United States District Court, E.D. Arkansas, Jonesboro Division
TURNING POINT USA AT ARKANSAS STATE UNIVERSITY; and ASHLYN HOGGARD PLAINTIFFS
RON RHODES, in his individual and official capacities as member of the Board of Trustees of Arkansas State University System; et al. DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Hoggard is a student at Arkansas State University in
Jonesboro, Arkansas. She wanted to form a Turning Point USA
chapter and register it as a student group on campus. In the
Fall 2017 semester, Hoggard and a Turning Point employee set
up a table with two poster boards about Turning Point on the
edge of a large walkway outside the student union. The table
was not obstructing any buildings' exits or entrances.
They talked with students and encouraged them to join their
group. A university employee and campus police officer soon
informed Hoggard and her companion that they were violating
the campus freedom of expression policy. The officer issued
Hoggard's guest a criminal trespass warning and banned
her from the entire campus.
freedom of expression policy governs first amendment
expression on all of campus. Document #1-2; Document #1-3.
The policy distinguishes between “Free Expression
Areas” and all other areas of campus, whether greens,
buildings, or sidewalks and roads. Id. The policy
applies to faculty, staff, students, student organizations,
and visitors. Id. Free expression areas are
generally available for speeches and demonstrations between
8:00 a.m. and 9:00 p.m. Monday through Friday. Document #1-3.
Persons wishing to use this space must request permission to
use it in advance with the Director of Student Development
and Leadership. Id. Persons wishing to use other
areas of campus must request permission at least 72 hours in
advance with the Vice Chancellor of Student Affairs or the
Director of Student Development and Leadership. Id.
In addition, those wishing to distribute noncommercial
written material, such as pamphlets or circulars, may only do
so in certain designated areas and only with the permission
of the Director of Student Development and Leadership.
Id. Stands, tables, and booths may only be used in
free expression areas to distribute written materials.
Id. The policy does not require university officials
to respond to requests to use free speech areas or other
areas within a certain time frame or even at all.
and the Turning Point organization sued various university
officials in their official and individual capacities,
alleging that the freedom of expression policy is
unconstitutional both facially and as applied to Hoggard and
the organization. She says that this policy has
unconstitutionally burdened her protected first amendment
rights. She wants to discuss Turning Point with students and
hand out written materials without needing the approval of
the university in advance. The university has now moved to
dismiss the complaint on three grounds: standing, sovereign
immunity, and qualified immunity.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S.Ct. at 1965.
defendants argue that Hoggard and the organization lack
standing to challenge the policy because Hoggard never
requested nor was denied a permit. They also say that Hoggard
and the organization are not challenging the policy's
prohibition on the use of stands, tables, or booths, and,
therefore, any remedy would not afford them relief. The
constitutional requirement of standing does not require
Hoggard first to seek and be denied a permit before she will
have an injury. See Bloedorn v. Grube, 631 F.3d
1218, 1228 (11th Cir. 2011) (rejecting challenge to standing
where plaintiff did not seek a permit from the university);
see also Watchtower Bible & Tract Soc'y of New
York, Inc. v. Vill. of Stratton, 536 U.S. 150, 157-58,
122 S.Ct. 2080, 2085, 153 L.Ed.2d 205 (2002) (“They
also explained at trial that they did not apply for a permit
because they derive their authority to preach from
Scripture.”). More fundamentally, Hoggard's alleged
injury is not that the permit was denied but that she had to
seek a permit in the first place. With respect to the second
part of the defendants' standing argument, the complaint
makes clear that Hoggard and Turning Point are challenging
the policy as a whole and as applied to their conduct when
they were asked to leave by the university employee and
campus police officer. See Document #1 at
¶¶109-18, 129. The plaintiffs have standing.
defendants next argue that the plaintiffs' claims are
barred by sovereign immunity. The defendants acknowledge,
though, that claims against state officials in their official
capacities for prospective injunctive relief are not barred
by sovereign immunity. Hoggard and Turning Point seek
prospective injunctive relief against the defendants in their
official capacities and seek compensatory damages against the
defendants only in their individual capacities. The
plaintiffs' claims are not barred by sovereign immunity.
defendants last argue that they are entitled to qualified
immunity because “[t]his case is materially
indistinguishable from Bowman v. White, 444 F.3d 967
(8th Cir. 2006), which upheld the constitutionality of
substantively identical policy provisions of the University
of Arkansas at Fayetteville.” The defendants'
argument relies almost entirely on Bowman governing
this case. At this stage, the Court cannot say as a matter of
law that Bowman controls the facts here. First,
Bowman was decided after a plenary hearing-a
proceeding under Federal Rule of Civil Procedure 65(a)(2)
wherein a court consolidates the hearing on a preliminary
injunction with the trial on the merits-and not at this early
stage. Second, the plaintiff in Bowman only
challenged the policy as applied to his activities. Third,
the Eighth Circuit was careful to tailor its analysis to the
facts before it in Bowman. For example, the court
limited its forum analysis to specific locations on
Fayetteville's campus, id. at 977, 979, and the
court also analyzed the university's time, place, and
manner restrictions in light of the plaintiff's
“demonstrated . . . capacity to attract a crowd and
disrupt the unique educational environment.”
Id. at 981.
most significantly, the policy at issue in Bowman
was not made a part of the pleadings and is not before the
Court. Other than the description in Bowman and the
court's as-applied analysis of it, this Court has no way
of knowing whether it is materially indistinguishable to
Arkansas State's policy. Moreover, even if the policies
were materially indistinguishable, the forums are not. The
spaces and their historical uses are unique to each campus.
university's freedom of expression policy requires
Hoggard to seek and receive the university's permission
before she is allowed to exercise first amendment freedoms on
campus. The policy is a prior restraint on her first
amendment rights, as interpreted by the Supreme Court,
against which there is a “heavy presumption” of
unconstitutionality. See Forsyth Cnty., Ga. v.
Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395,
2401, 120 L.Ed.2d 101 (1992).
stage, the Court cannot say that Bowman controls
this case, nor that this presumption has been rebutted. The