute and
State University; JERRY D. CAIN,
General Counsel and Special
Assistant Attorney General, Virginia
Polytechnic Institute and State
University; JAMES MCCOMAS,
President, Virginia Polytechnic
Institute and State University,
Defendants.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Chief District Judge.
(CA- 92- 933- R)
Argued: October 31, 1995
Decided: December 19, 1995
Before ERVIN, Chief Judge, and WIDENER and WILKINSON,
Circuit Judges.
2
Vacated and remanded by published opinion. Judge Wilkinson wrote
the opinion, in which Chief Judge Ervin and Judge Widener joined.
_________________________________________________________________
COUNSEL
ARGUED: J. Patrick Wiseman, WISEMAN, DURST, TODDEN-
HAM & OWEN, Austin, Texas, for Appellant. Richard Croswell
Kast, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Jona-
than M. Rogers, JONATHAN ROGERS, P.C., Roanoke, Virginia, for
Appellant. James S. Gilmore, III, Attorney General of Virginia, Wil-
liam Henry Hurd, Deputy Attorney General, Paul J. Forch, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia; Jerry D. Cain, General Counsel/Special
Assistant Attorney General, Kay Heidbreder, Associate General
Counsel/Special Assistant Attorney General, VIRGINIA POLY-
TECHNIC INSTITUTE AND STATE UNIVERSITY, Blacksburg,
Virginia, for Appellees.
_________________________________________________________________
OPINION
WILKINSON, Circuit Judge:
Appellant James G. Gilles, an itinerant preacher, challenges the
constitutionality of regulations under which Virginia Polytechnic
Institute and State University ("Virginia Tech") prohibited Gilles
from preaching at the University's drillfield. Ostensibly, Gilles was
denied the opportunity to preach at the drillfield pursuant to a spon-
sorship requirement imposed by Virginia Tech on all outside speak-
ers. The district court upheld the University policy against Gilles'
First Amendment challenge.
We do not reach the merits of Gilles' constitutional challenge,
however, for we find his claim to be nonjusticiable. Gilles lacks
standing to raise his objection because he has not been prevented
from preaching at Virginia Tech on account of his inability to secure
sponsorship; the University has acted as a sponsor on Gilles' behalf.
3
Any injury suffered by Gilles thus did not arise from the sponsorship
requirement, but from some other University policy not at issue here.
Accordingly, we vacate the judgment and remand with directions to
dismiss this lawsuit.
I.
Gilles, a member of the Free Pentecostal Holiness Churches,
preaches to college students on campuses throughout the country. He
first attempted to preach on the Virginia Tech campus in October of
1985, and has since sought to preach there on three subsequent occa-
sions, in October 1986, November 1988, and, most recently, in April
1992. Each time, Gilles wished to deliver his presentation at the cam-
pus drillfield, a large open area of approximately 10 acres lying
roughly at the center of campus. On any given day, several hundred
students may traverse the drillfield while walking between classes.
Gilles has never been allowed to preach at the drillfield. In his ini-
tial attempts, he was told that he could preach instead at the Universi-
ty's amphitheater, a more isolated area located west of the drillfield
and surrounded by trees. Gilles, though, regarded this location as a
less desirable venue for his preaching, because in his view few stu-
dents congregate at the amphitheater. During his most recent attempt
to preach at Virginia Tech, in April 1992, Gilles was again prohibited
from preaching at the drillfield, and was eventually offered his choice
of three new alternate locations.
On December 14, 1992, Gilles filed a complaint alleging that the
University's refusal to allow him to preach at the drillfield violated
his First Amendment rights. According to the parties, Gilles' claim
turns on the validity of Virginia Tech's rule requiring that outside
speakers be "sponsored." Ostensibly, Virginia Tech follows a strict
regulation that denies access to the campus for outside speakers
unless they first find an official University sponsor, including a recog-
nized student organization or a university agency. This blanket spon-
sorship regulation purportedly applies to all members of the public
seeking to use any Virginia Tech facility for the purpose of holding
"events" such as speaking engagements.
The parties reached an Agreed Order, which they filed with the dis-
trict court on July 18, 1994. The Order specified three locations (other
4
than the drillfield) for Gilles' preaching activities, and stipulated to a
factual record. The Order submitted one central question for the dis-
trict court's resolution: the constitutionality of Virginia Tech's spon-
sorship regulation. The district court upheld the sponsorship
requirement against Gilles' First Amendment challenge. This appeal
followed.
