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Free Speech

First Amendment Lawsuit by Vegan Advocate Against University of Missouri Can Go Forward


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:

  1. 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.
  2. 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.
  3. 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.
  4. Nothing in this section shall be interpreted as limiting the right of student expression elsewhere on campus.
  5. 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….

NEXT: Stipulation: I Do Not Think That Word Means What You Think It Means

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  1. Q. How do you find out if someone is a vegan?

    A. Oh, don't worry. They'll tell you.

    1. If Vegan's are so worried about animals - maybe they should quit eating their food!

    2. Vegetarian: Someone too insensitive to hear a carrot scream.

    1. You can choose not to turn into Behar but for J6 injustice!!!!, you know.

      It is within your power to turn away from the abyss of becoming a single-issue zealot that bores everyone else to tears.

      We just had an open thread you could have posted any questions you had. Though I feel like you're not one who often has questions about anything.

      1. In fairness, this poster did use the opportunity of the open thread to make the interesting assertion that maybe QAnon believers weren't the irrational ones, it was the people that questioned QAnon.

        So .... it's almost a question?

        1. In all fairness you are hallucinating. I said QAnon is not a significant threat to anything. They haven't burned down, looted cities and murdered people.

          1. QAnon is a debilitating threat to credibility and sanity. It's a reliable kook-o-meter.

            1. They are loons, but I figure they are about as dangerous as your typical street corner nut with an "The End Is Near" sign.

              1. You recognize that every comment involving "grooming" and "groomers" derives from QAnon, right?

                1. You recognize that Olmstead v. L.C. is the only reason you're able to live in your mother's basement, right?

                  1. You seem to resent your lifelong spot on the wrong side of history and the losing end of the culture war, Life of Brian.

                    I enjoy your whimpering; it is the soundtrack to progress and the defeat of conservatism in the modern United States.

                    You keep whining; guys like me will keep establishing the rules with which you will continue to comply.

                2. To be fair, I'd have to judge each accusation on it's own merits or lack thereof.

      2. Ha double yawn, mission accomplished though. Your panties are twisted. Throw in a littel loki also panties twisted.

        Continue on though making the dumbest posts maybe excluding the Rev and Tony on here.

        If you were actually satire like I think OBL it would explain it. But I think youre not right?

        1. Ah. Okay! So you're one of those "Ha ha, renting space in your head blah blah."

          Understood. I always try and treat people with the seriousness they request.

          1. " I always try and treat people with the seriousness they request. "

            Others are welcome to wallow in political correctness. I call a bigot a bigot, a can't-keep-up backwater a can't-keep-up backwater, and a deluded, disaffected, on-the-spectrum conspiracy theorist a member of the Volokh Conspiracy target audience.

            I prefer to mock clingers, not appease them. Not that it will affect the glorious, predictable trajectory of the American culture war and our continuing national progress (shaped against the efforts and preferences of right-wingers).

  2. If I read the complaint correctly the University did not object to the plaintiff's speech and actions but rather it wanted those action relocated to a designated spot. What is more the Missouri Campus Free Expression Act #2 suggest that the University can designate an area for free expression as long as that is clearly spelled out and does not discriminate.

    As long as the plaintiff was given the opportunity to speak at an assigned location on campus I don't think he was denied 1A. What he may not like is that people have a greater ability to ignore him at the designated location.

    1. Well, this is just the MtD / qualified immunity grounds.

      Although it's makes me think that if a police officer had just come over and beat the hell out of him, the Court would have found qualified immunity somehow.

    2. I had understood courts to not allow "designated free speech zones", that the entire campus was a free speech zone, with appropriate exceptions (disrupting classrooms and offices, blocking doors and walkways, etc).

    3. You did not read the complaint correctly.

      Nowhere in section 2 of the Act does it say that a university can "designate an area for free expression." Nor does it "suggest" that.

      What it says is that the university can "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."

      What this means is that they can prohibit people from interrupting class meetings, or shouting in the library, or using protest signs to block entries and exits, or whatever. But they can't just remove someone who is in a public thoroughfare, handing out pamphlets and not disrupting the university's operations or the ability of university students and staff to move about the campus.

      Also, even if the law DID explicitly designate a "free speech zone," if that zone excessively restricted a person's ability to communicate their message in public, or discriminated based on content (which is precisely what the complaint alleges), the the court would likely find the application of the law to be unconstitutional. Courts have, as Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf suggests, looked with a rather jaundiced eye on campus free speech zones, especially when such zones are remote and/or make up a particularly small percentage of the campus.

  3. This seems a silly lawsuit to me.

    The Police and Administration had every right to find out what the Plaintiff was up to and what the literature was. It seems as usual there is more to the story and the Plaintiff was generally being PITA. The Plaintiff recounts 4 incidents spread of 3 years, that hardly seems campaign of harassment.

