Amicus Curiae Brief — Rodney Keister, Petitioner v. Stuart Bell, in His Official Capacity as President of the University of Alabama, et al.

Supreme Court briefNov 23, 2022

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Text

No. 22-388

In The

Supreme Court of the United States

RODNEY KEISTER,

Petitioner,

STUART BELL, IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE UNIVERSITY OF ALABAMA, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS

AND EXPRESSION

IN SUPPORT OF PETITIONER

ABIGAIL E. SMITH

Counsel of Record

DARPANA SHETH

FOUNDATION FOR INDIVIDUAL

RIGHTS AND EXPRESSION

510 Walnut Street, Suite 1250

Philadelphia, PA 19106

(215) 717-3473

abby.smith@thefire.org

darpana.sheth@thefire.org

Counsel for Amicus Curiae

QUESTION PRESENTED

1. Whether the Eleventh Circuit erred in relying

on the government’s (or its delegee’s) intent to

regulate speech in determining that public

sidewalks adjacent to government buildings are

not traditional public forums, in conflict with

decisions by this Court and numerous circuits.*

This brief takes no position on the cert-worthiness of

Question Presented 2.

TABLE OF CONTENTS

QUESTION PRESENTED........................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 4

II.

Public Universities Regularly Wield

Forum Restrictions to Suppress Student

and Non-Student Speech Alike. ....................... 4

The First Amendment Applies to

Public Colleges and Universities. .......... 4

Public University Administrators

Routinely Ignore the First

Amendment on Campus, Including

in Traditionally Public Areas. ............... 7

This Court Should Grant Certiorari to

Clarify That Public Universities Can’t

Silence Speech in Public Spaces. ................... 11

Public Sidewalks Are Public

Spaces. .................................................. 11

This Court Should Grant Certiorari

to Resolve the Split on University

Sidewalk Speech. ................................. 13

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

Page(s)

ACLU v. Mote, 423 F.3d 438 (4th Cir. 2005) ............ 14

Bowman v. White, 444 F.3d 967 (8th Cir. 2006) ...... 13

Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000) .... 13

Brown v. Jones Cnty. Junior Coll., 463 F. Supp.

3d 742 (S.D. Miss. 2020) ...................................... 7, 8

Burch v. Univ. of Hawaii Sys., No. 1:14-cv00200, 2014 WL 1647534 (D. Haw. Apr. 24,

2014) ......................................................................... 8

Flores v. Bennett, No. 1:22-cv-01003, 2022 WL

9459604 (E.D. Cal. Oct. 14, 2022) ........................... 2

Grutter v. Bollinger, 539 U.S. 306 (2003) ................... 6

Healy v. James, 408 U.S. 169 (1972) ................ 3, 5, 14

Henderson v. Lujan, 964 F.2d 1179 (D.C. Cir.

1992) ....................................................................... 13

Jergins v. Williams, No. 2:15-cv-00144 (D. Utah

Mar. 4, 2015) ............................................................ 9

Kennedy v. Bremerton Sch. Dist., 142 S. Ct.

2407 (2022) ............................................................... 1

Keyishian v. Bd. of Regents, State Univ. of N.Y.,

385 U.S. 589 (1967) .................................................. 5

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038

(2021) ........................................................................ 1

McCullen v. Coakley, 573 U.S. 464 (2014).......... 11, 12

McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012) ... 12, 13

Pernell v. Fla. Bd. of Governors of State Univ.

Sys., No. 4:22-cv-304, 2022 WL 16985720

(N.D. Fla. Nov. 17, 2022). ........................................ 2

Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n,

460 U.S. 37 (1983) .............................................. 3, 12

Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D.

Tex. 2004) ............................................................... 13

Salazar v. Joliet Junior Coll., No. 1:18-cv-00217

(N.D. Ill. Mar. 13, 2018) .......................................... 9

Shaw v. Burke, No. 2:17-cv-02386, 2018 WL

459661 (C.D. Cal. Jan. 17, 2018) ......................... 2, 8

Sinapi-Riddle v. Citrus Cmty. Coll. Dist., 2:14cv-05104, 2014 WL 11394671 (C.D. Cal. Jul.

