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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50254
_______________
ROBERT BRISTER, ROGER BAKER, ERIC SAMSON, AND WILLIAM MEDAILLE,
Plaintiffs-Appellees-
Cross-Appellants,
VERSUS
LARRY FAULKNER, ETC., ET AL.,
Defendants,
EDWIN R. SHARPE,
IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT FOR ADMINISTRATION AND PUBLIC AFFAIRS
AT THE UNIVERSITY OF TEXAS AT AUSTIN;
DONALD L. EVANS,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
HONORABLE TOM LOEFFLER,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
RITA C. CLEMENTS,
IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
THOMAS C. HICKS,
in His Official Capacity as a Member of the Board of Regents
of the University of Texas System;
LOWELL H. LEBERMANN, JR.,
in His Official Capacity as a Member of the Board of Regents
of the University of Texas System;

PATRICK C. OXFORD,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
A.W. "DUB" RITER, JR.,
IN HIS OR HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
A.R. (TONY) SANCHEZ, JR.,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
MARTHA E. SMILEY,
IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM;
AND
LARRY FAULKNER,
IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF TEXAS AT AUSTIN,
Defendants-Appellants-
Cross-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
June 28, 2000
Before POLITZ, SMITH, and DENNIS,
against future First Amendment violations.
Circuit Judges.
The district court entered a declaratory
JERRY E. SMITH, Circuit Judge:
judgment that the property in question is a
"public forum," because it is indistinguishable
Plaintiffs were handing out leaflets before
from the city sidewalks; therefore, the court
an on-campus event at the University of Texas
held that the university's total ban on leafleting
at Austin's Frank C. Erwin Jr. Special Events
by non-students was not a reasonable time,
Center (the "Erwin Center") when they were
place, or manner restriction and is un-
forced to leave the property because they
constitutional. Because it determined that
were interfering with the arrival and departure
these plaintiffs were impermissibly blocking
of the facility's patrons. They sued university
patrons' access to the facility, however, the
officials under 42 U.S.C. § 1983, seeking dam-
court ruled that the university's officers were
ages, declaratory relief, and an injunction
justified in requiring plaintiffs to move from
2

the property. Thus, the court held that the
Center for the delegates to the National Issues
university did not violate the plaintiffs'
Convention. Members of the Austin Greens
constitutional rights, and, consequently, that
political party, including plaintiffs Brister,
they were not entitled to damages or injunctive
Baker, Samson, and Medaille, attempted to
relief. Accordingly, the court also denied
distribute leaflets to the delegates as they en-
attorneys' fees.
tered the Erwin Center on the Red River
Street side. Only Samson and Medaille were
The defendants appeal, challenging the de-
University of Texas students. Some of the
termination that the property is a public forum.
convention delegates approached the center by
The plaintiffs cross-appeal the denial of
walking along the sidewalk and paved area,
nominal damages, injunctive relief, and
while others were transported to the center by
attorneys' fees. Finding no reversible error,
buses that had pulled into the center's parking
we affirm.
lot, located on a recessed area cut into the
paved portion of the property.
I.
The Erwin Center was designed and is
After receiving numerous complaints about
maintained for use by the public for the benefit
the leafleters, Officer Pascual Marquez, a uni-
of the university. The center hosts a wide va-
versity police officer, approached Brister while
riety of academic, athletic, and auxiliary events
he was distributing leaflets on the paved area,
each year. Tickets to these events are sold by
and informed him of the school's policy
the university to the general public, and events
against non-students' distribution of literature
are sponsored by university organizations and
on university property. Marquez also
by groups not affiliated with the university.
explained that the paved recessed area
belonged to the university, whereas the
The Erwin Center is surrounded on all sides
sidewalk belonged to the City of Austin, and
by public streets: Martin Luther King, Jr.,
told Brister he had to remain south of UT's
Boulevard on the north, Fifteenth Street on the
recessed area. Brister continued to leaflet on
south, Interstate 35 on the east, and Red River
the paved area and, after another confrontation
Street on the west. The City of Austin owns
with Marquez, returned to the south of the
a nine- to twelve-foot easement along each of
university property and joined other Austin
the center's four sides that serve as the city's
Greens members who were displaying a
public sidewalks. A portion of the university's
banner.
