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An Important Free Speech Ruling – Media Largely Ignored

By – Robert B. Charles

Free speech is under fire around the country – and has been for the past decade. Nowhere is this clearer than on college campuses, where invited speakers have met violence, and students with traditional views face intimidation. None of this is good for America, but there is good news. A federal court just ruled in a case the media ignored. It is important. The battle to preserve constitutionally guaranteed rights, including free speech and free exercise of religion, is ongoing. Restoring open dialogue, diversity of intellectual views, and honest inquiry on campuses is – sadly – a continuing challenge. Still, there are bright spots – and one occurred this week – in Wisconsin.

In an important legal ruling, a federal court in Wisconsin, on September 13, granted summary judgment in favor of a student who claimed her free speech rights were violated by a restrictive university “public assembly policy.”

There is more to this ruling than meets the eye. In short, the student was distributing St. Valentine’s Day cards on February 14th of last year – to anyone who would accept one on the campus. She was doing so politely and without disruption.

These cards, consistent with the day’s origins, contained words such as “Jesus loves you,” “you are loved,” and “you are never alone.” In a sign of our twisted times, perhaps encouraged by the mainstream media’s doublespeak – conflating loving faith with “hate speech” – the student was reported to security, apprehended and prohibited from handing out the Valentine’s Day cards.

Specifically, pursuant to the ruling, one learns: After the student cheerfully distributed several cards, “someone phoned the … Security office to complain,” producing an “incident” report recording “suspicious activity and/or person,” then a dispatch to “locate her,” and “bring her to the security office.”

After first being detained and then leaving the security office, having explained her innocent intent, she continued to hand out cards. This led to her being confronted by university security again, this time for “solicitation… in violation of … Public Assembly Policy” on campus.

Having never asked anyone for anything, been in areas permitted to students, never forcing a card on anyone, and not seeking to “entreat” anything, the student felt this was an unfair restriction – suppressing her “right to free speech and discriminating against her based on her religious beliefs.”

She was then told by Security that her activities might have been “disturbing the learning environment.” In context, that appears unlikely, as later affirmed by university Security.

Boxed out at every turn, the student finally “filed a complaint” with the university. The complaint was left unresolved. In fact, the university counsel contended their actions against her were “constitutional,” enforcement of their policy “lawful,” and her recourse at an end.

She then turned to the federal courts for relief. She “raised facial and as-applied challenges to the constitutionality” of the University’s “Public Assembly Policy under the First and Fourteenth Amendments to the Constitution.” Note, the First Amendment is applied to the states through the fourteenth.

In early 2019, the student sought summary judgment against the University. Before opposing papers were filed, the University promulgated a new “Free Speech, Expression and Public Assembly Policy.”

Contrary to the sound of it, the policy was a doubling down, intended – as the federal court noted in its ruling – “with the clear goal of more effectively arming” the University “to accomplish the same result: preventing [the student] and others from what the policy now calls ‘expressive activity’ outside of the small number of designated ‘public assembly areas’ within the boundaries of the campus.”

The court was not amused, writing: “In other words, it remains” the University’s “position that it may lawfully prohibit students …from freely handing out small pieces of paper such as Olsen’s Valentines with biblical verses or other messages written on them to friends, fellow students, and staff at the College who accept them.”

The court would not have it, saying the claim was not “moot” – and new policy not permissible. “The First Amendment to the United States Constitution states in part that ‘Congress shall make no law . . . abridging the freedom of speech,” the court noted.

Then, citing other cases, they observed “the First Amendment rights of speech and association extend to the campuses of state universities,” which possess “many of the characteristics of a public forum,” and reminding readers that “the college classroom with its surrounding environs is peculiarly ‘the marketplace of ideas.’ ”

The court was not finished. They reminded the offending university, “there can be no doubt that in handing out her home-made Valentines to her fellow students, friends, and staff,” the student “was engaged in a constitutionally protected form of expression.”

The Supreme Court has historically concurred. The idea of “hand billing,” or handing out paper on campus, is not controversial. “As the United States Supreme Court recognized nearly 70 years ago … hand-billing is both a method of communication that has a long and venerable history that predates the birth of this nation, and is a form of speech that is protected under the First and Fourteenth Amendments,” observed the Wisconsin federal court.

In fact, this was an activity even more broadly permitted, and limiting it to one or another location on campus was impermissible for a variety of reasons – all constitutional. Any restrictions – even on hand-billing – would have to be “content neutral,” not prejudicial against the student’s Christian message.

So, in a vindication of the student and your rights – the court entered summary judgment for the student. The implications are three. First, students do have First Amendment “free speech” rights on college campuses, and the federal courts will uphold them – even against university policies transparently reconfigured to restrict, and effectively to discriminate, against one or another student based on content of their speech.

Second, the free speech rights vindicated relate expressly to free exercise of religion, and this ruling affirms that a student can not only hold religious views, but can discuss and distribute them in the context of the university’s “marketplace of ideas,” to borrow on prior Supreme Court rulings.

Finally, this ruling reminds us that any student guided by conscience, motivated by good will, earnest in her faith, and aiming to lift fellow students should be allowed to do so.

America’s Founders – those who wrote our Constitution – were overwhelmingly people of faith, sure that the Hand of Providence was upon them, and would remain so, if they – and we – were true to founding principles.

The future is protected by reference to the past. Our Constitution is an exceptional document. The foresight of that document’s framers is a remarkable, historical and objectively extraordinary. When federal judges interpret the Constitution in accord with the framers’ intent, good things result.

True, forward steps are always conditional, subject to back steps. True, we are forever buffeted by doubters, critics, and denigrators of rights our founders thought fundamental. But so long as the “marketplace of ideas” remains open – especially on college campuses – there is room for disagreement, discernment and discussions that lead to truth. This ruling helps keep that marketplace open – and that is good news.

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