JURIST Guest Columnist Isaac Smith of the University of Cincinnati School of Law discusses the First Amendment implications of actions taken by Ohio University administrators…
In 2017, violent student protests made headlines nationwide. The often minimal discipline meted out afterwards inspired legislative efforts in several states to impose mandatory punishments upon students who disrupt campus events. Against this backdrop, Ohio University’s actions last February stand out. Approximately seventy people were arrested for peacefully protesting inside the fourth-floor lobby of Baker Center, the student center on campus.
The mass arrest was controversial: The building was open, and protests have taken place in Athens for decades, including in that very lobby. But the Ohio University police chief nonetheless ordered the arrest of all seventy students, alumni, and community members who sat huddled together in the middle of the lobby.
One student was taken to trial first as a test case. An Athens County judge found that the fourth-floor lobby of Baker Center was a designated public forum, that the university’s actions in arresting the defendant were not narrowly tailored to serve a compelling government interest, and that ample alternative channels of communication were unavailable. So the test case defendant was acquitted at a bench trial in late March, and the charges against all the other defendants who had pleaded not guilty were dropped shortly thereafter.
OU responded to the judge’s ruling by issuing an interim policy banning all demonstrations inside all university buildings. The interim policy is currently under review by an advisory board, and the university may make significant changes in implementing a final, permanent version. Community members have voiced strong opposition to the demonstration ban, and the policy change has received national coverage. The ACLU of Ohio expressed the opinion that the “Freedom of Expression” policy is facially unconstitutional. Effectively, OU took an area that a judge declared to be a designated public forum, and closed it.
But can OU do that?
Courts have not given a clear answer. Responses to the question within law reviews have also been few: there are only three student-written notes on the subject.
In explaining the different types of public fora, the Supreme Court in Perry Education Association v. Perry Local Educators’ Association noted that in the case of a limited or designated public forum, “a state is not required to indefinitely retain the open character of the facility.” Fair enough.
But following that short sentence in Perry, there hasn’t been much guidance from the high court about when and how a limited or designated public forum can be closed. In Capitol Square Review and Advisory Board v. Pinette, the Supreme Court suggested that a forum could be permissively closed in its entirety to avoid discriminating on the basis of viewpoint.
The Fourth Circuit embraced Pinette’s broad standard in 2013. The Virginia Division of the Sons of Confederate Veterans (SCV) sought to display flags on Lexington, Virginia’s utility poles, which the court held were a designated public forum. Following the Supreme Court’s suggestion in Pinette, Lexington stopped the SCV from hanging flags by simply banning all flag displays. SCV sued, arguing that the motivation of the government was important in determining the permissibility of the closure of a designated public forum.
But the Fourth Circuit wasn’t persuaded, stating flatly that “[a] government is entitled to close a designated public forum to all speech.” The court continued, noting that the “clean hands” requirement suggested by the SCV would produce an “absurd result,” requiring the city to allow speakers with which it disagreed to use its utility poles.
But this “absurd result” is just viewpoint neutrality by another name. To allow the city to close the forum is to allow a convenient end-run around the First Amendment.
Not all courts have embraced such a permissive approach. In response to the closure of a limited public forum in an open attempt to stop a demonstration, the Middle District of Pennsylvania in ACT-UP v. Walp noted that the closure was “the spitting image of an improper prior restraint–an attempt to suppress speech prior to publication or dissemination.” This result seems truer to the spirit of the First Amendment. Two other district courts have followed this logic.
The District of Connecticut in 2017 recognized the plain disagreement between SCV and ACT-UP, and attempted to reconcile the two holdings by reading the closure in ACT-UP as temporary, compared to the permanent closure in SCV. The court reasoned that a temporary closure is more akin to prior restraint than a permanent one. Fair v. Esserman. But the district court in ACT-UP did not see the forum closure at issue there as temporary. In fact, in discussing whether there was injury sufficient to warrant an injunction, the court noted that there was no indication that the forum would ever be opened again.
Unfortunately for OU students keen on protesting inside Baker Center again, and ACT-UP and its brethren are the exception, not the rule. While OU’s decision to close the forum is a heavy-handed move–akin to what the court in ACT-UP noted was “not the narrowest means possible,” saying the government “used a club instead of a scalpel,” –such heavy-handedness is endorsed by the Third, Fourth, Seventh, Eighth, Ninth, and Eleventh Circuits.
The Sixth has yet to weigh in. But following the lead of other circuits, the Sixth could choose to read Perry broadly and give the government unchecked forum closure power. That would permit Ohio University to do exactly what it has done, and ban all demonstrations in a designated public forum, directly in response to a thwarted attempt to punish peaceful protesters.
If OU exploits the ambiguity of the law and closes the forum entirely, it may win in court, but the First Amendment will certainly lose.
Isaac Smith is a third-year law student at the University of Cincinnati. He is on track to graduate with both a Juris Doctor and a Master of Arts in Political Science in May 2019. In the past, he has worked for the Foundation for Individual Rights in Education and the Ohio Association of Criminal Defense Lawyers.
Suggested citation:Isaac Smith, Viewpoint Discrimination by Any Other Name: Ohio University’s Retaliatory Closure of a Designated Public Forum, JURIST — Student Commentary, Feb. 2, 2018, http://jurist.org/dateline/2018/02/Issac-Smith-first-amendment.php
This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at email@example.com
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