Federal judge rules in favor of A-State in free speech case

Updated: Aug. 21, 2019 at 8:26 PM CDT
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LITTLE ROCK, Ark. (KAIT) - The 1st Amendment and in particular, free speech, is not absolute, with rules created by state and local governments, making the exercise of free speech not absolute in certain cases, a federal judge ruled Wednesday.

United States District Judge J. Leon Holmes ruled in favor of Arkansas State University on the claims of Turning Point USA at Arkansas State University and Ashlyn Hoggard, dismissing the complaint of the group and Hoggard with prejudice.

Both Turning Point USA at Arkansas State University and Hoggard challenged a policy by the university involving free speech and free expression zones on campus, saying the policy violated the 1st Amendment.

In the 29-page ruling, Holmes said the 1st Amendment, while protecting speech, does not create an absolute power on the issue.

“The first amendment, which the Supreme Court has made applicable to the states through the fourteenth amendment, provides that Congress shall make no law abridging the freedom of speech. Despite the fact that the first amendment seemingly imposes an absolute prohibition on laws that abridge the freedom of speech, the Supreme Court has repeatedly held that free speech is not an absolute right; and the application of the first amendment to every state and local governmental entity - including schools, prisons and a vast array of other governmental bodies - makes it impossible for the prohibition to be absolute,” Holmes said in the ruling.

Holmes also ruled that the motion to dismiss was granted in part and denied in part.

“For the reasons explained, the plaintiffs’ claims are dismissed as moot except for their claims against the defendants in their individual capacities for damages for the enforcement of the now-repealed ASU Freedom of Expression Policy against them,” Holmes wrote. “The ASU adminisrators - Charles Welch, Kelly Damphousse, William Stripling and Martha Spack - did not participate in the enforcement of the policy against the plaintiffs and they cannot be liable absent personal participation. Therefore, summary judgment is granted in their favor on the plaintiffs’ claims against them in their individual capacities. The ASU trustees - Ron Rhodes, Tim Langford, Niel Crowson, Stacy Crawford and Price Gardner - are protected by the doctrine of qualified immunity from the plaintiffs’ claims against them in their individual capacities for failing to repeal the campus policy and for Rhodes’s participation in adopting the system-wide policy. They are entitled to summary judgment on that basis. The defendants’ motion for summary judgment is granted as to the plaintiffs’ damage claims against them in their individual capacities. The defendants’ supplemental motion for summary judgment is denied. The plaintiffs’ motion for summary judgment is denied.”

A federal court in Little Rock, in March 2018, denied A-State’s request to have the lawsuit dismissed, saying the A-State policy is a “prior restraint on her first amendment rights.”

University trustees later repealed the policy to comply with a state law on the issue, the AP reported earlier this year.

In his ruling, Holmes said the state law, which was approved by the Arkansas General Assembly in 2019, would have made the lawsuit moot.

“In March, the Arkansas General Assembly passed the FORUM Act, which prohibits state-supported universities from limiting expressive activities to only designated areas. Soon afterwards, the ASU Board of Trustees repealed the policy. The defendants contend that the case is therefore moot,” Holmes wrote. “There is no reasonable expectation that the Board will reenact the earlier version - doing so would violate the FORUM Act. Nor is there any evidence that the state will repeal the FORUM Act. An injunction prohibiting the defendants from enforcing the policy thus would have no meaning because the Policy is no longer in effect and cannot be enforced against the plaintiffs or anyone else. A declaratory judgment would not adjudicate the parties’ present rights pertaining to the Policy because it no longer exists and no one has any rights under it.”

A-State officials had also argued in court that their policy was similar to one used by the University of Arkansas at Fayetteville.

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