Wednesday, May 9, 2012

College Violates First Amendment Rights

Story first appeared in USA Today.

All the plaintiff wanted to do was share his Christian beliefs one on one with students at Tennessee Tech in Cookeville, according to Nashville Civil Rights Lawyers.

Instead, police asked him to leave campus because he didn't give the university notice two weeks ahead of time, and he didn't disclose what he wanted to talk about.

Now he has won a case before the 6th U.S. Circuit Court of Appeals, which ruled Tennessee Tech's policy was unreasonable and violated the First Amendment.

The decision could have implications for public colleges and universities throughout the region as officials balance public access with the need to keep students safe.

In light of the decision, public colleges and universities throughout the state would be wise to review their policies, said an executive director of the Nashville-based First Amendment Center.

People have a right to speak on public property, and the government can intrude only in the narrowest of ways.

Any time government asks us in advance to specify the kind of speech we are engaged in, that raises a warning flag for the courts. Government ought not to be in the business of saying what you can and can't say.

Tennessee Tech's associate vice president for communications, said the university could not comment on the case since it was sent back to the trial court. The lawsuit is seeking unspecified damages. Attorneys for the Tennessee Board of Regents are reviewing the federal appeals court decision.

The Tennessee Board of Regents— which oversees 46 institutions including Tennessee Tech — has adopted an updated campus-use policy that takes effect June 1. The policy reduces the notice period to five days, but a spokeswoman said it was in the works long before the appeals court ruling.

For the plaintiff, he hasn't been back to Tennessee Tech since he was there three years ago. He fears arrest, according to court documents.
He filed the lawsuit because he believes university officials used their open-ended discretion to discriminate against his particular message.

All he wanted to do, according to court records, was tell students about the hope that he believes Jesus Christ offers for humanity.

Sharing a message

The plaintiff travels to universities in the southeastern region and along the Atlantic coast, said a Memphis-based attorney and senior counsel at the Center for Religious Expression.

Over two days, he was bounced from one official to another as he sought permission to speak to Tennessee Tech students.

On April 6, 2009, he called Tennessee Tech about visiting the campus to share his message. He was told to stop by the student information office when he arrived, according to court records. A 14-day notice period was not mentioned.

The next day, he and a friend arrived and on their way to the office began speaking with students on the south patio, a pedestrian mall-like area where students gather near the University Center.

Once inside, a university official told him he could speak only on the north patio. There were fewer people and no tables and chairs there.

When he asked to see the campus policy limiting him to the north patio, the official became agitated and threatened to call university police, court records show.

After talking things over with his friend, the plaintiff went back inside the University Center. This time, he spoke with the dean of student affairs. He explained why the north patio wouldn't work. The south patio was better, and he wouldn't be a disruption.

While waiting for the dean to check university policy, he went back outside and continued to speak with students. A few minutes later, according to the court record, a university police officer asked him to leave or face arrest for trespassing.

On the second day, he again spoke to the dean of student affairs, this time by telephone. He learned he had to submit an application two weeks in advance. He believed that was too burdensome.

Instead, the plaintiff went to a sidewalk he thought was off Tennessee Tech's campus. About 15 minutes later, the dean of student affairs approached and warned McGlone he could not speak there without university permission.

Lawsuit filed

In March 2010, the plaintiff sued the university, arguing Tennessee Tech's actions over those two days and its campus-use policy violated his First Amendment rights.

The policy requires 14 business days' notice if someone wants to come onto campus. Applicants must provide information on a program's purpose and whether they will distribute literature.

In his lawsuit, he argued that he often likes to speak on the news of the day and the notice period was burdensome. He did not want to disclose his topics for fear it could be used to discriminate against him, records show.

The plaintiff lost at the trial court, which ruled he was not harmed by the university's actions and therefore could not sue. But he won a victory on appeal.

The federal appeals court, in its April 23 decision, said the desire to share his beliefs is protected First Amendment activity and the open areas of Tennessee Tech's campus are public forums.

When deciding to allow people on campus, the policies must not grant overly broad licensing discretion to government officials, the court said.

The appeals court said the two-week notice period is unreasonable, far longer than other timeframes upheld by federal courts.

Public institutions cannot impose overly broad, burdensome restrictions on non-disruptive speech, he said. Passing out religious literature on a sidewalk is quintessential public free speech.

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