rules and regulations against its independent duty to protect or at least
not violate the University community's constitutional right of free speech.
It is in regard to this latter duty that the Court finds the University
has fallen short.
In granting the Plaintiffs' request for a Temporary Restraining Order,
this Court finds that both putative classes of Plaintiffs have shown a
substantial likelihood of success on the merits of the underlying
litigation, that there is an absence of an adequate remedy at law, and
that they will suffer irreparable harm if the injunction is not granted.
The Court also finds that the balance of harm weighs heavily in favor of
the Plaintiffs if the injunction should not issue and that the public
interest weighs in favor of granting the relief requested by Plaintiffs.
The Preclearance Directive is an unlawful prior restraint that results
in a chilling of the putative student class' constitutionally protected
speech that cannot be justified by the interests advanced by the
University. With respect to the second putative class, although an
employer may impose certain restraints on job-related speech that would
not be constitutional if imposed on the public at large, the Court finds
that the speech of the purported faculty class is also unconstitutionally
burdened by the Preclearance Directive. It is undisputed by the
University that the Chief Illiniwek controversy presents a matter of
public concern, and the Court concludes that the University's stated
interests are not sufficient to outweigh the free speech interests of
these Plaintiffs. In conducting this inquiry, the Court further finds
that the Preclearance Directive is unconstitutionally overbroad in that
it unnecessarily reaches a substantial amount of constitutionally
protected conduct, impermissibly vests the Director of Athletics or his
designee with largely unconstrained discretion to decide who can and
cannot speak to prospective student athletes, and unnecessarily chills or
even eliminates the possibility for anonymous speech, all of which weigh
in favor of Plaintiffs and the issuance of a temporary restraining
Chancellor Aiken and Mr. Ille spent several hours on the witness stand
during the TRO hearing testifying about a number of matters relevant to
this case. The Court thanks them for their patience and candor during
that intense process. Nothing in this Order is intended to suggest that
either Chancellor Aiken or Mr. Ille has at any time acted other than in
good faith and in pursuit of their duties to the University as they saw
them at the time. What this Order finds is that they were mistaken as to
where their primary duty lay. That's why we have lawsuits.
After listening to Mr. Ille describe the nature of his duties as
Compliance Officer with respect to the NCAA and Big Ten rules, and what
is involved in performing those duties (e.g., numerous requests for
opinions on a daily basis and over 500 pages of NCAA rules, often
differing in content based on the gender of the athlete and the
particular sport involved), it is clear that he has one of the most
demanding jobs that any University employee could have.
A temporary restraining order ("TRO") is an emergency remedy issued to
maintain the status quo until a hearing can be held on an application for
a preliminary injunction. Coca-Cola Co. v. Alma-Leo U.S.A., Inc.,
719 F. Supp. 725, 726 (N.D.Ill. 1989). The purpose of a TRO, similar to
that of a preliminary injunction, is to minimize the hardship to the
parties pending the ultimate resolution of the suit. Faheem-El v.
Klincar, 841 F.2d 712, 717 (7th Cir. 1988). In this circuit, the
for a TRO and a preliminary injunction are functionally
identical. Bernina of America, Inc. v. Fashion Fabrics International,
2001 WL 128164, at * 1 (N.D.Ill. Feb. 9, 2001).
Injunctive relief, including the entry of a TRO, is warranted if the
movant can make a threshold showing: (1) that the movant has some
likelihood of success on the merits of the underlying litigation; (2)
that no adequate remedy at law exists; and (3) that the movant will
suffer irreparable harm if the injunction is not granted. If these three
conditions are met, then the Court must balance the harm to the movant if
the injunction is not issued against the harm to the defendant if it is
issued improvidently and consider the interest of the public in whether
the injunction is to be granted or denied. See Duct-O-Wire Co. v. U.S.
Crane, Inc., 31 F.3d 506, 509 (7th Cir. 1994); Storck USA, L.P. v. Farley
Candy Co., 14 F.3d 311, 314-15 (7th Cir. 1994); Abbott Laboratories v.
Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir. 1992).
For purposes of addressing the request for a temporary restraining
order, the Court will recognize both of the class definitions as proposed
by the Plaintiffs in their pleadings. (See Federal Rule of Civil
A. LIKELIHOOD OF SUCCESS
The Preclearance Directive has been attacked as: (1) a prior restraint
on speech; (2) overbroad; (3) tainted by the presence of unfettered
discretion; and (4) an impediment to anonymous speech. Each of these
arguments will be addressed in turn.
1. PRIOR RESTRAINT
a. Putative Student Class
The Preclearance Directive bans all speech directed toward prospective
student athletes without prior permission from the Director of Athletics
or his designee. While the ban might at first blush appear to be content
neutral as it purports to apply to all speech, the fact that the
directive applies only to the audience of prospective student athletes
and has subsequently been clarified by Mr. Ille to apply to at least two
classes of purely content-based speech, that being (1) speech for the
purpose of addressing any issue related to athletics and (2) speech for
the purpose of addressing the prospective student's possible
participation in intercollegiate athletics, seems to indicate that the ban
is in fact a content-based prior restraint, as it unquestionably imposes
a substantial burden on a particular type of expressive activity.
It is well-established that "any prior restraint on expression comes to
this Court with a `heavy presumption' against its constitutional
validity." CBS v. Davis, 510 U.S. 1315, 114 S.Ct. 912, 914 (1994). While
the presumption against prior restraints "is by no means absolute, the
gagging of publication has been considered acceptable only in
`exceptional cases.'" Id., citing Near v. Minnesota, 283 U.S. 697, 51
S.Ct. 625, 631 (1931). As the Supreme Court recognized in Davis:
Even where questions of allegedly urgent national
security, or competing constitutional interests, are
concerned, we have imposed this "most extraordinary
remed[y]" only where the evil that would result from
the reportage is both great and certain and cannot be
militated by less intrusive measures.
114 S.Ct. at 914.