1, 2014) ..................................................................... 8

Speech First, Inc. v. Cartwright, 32 F.4th 1110

(11th Cir. 2022). ....................................................... 1

Speech First, Inc. v. Fenves, 979 F.3d 319 (5th

Cir. 2020).................................................................. 6

Sweezy v. New Hampshire, 354 U.S. 234 (1957) .... 4, 5

Tomas v. Coley, No. 2:15-cv-02355 (C.D. Cal.

Mar. 31, 2015). ......................................................... 9

Univ. of Cincinnati Chapter of Young Americans

for Liberty v. Williams, No. 1:12-CV-155, 2012

WL 2160969 (S.D. Ohio June 12, 2012) .................. 9

Widmar v. Vincent, 454 U.S. 263 (1981) .................... 6

Statutes & Other Authorities

FIRE Speech Code Index, University of

California – Riverside Policy 700-70: Speech

and Advocacy ......................................................... 10

FIRE, Spotlight on Speech Codes 2022 ...................... 7

Robby Soave, Cops Prevent Students From

Advertising Fake ‘Pot’ Brownies Outside Free

Speech Zone, Reason .............................................. 10

University of California – Riverside, About UC

Riverside................................................................. 10

University of California – Riverside, Campus

Map......................................................................... 10

INTEREST OF AMICUS CURIAE1

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the essential qualities of liberty. Because

colleges and universities play an essential role in

preserving free thought, FIRE places a special

emphasis on defending these rights on our nation’s

campuses. Since 1999, FIRE has successfully

defended the rights of individuals through public

advocacy, strategic litigation, and participation as

amicus curiae in cases that implicate expressive

rights under the First Amendment. See, e.g., Brief of

FIRE as Amicus Curiae in Support of Petitioner,

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407

(2022); Brief of FIRE as Amicus Curiae in Support of

Respondents, Mahanoy Area Sch. Dist. v. B.L., 141 S.

Ct. 2038 (2021); Brief of FIRE as Amicus Curiae in

Support of Appellant, Speech First, Inc. v. Cartwright,

32 F.4th 1110 (11th Cir. 2022).

FIRE has a direct interest in this case because this

Court’s jurisprudence on campus speech impacts the

individuals FIRE represents. FIRE has seen firsthand

the eagerness of university administrators to ban

speech they disfavor from students and non-students

alike. FIRE files this brief in support of Petitioner to

Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief, in whole or in part, and that no person

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief. Counsel for all parties

have received timely notice of the intent to file and have

consented in writing to the filing of this brief.

demonstrate the disturbing prevalence of these

abuses and to argue that this Court should grant

certiorari on Question Presented 1 to reaffirm

longstanding precedent governing public universities’

obligations under the First Amendment.

SUMMARY OF ARGUMENT

It is a dark hour for freedom of expression at the

American university. Students, faculty, and members

of the public all face school-sanctioned censorship at

levels that recall the Red Scare. College

administrators threaten students for handing out

pocket copies of the Constitution, school staff rip down

anti-communist posters, and states try to ban

professors from teaching about Jackie Robinson.

Shaw v. Burke, No. 2:17-cv-02386, 2018 WL 459661,

at *3 (C.D. Cal. Jan. 17, 2018); Flores v. Bennett, No.

1:22-cv-01003, 2022 WL 9459604, at *2 (E.D. Cal. Oct.

14, 2022); Pernell v. Fla. Bd. of Governors of State

Univ. Sys., No. 4:22-cv-304, 2022 WL 16985720 (N.D.

Fla. Nov. 17, 2022). When FIRE was founded in 1999

to combat campus censorship, its co-founder Harvey

Silverglate thought the issue would be quickly

addressed and that FIRE would only need to exist for

ten years or so before the problem was resolved. The

reverse has been true: As public university

bureaucracies

have

mushroomed,

university

administrators have increasingly silenced students

and non-students alike with no regard for the First

Amendment.

That problem is on full display here. A public

university’s administrators claim the right to regulate

First Amendment expression on a public city

sidewalk, merely because a campus building happens

to be on the same block. This policy was used to

restrict Mr. Keister’s ability to share his message with

students and passersby. Sadly, this is far from an

isolated incident, and Mr. Keister is far from alone.

Indeed, FIRE’s work over more than two decades

demonstrates that students and faculty are just as, if

not more, likely to be hit with arbitrary and unlawful

speech restrictions as non-students like Mr. Keister.