property on the center's Red River Street side
consists of a brown gravel area paved with
Medaille also was approached by a
small stones that extends from the center's
university police officer (not Marquez) and
public entrance out to the sidewalk. This
was told that he could not distribute leaflets on
property blends in with the city's sidewalks,
the paved area. Medaille identified himself as
and there is no physical demarcation indicating
a University of Texas student but nonetheless
where university property ends and the city's
was prohibited from distributing the leaflets,
easement begins.
because they did not contain his name or the
name of a student organization, as required by
In January 1996, the Austin Chamber of
university rules. The district court found that
Commerce hosted a reception at the Erwin
other than Brister and Medaille, none of the
3

leafleters were approached by the school's
and, thus, the officers' actions were
police.
reasonable.
II.
III.
Plaintiffs sued Larry Faulkner, President of
The university2 contends that because the
the University of Texas at Austin; its Vice-
court found that the plaintiffs had suffered no
President for Administrative Affairs; and the
constitutional injury regardless of whether the
members of the University of Texas System
paved area outside the Erwin Center is a tra-
Board of Regents, all in their official
ditional public forum or a non-public forum,
capacities, under § 1983, for prospective relief,
the court rendered an improper advisory opin-
claiming their First Amendment rights to free
ion in characterizing the nature of the forum.
speech and assembly were infringed by the pol-
In support of its claim, the university points to
icy prohibiting non-students from distributing
the district court's decision on plaintiffs' mo-
leaflets and other literature on university prop-
tion to amend the judgment, in which it stated:
erty. Also under § 1983, plaintiffs sought
"Even if the Court's order [holding that paved
damages from Buzz Huber, Events Manager
area is a traditional public forum] had been in
for the Erwin Center; and Marquez and Lieu-
effect [], it would not have required the
tenant Robert Ewan of the university's police
defendants to alter their behavior toward the
department, in their individual and official
plaintiffs. . . . The plaintiffs failed to prove any
capacities.1
actual, compensatory injuries or obtain any in-
junctive relief." The university asserts that the
The district court dismissed the claims
court's ruling on plaintiffs' injuries mooted the
against Huber and Ewan but otherwise denied
forum question and thus deprived the court of
summary judgment for defendants. After a
jurisdiction over that issue.
one-day bench trial, the court concluded that
the university's rules are unconstitutional as
The plaintiffs claim, in response, that the
applied to the paved area along Red River
court rendered a valid declaratory judgment,
Street, because that area is a traditional public
because each of the plaintiffs presented a via-
forum for First Amendment purposes. The
ble controversy: Each attempted to distribute
court further held, however, that the plaintiffs
leaflets and was ordered to stop by police, and
had suffered no cognizable constitutional in-
each was threatened with arrest if he continued
jury, because their activities disrupted the dele-
his activities. Further, plaintiffs argue that the
gates and impeded access to the Erwin Center
failure of the district court to award all the re-
lief requested does not render its judgment on
the public forum issue merely advisory.
1 Additionally, the plaintiffs challenged the
The university's position is without merit.
University's rules as applied to the West Mall area
Although the district court stated several times
of the main campus, which arose out of an April
that the plaintiffs' constitutional rights were
1996 incident in which Brister similarly attempted
to distribute leaflets. The district court held that
this area was a non-public forum as applied to the
general public and that UT's regulations were rea-
2 Although the defendants are natural persons,
sonable content neutral restrictions. That ruling
we sometimes refer to them, for simplicity, as "the
has not been appealed.
university."
4

not violated and that they failed to prove any
declaratory relief:
actual, compensatory injuries sufficient for in-
junctive relief, those facts did not deprive the
[E]ngrafting upon the Declaratory
district court of jurisdiction to award
Judgment Act a requirement that all of
declaratory relief.