    1. Luckily for the plaintiff, a "campaign of harassment" is not the complaint. He is suing for violation of his constitutional rights, and violation of the Missouri law. Establishing a "campaign of harassment" is not necessary for either of those claims.

      As for the university and the police's "right to find out what the Plaintiff was up to and what the literature was," I'm not sure that anything in the lawsuit denies them this right. In fact, all they had to do in order to get this information was stand near him for a few minutes, or ask for a copy of his pamphlet. And if that's all they had done, there wouldn't be any lawsuit here.

      You would benefit from reading the material more closely.

      1. Nothing in the article seems to indicate the Plaintiff was actually stopped from distributing the literature.

  4. What remains of plaintiff's claim is that the remaining defendants did what they did specifically because he was advocating veganism. This seems unlikely on the face of it, and if the court's opinion cited the best parts of the complaint making this allegation, there isn't much reason to think discovery will reveal anything like that.

  5. Sorry liberals, but the 1st Amendment doesn't permit the prohibition of speech that makes people uncomfortable or is rude. If it did, then we would be locking up all of the groomers who like to talk to children about the virtues of transgenderism.

    1. This ostensibly academic blog seems to attract a lot of half-educated kooks who focus on grooming. Could the reason be the white, male, obsolete, grievance-consumed, right-wing nature of the Volokh Conspiracy?

      Carry on, clingers. Just don't try to cross the lines established by your betters.

      1. There's nothing "better" about a group of people who believe killing babies is an important freedom for "women."

        1. If you have information concerning killing babies, the sole moral and responsible course would be to report that information to an appropriate law enforcement authority.

          If you have no such information worthy of such a report, the sole decent course is to stop spouting superstition-laced, gullibility-fueled nonsense and leave the public debates to competent adults.

          Either way, you will spend the rest of your life continuing to comply with the preferences of your betters, like a good little disaffected culture war loser.

          1. It happens nearly a million times per year.

            1. In your superstition-addled, gullible, bigoted, disaffected mind, I suppose it does.

              Another fine meeting of Libertarians For Statist Womb Management (joint meeting with Libertarians For Big-Government Micromanagement Of Ladyparts Clinics) is thus convened . . . at an "often libertarian," "libertarianish" wingnut blog, naturally.

          2. I support the right to abortion. That doesn't mean "killing babies" is a misleading description.

  6. This case indicates some vegans can be as annoying, tone-deaf, and boorish as religious kooks (although not nearly as bad as anti-abortion zealots).

    1. Two sides of the same coin, but still both are Constitutionally protected despite how irritating I find them.

      1. I agree. The superstitious, the boorish, the gullible, and the bigoted have rights, too.

  7. If veganism is such a good idea, people would not need to be coerced into it.

    G-D did not tell Noah to put two of ever plant on the Ark.

    And no cave paintings of weeds has yet been found



      1. How would we know? We can't communicate with trees.

      2. Clearly a question for incoming Justice Jackson.

      3. And to be clear, yes I know there's not a clear cut answer due to pollination.

      4. Lots of plants are dioecious. It's slightly more common in woody plants such as trees, in fact.

      5. I am not a tree biologist...just a physician. So at least two.

      6. Some tree species are indeed male and female. Most famously, the date palm.
        So maybe you should rein in your sneering a bit and do some research.

    2. "G-D did not tell Noah to put two of ever plant on the Ark."

      That is true.

      Because it's a childish fairy tale, you gullible rube.

  8. Indeed yes. Plants reproduce sexually and there are species that have distinct male and female plants. Some plants can self fertilize, using the pollen of the same flower or plant to that same flower or plant. Others require exchange of genetic material with other plants of the same species.
    Sometimes plants do it with other species. Triticale (20th century) or quadro-triticale(have to wait until mid 23d century for that).

  9. "Well, getting to the meat of the plaintiff's argument...oops."

    1. Hey. Take the complaint seriously.

      It's not chopped liver, you know.

    2. The could always dismiss the complaint as a bare-bones pleading. 😉

  10. There was a time when the comments on the VC were worthwhile. Now, in this post regarding the First Amendment rights of students on campus, we have comments regarding abortion rights, the January 6 ado/kerfuffle/riot/insurrection, whether trees are gendered, and, of course, QAnon. Uggg....

    1. If you don't want comments and commenters steeped in QAnon, you are at the wrong blog. This blog has strenuously cultivated a following saturated by right-wing ignorance and delusion. Birthers, insurrectionists, QAnoners, stolen election kooks, virus-flouting yahoos, superstitious gay-bashers . . . the entire sordid package.

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