ACLU files lawsuit surrounding new ‘expressive activity’ policy at Indiana University

INDIANAPOLIS (WXIN) — A group that previously engaged in expressive activity at the Bloomington campus of Indiana University filed a lawsuit with the American Civil Liberties Union of Indiana challenging the university’s new expressive activity policy.

According to the lawsuit , filed in Indiana on Thursday, the group argues that the university’s new policy is “substantially overbroad” and violates the First Amendment of the U.S. Constitution.

Starting at the beginning of August, the school implemented a policy that prohibited “expressive activity” on university grounds between 11 p.m. and 6 a.m. The lawsuit specifically highlights Dunn Meadow, a 20-acre open area on the Bloomington campus, as a location that serves as a “public forum for expression on all subjects.”

Dunn Meadow was the home of a number of protests and other expressive activities that centered on the conflict in Gaza. According to previous reports , multiple days of protests led to law enforcement clashing with protestors.

The university’s new policy defines “expressive activity” as conduct that includes:

• Participating in speech or conduct protected by the First Amendment to the Constitution of the United States
• Communicating by any lawful, verbal, written, audio/visual or electronic means
• Participating in peaceful assembly
• Protesting
• Making speeches, including speeches of guest speakers
• Distributing literature
• Carrying signs
• Circulating petitions

The new policy states that violation could result in citations, trespassing and/or interim suspension from campus. It could also result in suspension or exclusion from the university for students or suspension or termination of employment from the university.

The lawsuit explains that even if students wished to engage in non-disruptive “expressive activities,” they wouldn’t be able to under during the specified hours, per the policy.

The lawsuit gave the following examples of non-disruptive conduct:

• Standing silently either alone or with others
• Displaying a message on a sign or T-shirt
• Discussing a political issue with a companion

“Plaintiffs are not able to engage in these forms of ‘expressive activity’ between the hours of 11 p.m. and 6 a.m. or are threatened with punishment to the extent that they engage in this activity,” the lawsuit reads. “This is causing plaintiffs irreparable harm for which there is no adequate remedy at law.”

The goal of the lawsuit is for a court to declare that the prohibitive activity outlined in the policy violates the First Amendment and enter an injunction that prohibits the enforcement of that portion of the policy.

“The protections of the First Amendment do not end at 11 p.m., only to begin again at 6 a.m.,” said Ken Falk, the legal director of the ACLU of Indiana.

During a Thursday afternoon news conference surrounding the lawsuit, Falk said that when the government seeks to restrict expressive activity, it needs to in a narrow way. Falk said this measure is “overbroad.”

“This is written so broadly, if any one of us was to wear a T-shirt supporting a cause at 11:15 p.m. while walking through IU, we would be violating the policy,” Falk said. “It prohibits someone standing silently in a vigil. It prohibits talking to someone else quietly about organizing something in the future. We could go on and on. It’s extremely broad and in our opinion, it compromises the First Amendment and is unconstitutional.”

During the conference, David McDonald, an associate professor at Indiana University, said that students are concerned about this policy.

“They are incredibly concerned about what their four years here will look like,” McDonald said. “Especially if policies such as these are enforced. There is a lot of bewilderment and questioning and wanting to know what’s going on here when we are having this kind of conversation.”

According to court documents also filed on Thursday, Kellie M. Barr, a United States Magistrate Judge for the Southern District of Indiana, recused herself in this case. Judge Mark J. Dinsmore has been assigned as the judge in this case.

In a statement from Indiana University, officials said that they do not comment on litigation.

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