the traditional equitable prerequisites to
the issuance of an injunction be satisfied
In Steffel v. Thompson, 415 U.S. 452
before the issuance of a declaratory
(1974), the Court was presented with a
judgment is considered would defy Con-
challenge to the justiciability of a declaratory
gress' intent to make declaratory relief
judgment action where the plaintiff had not yet
available in cases where an injunction
been charged with any crime under the
would be inappropriate. . . . Thus, the
relevant state criminal trespass statute. The
Court of Appeals was in error when it
plaintiff sought declaratory relief, claiming that
ruled that a failure to demonstrate
application of that law would violate his First
irreparable injurySSa traditional
and Fourteenth Amendment rights to distribute
prerequisite to injunctive relief, having
handbills at a shopping center. The Court held
no equivalent in the law of declaratory
that the case presented an "actual controver-
judgmentsSSprecluded the granting of
sy," that federal declaratory relief is not
declaratory relief. The only occasions
precluded when a prosecution based on an as-
where this Court has disregarded these
sertedly unconstitutional state statute has been
"different considerations" and found that
threatened, but is not pending, and that the
preclusion of injunctive relief inevitably
plaintiff's failure to demonstrate irreparable in-
led to a denial of declaratory relief have
jury and to obtain injunctive relief does not
been cases in which principles of
preclude declaratory relief.
federalism militated altogether against
federal intervention in a class of
Significantly, the petitioner had "been twice
adjudications.
warned to stop handbilling that he claims is
constitutionally protected and [had] been told
Id. at 471-72.
by the police that if he again handbill[ed] at the
shopping center and disobey[ed] a warning to
Similarly, in International Soc'y for Krish-
stop he [would] likely be prosecuted." Id.
na Consciousness v. Eaves, 601 F.2d 809 (5th
at 459. The Court reasoned that "it is not nec-
Cir. 1979), we held that a religious
essary that petitioner first expose himself to
organization's anticipatory challenge to a
actual arrest or prosecution to be entitled to
municipal ordinance regulating the distribution
challenge a statute that he claims deters the
of literature and solicitation of funds at a city-
exercise of his constitutional rights." Id.3 In
owned airport was a justiciable actual
addition to its concerns about unnecessarily
controversy. We noted that "the premise of
exposing citizens to criminal sanctions, the
Marbury v. Madison requires us to insist that
Court discussed the unique nature of
an anticipatory challenge to a statute's
constitutionality grow out of a `real,
substantial controversy between parties . . . a
3 See also KVUE, Inc. v. Austin Broadcasting
dispute definite and concrete.'" Id. at 817
Corp., 709 F.2d 922, 928 & n.3 (5th Cir. 1983)
(citations omitted). Thus, to determine
(quoting Steffel).
5

whether there was a "definite and concrete"
chimerical": The officers were fully prepared
dispute, we asked "whether the plaintiff is
to arrest the protesters if they did not comply
seriously interested in disobeying . . . the
with the officers' instructions. Thus, plaintiffs
challenged measure." Id. at 818. And we
have demonstrated the existence of an Article
summarized the actual-controversy re-
III controversy. See High Ol' Times, Inc. v.
quirement with respect to anticipatory
Busbee, 621 F.2d 135, 139 (5th Cir. 1980).
challenges in the following terms: "We can be
Steffel teaches that it is irrelevant whether
most certain that a constitutional challenge
plaintiffs were successful in obtaining
grows out of a genuine dispute and is not a
monetary or injunctive awards and that,
contrivance prompted solely by a desire to
instead, declaratory judgment relief is a proper
enforce constitutional rights if we know that
way for individuals to proceed to ensure that
the allegedly unconstitutional statute interferes
their constitutional rights are protected.
with the way the plaintiff would normally
conduct his affairs." Id. at 819.
IV.
On the merits of the forum issue, the
There can be no doubt that plaintiffs were
university challenges the district court's
seriously interested in disobeying the
conclusion that this particular university prop-
university's policy prohibiting non-students
ertySSoutside the Erwin Center, between the
from distributing leaflets on campus. Indeed,
public entrance and Red River StreetSSis in-
like the petitioner in Steffel, several of the
distinguishable from the Austin city sidewalks
plaintiffs had been approached more than once
and, for that reason, is a traditional public for-
by Marquez and other officers and had been
um. "The Court has identified three types of
threatened with arrest if they did not move to
fora: the traditional public forum, the public
the public sidewalks away from the entrance to
forum created by government designation, and
the Erwin Center. Although plaintiffs are not
the nonpublic forum." Arkansas Educ.
challenging the constitutionality of a criminal
Television Comm'n v. Forbes, 523 U.S. 666,
statute per se, the university's policy, if
677 (1998) (internal quotations and
upheld, would allow its police to arrest the
punctuation omitted). Traditional public fora
leafleters under a criminal-trespass theory.