That is particularly true when speech is inconvenient,

unpopular, or critical of the school.

Two of this Court’s steadfast First Amendment

holdings bear on this case: First, that “state colleges

and universities are not enclaves immune from the

sweep of the First Amendment.” Healy v. James, 408

U.S. 169, 180 (1972). And second, on public sidewalks,

streets, and parks, “the rights of the state to limit

expressive activity are sharply circumscribed.” Perry

Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S.

37, 45 (1983). These longstanding precedents should

have been enough to resolve this case: A public

sidewalk on a public university campus is open to

First Amendment expression.

Yet the federal courts of appeal are divided on how

to address public university regulation of speech in

public spaces. Several circuits, including the Sixth

Circuit, have properly held that these abuses violate

the First Amendment and must stop. But the Fourth

and now the Eleventh Circuits have split with them

and allow university administrators to over-regulate

sidewalk speech with impunity.

Today, many administrators treat their campuses

as fiefdoms, their students as peons, and non-students

like Mr. Keister as invading ants. But state university

officials don’t rule by fiat. They govern public spaces

subject to the rule of law, including the First

Amendment. This Court should grant certiorari to

resolve the circuit split below and protect the right of

students and non-students to freely express

themselves in public spaces.

ARGUMENT

Public Universities Regularly Wield

Forum Restrictions to Suppress Student

and Non-Student Speech Alike.

Mr. Keister is yet another victim of public

university speech diktats. But public university

administrators do not merely apply unlawful speech

restrictions to non-students like itinerant preachers

or Proud Boys. They apply them with equal fervor to

students themselves. Speech zone policies have been

cited to ban students from handing out constitutions

on Constitution Day, to prevent them from

distributing anti-capitalism flyers (when procapitalism materials were permitted), and to bar them

from polling students on marijuana legalization—all

on campus open spaces or sidewalks far from building

entrances. Permitting regimes continue to wreak

havoc on the rights of students and non-students like

Mr. Keister to this day.

The First Amendment Applies

Public

Colleges

and

Universities.

By now, it should be uncontroversial to say that

the First Amendment applies at public colleges and

universities. This Court noted as much in Sweezy v.

New Hampshire, 354 U.S. 234, 249–50 (1957), when it

held that the Bill of Rights protected a state

university professor’s “right to lecture” on socialist

topics. Discussing the importance of free expression in

higher education, the Court further remarked:

The essentiality of freedom in the

community of American universities is

almost self-evident. No one should

underestimate the vital role in a

democracy that is played by those who

guide and train our youth. To impose any

strait jacket upon the intellectual

leaders in our colleges and universities

would imperil the future of our Nation.

Id. at 250. This Court confirmed the First

Amendment’s

application

state-employed

professors in Keyishian v. Board of Regents, State

University of New York, 385 U.S. 589 (1967). There,

the Court struck down New York regulations

requiring all state-employed faculty to sign a

certificate stating they were not Communists. Id. at

592. In doing so, it noted that academic freedom is “a

special concern of the First Amendment, which does

not tolerate laws that cast a pall of orthodoxy over the

classroom.” Id. at 603.

The First Amendment’s protections were first

extended to public university students in Healy v.

James, 408 U.S. 169 (1972). There, this Court held

that Central Connecticut State College violated

students’ First Amendment rights when it refused

official club recognition to a left-wing student group.

Id. at 180–81. The decision made clear that “state

colleges and universities are not enclaves immune

from the sweep of the First Amendment.” Id. at 180.

The Court doubled down on that principle in

Widmar v. Vincent when it held that a state university

could not deny its generally available facilities to a

registered student group just because that group

wanted to “use the facilities for religious worship and

religious discussion.” 454 U.S. 263, 265 (1981). It

noted that “[t]he Constitution forbids a State to

enforce certain exclusions from a forum generally

open to the public, even if it was not required to create

the forum in the first place.” Id. at 267–68. The Court

further remarked that by 1981, its “cases le[ft] no

doubt that the First Amendment rights of speech and

association extend to the campuses of state

universities.” Id. at 268–69.

This Court has consistently protected the

“expansive freedoms of speech and thought associated

with the university environment,” Grutter v.

