Students for Life USA v. Waldrop (162 F. Supp. 3d 1216, 2016)

ORDER

WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on the parties’ cross-motions for summary judgment. (Docs. 97, 100). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 98-99, 101-04, 106-08, 110-11), and the motions are ripe for resolution. After careful consideration, the Court concludes that both motions are due to be granted in part and denied in part.

BACKGROUND

According to the amended complaint, (Doc. 29), the plaintiff is a student organization at the University of South Alabama (“the University”), located in Mobile, Alabama. The plaintiff seeks to promote its pro-life message through flyers, signs, peaceful demonstrations and other means. In October 2013 and again in February 2014, the plaintiff sought permission to place a “cemetery of innocents” at various campus locations, including an area between an academic building (“Shelby Hall”) and two intersecting public roads (“Old Shell Road” and “University Boulevard”). Permission to use such locations was denied by University officials. The plaintiff ultimately utilized an area around the student center (“the Speech Zone”) that the University’s policy (“the First Policy”) identified as the only campus location permitted to be used for student speech. In August 2014, the University adopted another policy (“the Second Policy”), which expands the locations that can be used for student speech but which continues to prohibit such speech within an area (“the Perimeter”) that includes most spaces between the street side of campus buildings and the public sidewalks paralleling Old Shell Road and University Boulevard. (Id. at 4,11,13-20).

The amended complaint names as defendants, in their individual and official capacities: (1) the University’s president, Tony Waldrop; (2) its vice-president for student affairs, John Smith; (3) its assistant vice-president for student affairs and dean of students, Michael Mitchell; and (4) the dean of its college of engineering, John Steadman. (Doc. 29 at 1).

Count One of the amended complaint alleges that the First and Second Policies violate the plaintiffs First Amendment rights of free speech. Count Two alleges that the First and Second Policies violate the plaintiffs due process rights, while Count Three alleges the policies violate the plaintiffs equal protection rights. The amended complaint seeks as relief: (1) a declaration that the Policies violate the plaintiffs constitutional rights; (2) an injunction against enforcement of the Policies and associated practices; (3) an award of nominal damages against the defendants individually; and (4) attorney’s fees and costs. (Doc. 29 at 26-38).

The Court granted the defendants’ motion to dismiss the amended 'complaint’s requests for declaratory and injunctive relief with respect to the First Policy, on the grounds of mootness. (Doc. 49 at 3-10, 29). The Court also granted, on the grounds of qualified immunity, the motion to dismiss the amended complaint’s demand for nominal damages against the individual defendants, except to the extent the demand is based on alleged viewpoint discrimination in violation of the First Amendment by Mitchell and Steadman in denying permission (under the First Policy) to use what is now the Perimeter for a cemetery of innocents. (Id. at 13-27, 29). The parties’ cross-motions seek summary judgment in their favor as to all claims remaining after these rulings.

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party’s claim”; or (2) by “pointing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celo-tex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir.2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir.1992).

“When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial, [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the non-moving party.” United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993).

“If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

“If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion_”).

In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003).

There is no burden on the Court to identify unreferenced evidence supporting a party’s position. Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.

I. Second Policy.

The Second Policy provides in pertinent part as follows:

For USA students or employees, all areas of the University campus are open for expressive activities, except for the following:

• Areas between the street side of University buildings and facilities on the periphery of campus from the portal of North Drive to the corner of campus at Old Shell Road and University Boulevard and to the portal of Stadium Drive and the public sidewalks ....

(Doc. 29-10 at 3-4). This closing of the Perimeter to expressive activity is the plaintiffs sole challenge to the Second Policy. (Doc. 29 at 27-30, 33, 36). As noted, the amended complaint alleges that the Second Policy violates the plaintiffs free speech, due process and equal protection rights. (Id at 26-37). '

A. Free Speech.

“[T]he Supreme Court has broadly discerned three distinct (although not airtight) categories of government property for First Amendment purposes: traditional public fora, designated public fora, and limited public fora.” Bloedorn v. Grube, 631 F.3d 1218, 1230 (11th Cir.2011). Identifying which is at issue is important, because “the degree of scrutiny we place on a government’s restraint of speech is largely governed by the kind of forum the government is attempting to regulate.” Id. For both traditional and designated public fora, “a time, place, and manner restriction can be placed ... only if it is content neutral, narrowly tailored to achieve a significant government interest, and leaves open ample alternative channels of communication.” Id. at 1231 (internal quotes omitted). In contrast, “[a]ny restrictions made on expressive activity in a limited public forum only must be reasonable and viewpoint neutral.” Id.

1. Traditional public forum.

In support of its motion for preliminary injunction, the plaintiff argued that the Perimeter constitutes a traditional public forum, that is, one of the “public areas such as streets and parks that, since time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Bloedorn, 631 F.3d at 1231 (internal quotes omitted). For a number of reasons — including the Bloedom Court’s pronouncement that “a state-funded university is not a traditional public forum,” Id. at 1232 — the Court concluded that the plaintiff had not shown a substantial likelihood of prevailing on its argument that the Perimeter is a traditional public forum. (Doc. 55 at 3-11). The plaintiff does not on the present motions argue that the Perimeter is or could be a traditional public forum. To the uncertain extent the plaintiff has not abandoned such an argument, the Court holds, for reasons expressed in its order denying preliminary injunctive relief, that the Perimeter is not a traditional public forum.

