Alabama Supreme Court reverses University of Alabama at Huntsville Free Speech case

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The Alabama Supreme Court ordered a Free Speech lawsuit against University of Alabama at Huntsville (UAH) to move forward after a lower court had thrown it out. The case challenged a university policy that required students to obtain permits for Free Speech events and restricted events to certain areas on campus. 

Key Players

Joshua Greer, a UAH student and member of Young Americans for Liberty (YAL), a national conservative student group with chapters on many university campuses, filed the lawsuit, along with YAL.

Alliance Defending Freedom (ADF) takes up legal cases for conservative causes relating to Free Speech and religious freedom and has been designated by the Southern Poverty Law Center, a civil rights nonprofit, as a hate group. 

The University of Alabama Board of Trustees manages and controls the University of Alabama system and oversees student and university affairs.    

Further Details

The lawsuit cited the 2019 Alabama Campus Free Speech Act (CFSA). The state law requires public universities to create more policies protecting students’ Free Speech rights and limits their power to cancel campus speakers, AL.com reported. Provisions of the law also prevent the establishment of designated Free Speech zones on campus. Universities were required to update their policies by June 2020 and implement the new ones by Jan. 1, 2021.  

As required by the CFSA, the board of trustees updated UAH’s speech policy. But the lawsuit claimed that the update ignored the law’s “substantive requirements,” because the board still had the power to regulate Free Speech zones on campus. 

In July 2020, the board of trustees instituted another policy – that spontaneous expressive activity related to current events could occur only in certain areas on campus. 

On July 13, 2021, Greer and YAF sued the board of trustees, alleging UAH’s speech policy violated the CFSA by requiring students to get permission three days in advance before staging an expressive activity on campus, indoors or outdoors, effectively regulating when and where they could express their views. They sought a permanent injunction preventing UAH from further enforcing its speech policy.  

Lawyers for the UA system rejected the merit of the lawsuit. “By all accounts, the university is operating as the marketplace of ideas in its classrooms, assembly halls, auditoriums, and outdoor spaces,” they wrote. “Preventing the university from using reasonable time, place and manner procedures to ensure the safety of its campus and the pursuit of its educational mission cannot be supported by law or logic.”

Outcome 

State circuit court dismisses lawsuit

On Feb. 9, 2022, Judge Alison Austin of the Madison County Circuit Court dismissed the case, writing that UAH’s speech policy upheld the CFSA and did not violate students’ Free Speech rights, WAFF reported.  

The CFSA allowed universities to restrict some expressive activity as long as it was “narrowly tailored to serve a significant institutional interest and when the restrictions employ clear, published, content-neutral, and viewpoint-neutral criteria,” Austin ruled.  

She rejected the notion that the speech policy enabled discrimination based on viewpoint or content, ruling that its language was neutral, and that the plaintiffs did not allege the speech policy had been used to discriminate.   

Greer and YAF then appealed the ruling to the Alabama Supreme Court. “The bureaucrats in the University of Alabama system have made it clear that they view their students’ rights to free expression as secondary to their own desire for control,” JP Kirby, director of student rights at YAL, said. 

Alabama Supreme Court reverses dismissal, allows case to proceed 

On Nov. 18, 2022, the Alabama Supreme Court unanimously overturned Austin’s decision, ruling that the speech policy violated the CFSA by creating Free Speech zones. 

The CFSA “provides that the ‘outdoor areas’ of the University’s campus ‘shall be deemed to be a forum for members of the campus community, and the institution shall not create free speech zones or other designated outdoor areas of the campus in order to limit or prohibit protected expressive activities,” the state supreme court wrote, stressing that state courts should focus more on Free Speech protections in Alabama’s constitution before contemplating federal constitutional issues.

“Regrettably, state courts, including Alabama’s, have at times succumbed to blindly following federal constitutional interpretations in interpreting state constitutions. … In practice, courts should consider addressing State constitutional issues before determining whether federal constitutional issues must be addressed,” Chief Justice Tom Parker wrote. 

The court allowed the lawsuit to proceed and sent the case back to the circuit court. As of Jan. 31, 2023, there were no further developments.