ARKANSAS — Administrators at the University of Arkansas at Fayetteville have revised theirfacilities use policy, opting not to appeal adecision out of the 8th U.S.Circuit Court of Appeals deeming part of the old policy unconstitutional.
The 8th Circuit ruled in April that a policy placing a five day capon the number of times an off-campus group can use school facilities violated anon-student speaker’s First Amendment rights.
The universityhas already instituted a new policy and has elected not to appeal the case, said Bill Kincaid, associate generalcounsel, in an e-mail.
Gary Bowman, an Oklahoma-based preacher, filedthe lawsuit alleging the university’s policies regarding off-campusgroups’ use of school facilities violated his First and FourteenthAmendment rights, according to anarticle inInside Higher Ed, an online educationnews source.
The university argued that a five day cap would promotediversity among speakers and would ensure that no one speaker could have amonopoly on the use of school land.
However, the court disagreed,stating, ”The policy written does not by itself foster more viewpoints; itmerely limits Bowman’s speech.”
The court did upholdseveral other parts of the facilities use policy, including requiring off-campusgroups to obtain a permit at least three days in advance, according to theruling. A ban on any speakers coming to campus during ”dead days” — days when final examinations take place — was also upheld.
”We were elated — we were very pleased with the outcome,” said Nate Kellum, senior litigation counsel for the Alliance Defense Fund, which represented Bowman. ”It was a resounding victory for Mr. Bowman but we think [the ruling] has ramifications far beyond Mr. Bowman because we think it’s a victory for free speech in general.”
Bowman, who could not be reached for comment, originally filed the lawsuitin 2003. A federal district court dismissed the lawsuit in April 2004 statingthe university was a nonpublic forum and therefore its policies restrictingspeech were reasonable, according to the 8th Circuit decision.
Theappeals court disagreed, stating that, ”labeling the campus as one singletype of forum is an impossible, futile task,” adding that, ”collegecampuses traditionally and historically serve as places specifically designatedfor the free exchange of ideas.” The court also referenced the 1972Supreme Court case Healy v. James,which stated that universities represent ”a marketplace of ideas.”
The new policy stillcontains an initial five day cap on non-university speaker reservations, but nowincludes a provision that allows speakers who have already obtained fivereservations to obtain additional days as long as no other non-university grouphas requested them.
According to the Inside Higher Ed article,”[Bowman] is widely called ‘Moses’ at the Arkansas campus.Bowman’s campus visits frequently attract large crowds and anger as hecondemns — often with inflammatory language — gay people, feministsand various other groups.”
The student newspaper at theUniversity of Arkansaseditorializedthat although some students may not agree with what Bowman has to say, he hasthe right to say it.
”Yes, Bowman points to individuals andcalls out their ‘sinful’ lifestyles. Yes, Bowman says virtuallyeverything is a sin. And, yes, Bowman tells just about all humans they are goingto Hell,” an editorial in the ArkansasTraveler stated. ”This could most definitely qualify as hatefulspeech. But believe it or not, hate speech is protected by the First Amendmentin this country. Bowman has every legal right to rip on everyone fromlipstick-wearing women, to gays, to churches that do not believe what hebelieves.”