On Friday, the Alabama Supreme Court unanimously reversed the decision of a lower court and reinstated a free speech lawsuit brought against a university.
In July 2021, Joshua Greer, a student at the University of Alabama in Huntsville (UAH), and the Young Americans for Liberty (YAL) filed a lawsuit against UAH and the UA system to overturn a policy that requires students to apply for permits in advance for many free speech events and restricts most circumstances to specific areas on campus.
Those pupils asserted that the UAH’s ground use policies make a violation in “Students at UAH are not allowed to “engage in protected expressive action in outdoor areas of the campus and to spontaneously and contemporaneously congregate, talk, and distribute literature,” as required by the Alabama Campus Free Speech Act of 2019.
UAH argued in its court filings that students still have the right to assemble spontaneously at a “multitude” of designated locations and in response to news events, that students can request an expedited permit to protest outside of designated areas, and that campus officials give equal consideration to all viewpoints and requests.
Legal representatives for the UA system stated in an April filing that “by all accounts, the university is acting as the marketplace of ideas” in its classrooms, assembly halls, auditoriums, and outdoor venues.
“It is not supported by law or logic to prevent the university from employing reasonable time, place, and manner measures to maintain the safety of its campus and the pursuit of its educational goal.”
The Madison County Circuit Court of Appeals dismissed the case in February, but the YAL student group immediately filed an appeal with the Supreme Court of Wisconsin.
In a statement released in September, YAL Director of Student Rights JP Kirby noted that the University of Alabama system’s administrators had made it apparent that they saw their students’ rights to free expression as subordinate to their desire for control.
On Friday, the court reversed and remanded a Madison County Circuit Court decision, finding that the University of Alabama’s policy on “safe spaces” for student speech ran afoul of the Alabama Campus Free Speech Act.
UAH and the UA system “have not proved that, on the face of the policy, limiting protected speech is not the principal aim of the designated zones,” the court said.
The policy provision regulating permits for free speech gatherings was also deemed “unresolved” by the court, meaning that parties are allowed to present evidence concerning the constitutionality of the provision.
In a written concurring opinion, Chief Justice Tom Parker underlined that the protection of free expression in the Alabama Constitution is incorporated into the campus free speech legislation and that Alabama courts should independently interpret this State constitutional guarantee.
Unfortunately, Alabama’s state courts are not immune to the trend of uncritically adopting the interpretations of the federal constitution when applying them to state constitutions.
Courts should consider state constitutional concerns before federal constitutional questions. He continued, saying there could be times when free speech and other liberties are guaranteed by the U.S. Constitution but not the Alabama Constitution.
Therefore, “[a]n illegitimate decision is due no allegiance” and “[w]e have a role in highlighting deeply erroneous Supreme Court decisions,” respectively.