2. Designated public forum.

The plaintiff asserts that the Perimeter is a designated public forum. “We have held that a government entity may create a ‘designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). “Designated public fora ... are created by purposeful governmental action.” Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). “The government does not create [i.e., designate] a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). “Public discourse” in this context means “ ‘indiscriminate use.’ ” Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)) (“Perry”). The government must make the property at issue “generally available’ ” or “generally open.” Forbes, 523 U.S. at 678-79, 118 S.Ct. 1633. “A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.” Id. at 679, 118 S.Ct. 1633. Thus, “the government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, obtain permission.” Id. (internal quotes omitted).

It is thus the intent of the government to designate a forum as generally open for public discourse that matters, and the question becomes whether the plaintiff has sufficient evidence of such an intent to at least raise a genuine issue of material fact. “[T]he [Supreme] Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. “The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government’s intent.” Id; accord Walker v. Sons of Confederate Veterans, Inc., - U.S. -, 135 S.Ct. 2239, 2250, 192 L.Ed.2d 274 (2015).

The Second Policy explicitly limits expressive activity by non-University sponsored individuals and groups (i.e., the general public) to the Speech Zone. (Doc. 29-10 at 3). The plaintiff does not suggest that the University nevertheless has a practice of permitting the general public to engage in expressive activity within the Perimeter. Indeed, the plaintiff does not contest that, as to the general public, the Perimeter is a limited public forum. Instead, the plaintiff argues that the Perimeter is a limited public forum as to the general public but a designated public forum as to students and student organizations.

As it did in opposing the defendants’ motion to dismiss, the plaintiff relies on Bloedom for the proposition that the same location can be simultaneously a designated public forum as to some and a limited public forum as to others. While admitting that Bloedom does not contain any such statement, the plaintiff insists that “[i]t makes no sense to say outdoor areas of campus are limited public fora because they are reserved for students, only then to say they are also limited public fora for those students.” (Doc. 106 at 25 (emphasis in original)). Without endorsing the plaintiffs reasoning, the Court accepts that the Perimeter could theoretically be a designated public forum as to students despite being a limited public forum as to the general public.

a. Policy.

As noted, the Second Policy expressly closes the Perimeter to expressive activity by students (as well as by employees and outsiders). A clearer expression of intent not to make the Perimeter generally open for student discourse is difficult to imagine. Rather than confront this formidable obstacle, the plaintiff repairs to the student handbook, which states that the University “is a community of scholars in which the ideals of freedom of inquiry, freedom of thought, freedom of expression and freedom of the individual are sustained” and (under the heading of “security policies and procedures”) that access to University facilities is generally limited to University “affiliates” such as student groups. (Doc. 103-22 at 53, 78-79; Doc. 101 at 25). The plaintiff also selectively quotes from the Second Policy to show that its purpose “is to promote the free exchange of ideas” and accommodate “the rights of students ... to speak on campus.” (Doc. 29-10 at 1; Doc. 101 at 25). But the very most these glittering generalities could establish is a University policy to permit student expressive activity except where it is prohibited; they do not remotely undermine the clarity and efficacy of the Second Policy’s ban on expressive activity in the Perimeter.

The plaintiff argues that the Second Policy is, if not irrelevant, at least inconsequential because it is only a self-justifying attempt to say that what is clearly a designated public forum is not. (Doc. 101 at 26; Doc. 106 at 25-26; Doc. 110 at 17). The Court accepts that, as the plaintiff’s authority states, “consistent practice can on occasion overcome a bare statement of intent to the contrary.” Stewart v. District of Columbia Armory Board, 863 F.2d 1013, 1017 (D.C.Cir.1988). As discussed in Part I.A.2.b, however, the plaintiff has failed to show a consistent or even sporadic practice by the University of authorizing, contrary to its formal policy, indiscriminate use of the Perimeter for general student discourse.

Reliance on the Second Policy as reflecting an intent not to create a designated public forum is not, as the plaintiff contends, an exercise in “circular reasoning.” What the Fifth Circuit described as circular reasoning was the proposition that a government unit with a “general policy of open access” could cause its property to “cease to be a designated public forum” by the simple expedient of “adopting] a[n] ... exceptional regulation” imposing a “specific restriction on speech” without “departing] from [its] consistent practice” of allowing open access, such that “[t]he restriction would disprove any intent to create a designated public forum, and the failure to create a public forum would justify the restriction of speech.” Hays County Guardian v. Supple, 969 F.2d 111, 117 (5th Cir.1992). Here, the University does not have a general policy of open access to the Perimeter, and it does not suggest that a limited exception to such a policy negates the designated public forum status flowing from the policy. Instead, the University has an express policy of denying access to the Perimeter for student speech. This clear expression of intent is precisely what the Cornelius analysis requires the Court to weigh against an intent to create a designated public forum.

b. Practice.

The Court agrees with the plaintiff, (Doc. 106 at 27), that “[a] policy purporting to keep a forum closed (or open to expression only on certain subjects) is no policy at all for purposes of public forum analysis if, in practice, it is not enforced or if exceptions are haphazardly permitted.” Hopper v. City of Pasco, 241 F.3d 1067, 1076 (9th Cir.2001). The plaintiff identifies a number of instances over the past five years which, it says, reflect a widespread practice of allowing open-ended student expressive activity within the Perimeter. The Court considers these in turn.

i. College of Engineering cookout.

In February 2014, the College of Engineering held a cookout in the Perimeter, complete with flag football, tug-of-war and a jousting ring. (Doc. 103-8 at 2). It is uncontroverted that these were “College of Engineering events,” (Doc. 108-5 at 2; Doc. 108-6 at 66), and the plaintiff admits it was the University itself that used the Perimeter for the cookout. (Doc. 101 at 13).