II.
In his appeal, Gilles argues that a blanket sponsorship requirement
operates to suppress speech espousing unpopular viewpoints, thus
implicating values that lie at the core of the First Amendment.
According to Gilles, forcing speakers to secure sponsorship effec-
tively requires them to submit their message to a litmus test, with
speakers likely to obtain sponsorship only if their views strike a
friendly chord. See West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 638 (1943) (One's right to free speech"may not be submit-
ted to vote"). Gilles also contends that in order to gain access to the
campus, a speaker may be required to accept a sponsor whose name
or viewpoint he does not wish to associate with his speech. Moreover,
Gilles maintains, securing sponsorship is unduly burdensome. He
asserts that any legitimate interests promoted by a sponsorship regula-
tion could be served equally well by a registration process that uses
neutral time, place, or manner standards to assign the use of campus
facilities. In Gilles' view, such a registration process would serve the
interests relied upon by the district court - - preventing the disruption
of classes, ensuring the safety of the speaker and the audience, and
facilitating the efficient allocation of university facilities.
For its part, Virginia Tech defends the sponsorship regulation as an
allowable means of furthering these administrative objectives. More-
over, Virginia Tech urges, requiring sponsorship by recognized stu-
dent organizations serves another legitimate goal: allocation of
university facilities to uses that are most desired by students. See
Widmar v. Vincent, 454 U.S. 263, 267- 68 n.5 (1981) ("We have not
held . . . that a campus must make all of its facilities equally available
to students and nonstudents alike . . . ."). Virginia Tech maintains that
its campus has not been dedicated for expressive use by the general
public, and that its sponsorship requirement is evenly applied without
regard to the content of speech. In these circumstances, Virginia Tech
5
alleges, the regulation is a permissible method of furthering the
University's goals of managing its property and advancing its educa-
tional mission.
These are interesting arguments, and a blanket sponsorship require-
ment would appear to present an intriguing constitutional question in
the abstract. Courts, however, must not deal in abstractions, for courts
can only adjudicate actual cases, involving issues that are precisely
framed by their connection to specific litigants in a concrete context.
See Valley Forge Christian College v. Americans United for Separa-
tion of Church and State, Inc., 454 U.S. 464, 472 (1982); United Pub-
lic Workers v. Mitchell, 330 U.S. 75, 89 (1947) ("For adjudication of
constitutional issues, `concrete legal issues, presented in actual cases,
not abstractions,' are requisite.") (citations omitted). This litigation
lacks these hallmarks of justiciability.1
The requirement that a party have standing "is perhaps the most
important" condition of justiciability. Allen v. Wright, 468 U.S. 737,
750 (1984). "The `gist of the question of standing' is whether the
party seeking relief has `alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharp-
ens the presentations of issues upon which the court so largely
depends for illumination of difficult constitutional questions.'" Flast
v. Cohen, 392 U.S. 83, 99 (1968) (quoting Baker v. Carr, 369 U.S.
186, 204 (1962)). To establish standing, plaintiffs must "show `injury
in fact' resulting from the action which they seek to have the court
adjudicate." Valley Forge, 454 U.S. at 473.
Here, any injury suffered by Gilles could not have resulted from
the University's sponsorship rule, because Gilles has not been barred
from the campus on account of his inability to obtain sponsorship.
Instead, the record indicates that the University has acted as an omni-
bus sponsor on Gilles' behalf. In a letter dated November 16, 1988,
_________________________________________________________________
1 Parties cannot confer justiciability by mutual consent where it other-
wise does not exist. In this case, consequently, the parties' submission of
the constitutional question to the district court in their Agreed Order does
not obviate our independent obligation to investigate justiciability. See
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230- 31 (1990)
6
Roland M. Wheeler, the Director of University Services, advised Gil-
les:
As I indicated to you in our recent telephone con-
versation, you have had permission to speak on campus, but
I need to know the dates so that we can make arrangements.
It is my understanding that you will not be speaking on
November 16, 17, 1988.
The location of your presentation will be the University
Amphitheater. This facility is used for a number of univer-
sity functions, and we would need to reserve it for your pre-
sentation. Therefore, please let this office know of your
plans to visit our campus so that proper arrangements can be
made.