"are defined by the objective characteristics of
Accordingly, there is no distinction between
the property, such as whether, `by long
the conundrum faced by the individuals in
tradition or by government fiat,' the property
Steffel and Eaves, on the one hand, and the
has been `devoted to assembly and debate.'"
dilemma faced by the instant plaintiffsSSeither
Id. (quoting Perry Educ. Ass'n v. Perry Local
they risked being criminally punished by
Educators' Ass'n, 460 U.S. 37, 45 (1983)).
engaging in "conduct which [they] may have
Thus, the district court correctly observed that
honestly thought was constitutionally
public sidewalks are, by long tradition, public
prot ected," or, else, they would be deterred
fora.4
from "engaging in protected activity and
enforcing constitutional rights." Eaves, 601
In determining that the university's paved
F.2d at 821.
area adjacent to the Austin sidewalk is a public
In no way are plaintiffs' "threats of
prosecution . . . imaginary, speculative or
4 The university does not challenge the
conclusion that Austin's sidewalks are public fora.
6

forum, the district court relied primarily on
sidewalks. See id. at 178-79. Thus, the
United States v. Grace, 461 U.S. 171 (1983),
university relies on the general rule that "[a]
holding that a statute prohibiting displaying "in
university differs in significa
the Supreme Court building, or on its grounds,
nt respects from public forums such as streets
any flag, banner, or device designed to bring
or parks or even municipal theaters." See
into public notice any party, organization, or
Widmar v. Vincent, 454 U.S. 263, 268 (1981).
movement," was an unreasonable place
restriction on the exercise of free speech and
On the other hand, plaintiffs argue that
was unconstitutional. Particularly troubling to
Grace still supports the district court's
the Court was the fact that the statute's ban
conclusion that the Erwin Center's grounds
applied to the public sidewalks surrounding the
that are adjacent to the Red River Street
Court building, because sidewalks are
sidewalk are a public forum. They point to the
traditional public fora. See id. at 178-79. The
Court's concern that "[t]here is no separation,
Court did not opine on whether the statute
no fence, and no indication whatever to
was unconstitutional as applied to the building
persons stepping from the street to the curb
and grounds inside the sidewalks, however,
and sidewalks that serve as the perimeter of
but instead relied on its observation that "the
the Court grounds that they have entered some
sidewalks comprising the outer boundaries of
special type of enclave." Grace, 461 U.S. at
the Court grounds are indistinguishable from
180.
any other sidewalks in Washington, D.C., and
we can discern no reason why they should be
Likewise, here there is no indication or
treated any differently." Id. at 179.
physical demarcation of the public sidewalk,
which is a public forum, and the university
Grace, then, frames the terms of the
grounds, which typically are not. The
dispute. On the one hand, the university seeks
university challenges this assertion, however,
to distinguish the holding that the statute was
arguing that its police officers provide verbal
unconstitutional as applied to the public
warnings sufficient to establish a reasonable
sidewalks. It argues that the district court
boundary line. It points to the undisputed
incorrectly presupposed the outcome-
facts in the instant case that demonstrate that
determinative conclusionSSi.e., it relied on
Marquez and the other officers repeatedly
Grace to establish that the university's
informed the plaintiffs of when they
grounds were themselves a public sidewalk
impermissibly had crossed onto university
and, therefore, a public forum.
property.
The university is in fact correct that Grace
But these verbal warnings are not sufficient.
is not a perfect fit for that conclusion, because
First, the facts of Grace undermine the
there the Court compared the sidewalks in
university's claim that repeated warnings can
quest ion to "any other sidewalks in
suffice to establish a boundary between public
Washington, D.C.." Notably, the Court did
and non-public fora. The petitioners there had
not compare those sidewalks to the internal
been threatened with arrest several different
grounds of the Court building; indeed, the
times while they were protesting on the public
Court expressly refused to make any judgment
sidewalks bordering the Court building, and
as to the building and grounds inside the
each time they left without an incident. Thus,
7

they plainly knew that the statute prohibited
very particular facts.
demonstrations on these particular sidewalks
outside the Court, but, nevertheless, the Court
While both sides make plausible arguments,
held that there was nothing to distinguish these
and while it could be onerous for the university
sidewalks from any other sidewalks in the Dis-
to have to open up the entire area outside the
trict of Columbia.
