The Volokh Conspiracy
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From Hershey v. Curators of Univ. of Missouri, decided Wednesday by Judge Douglas Harpool (W.D. Mo.):
Plaintiff often handed out flyers and brochures, and he advocated for vegetarian or vegan eating. Plaintiff claims that the University's policy that placing regulations on speech on areas of campus is unconstitutional. More specifically, he claims that Defendants applied the policy, CRR 110.010, unconstitutionally against him and infringed on his First Amendment rights by restricting his speech based on content.
Plaintiff alleges that, in December of 2021, he was distributing literature at the University of Missouri-Columbia (MU) and was asked by a Jane Doe who identified herself as "with operations" to relocate to another location on campus. Plaintiff claims that Ms. Doe called University police after Plaintiff "declined to remove himself from his desired location." Plaintiff asserts that he spoke with a MU police officer for "approximately ten minutes," who purportedly told Plaintiff he would be removed from campus if he made students feel uncomfortable or if he was otherwise rude. He claims that "the University's actions interfered" with his protected speech activities and that the officer's presence "deterred some students from accepting a booklet from Hershey."
Plaintiff next alleges that, on August 23, 2021, he was distributing literature regarding vegetarianism on the University of Missouri-St. Louis (UMSL) campus. Plaintiff alleges that UMSL staff "demanded that he distance himself farther from his intended audience outside the [Millenium Student Center]." Plaintiff names as a defendant Dorian Hall ("Hall"), the Director of the Millenium Student Center, and claims that Director Hall "directed his staff to move Hershey farther away from the door." Plaintiff alleges that "UMSL's actions interfered with Hershey's lawful and protected speech activities" and that the "staff's presence" deterred students from accepting Hershey's literature."
Plaintiff next asserts that, on May 7, 2021, he was distributing literature on the Missouri University of Science and Technology (Missouri S&T) campus when he was approached by Sergeant Mark Ritter ("Ritter") and told he "had to leave the University." Plaintiff claims that Ritter "looked at the booklet for several seconds" and "arbitrarily, in response to the content and viewpoint of the booklet," told Plaintiff he was "prohibited from handing out his literature" and that he was on "private property." Plaintiff concedes that Ritter "relent[ed]" after speaking with his police chief. Plaintiff alleges that "Ritter's actions interfered with Hershey's lawful and protected speech activities and caused Hershey to not offer his booklets to some of the passersby." Plaintiff alleges that Ritter's presence deterred students from accepting booklets.
Last, Plaintiff alleges that, on December 5, 2018, he was distributing booklets regarding vegetarianism on MU's campus. He contends that Nancy Monteer, the Director of Campus Dining ("Monteer"), "arbitrarily, in retaliation based on the content and viewpoint of the booklet," confronted Plaintiff and "yelled" at him to "get away" from the dining hall doors. Plaintiff alleges his confrontation with Monteer culminated in Plaintiff "rais[ing] his arms up to protect himself from Monteer's increasingly aggressive advances." …
Plaintiff sued for violation of the First Amendment and of the Missouri Campus Free Expression Act:
- The provisions of this section shall be known and cited as the "Campus Free Expression Act". Expressive activities protected under the provisions of this section include, but are not limited to, all forms of peaceful assembly, protests, speeches, distribution of literature, carrying signs, and circulating petitions.
- The outdoor areas of campuses of public institutions of higher education in this state shall be deemed traditional public forums. Public institutions of higher education may maintain and enforce reasonable time, place, and manner restrictions in service of a significant institutional interest only when such restrictions employ clear, published, content, and viewpoint-neutral criteria, and provide for ample alternative means of expression. Any such restrictions shall allow for members of the university community to spontaneously and contemporaneously assemble.
- Any person who wishes to engage in noncommercial expressive activity on campus shall be permitted to do so freely, as long as the person's conduct is not unlawful and does not materially and substantially disrupt the functioning of the institution subject to the requirements of subsection 2 of this section.
- Nothing in this section shall be interpreted as limiting the right of student expression elsewhere on campus.
- The following persons may bring an action in a court of competent jurisdiction to enjoin any violation of this section or to recover compensatory damages, reasonable court costs, and attorney fees: (1) The attorney general; (2) Persons whose expressive rights were violated through the violation of this section.
The court held that the Act hadn't sufficiently expressly waived Missouri's sovereign immunity from lawsuits in federal courts:
"[A] federal suit against state officials on the basis of state law contravenes the Eleventh Amendment." Even if a state has waived immunity with regard to "its own courts," this "is not a waiver of the Eleventh Amendment immunity in federal courts." …
But it allowed the First Amendment claim to go forward:
Defendants do not dispute that the areas where Plaintiff alleges interference with his free speech rights, including preventing him from communicating with his target audience, harassing, accosting, arresting, and banning him, were traditional public forums. It has long been bedrock, clearly established First Amendment law that the most stringent standard is applicable to restrictions on speech in a traditional public forum, particularly at public schools, parks and streets.
Here, Plaintiff specifically alleges that the Defendants imposed content-based exclusions that are not necessary to preserve a compelling state interest and that the restrictions are not narrowly tailored.
It is clearly established law that that restrictions on speech based on the content of the speech is subject to the highest scrutiny under the law. "For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end…. The State may enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."
The clearly established law regarding content-based restrictions on speech is one which a reasonable person would have understood at the time of the Plaintiff's alleged deprivation. Plaintiff alleges Defendants Monteer, Hall, and Ritter infringed on his rights to freedom of speech based on the vegetarian/vegan content he was communicating. Plaintiff has sufficiently pled actions by these defendants overcome their claim to qualified immunity. Accordingly, Plaintiff's § 1983 claims against the remaining defendants (Monteer, Hall, and Ritter) in their individual capacities are not dismissed….