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Last week, the Fifth Circuit Court of Appeals assessed the constitutionality of several speech policies at Southeastern Louisiana University (SLU). The court held that SLU's policy concerning the imposition of security fees on demonstrators violated the First Amendment, sending a signal to universities that they cannot penalize controversial speakers for audience reaction. However, giving an unwarranted amount of deference to SLU, the Fifth Circuit upheld the school's policies limiting the times and places where non-students can gather.

This case arose when Jeremy Sonnier entered SLU's campus with four others to express a religious message. Neither Sonnier nor his friends were students at SLU. They were denied permission to speak on campus by SLU police and administrators because SLU requires that non-students obtain a permit seven days before they wish to engage in a public assembly or demonstration. Sonnier sued, claiming that SLU violated his First Amendment rights. He sought a preliminary injunction to prevent application of the speech policies prior to trial. 

Sonnier successfully challenged SLU's security fee policy, which gave SLU the "sole discretion" to determine how much security was needed at a particular event and then to charge the speakers for that security. The Fifth Circuit rightly applied Supreme Court governing speech protections in security fee cases to the university setting, and held that university administrators cannot possess "unbridled discretion" when making security fee determinations. Instead, the university must rely on "objective factors" in assessing security fees, to ensure that universities do not discriminate against certain viewpoints.

As FIREhas noted time and time again, the type of security fee policy implemented by SLU penalizes speakers for the hostile reactions of their listeners and chills controversial speech. UCLA law professor and First Amendment expert Eugene Volokh also  about the Fifth Circuit's correct determination of this issue. Volokh wrote, "to my knowledge the Fifth Circuit opinion is the first appellate court decision to deal with public universities' potentially content-based security fee policies; so I expect it to be influential even outside the Fifth Circuit."

The Fifth Circuit's ruling on SLU's security fee policy recognized that administrators cannot be given unchecked power to regulate discourse on campus. Unfortunately, this recognition did not extend to Sonnier's other challenges. Sonnier also challenged SLU speech policies regulating the times and places where non-students can demonstrate, inluding one stating that individuals wishing to publicly assemble on campus must provide their names, addresses, and social security numbers in addition to their reason for demonstrating. (Social security numbers? Seriously?) SLU restricts individuals and organizations to a "two hour time limit per seven-day period" for engaging in public speech activities, and limits public speech and assembly to three specific areas: "(1) the steps in front of the Student Union Annex and the grassy area immediately in front of the steps and bounded by the sidewalk; (2) the grassy area in front of the Claude B. Pennington, Jr. Student Activity Center; (3) Presidential Plaza area north of the Student Union." FIREmay speak freely in these designated areas without prior approval, but non-students must register with the university seven days in advance.

Because these speech restrictions do not discriminate on the basis of the content of speech, the Fifth Circuit determined that, at least at this early stage in the litigation, they were narrowly tailored to serve the important educational interest in "implementing a speech policy that promotes education and minimizes disruptions to the academic setting." The court's reasoning was guided by the view that universities are not as equipped to handle disruptions on short notice as authorities at other places where people traditionally gather.

In upholding the trial court's denial of a preliminary injunction, the court was unduly deferential to the university's interest in maintaining order. According to the Fifth Circuit, "[p]roviding a university with advance notice allows the university to adequately take care of any issues associated with the public speech or demonstration that might hamper the university's ability to meet its primary goal the education of its students." However, SLU's policies are so onerous that they effectively bar non-students from campus. For example, universities do not need seven days' notice, or demonstrators' social security numbers, to cope with potential disruptions, yet the court held that the district court did not abuse its discretion in refusing to grant a preliminary injunction because there were conceivable "instances in which the seven-day notice requirement may be necessary."

The Fifth Circuit's decision was undoubtedly based on an unwillingness to overturn SLU's policies, or at least an unwillingness to do so prior to the forthcoming trial on the policies' application to Sonnier. Because trial has not yet occurred, the court considered the speech policies on their face, and Sonnier will be given an opportunity at trial to prove that the policies were not narrowly tailored as applied to him. However, because Sonnier mistakenly mounted a facial challenge that did not include an overbreadth challenge, the court held Sonnier to the high standard of having to establish that "no set of circumstances exist" under which SLU's policies would be valid. Obviously, this is a difficult standard to meet, as it allows defendants to conjure a hypothetical situation, however fantastic, to satisfy their burden. If Sonnier had instead challenged the policies on overbreadth grounds, we hope that the Fifth Circuit would have held that SLU's policies are overbroad because, in a substantial number of cases, they are not narrowly tailored to fulfill the university's interests in preventing disruption. See City of Chi. v. Morales, 527 U.S. 41, 52 (1999) (holding that "the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when 'judged in relation to the statute's plainly legitimate sweep.'").

The court's holding was also likely affected by the fact that Sonnier was a non-student. The court found that nothing in the policies prevented non-students like Sonnier from talking to students; it regulated only public assemblies or demonstrations participated in by multiple individuals.

It is unfortunate when courts sacrifice First Amendment rights at the altar of concerns over disruption. The Fifth Circuit should have required SLU to tailor its permit requirements much more narrowly, so that SLU's campus would be a place amenable to speech, assembly, and the true exchanges of ideas intended to occur at universities.