Restricting off-campus groups to five speeches unconstitutional, court rules

ARKANSAS -- Administrators at the University of Arkansas at Fayetteville have revised their facilities use policy, opting not to appeal a decision out of the 8th U.S. Circuit Court of Appeals deeming part of the old policy unconstitutional.

The 8th Circuit ruled in April that a policy placing a five day cap on the number of times an off-campus group can use school facilities violated a non-student speaker's First Amendment rights.

The university has already instituted a new policy and has elected not to appeal the case, said Bill Kincaid, associate general counsel, in an e-mail.

Gary Bowman, an Oklahoma-based preacher, filed the lawsuit alleging the university's policies regarding off-campus groups' use of school facilities violated his First and Fourteenth Amendment rights, according to an article in Inside Higher Ed, an online education news source.

The university argued that a five day cap would promote diversity among speakers and would ensure that no one speaker could have a monopoly on the use of school land.

However, the court disagreed, stating, ''The policy written does not by itself foster more viewpoints; it merely limits Bowman's speech.''

The court did uphold several other parts of the facilities use policy, including requiring off-campus groups to obtain a permit at least three days in advance, according to the ruling. A ban on any speakers coming to campus during ''dead days'' -- days when final examinations take place -- was also upheld.

''We were elated -- we were very pleased with the outcome,'' said Nate Kellum, senior litigation counsel for the Alliance Defense Fund, which represented Bowman. ''It was a resounding victory for Mr. Bowman but we think [the ruling] has ramifications far beyond Mr. Bowman because we think it's a victory for free speech in general.''

Bowman, who could not be reached for comment, originally filed the lawsuit in 2003. A federal district court dismissed the lawsuit in April 2004 stating the university was a nonpublic forum and therefore its policies restricting speech were reasonable, according to the 8th Circuit decision.

The appeals court disagreed, stating that, ''labeling the campus as one single type of forum is an impossible, futile task,'' adding that, ''college campuses traditionally and historically serve as places specifically designated for the free exchange of ideas.'' The court also referenced the 1972 Supreme Court case Healy v. James, which stated that universities represent ''a marketplace of ideas.''

The new policy still contains an initial five day cap on non-university speaker reservations, but now includes a provision that allows speakers who have already obtained five reservations to obtain additional days as long as no other non-university group has requested them.

According to the Inside Higher Ed article, ''[Bowman] is widely called 'Moses' at the Arkansas campus. Bowman's campus visits frequently attract large crowds and anger as he condemns -- often with inflammatory language -- gay people, feminists and various other groups.''

The student newspaper at the University of Arkansas editorialized that although some students may not agree with what Bowman has to say, he has the right to say it.

''Yes, Bowman points to individuals and calls out their 'sinful' lifestyles. Yes, Bowman says virtually everything is a sin. And, yes, Bowman tells just about all humans they are going to Hell,'' an editorial in the Arkansas Traveler stated. ''This could most definitely qualify as hateful speech. But believe it or not, hate speech is protected by the First Amendment in this country. Bowman has every legal right to rip on everyone from lipstick-wearing women, to gays, to churches that do not believe what he believes.''

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