Campus preacher prevails in 1st Amendment challenge to Tenn. college's permit rules
April 28, 2012 September 5, 2018 Frank LoMonte
A public university can't make a speaker wait 14 days for a permit to give a talk or distribute literature on campus sidewalks, or give notice of the topics he intends to address, a federal appeals court ruled this week.
John McGlone, an evangelical Christian preacher from Kentucky, brought suit against Tennessee Technical University after being told to leave campus property during two April 2009 visits because he had not complied with TTU's speaking permit rules.
A federal district court threw out McGlone's case. But on Monday, the Sixth Circuit U.S. Court of Appeals not only reinstated the case, but granted McGlone the remedy he wanted, declaring Tennessee Tech's rules about speech on campus property to be unconstitutionally burdensome.
Because campus sidewalks are a "public forum" traditionally held open for expressive use, the Sixth Circuit decided that any regulation on the content of speech would be presumed unconstitutional, unless justified by a "significant" government interest. The university failed to come forward with any such justification.
TTU rules require speakers who are not university students or employees to apply at least 14 days in advance for a permit to use university property. The application form requires disclosing the name and purpose of the applicant's organization, and whether the topics to be addressed are "political" or "religious."
The court had little difficulty striking down all of these requirements as unnecessary to satisfy TTU's legitimate interests. (In fact, it does not appear that Tennessee Tech put up much of a defense, acknowledging during oral argument in front of the three-judge panel that the 14-day advance notice requirement was unreasonably long.)
When speakers bring First Amendment claims against college administrators, the administrators typically respond by raising the defense of "qualified immunity," which shields individual government employees against paying money damages unless their actions violated "clearly established" legal principles.
But in this case, the judges found the law to be so clear that no immunity defense could apply. It's rare for courts to refuse government officials qualified immunity in First Amendment cases, as judges are protective of government employees who simply make good-faith mistakes — so the message to TTU is an especially stinging one.
The case is McGlone v. Bell, No. 10-6055.
Tagged First Amendment, free speech zones