“When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Walker, 135 S.Ct. at 2245. There may be other constitutional or statutory limits on the government’s ability to express itself, Id. at 2246, and the First Amendment could be implicated if the government sought to compel private persons to convey its speech, Id. but the plaintiff does not contend that any such possibility or provision is in play here. Assuming without deciding that holding a cookout is expressive activity in any constitutionally meaningful sense, such expressive activity was that of the University itself and thus irrelevant to whether the University has opened the Perimeter to general student discourse.

ii. September 11 memorial.

In September 2011, the Department of Air Force Studies, the Department of Military Science, and Student Affairs hosted a commemorative ceremony at the flagpole in front of the administration building. (Doc. 103-11 at 2). It is uncontroverted that the hosts are all part of the University, and the plaintiff admits that the event constituted the University’s own use of the Perimeter. (Doc. 101 at 13). As with the College of Engineering cookout, the flagpole ceremony constituted the University’s speech and so contributes nothing to the plaintiffs argument that the University has by practice opened the Perimeter to general student discourse.

iii. Signs advertising intramural sports.

The plaintiff states that banners advertising intramural sports have appeared from time to time at a particular intersection within the Perimeter. (Doc. 101 at 14). It is uncontroverted that intramural sports are sponsored by the University and that the signs advertising them were placed by the University. (Doc. 99-6 at 4). Since the signs constitute the University’s own speech, they do not bolster the plaintiffs case.

iv. Signs promoting tobacco-free campus.

The plaintiff submits pictures of yard signs within the Perimeter notifying readers that the University “is going tobacco free August 1, 2015” and encouraging them to “be Jag healthy!” (Doc. 103-18). It is uncontroverted that these signs were placed by the University to promote the University’s no-tobacco policy. (Doe. 99-1 at 16; Doc. 99-6 at 4). Again, this is speech by the University itself and so cannot indicate the University has generally opened the Perimeter to student discourse.

v. ROTC training.

The plaintiff has submitted photographs of what it says are “ROTC cadets conducting] military exercises” in the Perimeter. (Doc. 101 at 14; Doc. 103-15). The photographs confirm that the group was engaged in a training exercise, pure and simple.

“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Even when the American flag — the “very purpose [of which] is to serve as a symbol of our country” — is involved, the Supreme Court does not “automatically conclud[e]” that the conduct is expressive. Texas v. Johnson, 491 U.S. 397, 405, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). “Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred.” Id. And when “[t]he expressive component of ... actions is not created by the conduct itself but by the speech that accompanies it[,] [t]he fact that such explanatory speech is necessary is strong evidence that the conduct at issue ... is not so inherently expressive that it warrants protection under O’Brien.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 66, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006).

The plaintiff offers no evidence that the cadets intended by their conduct to “express an idea” to begin with. Even had it done so, practicing military maneuvers is simply part of what ROTC cadets do, and in that context it carries no more inherent expressive content for purposes of First Amendment analysis than does a surgeon’s wielding of a scalpel or a student’s walking to class. Any expressive content would have to conveyed, as in Rumsfeld, by explanatory speech, and the plaintiff identifies none.

In short, the cadets’ military exercise does not constitute expressive activity for First Amendment purposes and so is irrelevant to the plaintiffs effort to establish the Perimeter as a designated public forum for such purposes.

vi.Homecoming campaign sign.

The plaintiff has evidence that, in October 2015, a “sheet sign” seeking support for a homecoming queen candidate hung for three days within the Perimeter before the candidate removed it. (Doc. 106-1 at 4-5, 7-8). It is uncontroverted that the candidate did not seek or obtain permission to hang the sign, and it is uncontroverted that defendant Mitchell, who is responsible for implementing and enforcing the Second Policy, did not see the sign or know it was there. (Doc. 111-1 at 3-4).

As noted, a designated public forum arises only when the government “intentionally open[s] a nontraditional forum for public discourse.” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. The plaintiff has not explained, and the Court cannot fathom, how a brief, unknown, unauthorized episode of expressive activity in violation of explicit policy could suggest in the slightest that a government has intentionally opened its property for public discourse.

vii.Other cookouts.

The plaintiff has evidence that the Society of Women Engineers (“SWE”), a student organization, along with the College of Engineering, hosted a “welcome back cookout” in August 2013 and again in August 2015. (Docs. 103-12, -13). The plaintiff also has evidence that, in August 2014, Gulf Region Intelligent Transportation Systems (“GRITS”), another student organization, hosted a cookout that was cosponsored by the College of Engineering. (Doc. 103-14; Doc. 108-5 at 3).

The plaintiff contends that, because SWE and GRITS co-sponsored these cookouts, their expressive content constitutes student speech. Though unsupported by citation to authority, the assertion is plausible, and the defendants have done nothing to undermine it. Instead, the defendants deny there was any expressive activity in connection with the cookouts, (Doc. 107 at 14, 21), but they cite nothing that would compel such a conclusion. The plaintiff identifies the message conveyed by these events as one of welcoming students and employees to campus, promoting the organizations, and soliciting new members, (Doc. 110 at 12), and the record excerpts it cites would support that construction. For present purposes, the Court therefore assumes that the University has, once a year for three years, allowed a student engineering organization to promote itself and solicit new members at a cookout held within the Perimeter.

viii. Another September 11 memorial.

