Alabama Campus Free Speech Act – 12(b)(6) Standard of Review

Young Americans for Liberty, etc., et al. v. Finis St. John IV, etc., et al., [Ms. 1210309, Nov. 18, 2022] __ So. 3d __ (Ala. 2022). In a plurality opinion, (Bryan, J.; Bolin, Wise, and Mendheim, JJ., concur; Shaw, J., concurs specially; Parker, C.J., concurs in part and concurs in the result; Sellers, J., concurs in part and concurs in the result, which Stewart, J., joins; Mitchell, J., concurs in part and concurs in the result), the Court reverses the Madison Circuit Court’s 12(b)(6) dismissal of an action filed by Joshua Greer, a student at the University of Alabama in Huntsville (“the University”), and Young Americans for Liberty, a student organization at the University challenging the legality of the University’s policy regulating speech in outdoor areas of the University’s campus (“the policy”). The plaintiffs alleged that the policy violated their right to free speech guaranteed by Article I, § 4, of the Alabama Constitution of 1901and the “Alabama Campus Free Speech Act” (“the Act”), § 16-68-1, et seq., Ala. Code 1975, passed by the legislature in 2019.

“[T]he general rule under the policy is that students must make reservations for activities that make use of the campus’s outdoor areas. However, reservations are not required for spontaneous activities of expression’ that occur in outdoor areas. But the policy allows such ‘spontaneous speech only in certain designated areas on campus. The policy lists 20 designated areas, spread out over campus, where spontaneous speech is allowed.” Ms. * 8.

A five justice majority “agree[s] with the plaintiffs that the designated areas for spontaneous speech are prohibited ‘free speech zones’ under the Act.” Ibid.

Regarding other challenged parts of the Act, the main opinion concludes “there is at least one unresolved factual issue concerning the evaluation of the policy's time, place, and manner restrictions. Thus, because the defendants failed to demonstrate that the plaintiffs could prove no set of facts supporting their action, dismissal was inappropriate for this reason also.” Ms. **15-16.

The main opinion notes that the defendants alternatively argued that “the Act violates § 264 of the Alabama Constitution, which gives the Board ‘management and control’ over the University,” Ms. *16, and instructs “on remand, the issue whether the Act violates § 264 is now ripe for the circuit court to consider in the first instance. We decline to decide the constitutionality of the Act at this point in the proceedings.” Ms. *17.

Chief Justice Parker’s special concurrence posits that “the present posture of this case does not allow us to rule on the ultimate merits of the ‘free speech zones’ aspect of the plaintiffs’ claim. We can properly hold only that, under a correct interpretation of the Act as prohibiting designated areas that are ‘create[d] ... in order to limit’ protected speech, the defendants have not met their burden of showing that this aspect is not meritorious.” Ms. *39.

Justice Sellers’s concurrence, joined by Justice Stewart, “agree(s) that the trial court erred in dismissing the plaintiffs’ action. But, consistent with our applicable standard of review for the dismissal of a complaint under Rule 12(b)(6), I would remand the case for further discovery so the parties can develop a factual record regarding whether the free-speech zones established by the policy were created for limiting or prohibiting protected speech.” Ms. *41.

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