Wheeler has characterized this correspondence as an offer of spon-
sorship, stating that when Gilles sought permission to preach at the
drillfield, "[a]s a matter of accommodation I agreed to sponsor him
to preach at an area more appropriate for such activities." The parties'
Agreed Order of July 18, 1994, likewise exhibits an intent by the Uni-
versity to act as a sponsor for Gilles. The Order states that the "Uni-
versity will sponsor the plaintiff, on a one time basis, so that he may
preach on the University campus at any of the following high traffic
locations," including two dining halls and a location designated "Hen-
derson Lawn."2
To be sure, Gilles has not been permitted to preach at his campus
venue of choice, the drillfield. This could not have been as a result
of the sponsorship regulation, however. That rule functions as a
threshold requirement to gain access to the campus at large. The spon-
_________________________________________________________________
2 In response to Gilles' most recent attempt to preach on the drillfield,
university officials allegedly informed Gilles that he needed to obtain
sponsorship before using campus facilities. Any claim arising from this
response, however, has been mooted by the university's subsequent
sponsorship of Gilles in the Agreed Order. See Kennedy v. Block, 784
F.2d 1220 (4th Cir. 1986) (declining to reach the merits because a settle-
ment agreement rendered the underlying case moot).
7
sorship requirement thus addresses the question of campus access
generally; it is not framed as a condition on access to the drillfield
alone (or any other specific facility):
The facilities of the University are intended for the use of
its students, faculty, staff, and invited guests participating in
University approved programs and activities, sponsored by
or under the direction of the University or one of its related
agencies or approved [student] organizations .. . .
Once a speaker obtains general access to the campus by securing
sponsorship, other policies not at issue here must determine the par-
ticular campus site most appropriate for his presentation.
Here, the University's sponsorship of Gilles granted him threshold
access to the campus; Gilles unquestionably has received authoriza-
tion to use several Virginia Tech facilities. As a result, any designa-
tion of the specific locations at which Gilles could or could not preach
must have resulted from some other University policy, not the ante-
cedent rule requiring sponsorship. Gilles thus "fail[s] to identify any
personal injury suffered by [him] as a consequence of the alleged
constitutional error." Valley Forge, 454 U.S. at 485 (emphasis in orig-
inal).
Gilles' inability to establish injury from the sponsorship require-
ment is not rescued by the First Amendment overbreadth doctrine. In
certain First Amendment cases, plaintiffs may challenge a provision's
constitutionality as applied to other parties even if it is constitutional
as applied to the parties before the court. See Virginia v. American
Booksellers Ass'n, 484 U.S. 383, 392- 93 (1988); Secretary of State v.
Joseph H. Munson, Co., 467 U.S. 947, 956- 57 (1984). This doctrine,
however, only assists plaintiffs who have suffered some injury from
application of the contested provision to begin with. See Munson, 467
U.S. at 958. Because Gilles has not been injured by Virginia Tech's
sponsorship rule, he cannot establish standing under First Amendment
overbreadth principles. Bordell v. General Elec. Co., 922 F.2d 1057,
1061 (2d Cir. 1991).
III.
We do not foreclose the possibility that some justiciable case will
arise between these parties in the future. At that time, however, the
8
record may reveal what it does not reveal now - - namely, the reasons
for denying Gilles access to the precise forum he sought and his pre-
cise challenge to those reasons. As it is, the parties are jousting over
a sponsorship requirement that is not being invoked to bar Gilles from
speaking on campus, and they are ignoring whatever time, place or
manner guideline is presumably being used to prohibit him from
speaking on the drillfield. In other words, the true controversy is elud-
ing the court, while a false one is proposed. In such circumstances,
the wisdom of Justice Frankfurter's admonition is apparent:
[T]he reason of postponing decision until a constitutional
issue is more clearly focused by, and receives the impact
from, occurrence in particular circumstances is precisely
that those circumstances may reveal relevancies that
abstract, prospective supposition may not see or adequately
assess.
Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 78
(1961).3
IV.
For the foregoing reasons, we vacate the judgment of the district
court and remand with directions to dismiss this lawsuit.
VACATED AND REMANDED
_________________________________________________________________
3 We also hold that the district court did not abuse its discretion in
refusing to allow Gilles to file a Third Amended Complaint.
9