The plaintiff has evidence that, in September 2010, the Student Government Association (“SGA”), along with the Dean of Students’ office and the Army/Air Force ROTC, “invite[d] the campus community to commemorate the events of September 11, 2001 by joining us for a brief ceremony” at the flagpole outside the administration building. (Doc. 103-16). Without any citation to the record, the defendants insist that this event was “University-sponsored [and] not student organization expressive activitfy].” (Doc. 107 at 8). In light of the plaintiffs evidence, the Court cannot indulge the defendants’ ipse dixit.

ix. Relay for Life signs.

Finally, the plaintiff has evidence that, in March 2015, Colleges Against Cancer (“CAC”), a student organization, placed three yard signs within the Perimeter advertising its Relay for Life event, which signs remained in place until sometime in June 2015. (Doc. 103-20; Doc. 103-25 at 4; Doc. 106-1 at 2). The signs provide visual directions to the event and some sponsor (Walmart) information. The most visible portions of the signs say, “Join us in the Fight Against Cancer,” “RELAY FOR LIFE,” “American Cancer Society,” and “Celebrate. Remember. Fight Back.” (Doc. 103-20).

It is uncontroverted that CAC sought permission to place small directional signs to the event when there was a late change in its on-campus venue; that Rachael Bol-den in the Office of Student Activities granted permission but under the assumption they would not be placed in the Perimeter; that she later saw one of the signs in the Perimeter but did not seek to have it removed because it was a short time before the event and because its purpose was to direct participants to the event; that she did not realize the signs remained in place long after the March 20 event; that the ordinary practice is for event-related signs anywhere on campus to be removed by event organizers upon the conclusion of the event, failing which the University grounds department is to remove them; and that no one was ever warned or sanctioned for placing the signs in the Perimeter. (Doc. 104-24 at 2; Doc. 106-2 at 3; Doc. 108-10 at 3; Doc. 111-2 at 3).

Contrary to the defendants’ suggestion, this evidence does not prove that the signs “went undetected by University officials.” (Doc. Ill at 11). That Bolden did not notice the signs’ continued presence cannot demonstrate that Mitchell and other University officials did not notice; indeed, the long time the signs remained in place (between two and three months), with at least two of them on a major artery into campus, of itself supports an inference that the University knew the signs were there.

x.Summary and analysis.

The plaintiff has evidence of the following relevant student speech or expressive activity in the Perimeter: (1) co-sponsorship by the SGA of a 9-11 commemorative ceremony in 2010; (2) co-sponsorship by two engineering organizations of three welcome-back cookouts, one each in 2013, 2014 and 2015; and (3) placement of several yard signs advertising an anti-cancer event in March-June 2015. The question becomes whether these episodes indicate that the University has generally opened the Perimeter to student discourse.

As noted, “[t]he government does not create a public forum ... by permitting limited discourse,” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439, and “[a] designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.” Forbes, 523 U.S. at 679, 118 S.Ct. 1633. At best, the plaintiff can identify only five occurrences of student speech in the Perimeter in as many years, an infrequency that does not suggest the University has purposefully opened that area to “indiscriminate use” as a public forum.

Nor does the subject matter of these isolated occurrences suggest the University has opened the Perimeter to general student discourse (designated public forum) as opposed to “the discussion of certain subjects” (limited public forum). Summum, 555 U.S. at 470, 129 S.Ct. 1125; accord Walker, 135 S.Ct. at 2250. Three of the five instances were mere social gatherings of engineering students seeking to bond with professors and other engineering students, and the other two addressed eminently non-controversial topics. It is uncontroverted that the University’s restriction on speech in the Perimeter is based in part on a desire to avoid being perceived by the Mobile community (which the Perimeter faces) as taking sides on any controversial political or social issue, and the plaintiff has no evidence that the University has ever permitted student speech in the Perimeter on any controversial matter of any kind. Without such evidence, the most the plaintiff can show is that by practice the University has opened the Perimeter only to the “discussion of certain [i.e., non-controversial] subjects.” Since the government can (if it honors viewpoint neutrality) restrict speech in order to avoid controversy in a limited public forum but not in a designated public forum, Cornelius, 473 U.S. at 811, 105 S.Ct. 3439, the University’s desire to avoid controversial speech in the Perimeter, and the plaintiffs inability to produce evidence the University has permitted controversial speech there, demonstrate that it has not by practice evinced an intent to open the Perimeter to general student discourse.

In United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), “individuals or groups ha[d] been permitted to leaflet, speak, and picket on postal premises, ... but a regulation prohibiting disruption ... and a practice of allowing some speech activities on postal property do not add up to the dedication of postal property to speech activities.” Id. at 730, 110 S.Ct. 3115 (plurality opinion). This history reflected only “selective access,” which “does not transform government property into a public forum.” Id. (internal quotes omitted). Thus, the postal premises remained a limited public forum, and the government’s ban on solicitation on postal premises was reviewable only for reasonableness. Id.

Kokinda thus establishes that a practice of permitting some controversial speech (picketing almost by definition involves a controversial issue) is insufficient to reflect that the government has opened the forum to other controversial speech (solicitation, which would include solicitation for controversial causes). Here, the plaintiff has not even shown a practice of permitting some forms of controversial speech in the Perimeter, so its case is weaker than that ruled legally inadequate in Kokinda. Certainly the plaintiff has not attempted to explain how its position (that a few, infrequent instances of bland student speech on noncontroversial matters demonstrates the University purposely opened the Perimeter to unlimited student speech on any and all matters) can be reconciled with Kokin-da.

