West Point Protest Ban Does Not Violate Free Speech Rights

When we were in college, there was a man who protested regularly on our university campus. He wasn't a student, and we're still not sure what he was protesting, but he always brought a giant American flag with him.

We remember the campus police telling him one afternoon that he had to pack up the flag and leave because he wasn't in a free speech zone. That was the first time we realized that the campus had free speech zones.

We thought it was oppressive and unconstitutional. And then we went to law school and realized that free speech rights weren't nearly as inclusive as we, and many, many others, believed.

Now we're no longer fazed when we hear that demonstrations are limited to free speech zones, but we were floored to learn that demonstrations are banned at West Point. Consistent with that policy, the Second Circuit Court of Appeals affirmed a verdict this week against a group of plaintiffs who alleged that their free speech rights were violated at a West Point sporting event.

Sandra Dolman, Nick Mottern, Gayle Dunkelberger, Valerie Courreges, David Finucane, Kwame Mahdi, Margaret Eberle and Frank Smith (Plaintiffs) attended a West Point basketball game in 2004.

When the national anthem played, they stood up, removed their jackets and revealed t-shirts spelling out "US OUT OF IRAQ." Shortly after, John Spisso, the facilities manager, told Plaintiffs they could either remove their t-shirts or leave the arena.

The Plaintiffs agreed to leave the arena. Garrison Commander Ann Horner sent each of the Plaintiffs a letter barring them from "all areas of West Point" for a period of five years, based on the incident.

Plaintiffs sued, alleging that Spisso and Horner violated their First Amendment rights by suppressing constitutionally protected speech and by barring them from the base for exercising their constitutionally protected right to free speech.

At trial, a jury found that West Point staff had not violated the Plaintiffs' free speech rights.

In a summary order, the Second Circuit Court of Appeals ruled that the Plaintiffs failed to satisfy the high standards required to overturn a jury verdict. While the court noted that record contained evidence in support of the Plaintiffs' case, it found that the record also contained ample evidence from which a reasonable jury could find in favor of defendants.

Between the West Point protest ban, and the prohibition on demonstrations in the Supreme Court building and grounds, we're questioning whether no speech zones may outnumber free speech zones around the country.

Related Resources:

• Dolman v. Horner (Second Circuit Court of Appeals)
• Court Upholds Students' Free Speech Rights in Sleepover Pics Case (FindLaw's Seventh Circuit blog)
• Fifth Cir. OKs First Amendment Candy Canes and Qualified Immunity (FindLaw's Fifth Circuit blog)