Bollinger, 539 U.S. 306, 329 (2003). And for decades,

lower courts have adhered to this well-established

precedent, making clear time and again that the First

Amendment applies in full on public college

campuses. See, e.g., Speech First, Inc. v. Fenves, 979

F.3d 319, 338–39 (5th Cir. 2020) (collecting a

“consistent line of cases that have uniformly found

campus speech codes unconstitutionally overbroad or

vague”). Nevertheless, public universities and their

administrators continue to brazenly assert an

unfounded authority to restrict First Amendment

rights on campus, just as Respondents do here.

Public University Administrators

Routinely

Ignore

the

First

Amendment on Campus, Including

in Traditionally Public Areas.

Despite the First Amendment’s long-established

application on public campuses, FIRE’s work

demonstrates that when left unchecked, state college

and university administrators frequently ignore their

First Amendment obligations in order to suppress

speech critical of their schools or supportive of policies

they disagree with.2 In virtually every case, these

administrators rely on vague, overbroad, or unevenly

applied policies to restrict free speech.

For example, in a string of cases litigated by FIRE

on behalf of student chapters of Young Americans for

Liberty, public college administrators around the

country threatened students or ordered them to

disperse for expressing their First Amendment

freedoms of speech and assembly, as well as their

freedom to petition. In Brown v. Jones County Junior

College, 463 F. Supp. 3d 742 (S.D. Miss. 2020), the

Dean of Students called campus police on two

students for rolling a “free speech ball” (a beach ball

That is not to say that private college and university

administrators do not also frequently restrict speech on campus.

Indeed, as FIRE’s research shows, private schools are often more

callous towards student speech, in violation of their contractual

promises of freedom of expression. See FIRE, Spotlight on Speech

Codes 2022, at https://www.thefire.org/research-learn/spotlightspeech-codes-2022 [https://perma.cc/3KLG-XNUA] (“Of the 107

private colleges and universities reviewed, 44 received a red light

rating (41.1%). 54 received a yellow light rating (50.5%), four

received a green light rating (3.7%), and five earned a Warning

rating (4.7%).”).

with words written in sharpie) around the campus

lawn without getting advance permission from the

Vice President of Student Affairs. Id. at 748–49.

Several months later, when student Michael Brown

held a sign in the campus plaza “inviting students to

share their thoughts on whether marijuana should be

legalized,” campus police demanded identification,

“ordered him to leave campus” when he refused, “and

threatened to arrest him for trespass if he returned”

to his own college campus. Id. at 749. The Chief of

Police told Brown that “he was not allowed to engage

in expressive activity on campus without

administrative approval.” Id. at 750.

Los Angeles Pierce College student and YAL

member Kevin Shaw was threatened with removal

from campus for distributing Spanish-language copies

of the Constitution outside the school’s designated

“Free Speech Area” without a permit—even though

those requirements were unpublished and made

known to Shaw only after a school administrator

harassed him. Shaw v. Burke, No. 2:17-cv-02386, 2018

WL 459661, at *2–3 (C.D. Cal. Jan. 17, 2018). The

“Free

Speech

Area”

question

occupied

“approximately 0.007% of the main area of campus,”

or roughly the ratio of an iPhone to a tennis court. Id.

at *2.

In similar cases coordinated or litigated by FIRE,

campus administrators cited free speech restriction

policies to ban YAL students from seeking petition

signatures to condemn spying by the NSA, Complaint,

Sinapi-Riddle v. Citrus Cmty. Coll. Dist., 2:14-cv05104, 2014 WL 11394671 (C.D. Cal. Jul. 1, 2014),

Complaint, Burch v. Univ. of Hawaii Sys., No. 1:14cv-00200, 2014 WL 1647534 (D. Haw. Apr. 24, 2014),

from asking support for a right-to-work amendment,

Order Granting in Part Plaintiffs’ Motion for a

Preliminary Injunction, Univ. of Cincinnati Chapter

of Young Americans for Liberty v. Williams, No. 1:12CV-155, 2012 WL 2160969 (S.D. Ohio June 12, 2012);

and from displaying unflattering posters of George W.

Bush, Barack Obama, and Che Guevara, Complaint,

Jergins v. Williams, No. 2:15-cv-00144 (D. Utah Mar.

4, 2015).

But administrative overreach is not limited to just

conservative and libertarian students. In Salazar v.