In short, while the University’s practice may suggest an intent to permit the discussion of certain subjects, such an intent reflects only a limited public forum; the University’s practice does not support a reasonable inference that the University intended to create a designated public forum by opening the Perimeter to general student discourse.

c. Nature of the property.

The plaintiff identifies three ways in which the nature of the Perimeter suggests it is a designated public forum: (1) it is part of a college campus; (2) it resembles a public park (a traditional public forum), with expansive lawns, sidewalks and picnic benches; and (3) its outer border is a public sidewalk — a traditional public forum- — -with no physical barrier between the two. (Doc. 101 at 26-27).

As the plaintiff acknowledges, “[t]he physical characteristics of the property alone cannot dictate forum analysis.” Bloedorn, 631 F.3d at 1233. As the plaintiff does not acknowledge, the nature of the property is relevant only to the extent it helps “discern the government’s intent” to create a designated public forum. Cornelius, 473 U.S. at 802, 105 S.Ct. 3439; accord Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1202 (11th Cir.1991) (“[T]he touchstone for determining whether property is a designated public forum is government intent in establishing and maintaining the property,” with the nature of the property relevant “[i]n attempting to divine whether the government has intended to designate” a public forum).

The Supreme Court in Cornelius cited only two cases as reflecting its historical consideration of the nature of the property in its investigation of the government’s intent. In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), the municipal auditorium and theater “were designed for and dedicated to expressive activities,” 473 U.S. at 803, 105 S.Ct. 3439; the plaintiff has shown neither regarding the Perimer ter. In Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the university’s policy “evidenced a clear intent to create a public forum,” with that clear intent merely corroborated by the observation that “a university campus, at least as to its students, possesses many of the characteristics of a traditional public forum.” 473 U.S. at 802-03, 105 S.Ct. 3439. Here, as discussed in Parts I.A.2.a-b, the University’s policy evidences a clear intent not to create a public forum, and its practice evidences at most an intent to permit limited discourse (i.e., a limited public forum). The plaintiff does not invoke the nature of the Perimeter to bolster a showing of intent to create a designated public forum as reflected by policy and/or practice, but to compensate for the complete absence of such a showing. In effect, the plaintiff argues that, because the nature of the Perimeter would make it a plausible public forum, the University must have intended to designate it a public forum despite University policy and practice to the contrary. Sinee, as the plaintiff concedes, the nature of the property cannot alone determine the nature of the forum, Bloedorn, 631 F.3d at 1233, its position is untenable.

Even disregarding the inherent futility of its effort, the plaintiff has not shown that the nature of the Perimeter indicates the University intended to designate it as a public forum. The plaintiff first proposes that “the free expression of diverse viewpoints is part and parcel of the higher learning for which” a university campus is created. (Doc. 101 at 26). No doubt, but this hardly suggests that every square ineh of a campus is or ought to be a designated public forum for student speech. The plaintiff itself quotes Bloedom for the proposition that “[a] university campus will surely contain a wide variety of fora on its grounds,” 631 F.3d at 1232, so it is both unnecessary and unlikely that an entire campus will be a designated public forum. Because the Second Policy renders much of the campus a designated public forum, it is plain the plaintiffs choice is not between speaking in the Perimeter or not speaking at all.

As for the Perimeter’s “park-like” feel, the plaintiff in Sentinel argued that interstate rest areas were designated public fora because their “topographical features ... frequently resemble those found in city parks, e.g. grassy areas, restrooms, water fountains, parking areas, picnic benches.” 936 F.2d at 1203-04. The Eleventh Circuit rejected the contention, noting that a property’s physical characteristics cannot alone render it a designated public forum and further noting evidence that the government intended these features to promote traveler rest and thus traveler safety. Id. at 1204 & n.15. Here, it is uncontroverted that the University has expended substantial sums on the Perimeter for the purpose of making it aesthetically pleasing to the campus community, to the broader community, and to prospective students and their parents. (Doc. 98 at 14; Doc. 99-8 at 28-29; Doc. 99-9 at 68-69). As in Sentinel, the Perimeter’s park-like features were developed, not to promote First Amendment activity, but to serve other interests, and they therefore do not suggest an intent to open the Perimeter to general student discourse.

Finally, the plaintiff finds it “[a]bsur[d]” to imagine that students have full First Amendment protection while standing on the traditional public forum of the public sidewalk bordering campus “but lose it all” by taking a single step from that sidewalk into the Perimeter. (Doc. 106 at 28). It can hardly be an absurdity, however, that fora have geographical boundaries or that different kinds of fora may abut. Neither the Supreme Court nor the Eleventh Circuit shares the plaintiffs incredulity regarding the commonplace of adjoining government properties constituting different fora for First Amendment purposes. See Kokinda, 497 U.S. at 723, 730, 110 S.Ct. 3115 (public sidewalk was traditional public forum, but sidewalk on adjoining post office property was limited public forum); United States v. Gilbert, 130 F.3d 1458, 1460-61 (11th Cir. 1997) (courthouse plaza was a designated public forum on one side of a row of planters and a non-public forum on the other).

d. Compatibility with expressive activity.

