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Free-speech suit against ASU goes on despite new state law

by Jaime Adame | February 25, 2019 at 3:27 a.m.

Legal arguments continue in a First Amendment lawsuit against Arkansas State University even after a university attorney said Friday that the policy under challenge will be revised to comply with a newly passed law prohibiting "free speech zones" on college campuses.

The law addresses what are to be considered public forums on college campuses. Gov. Asa Hutchinson on Wednesday signed into law Senate Bill 156, which states that public colleges and universities "shall not create free speech zones or other designated outdoor areas of campus outside of which expressive activities are prohibited."

The law is to take effect 90 days after final adjournment of the legislative session, which is currently underway.

"We'll comply with it," said Brad Phelps, general counsel for the Arkansas State University System. "It will require some modifications and changes, and we will take those steps accordingly."

ASU now allows speeches and demonstrations in specified outdoor "free expression areas" between 8 a.m. and 9 p.m. Monday through Friday. The university policy states that 72 hours' notice is needed for requests to use other campus areas for such activities.

The legal challenge to ASU comes from student Ashlyn Hoggard and a chapter of Turning Point USA, a conservative political group.

Their lawsuit claims that in October 2017 an ASU official and a police officer ordered Hoggard and a representative of Turning Point USA, who had set up a recruiting table, to leave the campus's Heritage Plaza and stop speaking with students. The lawsuit states that a police officer "informed Ashlyn that she had violated the Student Conduct Code by engaging in speech outside of the speech zones."

The lawsuit alleges violation of the rights of freedom of speech and legal due process.

The university has said in court filings that plaza tables were reserved for registered student organizations and "specifically deny that all expressive activity on ASU's campus is limited to the Freedom of Expression Areas."

Phelps said Friday that the university is "evaluating" its position in the lawsuit, but he is continuing to prepare for oral arguments scheduled for April 29 in U.S. District Court in Jonesboro. This month, both sides have filed motions for a judgment in the case.

When asked if it makes sense to continue fighting the lawsuit, Phelps said, "the better question is, 'Does it makes sense for the plaintiffs to continue pursuing this lawsuit?'"

He added, "We don't believe this lawsuit has any merit whatsoever."

Tyson Langhofer, lead counsel for Hoggard and the Turning Point USA chapter, said the goal of the lawsuit "has always been to have the policy changed."

He said his clients are "open to discussing a settlement with them, absolutely." But he added that there are pending legal issues not affected by any future ASU policy changes.

"Even if they modified it now, there would still be a live controversy for the court to decide, which is the question of whether, when they applied that policy as it previously existed, did that violate Ms. Hoggard's constitutional rights?" said Langhofer. He said there are no plans to drop the lawsuit.


Campus speech issues have been in the forefront nationally since a few speakers, some espousing right-wing viewpoints, were denied access to speak at university venues or were met with unruly, and at times violent, protests.

U.S. Education Secretary Betsy DeVos referred to ASU in a September speech criticizing some college administrators and faculty members for "manipulating marketplaces of ideas."

"Take what recently happened to a student at Arkansas State University," DeVos said. She said the ASU student "wanted to recruit for a student organization she was founding, but soon learned it first had to be approved by the university."

"An institution of learning cannot be both a forum for all ideas and an advocate for some at the expense of others," DeVos said.

Phelps said that at ASU, "as we've stated in our pleadings, we've never denied a person's request to speak on campus, period."

In a court filing, ASU has said that a university administrator, along with campus security, approached Hoggard to explain the process for becoming a registered student organization.

ASU stated that the Turning Point USA representative, Emily Parry, "refused to move, and she was asked to leave campus," with Hoggard voluntarily going with her.

"No ASU official ever told Hoggard that she could not engage in speech with students on campus in general; only that certain tabling locations, such as the Heritage Plaza patio, are reserved for use only by [registered student organizations] and University departments," states a filing on behalf of ASU.

Court filings include as an exhibit a "criminal trespass warning" issued to Parry, who is listed as an Arizona resident.

Hoggard is described in court documents as a political science major and a senior at ASU.

Langhofer serves as director for the Center for Academic Freedom, a part of the Alliance Defending Freedom.

Daniel Bennett, an assistant professor of political science at John Brown University, studies the influence of Christian legal advocacy groups like the Alliance Defending Freedom, which was founded in 1994 by proponents of Christian evangelicalism, including James Dobson.

Bennett said the idea of such groups is to counterbalance efforts by more liberal legal advocacy groups. Bennett said the Alliance Defending Freedom has been active in a variety of areas, including campus speech issues, and notably has had a record of success in arguing cases before the U.S. Supreme Court.

"In those 16 or so years since they started to do it, they've emerged as probably the organization for Christian conservatives in the courts," Bennett said, calling the organization "the most prominent member of the Christian legal movement."


The current lawsuit was filed in December 2017 in U.S. District Court in Jonesboro. Defendants include trustees for the Arkansas State University System and ASU System President Chuck Welch, among others.

The American Civil Liberties Union and its Arkansas affiliate, as well as the Foundation for Individual Rights in Education and ASU student organization Peace and Love, filed a friend-of-the-court brief in the case to support Hoggard and the chapter of Turning Point USA.

The new law signed by Hutchinson states that members of a campus community wanting "to engage in noncommercial activity in an outdoor area of campus of a state-supported institution of higher education shall be permitted to do so freely," so long as their conduct is not unlawful and "does not materially or substantially disrupt" university functions.

In a statement Wednesday, Alliance Defending Freedom legal counsel Kellie Fiedorek praised the law "for protecting students' First Amendment freedoms."

A report last year released by the American Association of University Professors Committee on Government Relations found that eight states had approved some sort of campus free-speech bills as of March 2018.

The report by the advocacy group criticized some model legislation efforts as having a goal "not to enhance campus free speech but to protect conservative voices."

The report stated that "the view that the free exchange of ideas no longer occurs on campuses is grossly exaggerated," while difficult free-speech issues on campus "are about balancing unobstructed dialogue with the need to make all constituencies on campus feel included."

Metro on 02/25/2019

Print Headline: Free-speech suit against ASU goes on despite new state law


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