Joliet Junior College, FIRE represented student

Ivette Salazar, who was detained by uniformed

campus police officers and held in an interrogation

room for distributing flyers that said “Shut Down

Capitalism” without permission—directly adjacent to

a conservative organization handing out “Socialism

Sucks” flyers without incident. Amended Complaint,

No. 1:18-cv-00217 (N.D. Ill. Mar. 13, 2018). Similarly,

in Tomas v. Coley, a student at California State

Polytechnic University—Pomona was harassed by

campus police for handing out animal-rights flyers

without advance permission and outside the school’s

tiny designated “free speech zone.” Complaint, No.

2:15-cv-02355 (C.D. Cal. Mar. 31, 2015).

Thankfully, all the above cases ended in either

court victories for the silenced students or favorable

settlements. However, they demonstrate university

administrators’ willingness to harass students—

including through the use of campus police—simply

for expressing their views on open, outdoor areas of

campus without express administrative approval.

Many public colleges and universities continue to

maintain and enforce similar policies against students

and non-students alike. At Western Illinois

University, for example, students advocating for the

legalization of marijuana in an open area of campus

were stopped within minutes by campus law

enforcement—literal speech police—because they

were “outside of the free speech zone.” Robby Soave,

Cops Prevent Students From Advertising Fake ‘Pot’

Brownies Outside Free Speech Zone, Reason (Sept. 9,

2019), https://reason.com/2019/09/09/western-illinoisuniversity-pot-brownies-free-speech-zone

[https://perma.cc/PVJ2-TTN9].

And at the University of California—Riverside,

“all persons,” whether school-affiliated or not, are

prohibited from exercising their First Amendment

rights on the school’s vast acres of public green space,

including the “Tower Mall” thoroughfare that

dominates much of the nearly 1,200-acre campus. See

FIRE Speech Code Index, University of California –

Riverside Policy 700-70: Speech and Advocacy,

https://www.thefire.org/colleges/university-californiariverside/policy-700-70-speech-and-advocacy [https://

perma.cc/SS9D-RDNL]; University of California –

Riverside, About UC Riverside, https://www.ucr.edu/

about-ucr [https://perma.cc/L5ZS-7G58]; University

of California – Riverside, Campus Map, https://camp

usmap.ucr.edu [https://perma.cc/7W6S-T74D].

In sum, unconstitutional speech restrictions

abound at public colleges and universities, and the

threat of enforcement is real. Though this Court has

repeatedly held similar content- and viewpoint-based

speech restrictions to violate the First Amendment,

university administrators clearly have not gotten the

message.

II.

This Court Should Grant Certiorari to

Clarify That Public Universities Can’t

Silence Speech in Public Spaces.

The lower courts disagree on what makes a space

“public,” and who gets to decide. That disagreement

has led to chilled speech for untold numbers of

students and non-students, including Mr. Keister.

This Court should set the record straight that public

universities can’t simply wave a magic wand and

declare that a public space suddenly isn’t public

anymore just because it happens to be next to a

campus building.

Public Sidewalks Are Public

Spaces.

Few places are more enshrined in American

jurisprudence as places of public debate than the

public sidewalk. As this Court noted in McCullen v.

Coakley

It is no accident that public streets and

sidewalks have developed as venues for

the exchange of ideas. Even today, they

remain one of the few places where a

speaker can be confident that he is not

simply preaching to the choir. . . . There,

a listener often encounters speech he

might otherwise tune out. In light of the

First Amendment’s purpose “to preserve

an uninhibited marketplace of ideas in

which truth will ultimately prevail,”

FCC v. League of Women Voters of Cal.,

468 U.S. 364, 377 (1984) (internal

quotation marks omitted), this aspect of

traditional public fora is a virtue, not a

vice.

573 U.S. 464, 476 (2014). Consequently, public

sidewalks afford special legal protection for free

speech. “In places which by long tradition or by

government fiat have been devoted to assembly and

debate, the rights of the state to limit expressive

activity are sharply circumscribed.” Perry Educ. Ass’n

v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983).

