June 27, 2017

SB 17-062: Prohibiting Institutions of Higher Education from Limiting Students’ Free Speech

On January 13, 2017, Sen. Tim Neville and Rep. Stephen Humphrey introduced SB 17-062, “Concerning the Right to Free Speech on Campuses of Public Institutions of Higher Education.”

The bill prohibits public institutions of higher education (public institution) from limiting or restricting student expression in a student forum. ‘Expression’ is defined to mean any lawful verbal or written means by which individuals communicate ideas to one another, including all forms of peaceful assembly, protests, speaking verbally, holding signs, circulating petitions, and disstributing written materials. ‘Expression’ also includes voter registration activities but does not include speech that is primarily for a commercial purpose.

A public institution shall not subject a student to disciplinary action as a result of his or her expression. A public institution shall not designate any area on campus as a free speech zone or otherwise create policies that imply that its students’ expressive activities are restricted to a particular area of campus. Additionally, a public institution shall not impose restrictions on the time, place, and manner of student speech unless such restrictions are reasonable, justified without reference to the speech’s content, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication of the information or message.

The bill states that it does not grant other members of the college or university community the right to disrupt previously scheduled or reserved activities in a portion or section of the student forum at that scheduled time. Additionally, the bill clarifies that it is not to be interpreted as preventing the public institution from prohibiting, limiting, or restricting expression that is not protected under the 1st Amendment.

A student who has been denied access to a student forum for expressive purposes may bring a court action to recover reasonable court costs and attorney fees.

The bill was introduced in the Senate and assigned to the Education Committee. It was amended in committee, and was again amended on Second and Third Reading in the Senate. It passed the Senate and was introduced in the House and assigned to the State, Veterans, & Military Affairs Committee.

Tenth Circuit: Image on License Plate Conveys Message of Oklahoma’s Native American History

The Tenth Circuit Court of Appeals issued its opinion in Cressman v. Thompson on Tuesday, August 4, 2015.

In 2008, a task force created by the Oklahoma legislature chose a new design for the standard Oklahoma state license plate featuring an image of a Native American shooting an arrow into the sky along with the words “Native America.” The design is based on a sculpture by an acclaimed Oklahoma artist depicting a story in which an Apache warrior fired an arrow blessed by a medicine man into the heavens in order to carry prayers for rain into the spirit world. The license plate design was chosen as a “mobile billboard” to promote tourism in Oklahoma.

Keith Cressman, an Oklahoma resident with conservative Christian beliefs, objected to the standard license plate because he believed it promoted a message of pantheism with which he disagrees. Cressman tried to avoid displaying the message by covering it but was told that covering any part of the license plate is illegal. Cressman objected to having to purchase a specialty plate and asserted that the state should give him a specialty plate at no extra charge. He filed a 42 U.S.C. § 1983 lawsuit in November 2011, alleging that the license plate constituted forced speech in violation of his First Amendment rights and requesting an injunction prohibiting state officials from prosecuting him for covering the image or, alternatively, requiring the Oklahoma Tax Commission to provide him a specialty plate at the same cost as the standard plate.

Defendants filed motions to dismiss based on lack of standing and failure to state a claim. The district court determined that Cressman had standing but dismissed the claim because Cressman had failed to state a plausible claim of compelled speech. Cressman appealed, and the Tenth Circuit determined that he had Article III standing and reversed for further proceedings based on the panel’s conclusion that Cressman’s complaint stated a plausible compelled-speech claim. On remand, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to certain defendants and held a bench trial regarding the remaining claims. The district court ultimately concluded the Native American image did not provide a basis for Cressman’s First Amendment claim. Cressman again appealed.

The Tenth Circuit, engaging in de novo review, first discussed how the law of the case doctrine applied based on its previous ruling, thus precluding the defendants’ preliminary arguments that Cressman lacked standing. The Tenth Circuit also rejected defendants’ argument that because Cressman does not utilize the standard license plate at issue he does not have standing, finding instead that Cressman suffered an injury in fact by being forced to use the license plate, cover it illegally, or purchase a specialty plate at an extra cost. The Tenth Circuit also rejected defendants’ claim that the license plate was government speech, finding that private First Amendment rights could still be implicated because the license plates are “readily associated” with vehicle owners and the cars act as “mobile billboards” for the state.

Turning to the substance of the appeal, the Tenth Circuit characterized Cressman’s sole argument as whether he has been unconstitutionally compelled to speak by Oklahoma’s requirement that he either use the standard license plate with no modifications or purchase a specialty plate at extra cost. The Tenth Circuit found Cressman’s argument failed because he could not demonstrate that the Native American image was in fact the speech to which he objected. The Tenth Circuit found that although a reasonable observer might know the history of the image of the warrior shooting an arrow into the sky, that same reasonable observer would know that the image was chosen to further tourism in Oklahoma based on its history with Native Americans. Although Cressman argued it was “eminently reasonable” for an observer to associate the image with the pantheistic ideals of Native Americans, the Tenth Circuit disagreed. The Tenth Circuit concluded that the image conveyed the precise message intended by the Oklahoma task force — that Oklahoma’s history and culture has been strongly influenced by Native Americans — and found that it qualified as symbolic speech. Because Cressman expressly did not object to any message other than the pantheistic message, and because the message conveyed by the license plate was not that pantheistic message, the Tenth Circuit found he was not compelled to express a view to which he would otherwise object.

The Tenth Circuit affirmed the district court’s judgment in favor of the defendants. Judge McHugh concurred; she would have simplified the analysis pursuant to the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).