First Amendment lawsuit against Arkansas State University to proceed

We’ve been writing about free speech zones and the dangers they pose to students’ expressive rights for more than a decade. Free speech zones remain a constant thorn in the side of student activists: this year our Spotlight on Speech Codes found that about 1 in 10 of the schools surveyed for the report maintain a free speech zone policy. While Florida just outlawed free speech zones last month, students in other states have been bringing lawsuits challenging the constitutionality of free speech zones, including the lawsuit we filed on behalf of Kevin Shaw, a student at Pierce College, last spring.

And late last month, we learned that a lawsuit Alliance Defending Freedom filed on behalf of Ashlyn Hoggard, a student at Arkansas State University and the founder of ASU’s Turning Point USA (TPUSA) chapter, will be allowed to proceed. In her suit, Hoggard alleges that ASU System policies and her campus’ free speech zone policy violated her First Amendment rights. (Arkansas State University is the flagship campus of the Arkansas State University System.) Hoggard named administrators at ASU, the board of trustees of ASU, and the ASU System as defendants in her suit.

Back in October 2017, an ASU administrator denied Hoggard’s request to set up a table inside the campus free speech zone to recruit members for her TPUSA chapter because it was not a registered student organization. The next day, Hoggard and a TPUSA staff member set up a table outside of the free speech zone so that they could distribute materials. An ASU administrator and a campus police officer approached Hoggard and the TPUSA staff member less than five minutes later because they were tabling outside of the free speech zone. The police officer then told Hoggard that she was in violation of ASU’s student code of conduct and issued a criminal trespass warning to the TPUSA staff member.

In her complaint, Hoggard alleges that a systemwide policy requires each ASU System campus to designate a free speech zone. Hoggard then alleges that ASU implemented the systemwide policy by restricting students’ expressive activity to small areas of campus that students must obtain permission to use. Hoggard also alleges that students must obtain permission at least 72 hours in advance before using any other part of the campus for expressive activity.

The defendant administrators moved to dismiss Hoggard’s suit and argued that Hoggard did not have standing to bring suit, that the university administrators were entitled to qualified immunity, and that their policies did not violate Hoggard’s First Amendment rights. However, late last month, the Honorable J. Leon Holmes of the United States District Court for the Eastern District of Arkansas denied ASU’s motion to dismiss Hoggard’s suit.

The court held that Hoggard had standing even though she was not denied permission to engage in expressive activity outside of ASU’s free speech zone and did not challenge any portion of the policy related to tabling. As Judge Holmes noted, Hoggard alleged that her First Amendment rights were violated because she had to apply for a permit, and so the fact that she did not apply for a permit was irrelevant. The court then held that it could not yet decide whether the administrators were entitled to qualified immunity because the case the defendants cited in support of qualified immunity was potentially factually distinguishable.

The court finally turned to the defendants’ arguments about the constitutionality of their policies. In allowing Hoggard’s claims to proceed, the court wrote:

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 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. See Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 130, 112 S. Ct. 2395, 2401, 120 L. Ed. 2d 101 (1992).

Fortunately this marks yet another opinion in the long line of cases affirming the First Amendment rights of students. And earlier this year, FIRE’s case against administrators the Los Angeles Community College District and Pierce College was added to this list because the suit will be allowed to proceed after the court mostly denied the defendant university administrators’ motion to dismiss. Hopefully college administrators will see the light and realize that free speech zones are a losing proposition.