Erwin Center to public discourse, the concerns
with chilling otherwise constitutionally-
The university seeks to distinguish this fact
protected speech are paramount. If individuals
as well, and it correctly observes that Grace
are left to guess whether they have crossed
"does not address the question of whether an
some invisible line between a public and non-
oral warning would serve as a sufficient
public forum, and if that line divides two
`indication' of the boundary between the
worldsSSone in which they are free to engage
sidewalk and the plazaSSor, indeed, whether
in free speech, and another in which they can
any `physical demarcation' is required at that
be held criminally liable for that speechSSthen
point at all." It argues that the Austin public
there can be no doubt that some will be less
sidewalk cannot reasonably be thought to
likely to pursue their constitutional rights, even
extend all the way from the curb to the base of
in the world where their speech would be
the building, and it warns that the definition of
protected.
constitutional public fora should not turn on
the architectural characteristics of individual
Moreover, it is of little consequence that
buildings. In other words, if the university had
the university's officers first warn the
not chosen to pave the Erwin Center's
protesters before they arrest them. The
grounds with the same brown stones as those
constitutional right to free speech suffers
used for the public sidewalk, there would be
injury when this impermissible amount of
little question that the property in question was
doubt is introduced, and when constitutional
not a public forum.
expression is chilled.
Furthermore, the university's burden is not
Yet the university cannot so easily avoid
so overwhelming as it claims. While the
Grace's reasoning. In addition to its desire to
district court did hold that the Erwin Center's
protect the traditional public fora, the Court
grounds, between the base of the building and
was concerned with the adequacy of the notice
the curb of Red River Street, were a public
provided to those who reasonably thought
forum, it nevertheless left the university the
they were on public grounds. This is evident
option of reasonable time, place, and manner
from the Court's prolonged discussion of the
restrictions. Thus, the university still can re-
lack of any indicat ion or dividing line that
move anyone who interferes with the flow of
would inform a protester that he had entered
traffic to and from the Erwin Center, thereby
some special "enclave" where free speech was
ensuring that the university's interests retain
not protected. Similarly, here the plaintiffs and
some protection.
other members of the public cannot be certain
when they have entered the university's
The district court reached the correct con-
enclave, and notwithstanding the university's
clusion based o n the very specific facts set
concerns about the intricacies of architectural
forth hereSSi.e., a unique piece of university
design, First Amendment cases often turn on
property that is, for all constitutional purposes,
8

indistinguishable from the Austin city
to get off the sidewalk and, erroneously, that
sidewalk. Accordingly, the judgment in that
the university's property encompassed the en-
respect is affirmed.5
tire sidewalk area along Red River, they
proceeded to hand out pamphlets while
V.
standing in the street.
On cross-appeal, plaintiffs present three
challenges to the conclusion that they suffered
This dispute is primarily factualSSwhether
no violation of their constitutional rights. We
there was sufficient evidence to support the
consider each in turn.
finding that the plaintiffs impeded patrons' ac-
cess to the Erwin Center and, therefore, that
A.
the officers were justified in requiring them to
Plaintiffs contend that the court committed
move pursuant to a reasonable time, place, and
clear error in finding that Medaille, Baker, and
manner restriction. If such evidence is in the
Samson impeded access to the Erwin Center
record, plaintiffs concede that they cannot de-
and otherwise disrupted the delegates.6 As a
monstrate clear error, even if there is
result, plaintiffs argue that each should have
contradictory evidence supporting their
been awarded nominal damages for prevailing
position. But, plaintiffs argue that there is no
on his constitutional claim.7 They maintain
evidence that Medaille, Baker, or Samson ever
that the record is wholly devoid of evidence
was directly in front of the center's doors or
that Baker, Samson, or Medaille ever was in
that any of them in some other way blocked
front of the doors to the Erwin Center
delegates from getting inside, because neither
restricting the delegates' access. With respect
Marquez nor any other university officer tes-
to Baker and Samson, the plaintiffs claim the
tified to such fact.
record reflects that once they were instructed
By contrast, the three plaintiffs point to
Marquez's testimony that the leafleters, other
5
than Brister, "were not in the immediate area."
