U. of South Alabama Pro-Life Group Alleges First, Fourteenth Amendment Violations

The University of South Alabama (USA) student group Students for Life USA filed suit against the university in federal court in April, alleging that by restricting the group’s speech to a tiny “speech zone” on campus, the university violated members’ First Amendment right to freedom of expression, as well as their Fourteenth Amendment rights to due process and equal protection. Earlier this month, USA revised a solicitation policy at issue in the lawsuit, but according to Students for Life USA and the group’s counsel, Alliance Defending Freedom (ADF), the second policy identified in the suit still infringes on student rights. ADF filed an amended complaint (PDF) this week, which includes requests to enjoin enforcement of both policies and to provide nominal damages and attorneys’ fees.

USA’s solicitation policy covers all student speech on campus. At the time it was initially enforced against Students for Life USA, it not only limited expression to less than 0.01 percent of campus but also required student groups to request permission to use the speech zone three days in advance, allowing for no spontaneous or anonymous expression. This policy does not indicate by what standards or within what timeline administrators must determine who receives a permit and who doesn’t, leaving ample opportunity for selective enforcement and viewpoint discrimination. Students for Life USA claims four administrators fully took advantage of that opportunity in their case.

According to the complaint, in October 2013 and February 2014, USA administrators denied the pro-life group’s requests to set up a “Cemetery of the Innocents” display in an open area outside of the designated speech zone, even though other groups and students regularly use the area for expressive activities. Administrators also told the group that it could not hang signs in a traffic circle regularly used for that purpose by a range of student groups. Chillingly, the complaint alleges that in declaring that Students for Life USA could share its message only in the designated speech zone, an administrator cited his concern that the group “advocates for a position that involves political and social controversy.”

While USA’s revised solicitation policy, allegedly adopted on August 8, opens up more of the campus to student expression, it still presents First and Fourteenth Amendment problems, as the amended complaint details.

Students for Life USA particularly wished to use an area of campus around its perimeter, both because it is highly trafficked and because it would allow the students to reach the Mobile, Alabama community, as well. USA’s new policy allows speech on the sidewalks of the perimeter, but not off the sidewalk, and the group claims that the policy fails to clearly delineate the boundaries of the “no-speech zone.” This leaves broad discretion in the hands of administrators, once again, to decide at their whims where students may speak. It also chills student speech, as Students for Life USA—and likely other groups—choose not to demonstrate in certain areas rather than risk punishment.

The complaint alleges that USA has violated the group’s Fourteenth Amendment right to due process:

The government may not regulate speech based on policies that permit arbitrary, discriminatory, and overzealous enforcement.

… The government may not regulate speech based on policies that cause persons of common intelligence to guess at their meaning and differ as to their application.

Indeed, it should worry all USA students that the university maintains policies that restrict speech in large areas of campus and allow for selective enforcement against students who want to share ideas and viewpoints with which administrators may disagree. USA took a small step in the right direction by opening up more of its campus for student speech, but it must still make significant revisions to clarify its policy and ensure that any restrictions on the time, place, and manner of student speech are narrowly tailored and applied without consideration of the content of students’ speech. FIRE commends ADF and Students for Life USA for taking the necessary steps to push USA to truly protect student rights on campus.

Read the amended complaint in full on ADF’s website (PDF), and check back to The Torch for updates on the case.