A public sidewalk on a public street does not lose

those protections simply by being in front of a

university building, particularly when that

university’s campus is in an urban setting that is

highly integrated with non-campus streets and

buildings. The Sixth Circuit recognized this in

McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012). There,

Tennessee Technological University (TTU) required

non-students to give 14 business days’ notice before

speaking anywhere on campus, including in campus

green spaces and on campus sidewalks. Id. at 722. On

facts strikingly similar to this case, TTU officials used

this policy to bar an itinerant preacher from

distributing religious material and discussing a

Christian message with students, despite the urban

campus “blend[ing] in with the City of Cookeville,”

and despite many campus sidewalks being

“indistinguishable from City of Cookeville sidewalks.”

Id. at 723.

The Sixth Circuit held that TTU’s sidewalks were

just as public—and thus, just as subject to the

protections of the First Amendment—as the ordinary

city sidewalks. Id. at 732–33. In doing so, the court

put the burden on TTU “to show that the sidewalk

[wa]s overwhelmingly specialized to negate its

traditional forum status.” Id. at 732 (citing Henderson

v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992)).

Because TTU’s sidewalks “blend[ed] into the urban

grid and [we]re physically indistinguishable from

public sidewalks,” the court held that they were in fact

public sidewalks for First Amendment purposes. Id.

at 733; see also Roberts v. Haragan, 346 F. Supp. 2d

853, 861 (N.D. Tex. 2004) (“[T]o the extent the campus

has park areas, sidewalks, streets, or other similar

common areas, these areas are public forums, at least

for the University’s students, irrespective of whether

the University has so designated them or not.”).

The Sixth Circuit’s approach has the virtue of

common sense. If it looks like a public sidewalk and

functions like a public sidewalk, any member of the

public or of the student body would understandably

expect to be able to use it like a public sidewalk,

including for expressive activity. At least the Fifth

and Eighth Circuits have adopted a similar approach.

Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000);

Bowman v. White, 444 F.3d 967 (8th Cir. 2006).

This Court Should Grant

Certiorari to Resolve the

Circuit Split on University

Sidewalk Speech.

In deciding that University of Alabama sidewalks

aren’t public, the Eleventh Circuit deepened an

existing circuit split on the issue. Several years ago,

the Fourth Circuit created this split with the Fifth,

Sixth, and Eighth Circuits in ACLU v. Mote, 423 F.3d

438 (4th Cir. 2005). There, despite the University of

Maryland’s campus being “generally open to any

member of the public,” and the University allowing

“members of the public to engage in any lawful

activity in these open areas except public speaking and

handbilling,” the Fourth Circuit held that no part of

the campus was a traditional public forum. Id. at 443

(emphasis added). That meant that the many public

sidewalks on the massive University of Maryland

campus, as well as the large swathes of open green

space meant to mimic the National Mall, are all cut

off to non-student public speaking, leafletting, and

petitioning without either a university sponsor or preapproval from a university administrator. This runs

counter to this Court’s recognition that “[t]he college

classroom with its surrounding environs is peculiarly

‘the marketplace of ideas.’” Healy, 408 U.S. at 180

(citation omitted).

Yes, Mote involved non-student speech—but it makes

no sense for a publicly accessible sidewalk or green

space to be open to all members of the public for all

purposes except expression protected by the First

Amendment. Because this was the case at the

University of Maryland, it naturally follows that the

campus would function as a public forum for the

general public as well as its students and faculty.

In this case, the Eleventh Circuit doubles down on

this bad reasoning. It notes that the public sidewalk

in question is owned by the city government, abuts

“private businesses and non-University property,”

and is “indistinguishable from the City sidewalks

adjoining it.” Keister v. Bell, 29 F.4th 1239, 1254 (11th

Cir. 2022). Yet the Court holds that the same public

sidewalk can still not be entitled to the traditional

First Amendment protections because it happens to

be “just a block from the Quad” and “lie[] immediately

in front of” a single university building. Id. Despite

this extraordinary holding, the opinion does not cite a

single case where a city-owned sidewalk on a public

thoroughfare was held to not be a traditional public

forum.

Neither the results nor the reasoning employed in

Mote and Keister can be squared with the Sixth

Circuit’s holding in McGlone. More importantly, they

cannot be squared with this Court’s repeated

longstanding holdings that public sidewalks are open

for public debate. This Court should grant certiorari

to resolve this conflict and reinstate the right of

students and non-students alike to exercise their First

Amendment rights on public university sidewalks.

CONCLUSION

For the foregoing reasons, this Court should grant

certiorari on the first Question Presented.

November 23, 2022

Respectfully Submitted,