SD school responds to free speech lawsuit

RAPID CITY, S.D. — The South Dakota School of Mines and Technology and a Christian evangelist who wants more freedom to speak on campus are poised for a court battle. The outcome could affect other college campuses in the state.

Mark Gavin, 39, of Black Hawk, is suing the school, saying it has infringed on his right to free speech by not allowing him to preach in high-traffic open areas around campus. He is seeking the right to do that, along with court-related fees, in the federal lawsuit filed on his behalf by the Tennessee nonprofit Center for Religious Expression.

The school last week filed a response to the lawsuit, indicating it will not back off on its stance that Gavin must pay a $50 fee for an area inside the student union, the Rapid City Journal reported (http://bit.ly/Vkwgue ).

The school argues that its policy establishes areas “appropriate for expression” that do not infringe on Gavin’s First Amendment rights. The college considers Gavin’s speech to be solicitation, and a school policy requires solicitors to register with the school and be confined to an area inside the Surbeck Center. The school, which has declined to comment on the litigation, said in its response filed with the court that people speaking in the central open area of campus could impede busy students rushing to classes.

Gavin’s lawsuit states that he does not want to draw large crowds and that he makes no attempt to solicit funds or membership to a church or organization.

“What is solicitation? It involves someone either asking to give you something or asking you for money,” Center for Religious Expression attorney Nate Kellum said.

University of Alabama law professor Paul Horwitz, an expert on free speech, said schools may be able to limit full access to campus, but they need to do so equally.

“The answer seems to be yes, although it can’t just be done arbitrarily: the school at least would have to have a clear policy that doesn’t discriminate on the basis of the speaker’s viewpoint,” Horwitz said. “In fact, a number of universities in the past few years have established specified ‘free speech zones’ on campus, while keeping others clear of speech.”

However, precedents exist where courts have granted a wide berth for evangelists who want to visit college campuses. Some of the cases involve Kellum’s group or a sister organization.

In April, officials from Maricopa Community College in Arizona settled out of court and abandoned their policy to require a two-week notice and a $50 fee for visitors engaging in speech on its campus. That happened after Mesa resident Ryan Arneson sued with help from The Alliance Defense Fund, a branch of the Center for Religious Expression.

That same month, a federal appeals court overturned a lower court decision and reinstated Christian evangelist John McGlone’s lawsuit against Tennessee Technological University, which had confined him to one area on campus. The appeals court ruled that the school imposed on McGlone’s right to free speech.