Last week, the United States Court of Appeals for the Sixth Circuit issued an excellent decision (.PDF) supporting freedom of speech on university campuses.
In the case, McGlone v. Bell, No. 10-6055, the Sixth Circuit reversed a decision of the United States District Court for the Middle District of Tennessee in which the lower court had dismissed a facial and as-applied First Amendment challenge to a policy at Tennessee Technical University (TTU). The challenge was brought by John McGlone, an evangelical, Protestant Christian who speaks on college campuses about his faith.
In early 2009, McGlone contacted the TTU administration to determine where and how he might speak on the campus. TTU at first attempted to relegate McGlone to a small, desolate area of campus, but when pressed demanded that he follow the TTU policy of applying for a speech permit a lengthy fourteen days in advance. McGlone then decided to speak off campus, but because TTU is an urban campus indistinguishable from the surrounding city, he ended up on the very edges of campus property, and was asked to leave. Rather than comply with TTU’s onerous application requirement, McGlone sued in federal court, alleging that the restrictions violated the First Amendment.
In September 2010, the district court dismissed the lawsuit. It held that McGlone had no standing to sue because his claims were nothing more than a subjective "chill" of his First Amendment rights, and found that the TTU speech policy was content-neutral and narrowly tailored to serve significant government interests, and left ample alternative channels for communication.
Thankfully, the Sixth Circuit has overturned the district court on each speech-restrictive conclusion. The court noted, first, that "McGlone’s intention to engage in expression regulated by TTU’s policy is sufficient to support his assertion that the policy objectively chills his desired speech." In other words, contrary to the district court’s ruling, McGlone had standing to bring his suit.
Furthermore, the Sixth Circuit held that the "open areas on TTU’s campus are public fora…. [t]he perimeter sidewalks along TTU’s campus are traditional public fora and all other open areas are designated public fora." Consequently, to satisfy the First Amendment, any prior restraint on speech in these areas must be "content neutral, narrowly tailored to serve a significant government interest, and leave open alternatives for communication" (citing Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992)).
The heart of the opinion discusses the requirements that TTU places on prospective speakers, which includes a fourteen day notice period and an application indicating the identity of the speakers, the "Program Purpose," and whether the speech is "political" or "religious." While the district court upheld these requirements, the Sixth Circuit overturned them. First, the Sixth Circuit noted that "[a]ny notice period is a substantial inhibition on speech," and that TTU’s fourteen day notice period requirement is "much longer than other notice periods that have been upheld." For this reason, the Sixth Circuit invalidated the fourteen day notice period. Second, the Sixth Circuit noted that the requirement that applicants for a permit state their identity and program purpose burdens anonymous speech. Since TTU failed to explain how these requirements would serve "significant interests" related to its "educational mission," the court saw no reason that TTU would ask for such information other than content-based restriction. Consequently, this requirement was also invalidated.
Perhaps most striking, however, is the Sixth Circuit’s holding that the district court erroneously dismissed the named TTU officials in their individual capacities based upon the defense of qualified immunity. (FIRE has discussed qualified immunity before. Essentially, when government officials act in a good faith effort to follow the law, they are personally immune from monetary damages in constitutional lawsuits.) Courts are usually reluctant to open the door to lawsuits against government officials in their personal capacity, but here the Sixth Circuit held that McGlone had a "clearly established right to engage in his desired expression free from the unconstitutional requirements imposed by TTU." Consequently, McGlone can continue his lawsuit against not only TTU, but also the administrators who encroached on his constitutional rights. This denial of qualified immunity puts school administrators on notice that if they violate clearly established First Amendment rights, they jeopardize their personal wealth, not just the university’s.
Because the Sixth Circuit overturned a ruling on a motion to dismiss, the case is remanded to the district court to continue with the lawsuit. FIRE will continue to follow this case. For additional reading, Scott Jaschik at Inside Higher Education has an excellent summary of the Sixth Circuit’s ruling, and Frank LoMonte of the Student Press Law Center has also weighed in on the decision.