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University beats First Amendment challenge to 'heckler's veto' against Ben Shapiro event

Ruling ignores recent SCOTUS precedent that holds public institutions liable even after they change contested policies.

Published: October 14, 2021 2:38pm

Updated: October 16, 2021 11:57pm

Sixteen minutes after learning that a University of Minnesota student group booked conservative commentator Ben Shapiro to speak at its main campus in Minneapolis, then-president Eric Kaler declared, "I do not want this in the middle of campus."

All he knew at that point, four months before the February 2018 event, was that Shapiro was "a right wing speaker and he made some appearances on other campuses." 

Citing security needs, the university ended up putting Shapiro in a venue on its St. Paul campus, far from student housing. Demand far exceeded capacity, and a regent accused the university of passing over a larger venue on the main campus that was easier to secure.  

But because the university changed the challenged policy after Students for a Conservative Voice (SCV) sued for First Amendment violations, the 8th U.S. Circuit Court of Appeals dismissed the case as moot.

The reasoning of the 2-1 ruling was not forecast by oral argument this spring, which suggested judges were skeptical about the university's far more favorable treatment of left-wing speakers, including firebrand Democratic Rep. Ilhan Omar (D-Minn.). "It looks like you're facilitating the heckler's veto," one judge said.

Map of University of Minnesota venues sought for Shapiro speech versus venue selected
Map of University of Minnesota venues sought for Shapiro speech versus venue selected
Young America's Foundation

Two months before oral argument, the Supreme Court ruled Georgia Gwinnett College could be held liable for censoring speech despite scrapping the policy under which student evangelist Chike Uzuegbunam was silenced.

Groups as divergent as the Christian Legal Society and Council on American-Islamic Relations had asked the high court to ensure public institutions couldn't escape liability by changing policies mid-litigation, especially since students may graduate before their rights can be vindicated.

Neither the 8th Circuit main opinion nor the dissent mentions Uzuegbunam, and both agree the "facial challenge" to the since-scrapped "Large Scale Event Process" (LSEP) is moot. They part ways on whether SCV has legal standing to challenge the university's "practices" apart from the policy.

The Alliance Defending Freedom, which represented both SCV and Uzuegbunam, did not answer a request to explain how it would respond to the Oct. 4 ruling, such as seeking a full-court rehearing, or how the SCOTUS precedent would inform its response. 

"It is unfortunate that the 8th Circuit thinks that schools can avoid responsibility by changing their policies and we are considering our next steps," the group told The College Fix this week. The university said the replacement policy supports its "commitment to robust and open debate of ideas, controversial or otherwise, as framed by the First Amendment and other laws."

A free speech lawyer not connected to the case expressed surprise that no one mentioned the recent SCOTUS precedent, whether to distinguish it factually from the Shapiro case or argue it's applicable.

"It's a tricky question" because Georgia Gwinnett and Uzuegbunam agreed it couldn't provide "injunctive relief" to the student, who had graduated, the lawyer told Just the News. That case turned on whether "nominal damages" intended to redress hard-to-quantify violations, particularly for constitutional rights, can sustain a lawsuit by themselves. 

By contrast, the parties in the Shapiro case still disagree on injunctive relief, the lawyer said. The question is whether the university's policy changes are "going to stick or not."

'Most curious'

After the sponsoring Young America's Foundation accused the university of bias against conservatives in venue selection, President Kaler responded that "protest[ers] have objected" at several Shapiro events.

University police admitted there was "no credible information" about a threat that foreclosed larger venues on the main campus. Instead, they cited "potential for violence between opposing groups" based on clashes that did not disrupt a previous SCV event with conservative activist Lauren Southern.

The core dispute between Judge Bobby Shepherd's majority opinion and Judge Steven Grasz's dissent turned out not to be whether the student group can challenge LSEP.

Both agreed there was no evidence the university even used LSEP, a somewhat ad hoc policy whose review committee may have never existed, to evaluate the Shapiro event. Though "encouraged" to follow the policy, SCV "never submitted a proposal" through that process.

The university-wide "major events" policy implemented nearly two years after SCV sued makes that challenge moot. 

The replacement contains "more defined terms and standards" and explicitly promises not to reject events based on "potential reaction," while its broader scope makes it unlikely the university will revert to the old policy once litigation ends, Shepherd wrote.

While agreeing the facial challenge was moot, Grasz argued the "as-applied" challenge should continue because SCV faulted more than just the old policy.

Shepherd's majority seeks to "rewrite the complaint's terms or construe its allegations in a manner that divests the court of jurisdiction" by ignoring the lawsuit's repeated references to practices that violated SCV's First Amendment rights, Grasz wrote.

"I count no less than six paragraphs of the complaint that reference" practices beyond LSEP as part of a broader "Speech Suppression Policy." The majority opinion edits out this formulation in at least seven places, Grasz said.

Those excised allegations include President Kaler's preemptive exclusion of main campus venues, the university's favorable treatment of "numerous other speakers raising similar, or even greater security concerns," and the "unbridled discretion" of officials to exclude venues based on subjectively "controversial" viewpoints.

At this stage of litigation "the record evidence establishes a First Amendment violation," the dissent argues, citing the "most curious" referral of SCV's request directly to Kaler and his secret directive to move the event to St. Paul.

Grasz accused the district court and his appellate colleagues of "flip[ping] the summary judgment standard on its head" by making inferences in favor of the university rather than the students.

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Map of University of Minnesota venues sought for Shapiro speech versus venue selected
Map of University of Minnesota venues sought for Shapiro speech versus venue selected
Young America's Foundation

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