This holding applies only to the specific prop-
These plaintiffs assert that the closest
erty at issue on Red River Street and is not to be
testimony supporting the district court's
interpreted to apply to any other property around
conclusion was Marquez's statement that he
the perimeter of the Erwin Center or elsewhere,
about which we express no opinion.
"noticed approximately five solicitors with a
large banner and passing out leaflets as people
6 Plaintiffs concede that there is contradictory
exited the buses." But, plaintiffs note that
evidence in the record to support the district court's
there was no mention that the leafleters were
findings of fact with respect to Brister.
preventing people from getting off the buses,
nor did anyone identify the plaintiffs as the
7 See, e.g., Fyfe v. Curlee, 902 F.2d 401 (5th
particular leafleters Marquez observed.
Cir. 1990); Ryland v. Shapiro, 708 F.2d 967 (5th
Cir. 1983) (plaintiff who prevails on constitutional
Thus, plaintiffs contend that they were re-
claim but who otherwise does not suffer any injury
quired to leave the public sidewalk, not the
is entitled to nominal damages). The plaintiffs also
university grounds, despite the fact that they
insist that Brister is entitled to nominal damages
because he successfully demonstrated that an un-
were not impeding anyone's entry into the Er-
constitutional act occurred, even though his own
win Center. If this is so, then, plaintiffs argue
conduct prevented his suffering any damages.
9

that the finding that these three plaintiffs in-
they were interfering with no one. Also, there
hibited delegates from entering the center is
is evidence that Baker and Samson stood in
clearly erroneous, and, therefore, that the find-
the recessed area of the university property,
ing that their constitutional rights were not
where the buses were dropping off delegates,
violated should be reversed, for the reason that
and offered leaflets to people as they got off
this factual finding formed the only basis for
these buses. While it is uncertain whether this
the court's legal conclusion.
leafleting inhibited patrons' access to the
Erwin Center, the court could have concluded
The university responds by noting that the
that this was enough for the officers to ask the
court simply discounted these plaintiffs' self-
plaintiffs to move back to the sidewalk, and it
interested and unbelievable testimony. It con-
refutes plaintiffs' claim that they restricted
tends that the plaintiffs' account should be dis-
their activities to only the sidewalk.
believed because they admitted that their re-
collection of events was hazy, and because that
B.
account is inconsistent with other facts that are
Plaintiffs argue that Medaille, who claimed
not in dispute. Specifically, the school claims
to have identified himself as a student to an
that this account is not consistent with the fact
unspecified university police officer, imper-
that other demonstrators apparently were al-
missibly was held to a higher standard than
lowed to distribute literature within the city's
were other university students, because the of-
sidewalk, in full view of university police, and
ficer asked him to produce documentation that
that no university personnel attempted to stop
proved he was authorized to leaflet on
them.8 Also, none of the plaintiffs could iden-
campus. Medaille correctly points out that, as
tify the officer(s) who allegedly told them that
a student, he is not required to have prior
they could not distribute literature even on the
authorization to leaflet on campus.
sidewalk between the Erwin Center and Red
River Street.
But, nevertheless, Medaille failed another
requirement of university policy, namely, that
Because we are under a clearly erroneous
any leaflet distributed by a student
standard of review, we cannot second guess
organization identify that organization on the
the district court's decision to believe Mar-
face of the document. Because plaintiffs'
quez's testimony over Brister's and to
pamphlets did not contain any such
discount the other plaintiffs' statements that
identification, Medaille's claim is moot.9
8 The university also tries to argue that, even if
plaintiffs could prove that university police ordered
them not to distribute materials anywhere on the
9 Notably, plaintiffs do not present an over-
Red River sidewalk, "it is legally inconsequential,"
breadth challenge to this aspect of the university's
because the only area where they wanted to
regulations, as they are a reasonable time, place,
distribute leaflets was the space in front of the
and manner restriction aimed at ensuring the
Erwin Center's doors. But this claim is
university can hold student organizations
unsupported by any evidence and is contrary to the
accountable for littering and the like. Unless they
plaintiffs' complaint that they could not leaflet on
can show that Medaille or another student was
the sidewalk. Obviously, plaintiffs wanted to
treated unfairly, then, plaintiffs have no remaining
leaflet anywhere they could, the closer the better.
claim.
