State Press story on Ninth Circuit hearing misses the mark

In a November 3, 2009 article by Griselda Nevarez entitled “Group to appeal district court’s free speech ruling,” there were several major factual errors that ADF would like to correct.

  • Nevarez wrote, “ASU has since modified and implemented a written policy of providing proof of insurance or signing an indemnification agreement to accommodate the group’s request. The group still appealed to the U.S. Circuit Court of Appeals for the 9th Circuit on Oct. 20 after a district court judge ruled in favor of the University in April 2008.“

ASU did not change the policy until AFTER Alliance Defense Fund attorneys appealed this case on behalf of Students for Life.  Students for Life appealed the district court’s opinion in April 2008 because the policy had NOT been revised and because the district court’s opinion misapplied the law in finding that the restrictions were constitutional.  The recent proceedings were oral arguments that were part of the appeal in the case—they were not an “appeal“ themselves.

  • Nevarez wrote, “In 2005, ASU Students for Life attempted to reserve several speech zones on the Tempe campus to display an exhibit, but the University restricted them to just one zone.   The student group also hosted an event in 2006 with Justice for All, an off-campus nonprofit organization, and was required to pay insurance for an on-campus event that consisted of sitting at a table and passing out fliers. ” 

The Justice for All event was in 2006, and that involved a physical exhibit.  The Dignity of Life Week in 2006 involved “sitting at a table and passing out fliers” with representatives from community pro-life organizations. The insurance requirement was applied to both events.

  • Nevarez wrote, “That same year, the student group sued ASU for violating students’ First Amendment rights by enforcing ‚ ‘unnecessary and discriminatory regulations‘ by classifying campuses as limited free-speech zones, according to court documents.“

That is not why we sued ASU.  The basis for the complaint filed in federal court was that ASU applied unwritten policies that had never been applied before to any other student group to Students for Life, and the policies (one zone and insurance requirement) were unconstitutional.

  • Finally, Nevarez's mention of “nominal damages” is misleading.

The university’s suggestion that a claim for nominal damages is irrelevant and made simply to keep alive a claim for attorney’s fees is legally erroneous and disingenuous.  The Supreme Court has held that nominal damages are the proper remedy when a government entity has violated your rights in the past.  That past violation has absolutely nothing to do with the change in policy—they are still entitled to those damages regardless of whether they changed the policy because the damages are based on the unconstitutionality of the OLD policies.