Arkansas State fails to get free speech lawsuit dismissed
A court has denied Arkansas State University’s motion to dismiss a free speech lawsuit filed against it in 2017 alleging that it violated a student’s First Amendment rights.
The lawsuit, filed in December by the Alliance Defending Freedom (ADF), claims that student Ashlyn Hoggard was denied an application to host a recruitment event for her Turning Point USA chapter in the school’s designated “free speech zone.”
"The policy is a prior restraint on her first amendment rights, as interpreted by the Supreme Court, against which there is a ‘heavy presumption’ of unconstitutionality."
Hoggard was hoping to recruit enough members to get the TPUSA chapter recognized as an official student organization, but was allegedly told that only registered student groups are allowed to reserve a table in the Student Union.
As a result, Hoggard set up her recruiting operation outside of the zone, but was confronted by administrators and campus police, who informed her that she was in violation of the school’s code of conduct and issued her a criminal trespass warning.
Hoggard later sued the school with the help of ADF, noting that the university had restricted “expressive activity” to limited areas of campus, while requiring students to obtain permission 72 hours in advance to use any other part of campus for “expressive activity.”
At the time, ASU moved for dismissal of the lawsuit, citing a similar 2006 case titled Bowman v. White, and stating that “at all relevant times, it was clearly established that a public university in Arkansas can maintain a policy that requires permission, 72-hours notice, and allows for content-neutral discretion for use of campus space for freedom of expression purposes."
“Plaintiffs are attempting to create issues where there are none,” the administration asserted in the statement. “They misstate provisions of the Policy; they ignore binding and controlling case law from the Eighth Circuit; and they do not have a case that ASU’s Policy is anything but proper and constitutional.”
“For these reasons and those discussed in ASU’s Motion to Dismiss and supporting brief, the Court should dismiss plaintiff's’ complaint with prejudice,” it concludes.
However, the United States District Court for the Eastern District of Arkansas has now officially denied ASU’s motion for dismissal, stating the “the policy at issue in Bowman was not made a part of the pleadings and is not before the Court.”
“Other than the description in Bowman and the court’s applied analysis of it, this Court has no way of knowing whether it is materially indistinguishable to Arkansas State’s policy,” the statement continues. “Moreover, even if the policies were materially indistinguishable, the forums are not. The spaces and their historical uses are unique to each campus.”
Judge J. Leon Holmes also pointed to the flawed logic of the administration’s defense that Hoggard had not followed the proper procedures, acknowledging that “the constitutional requirement of standing does not require Hoggard first to seek and be denied a permit before she will have an injury.”
“The university’s freedom of expression policy requires Hoggard to seek and receive the university’s permission before she is allowed to exercise first amendment freedoms on campus,” the statement concludes. “The policy is a prior restraint on her first amendment rights, as interpreted by the Supreme Court, against which there is a ‘heavy presumption’ of unconstitutionality."
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