10

C.
Thus, plaintiffs have not developed their
To challenge the holding that they suffered
argument here, and they have identified no re-
no violation of their constitutional rights,
versible error. Therefore, we affirm the
plaintiffs attack what they call the "phantom
district court's ruling that plaintiffs suffered no
time, place and manner restrictions." They ar-
violation of constitutional rights.
gue that the court's finding that the officers
were justified in preventing them from
VI.
distributing leaflets, when that distribution in-
Plaintiffs aver that the court erred in
terfered with the flow of visitors to and from
denying them nominal damages. Part of their
the Erwin Center, was erroneous, because the
reasoning is based on their contention, rejected
only place and manner that existed was the un-
above, that we should reverse the district
iversity's absolute ban on non-students'
court's determination that their constitutional
distributing of literature on university
rights were not violated. But plaintiffs also
property. Thus, plaintiffs assert that the
argue that regardless of the ruling that they
university chose not to promulgate time, place,
sustained no actual injuries, the court still
and manner restrictions that would balance its
should have awarded them nominal damages.
interests against those of persons wishing to
exercise their constitutional rights.
Plaintiffs cite cases such as Russell v.
Harrison, 736 F.2d 283, 291 (5th Cir. 1984),
But, in their brief, plaintiffs expressly
in which we noted that "if upon remand, the
abandon any void-for-vagueness argument,
district court finds a denial of procedural due
and, as a result, we cannot see what they hope
process, actual damages may be awarded un-
to accomplish. They have not shown, or even
der 42 U.S.C. § 1983, and nominal damages
argued, that the ban on leafleting during these
are appropriate in the event that no actual
events would be an unreasonable restriction
damages are shown." Plaintiffs also reason
were it expressly promulgated, nor have they
that "[b]y making deprivation of such [consti-
argued that the university discriminated against
tutional] rights actionable for nominal damages
them on the basis of the content of their
without proof of actual injury, the law
message.
recognizes the importance to organized society
that those rights be scrupulously observed."
Perhaps plaintiffs are trying to contend that
Lewis v. Woods, 848 F.2d 649, 651 (5th Cir.
the "phantom" restrictions are not narrowly
1988) (quoting Carey v. Phiphus, 435 U.S.
tailored to serve a legitimate government inter-
247, 266 (1978)).
est. But the district court has already struck
down the only restrictions that are codified, at
These authorities do not support plaintiffs'
least with respect to this property, and the uni-
contention that they are entitled to nominal
versity correctly points out that it did not have
damages, however, because all of them depend
a more narrow time, place, or manner re-
on the pre-existing determination that their
striction to evaluate because, until the district
constitutional rights were violated. That is not
court's decision in the instant case, the
the case here, for the district court expressly
university did not consider the grounds to be a
held that "none of the plaintiffs' constitutional
public forum.
rights were violated because the University
police officers, both Marquez who approached
11

Brister and the unidentified officers who ap-
UT responds by asserting that it has not
proached the other plaintiffs, were justified in
violated that order, because its reasoning
requiring the plaintiffs to move away from the
demonstratedSSby reference to an earlier rul-
Red River doors." Instead, it was the
ing in the same caseSSthat the "public forum"
university's policy banning all leafleting by
the university had created was time-limited as
non-students on university property, and not
well as fact-specific:
its treatment of the individual plaintiffs, that
was unconstitutional.
In the fact situation presently before the
Court, the University has invited several
As a result, the district court fashioned the
well known individuals to participate in
appropriate relief, a declaratory judgment that
a seminar. The record reflects that the
the policy would be unconstitutional if applied
seminar was open to the public and that
to the public forum outside the Erwin Center,
the public would be invited to verbally
on the Red River Street side, without proper
participate in the seminar. In light of
time, place, or manner restrictions. Nominal
these circumstances and the applicable
damages were neither necessary nor proper in
case law, it is clear t hat the University
this circumstance, and the court committed no
created a "public forum" at this
error in refusing them.
particular place and at this particular
time. Consequently, the first
VII.
