As Attorney General Jeff Sessions indicated in his remarks at Georgetown today, the United States Department of Justice today filed a Statement of Interest in a federal lawsuit against Georgia Gwinnett College. The DOJ’s filing, which apprises the district court of the federal government’s views of the issues in the case, is embedded below and available here.
The operative complaint, filed by the Alliance Defending Freedom, alleges that a student at Georgia Gwinnett sought to share his religious views outside of the school’s two tiny free speech zones, which occupy less than 0.0015% of the college’s campus. To use the zones, students were required to get an administrator’s permission by filling out a “free speech area request” three days before they planned to speak, as well as give administrators advance copies of whatever literature they wanted to distribute.
The student was told by the college’s Director of the Office of Student Integrity that a “disorderly conduct” policy — which prohibits “disturbs the peace and/or comfort” of others — forbade anyone from engaging in “fire and brimstone” messages.
As a result, students were required to get an administrator’s permission whenever they wanted to speak in a tiny area and, if they wanted to speak outside of it, the college viewed its policies as permitting them to restrict the content of the speech.
The college has asked the court to dismiss the lawsuit in two motions to dismiss.
The first motion to dismiss attempts to defend the policies themselves, and comes up short. The motion argues that the college had to restrict speech to a tiny area, and then competition for use of those tiny areas meant that the college needed to schedule who could use the area and when they could use it. In other words, the college decided that it should unconstitutionally restrict speech, so it should therefore be allowed to enact further unconstitutional restrictions on speech. Not exactly a compelling argument.
It also argues — bizarrely — that the college’s policies are justified by its interest in, among other things, “unauthorized uses of the college’s name [or] copyright violations” and in knowing whether there will be “polarizing or controversial” literature distributed on campus.
That’s not a great way to convince a court that your policies won’t have the effect of chilling speech that an administrator might subjectively view as “controversial.”
In fact, the policies are so hard to defend that the college amended them, then filed a second motion to dismiss arguing that the case should be over, as there’s no longer a future threat to speech posed by an unconstitutional policy. But that’s not a guarantee that the college won’t re-impose the old policies, and students should not have to go to court to spur a college to eliminate policies that restrict campus speech.
The DOJ’s statement, filed today, encourages the district court to find that the allegations in the complaint, if proven at trial, amount to a breach of the First Amendment.
During his speech, Sessions also cited FIRE’s lawsuit against Pierce College in Los Angeles. In that case, Kevin Shaw was told he could not hand out Spanish-language copies of the U.S. Constitution outside Pierce College’s tiny “free speech zone,” which comprises about .003 percent of the total area of Pierce’s 426-acre campus. FIRE has not been informed whether the DOJ will file a Statement of Interest in that lawsuit.