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Sonnier finally contends that the requirement that all assemblies and demonstrations must occur in three specific on-campus venues is an overly broad restriction of speech. Further, Sonnier argues that the SLU’s speech policy unconstitutionally bans him from speaking on the campus’ sidewalks. The defendants argue that the policy does not prohibit Sonnier from speaking on the University’s sidewalks and that limiting the geographic area for non-students to speak and assemble is proper.

During that four-month period, the government did not provide any evidence whatsoever; thus, Sonnier’s account of how the SLU policy had been applied to him was uncontested. . Sonnier. . About four months after Sonnier filed his motion for a preliminary injunction, the district court heard oral argument on that motion. He was there and attempted to engage in one-on-one conversation. For example, at one point the judge asked whether the policy applied to one-on-one conversations as well as to speeches delivered to an audience. . Sonnier’s counsel replied, “I think that’s confirmed by actual application to Mr. During oral argument, Sonnier’s counsel continued to explain that the SLU policy’s application to Sonnier was unconstitutional. [H]e attempted to engage in a one-on-one dialogue with one student about theological points and the officer said that he could[n't][ 12 ] do that until he obtained permission from the university.”.

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

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

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

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

Likewise, in every case in which a law is subjected to a constitutional challenge — including the instant case — the proper method is to apply the relevant substantive constitutional doctrines and tests, and the result of that process determines whether the challenged law should be held unconstitutional either on its face or as applied.

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