The plaintiff cites a Fifth Circuit case for the proposition that “a university campus is clearly an appropriate place for communication of views on issues of political and social significance.” Justice for All v. Faulkner, 410 F.3d 760, 769 (5th Cir. 2005) (internal quotes omitted). The plaintiff also points to the speech discussed in Parts I.A.2.b.i-ix, as reflecting the compatibility of the Perimeter with expressive activity. (Doc. 101 at 19). The defendants argue this historical speech is irrelevant to the compatibility analysis because it “was only conducted by the University and its departments.” (Doc. 107 at 18). As discussed in Part I.A.2.b, some of this speech was in fact student speech, but it would seem the compatibility of a forum with some student speech does not necessarily reflect its compatibility with all forms of student speech. Nevertheless, the Court will assume without deciding that the Perimeter may be compatible with student speech in general, including speech on controversial political and social issues.

e. Summary and analysis.

The question is whether the plaintiffs evidence either establishes that the Perimeter is a designated public forum or at least creates a genuine issue of material fact in that regard. The Perimeter cannot be a designated public forum unless the University purposefully and intentionally opened the Perimeter to general student discourse. The University’s intent is determined by evaluating its policy concerning student speech in the Perimeter, its practice concerning student speech in the Perimeter, the nature of the Perimeter, and the Perimeter’s compatibility with general student discourse therein.

The Second Policy expressly closes the Perimeter to general student discourse. The University in practice has on rare occasions permitted limited student discourse within the Perimeter on certain academic subjects and non-controversial social subjects but has never authorized student expressive activity there on any divisive social or political issue. The Perimeter may be compatible with such speech, but its nature does not indicate that the University intended to make it a designated public forum, especially given that the University has expressly made other portions of campus designated public fora and that it had other reasons for establishing the Perimeter.

Where, as here, the uncontroverted facts reflect that the government’s policy and practice are patently inconsistent with an intent to establish a designated public forum, the mere compatibility of the property with expressive activity, and its mere similitude with such fora, cannot demonstrate that the government intended to create such a forum. The Perimeter thus is not a designated public forum but is at best a limited public forum.

3. Limited public forum.

“Control over access to a nonpublic [limited public] forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. 3439; accord Perry, 460 U.S. at 49, 103 S.Ct. 948. This proposition is “black-letter law.” Davenport v. Washington Education Association, 551 U.S. 177, 189, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007). The plaintiff acknowledges this is the standard applicable to limited public fora, (Doc. 101 at 23 n.6; Doc. 106 at 20, 29), but argues the restrictions on student speech in the Perimeter fail both prongs.

a. Reasonableness.

“The Government’s decision to restrict access to a nonpublic [limited public] forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation. In contrast to a public forum, a finding of strict incompatibility between the nature of the speech ... and the functioning of the nonpublic [limited public] forum is not mandated.” Cornelius, 473 U.S. at 808, 105 S.Ct. 3439 (emphasis in original). “The reasonableness of the Government’s restriction of access to a nonpublic [limited public] forum must be assessed in the light of the purpose of the forum and all the surrounding circumstances.” Id. at 809,105 S.Ct. 3439.

The plaintiffs arguments against reasonableness take several forms: (1) the University has no legitimate interest at stake; (2) the University’s interest is not at risk; (3) the University did not genuinely act for the purpose of avoiding such a risk; and (4) the University’s response does not adequately correspond to the risk. The Court addresses these in turn.

i. Legitimate interest.

The University advances several justifications for restricting student speech in the Perimeter: (1) maintaining a visually attractive campus periphery; (2) promoting traffic safety; (3) promoting its image as an educational institution in the community; and (4) maintaining an apolitical or neutral viewpoint and avoiding the appearance of favoring or endorsing a particular viewpoint. (Doc. 107 at 24; Doc. Ill at 12-13). Because it is dispositive, the Court focuses on the last of these.

The defendant has presented evidence of its interest in avoiding the public appearance of endorsement or partiality on divisive political and social issues. (Doc. 98 at 14; Doc. 99-5 at 27-28; Doe. 99-8 at 30-32; Doc. 99-9 at 71-72). “[AJvoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum.” Cornelius, 473 U.S. at 809, 105 S.Ct. 3439. The plaintiff asserts that Cornelius is inapposite because it involves “a very different forum.” (Doc. 110 at 20). Both the exceptionless phrasing of the Supreme Court’s pronouncement and the wide range of settings in which the principle has been applied, however, confirm that it extends to the Perimeter.

Undeterred, the plaintiff says that, “on public university campuses throughout this country, ... free speech is of critical importance because it is the lifeblood of academic freedom.” DeJohn v. Temple University, 537 F.3d 301, 314 (3rd Cir.2008). Therefore, the plaintiff concludes, the University can have no legitimate interest in restricting student speech in order to maintain a perception of neutrality in the public eye. (Doc. 106 at 31). The defendants, however, have presented evidence that the concept of university neutrality as a means of promoting the open discussion of ideas dates to Renaissance Europe and “has been strongly endorsed by American universities.” (Doc. 99-8 at 30-31). The plaintiff has neither countered this evidence nor attempted to explain away the facial plausibility of its premise that the free exchange of ideas is enhanced when the government does not place its imprimatur on one set of ideas. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1318 (11th Cir.2000) (“ CAMP'’) (even in the context of a traditional public forum, “[t]o demonstrate the significance of its interest, the [defendant] is not required to present detailed evidence but is entitled to advance its interests by arguments based on appeals to common sense and logic.”) (internal quotes omitted).

In short, maintaining the appearance of neutrality on divisive political issues is a legitimate University interest. Since the plaintiff has not even suggested that what is true about avoiding the appearance of favoritism on political issues is any less true with respect to .social issues (to the doubtful extent any significant social issue could fail in a democracy to be also a political issue), the University’s interest extends there as well.

ii. Risk to legitimate interest.