amendment rights of non-students
Plaintiffs claim that the district court abused
would be abridged if they were not
its discretion in denying injunctive relief that
allowed to distribute literature along
would have forced the university to comply
with University students.
with its order. They assert that the university
has failed to abide by a prior ruling that held
In contrast to the circumstances that
that the same university regulation was
motivated the prior order, the university points
unconstitutional for overbreadth. Plaintiffs
out that the current controversy centers on
therefore conclude that the university should
whether the Erwin Center's grounds are a
not be trusted to comply with the current
traditional public forum, not on whether the
order.
university created a "designated public forum"
by inviting individuals to attend any events.10
The prior order, in Mencio v. University of
Consequently, the university reasonably
Tex., Civ. Ac. No. A-84-CA-146 (W.D. Tex.,
thought that its ban on non-student leafleting
May 19, 1986), pro vided, in pertinent part,
did not apply to the Erwin Center grounds,
that the policy was "unconstitutional due to its
because if it were not a traditional public
overbreadth," in that it "provide[d] for the ab-
forum (and no court had previously held that
solute prohibition of distribution of leaflets by
it was), it would have been either a non-public
non-students, faculty and staff." The policy
forum or not a forum at all. Thus, the district
was constitutionally unsound because the uni-
court properly determined that no injunction
versity had created a "public forum" at which
the First Amendment Rights of non-students
could not be abridged.
10 See, e.g., Arkansas Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 677 (1998)
(discussing the creation of designated public fora).
12

was necessary to ensure future compliance,
Here, as the district court expressly found,
because there is no merit to plaintiffs' assertion
plaintiffs' constitutional rights were not vio-
that the university wilfully ignored a court
lated. Although, they did obtain a declaratory
order.
judgment that the policy banning all leafleting
by non-students at the Erwin Center was un-
VIII.
constitutional, that judgment did nothing to al-
Plaintiffs contend they are entitled to
ter the legal relationship between these parties.
attorneys' fees under 42 U.S.C. § 1988 as
That is, plaintiffs still could not leaflet at the
prevailing parties, because they were awarded
time, and in the manner, that they sought.
declaratory relief on their constitutional claim
Instead, the judgment put the university on
and because the court's ruling "materially
notice that in the future, it could impose only
alters" the legal relationship between the
reasonable time, place and manner restrictions
parties.11 It is of no consequence, according to
on leafleting in this traditional public forum.
the plaintiffs, that they did not prevail on any
of their claims for damages or injunctive relief,
Nor are plaintiffs saved by their reliance on
because the declaratory judgment in their favor
Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d
should be sufficient to establish them as a "pre-
806 (5th Cir.), cert. granted, 120 S. Ct. 494
vailing party" under Farrar v. Hobby, 506
(1999), which they cite for the proposition that
U.S. 103 (1992).
a declaration that a policy is unconstitutional is
sufficient for entitlement to fees. But the uni-
The university counters that fees are not
versity correctly observes that the court in
justified, because the plaintiffs suffered no con-
Santa Fe awarded attorneys' fees because the
stitutional injury. While the Court in Farrar
plaintiffs there "obt ained a judgment
liberally construed the term "prevailing party"
vindicating the Santa Fe students' important
under § 1988, the Court did contemplate there
First Amendment Rights in both graduation
will be limits on the awards of fees. For
ceremony and football game contexts." Id. at
instance, it noted that "a judicial
823. In other words, the court found that the
pronouncement that the defendant has violated
student-led prayer violated other students'
the Constitution, unaccompanied by an
constitutional rights to be free from pro-
enforceable judgment on the merits, does not
selytizing at these school-sanctioned events.
render the plaintiff a prevailing party." Id. at
112. The Court observed that a plaintiff who
Thus, for the same reasons that Farrar is
wins either compensatory or nominal damages
inapposite, so is Santa FeSSboth involved vio-
is a prevailing party, but this is so because
lations of the plaintiffs' constitutional rights,
there is necessarily a determination that his
while the instant case does not. Therefore, the
constitutional rights have been violated.
district court did not err in denying attorneys'
fees.
11
AFFIRMED.
The plaintiffs' demand for attorneys' fees is
also premised on their contention that the district
court erroneously denied them nominal damages
and injunctive relief. Because we have rejected
both of these claims, however, we need not
reconsider them here.
13