Administrators take heed: Don’t let others do your dirty work for you

Earlier this month, the State University of New York at Buffalo settled a lawsuit that was filed back in June 2013 by UB Students for Life, two student officers of UB Students for Life, the Center for Bio-Ethical Reform, and Center for Bio-Ethical Reform employees. As reported by The Buffalo News:

The civil suit, filed in U.S. District Court in Buffalo, accused UB of violating the free speech rights of pro-life advocates who organized the genocide rally and display outside the Student Union in April of 2013. The mural display featured images of aborted fetuses and linked abortion to the Nazi’s murder of Jews and to atrocities committed by Khmer Rouge strongman Pol Pot.

Pro-life organizers claim the rally, a university-approved event, was disrupted when pro-choice supporters began waving white sheets in front of the display and otherwise interfering with its pro-life message.

The plaintiffs alleged that that their free speech rights were violated when protesters formed a barricade in front of their event, blocking it from view. The plaintiffs argue that the defendants, UB administrators including UB’s chief of police, “had a constitutional duty not to ratify and effectuate a heckler’s veto nor join a moiling mob intent on suppressing speech,” and that UB engaged in viewpoint discrimination. The plaintiffs essentially sought to hold the UB administrators liable because they did not stop the protesters, and alleged that a “university police officer told Plaintiff [Matthew] Ramsey that the officers were under orders not to stop the protesters’ disruptive conduct.”

My colleague Susan Kruth reported on this case back in October 2013 after Magistrate Judge Hugh B. Scott denied UB’s motion to dismiss. In allowing the plaintiffs to proceed, Magistrate Judge Scott wrote:

To the extent that any encroachment occurred or that defendants pressured plaintiffs in any way to incorporate the counter-protesters into their speech, plaintiffs could claim that defendants dictated to them what their own speech should be. To the extent that plaintiffs were simply unhappy that a rival message appeared at their exhibit to counter their own, they were not entitled to an exhibit purged of dissent. Finally, to the extent that the counter-protesters obstructed the [plaintiff’s exhibit] so much that plaintiffs’ speech barely came out, if at all, defendants were not allowed essentially to delegate the act of content-based restrictions to the counter-protesters and then hide behind a literal granting of space to the exhibit.

(Internal citations omitted.)

In other words, UB couldn’t force the plaintiffs to change their message because of the counter-protesters or use the counter-protesters as a vehicle for censorship, but the counter-protesters also had their own right to engage in expressive activity.

In February 2017, Judge Richard J. Arcara ruled on objections to Magistrate Judge Scott’s report and recommendation. In his opinion, Judge Arcara allowed some of the plaintiffs to proceed on their claims, while ruling that some of the plaintiffs lacked standing. Judge Arcara held that “plaintiffs’ alleged loss of opportunities to express themselves in the way they preferred when the University defendants allowed counter-demonstrators to use signs, umbrellas, and bed sheets to block the photo-murals from view is sufficient to allege that the defendants took adverse actions against plaintiffs.” Judge Arcara effectively held that UB’s inaction potentially violated the plaintiffs’ First Amendment rights.

Now, though, the suit has been settled. As part of the settlement, UB agreed to “take all reasonable measures to enforce its policies against deliberately disrupting or preventing the freedom of any person to express his or her views,” and pay $30,000 in attorneys’ fees.

In a press release announcing the settlement, Robert Muise, one of the attorneys representing the plaintiffs, said:

This is an important case which establishes the principle that public university officials cannot stand idly by as protesters seek to disrupt the free speech rights of other students and groups on their campuses. Indeed, we’ve accomplished every goal we pursued in this litigation: we established an important First Amendment principle of law and we ensured that our clients’ speech is fully protected by this constitutional safeguard. And on top of that, the State of New York is paying us $30,000 in attorneys’ fees. Victory is complete.

Universities will need to look at this case carefully when deciding how to handle counter-protests that seek to block speech.

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