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Eighth Circuit Dismisses Ben Shapiro's First Amendment Challenge Against University for Hosting Him Off Campus

By Joseph Fawbush, Esq. on October 22, 2021 2:59 PM

After a federal district court upheld the University of Minnesota's decision to move guest speaker Ben Shapiro from an on-campus to an off-campus venue because she found that school had legitimate safety concerns, the Eighth Circuit dismissed conservative student groups' appeal, ruling that their constitutional claims were moot after the school replaced the challenged campus events policy. Read both opinions and thousands more with a free trial of WestLaw Edge.

Scheduling Shapiro and Safety Concerns

Students for a Conservative Voice, a right-leaning student group at the University of Minnesota, invited Shapiro to speak to a large audience on a campus event in 2018. A nationally-renown attorney and prominent conservative voice, Shapiro typically attracts significant controversy. University of Minnesota officials became concerned with security at the event and feared protests would lead to a danger to public safety.

The SCV's preferred venue was the Mayo Auditorium, a centrally located facility that can seat 455 people. The Mayo Auditorium is located in the University's medical building near a transportation hub on its main campus. The University ultimately refused to book the controversial conservative speaker on its main campus. Instead, Shapiro gave his talk at the North Star Ballroom, a student center located on the University's St. Paul campus, about a 15-minute drive from the Mayo Auditorium. About 450 people attended and the talk was livestreamed. The event took place without any issues.

Alleging First Amendment Violations

The SCV and Shapiro claimed the University violated the First Amendment rights of students. The SCV pointed to the school's "Large Scale Event Process" policy, claiming the LSEP violated the First Amendment both facially and as applied to Shapiro's event.

After the lawsuit commenced, the University changed LSEP to the "Major Events" policy, which contains more specific terms and defines the process for booking large events more clearly.

The U.S. District Court for the District of Minnesota granted summary judgment for the University of Minnesota regarding their First Amendment as-applied claims and dismissed all other claims. SCV and Shapiro appealed the summary judgment claim.

Mootness and Standing

On October 4th, the Eighth Circuit upheld the lower court's summary judgment. According to the majority, SCV's facial challenges to the school's previous policy were moot. The panel noted that the University of Minnesota already changed its large events policy in part due to the lawsuit, and that it was unlikely to return to its previous, more ambiguous policy.

The student group also claimed that the University exercised viewpoint discrimination in applying its "Large Scale Events Process" policy unequally. But the majority held that SCV failed to establish that the University consulted the LSEP in determining where the event would be held. While both parties referred to the LSEP in determining where to host Shapiro's talk, it wasn't clear from the record whether the conservative student group was ever denied anything based on the policy.

Judge Steven Grasz concurred with the majority in upholding the dismissal of the other claims, but thought that SCV's claims on viewpoint discrimination should survive summary judgment. Judge Grasz wrote that establishing Article III standing at the summary judgment stage is a rather "low bar" and that the SCV should be allowed to proceed to the merits.

Regulating Campus Speech

Free speech on college campuses continues to be a hot-button issue. While the restrictions against large events has perhaps led to fewer lawsuits filed in the last year, as those restrictions loosen it is likely we'll see more challenges to speech restrictions moving forward. Several federal appeals courts have handled the issue in recent years. So has the Supreme Court, which last term held that federal appellate courts can decide cases on the merits in a similar case at Gwinnet College if the plaintiffs seek nominal damages. Put simply, it's likely an issue that federal courts will be dealing with for some time to come.

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