First Amendment Lawsuit by Vegan Advocate Against University of Missouri Can Go Forward

Starting at Hershey v. Curators of Univ. MissouriJudge Douglas Harpool (W.D.) ruled Wednesday in favor of the motion. Mo.):

Flyers and brochures were often distributed by Plaintiff, who advocated vegetarian and vegan diets. Plaintiff claims the University’s decision to place restrictions on speech areas is against the Constitution. He claims the University’s policy of regulating speech on campus areas is unconstitutional.

Plaintiff asserts that he was distributing literature to the University of Missouri-Columbia, December 2021. Jane Doe asked him to relocate to another area on campus. Jane Doe identified herself as being “with operations”. Plaintiff alleges that Ms. Doe called University officers after Plaintiff declined to leave his preferred location. Plaintiff claims that he talked with a MU officer about ten minutes. He purportedly said to Plaintiff that he’d be taken off campus if he caused students discomfort or was rude. The University “interfered” in his protected speech activities, and the presence of the officer “deterred some Students from accepting a Hershey book.”

The next claim is that Plaintiff was distributing literature on vegetarianism to students at University of Missouri-St. Louis (UMSL). Plaintiff claims that UMSL staff made him distance himself from his audience. [Millenium Student Center].” Dorian Hall (or “Hall”) is named as the defendant by the plaintiff. He claims Director Hall directed his staff to push Hershey further away from the entrance. Plaintiff claims that “UMSL”‘s actions “interfered with Hershey’s lawful speech activities” as well that the “staff” discouraged students from reading Hershey’s literature.

Plaintiff next asserts that, on May 7, 2021, he was distributing literature on the Missouri University of Science and Technology (Missouri S&T) campus when he was approached by Sergeant Mark Ritter (“Ritter”) and told he “had to leave the University.” Plaintiff asserts that Ritter looked at the book for several seconds and then, “arbitrarily,” responded to Plaintiff’s question about the contents and perspective of the booklet. He said that Ritter was prohibited from giving out the literature and that it was his “private property.” Ritter, according to Plaintiff, “relentlessly”[ed]After speaking with the police chief, he said that he was satisfied. Plaintiff claims Ritter’s actions impinged on Hershey’s protected and lawful speech and forced Hershey not to offer his books to passersby. Plaintiff claims Ritter’s presence dissuaded students from receiving booklets.

Plaintiff claims that he distributed booklets on vegetarianism at MU’s campus on December 5, 2018. Plaintiff asserts Nancy Monteer (Director of Campus Dining”), “arbitrarily” confronted Plaintiff, “in retaliation, based on content and perspective of the booklet”, and “yelled” at him to “get out” of the dining hall doors. Plaintiff claims that his encounter with Monteer resulted in Plaintiff being “raisen.”[ing]He held his arms high to defend himself against Monteer’s increasing aggressive moves.” …

Plaintiff brought suit for violating the First Amendment and Missouri Campus Free Expression Act.

  1. These provisions shall be known and called the “Campus Free Expression Act.” This section protects expression activities, including peaceful assemblies, demonstrations, speeches and distribution of literature.
  2. Public forums will be considered traditional in the outdoor spaces of campus public higher education institutions. If there is a substantial institutional interest in the institution, public institutions of higher learning may impose reasonable restrictions on time, place and manner. However, such restrictions must be clear and published and not be biased against any viewpoint. All such restrictions must allow members of the university community freedom to meet up spontaneously or contemporaneously.
  3. Anyone who wants to express themselves noncommercially on campus is allowed to, provided that it’s not illegal and doesn’t materially or substantially disrupt the institution as required by subsection 2.
  4. This section is not meant to limit student freedom of expression on campus.
  5. To enjoin violations of this section, or to seek compensatory damages and reasonable court costs as well as attorney fees, the following individuals may file an action before a court of competent jurisdiction: (1) The Attorney General; (2) People whose expressive rights have been violated by violation of this Section.

According to the court, Missouri’s sovereign immunity against lawsuits brought up in federal courts was not sufficiently waived by the Act.

“[A]A federal lawsuit against state officials is brought under the Eleventh Amendment. Although a state may have waived immunity for “its own courts”, this does not mean that it is immune from federal suit. …

It allowed for the First Amendment to be pursued:

Plaintiff claims that he was prevented from speaking with his intended audience and harassed, accosted, arrested, and banned by the defendants in areas where he is claiming interference with his freedom of speech. The First Amendment has been a solid foundation that applies the strictest standard to speech restrictions in traditional public forums, especially at parks, schools and streets.

Plaintiff claims here that the Defendants placed a restraining order on Plaintiff. content-basedIt is not required to exclude a state interest or that they are narrowly tailored.

Law clearly states that speech restrictions based on content are subject to strict scrutiny. “For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end…. While regulations that are not content-neutral and are tailored to a substantial government interest may be enforced by the State.

A reasonable person would understand the clearly-established law concerning content-based speech restrictions at the time the Plaintiff alleged that he was being denied his rights. Plaintiff alleges that defendants Monteer, Hall and Ritter violated his freedom to speak based upon the content of his communication. Plaintiff has sufficiently pled the actions of these defendants to overcome their qualified immunity claim. Accordingly, Plaintiff’s § 1983 claims against the remaining defendants (Monteer, Hall, and Ritter) in their individual capacities are not dismissed….