The plaintiff is probably correct that preventing speech on divisive issues in order to avoid the appearance of endorsement of, or partiality towards, a particular viewpoint may be unreasonable if there is no realistic danger of such an appearance. (Doc. 106 at 32). But the plaintiff has failed to explain how such a danger is absent here. The only free speech case on which it relies involved employee postings on “[t]he interior walls [and bulletin boards] of the offices” of a state agency, places the public never visited. Tucker v. Department of Education, 97 F.3d 1204, 1214-15 (9th Cir.. 1996). And while it may be that “[rjeasonable persons are not likely to consider all of the information posted on bulletin boards or walls in government buildings to be government-sponsored or endorsed,” Id. at 1215, this case does not involve such quiet, hidden speech. Instead, it involves outdoor speech in the University’s front yard, the area most readily associated with the University by the general public and the area most exposed to direct observation by the general public.

The Tucker Court acknowledged, 97 F.3d at 1215, that a risk of perceived endorsement existed in Monterey County Democratic Central Committee v. United States Postal Service, 812 F.2d 1194 (9th Cir.1987), where a partisan organization sought to register voters on a post office sidewalk — the facility’s front yard. Id. at 1195,1199. Just so here, the passing public could easily understand that student speech in the Perimeter on a controversial issue was endorsed or at least approved by the University, thereby stripping the University of its aura of neutrality.

After briefing on the instant motion was concluded, the Eleventh Circuit noted in a free speech case that “government property is often closely identified in the public mind with the government unit that owns the land.” Mech v. School Board, 806 F.3d 1070, 1076 (11th Cir.2015) (internal quotes omitted). The Mech Court found such a potential association where the speech at issue was hung on school fences, and it used this association as part of its rationale for concluding that “observers reasonably believe the government has endorsed the message.” Id. Mech further supports the proposition that the University could reasonably believe that authorizing student speech in the Perimeter concerning divisive issues risked public perception that it endorsed or approved of the viewpoints there expressed.

Its free speech jurisprudence exhausted, the plaintiff turns to the Establishment Clause. (Doc. 101 at 33; Doc. 110 at 20). “We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” Board of Education v. Mergens ex rel. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion). The plaintiff assumes that this proposition can be imported wholesale into the free speech context and applied to the citizenry at large. The Court is not so sanguine.

First, the Establishment Clause prohibits the government from endorsing religion, and high school students exposed to civics classes can be expected to realize this; thus, they are unlikely to assume that the school has endorsed student religious speech, contrary to the Constitution. But, at least in general, nothing prevents the University from lawfully endorsing a viewpoint expressed on a subject of political or social significance, so students’ expression of such views cannot so easily be assumed to lack the University’s approval.

Second, the relevant audience in Mer-gens was a student body freshly conversant with First Amendment concepts. Here, in contrast, the relevant audience is the general public passing by the University campus. While this group will include persons with a similar understanding of the relevant concepts, it will also include persons never adequately exposed to them and those whose grasp of them has faded.

In Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the other Supreme Court Establishment Clause case cited by the plaintiff, the Court ruled that the defendant’s concern that a speaker’s religious orientation might be attributed to the defendant was “not plausible” where the defendant “has taken pains to disassociate itself from the private speech involved in this case.” Id. at 841, 115 S.Ct. 2510. This focus on the defendant’s efforts to distance itself from the speaker seems hardly to support the proposition that students or even adults can be assumed not to confuse private religious speech with government speech or endorsement.

The plaintiff offers no case employing Mergens or its rationale in the free speech context or to an audience consisting of the general public. For the reasons stated above, the Court concludes that it does not apply to the present case.

iii. Motivation for response.

The plaintiff assumes rather than establishes that the government must have acted specifically for the purpose of protecting or advancing the legitimate interest it claims. Without adopting that assumption, the Court indulges it for present purposes. As noted in Part I.A.2.b.x, the defendants have presented evidence that the University’s restriction on student speech in the Perimeter is based in part on its desire to avoid the appearance of endorsing or approving of any particular viewpoint on any controversial political or social issue.

The plaintiff unpersuasivhly suggests the University does not truly care about fostering a public perception of neutrality because “[pjublic universities often take controversial positions” in litigation.' (Doc. 101 at 33 & n.12). But universities, like every individual and like all other artificial entities, have interests — and thus opinions — with which others may disagree, and they can scarcely be expected to remain publicly neutral on issues affecting their interests. Under the plaintiffs reasoning, an umpire could not credibly claim to care about the appearance of impartiality in officiating if he publicly expressed opinions on zoning issues in his neighborhood.

In a related vein, the plaintiff argues the University does not really value a public perception of its neutrality on divisive political and social issues because the Perimeter does not extend to the entirety of the campus’s border with the community. (Doc. 101 at 33-34). The western reach of the Perimeter ends at Stadium Drive, (Doc. 29-10 at 3), which leaves students free to engage in expressive activity along Old Shell Road immediately west of Stadium Drive, in front of the student recreation center. Similarly, the northern reach of the Perimeter ends at USA North Drive, though the campus continues north of that point. The defendants acknowledge that student speech west of Stadium Drive and north of USA North Drive could be publicly perceived as endorsed or approved by the University, but they say the risk is lower in these locations. (Doc. 104-4 at 53, 55-56; Doc. 104-5 at 45). The Court agrees with that assessment. Speech between the rec center and Old Shell Road occurs on the western fringe of campus, by a specifically student building and far from the academic, administrative and athletic structures east of Stadium Drive. Speech north of USA North Drive occurs in an undeveloped and largely wooded area, likewise separated from the heart of campus. The exclusion of these areas from the Perimeter does not support a reasonable inference that the University does not genuinely care about sustaining a public perception of its.neutrality.

iv. Correlation between risk and response.

