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Restricting off-campus groups to five speeches unconstitutional, court rules
June 12, 2006
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.”
—by Suzanne
Bell, SPLC staff
writer
© 2006 Student Press Law Center
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