In a traditional or designated public forum, the restriction on speech must be “narrowly tailored” to serve a significant government interest, which requires a “reasonable fit” between means and ends. CAMP, 219 F.3d at 1316, 1318. The plaintiff proposes that this “reasonable fit” standard be applied in the context of a limited public forum, for the purpose of showing that the restriction on student speech in the Perimeter is unreasonably under-inclusive (since it excludes the border area west of Stadium Drive). (Doc. 101 at 32-33). But the very point of forum analysis is to ensure that more lenient standards prevail when considering limited public fora. As the Ninth Circuit has said, “[Reasonableness is not the legal equivalent of narrow tailoring .... ” Flint v. Dennison, 488 F.3d 816, 834-35 (9th Cir. 2007). At any rate, the purpose of the “reasonable fit” analysis is to ensure that speech restrictions do not sweep over-broadly, CAMP at 1318, not — as the plaintiff seeks to employ it — -to show that a restriction does not extend far enough. Even if, as the plaintiff asserts, a speech restriction is unreasonable when “the fit between means and ends is loose or nonexistent,” (Doc. 106 at 25), that is a far lower standard than “narrow tailoring,” and it is one the Second Policy easily hurdles.

The plaintiff, (Doc. 106 at 35), acknowledges that “[t]he government need not choose the least restrictive alternative when regulating speech in a nonpublic forum.” Tucker, 97 F.3d at 1216. But, it says, the government’s “failure to select ... simple available alternatives suggests that the ban it has enacted is not reasonable.” Id. (internal quotes omitted). The plaintiff believes the University could have protected its interest in the public perception of its neutrality by “an equal access policy,” by “signs identifying the speaker,” and/or by the Second Policy’s statement that it (the policy) does not represent the University’s endorsement or approval of any speech. (Doc. 106 at 35).

The plaintiff does not explain how its proposals would address the risk of a public perception of University partiality. Take the plaintiffs situation as an example. If the plaintiff held a cemetery-of-innocents event at the corner of Old Shell Road and University Boulevard, how would the average citizen passing by the display know (or remember) that the University would, if asked, allow a pro-choice student group to stage a similar event, and what is the likelihood he or she would reflect on that bit of fuzzy memory and extrapolate that the University thus does not endorse the plaintiffs message? A sign identifying the plaintiff would do nothing to dispel the risk, because the risk is not that the public would believe the University is speaking but that it would believe the University endorses or approves the speaker’s message, delivered from the University’s front yard. And certainly the average citizen is not privy to the Second Policy, which is but an internal document — one that in any event only denies endorsement or approval flowing from the policy itself.

Finally, the plaintiff characterizes the Second Policy as imposing a “complete ban on First Amendment activities” that is per se unconstitutional even in a limited public forum under Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). (Doc. 106 at 30; Doc. 110 at 19). The policy at issue in Jews for Jesus, however, extended to the entire “Central Terminal Area” of Los Angeles International Airport, Id. at 570-71, 107 S.Ct. 2568 — a vast area encompassing most locations where the non-employee public might be found. Here, in contrast, the Perimeter takes in only part of the southern and eastern borders of campus, leaving large amounts of the campus beyond its reach. The plaintiff cites no authority for the proposition that a government is powerless to preclude First Amendment expression in any sliver of its property.

At any rate, the plaintiffs own evidence proves there is in fact no “complete ban on First Amendment activities” on the perimeter of campus, since the perimeter west of Stadium Drive and north of USA North Drive remains fully open for that purpose. Even in the Perimeter itself, some student speech occurs. In addition to the student speech discussed in Part I.A.2.b, the plaintiff acknowledges that speech such as game-related signs at a pick-up football game in the Perimeter is permitted. (Doc. 101 at 23). The ban in Jews for Jesus, in contrast, was truly complete because it extended even to “talking and reading.” 482 U.S. at 575, 107 S.Ct. 2568.

Having disposed of the plaintiffs arguments, the Court turns to a “surrounding circumstance” that reinforces the reasonableness of the University’s decision to close the Perimeter to student speech. “[W]hen access barriers are viewpoint neutral, our decisions have counted it significant that other available avenues for the group to exercise its First Amendment rights lessen the burden created by those barriers.” Christian Legal Society v. Martinez, 561 U.S. 661, 690, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010). Thus, “the reasonableness of the limitations on [the plaintiffs] access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place,” resulting in “no showing here that [the plaintiffs] ability to communicate with teachers is seriously impinged by the restricted access to the internal mail system.” Perry, 460 U.S. at 53, 103 S.Ct. 948.

Barring student speech in the Perimeter plainly leaves students and student groups “substantial alternative channels” for reaching their target audience. To the extent the target audience is the campus community, large portions of the interior of campus constitute designated public fora for students, including along the University’s major roadways. To the extent the target audience is the outside community, the area along Old Shell Road west of Stadium Drive, and the area along University Boulevard north of USA North Drive, remain designated public fora as well. And of course the public sidewalk all along Old Shell Road and University Boulevard is a traditional public forum. The plaintiff prefers to speak in the Perimeter, especially at the highly visible corner of Old Shell and University, but “[t]he First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient me