The American Civil Liberties Union (ACLU) of Indiana has filed its third lawsuit against Indiana University this year, this time challenging IU’s “expressive activity” policy , which took effect on Aug. 1.
The lawsuit , filed Thursday with the U.S. District Court for the Southern District of Indiana, says a provision in IU’s policy that prohibits “expressive activity” between 11 p.m. and 6 a.m. is “overly broad” and violates the First Amendment.
“The policy is written so broadly that it applies to standing silently holding a sign, writing an editorial, talking to a friend to organize things in the future — all sorts of activities which we understand may be taking place at 11 or 11:30 p.m. that are not in any way disruptive,” said Ken Falk, legal director of the ACLU of Indiana.
The challenge comes after Indiana University police officers referred two people to university deans for their participation in a candlelight vigil on Aug. 25 to mourn "the loss of freedom of expression" that occurred at 11:30 p.m. at the Sample Gates.
IU’s policy , passed by a divided board of trustees on July 29, prohibits “expressive activity” that occurs between 11 p.m. and 6 a.m. across all IU campuses. Its definition of expressive activities includes “communicating by any lawful verbal, written, audio visual, or electronic means,” participating in peaceful assembly, carrying signs, making speeches, protesting and more.
The ACLU suit seeks an preliminary injunction against the policy to stop its enforcement, as well as awarding costs and relief to its 10 plaintiffs. The involved parties include the three plaintiffs in the ACLU’s lawsuit against IU for their no-trespass orders against protester s, as well as IU professors Heather Akou and David McDonald and student organizer Bryce Greene.
Violations of IU’s policy can result in sanctions including citation, trespass and suspension. Within the first two days of the fall semester, an IU professor and student were found in violation of the policy for making speeches past 11 p.m .
Can public entities set restrictions on free speech?
Public entities are permitted under First Amendment law to set reasonable “time, place and manner” restrictions for speech and expression, but they must be both content-neutral and narrowly tailored .
The ACLU suit alleges IU’s policy is “substantially overbroad” as currently written. Falk cited the operations of the Indiana Daily Student , offices for which are on IU’s campus, as an example of a place where "expressive activity" could be occurring between 11 p.m. and 6 a.m.
“If a reporter is working on a story at 11:30 at night, he or she is violating the prohibition,” Falk said. “I’m sure IU would say they didn’t intend to say that, but that’s what the policy says. And that’s what overbreadth is all about.”
The Supreme Court has ruled that public entities can make certain time, place and manner restrictions, including prohibiting state employees from engaging in partisan activities , but has also been critical of statutes that are considered overly broad. In the 1972 case Gooding v. Wilson , the Supreme Court ruled Georgia’s enforcement of a law that prohibited “fighting words” was overly broad, as the term could be used liberally to prohibit expression protected under the First Amendment.
ACLU lawsuit is organization’s third against Indiana University in 2024
The ACLU’s filing against IU’s “expressive activity” policy is the third lawsuit the organization has filed against IU in 2024.
The ACLU filed a lawsuit against IU in April for issuing no-trespass bans to three protesters who were arrested at the pro-Palestine solidarity encampment in Dunn Meadow, which the ACLU argued was prior restraint . In May, the ACLU filed a lawsuit against Senate Enrolled Act (SEA) 202 , claiming its provisions requiring boards of trustees to review faculty curriculums violates professors' First and Fourteenth amendment rights. As public universities, both IU and Purdue were cited as defendants.
A federal judge dismissed the ACLU’s SEA 202 case earlier this month . The prior restraint case remains in the U.S. District Court for the Southern District of Indiana.
IU does not comment on pending litigation.
Reach Brian Rosenzweig at brian@heraldt.com . Follow him on Twitter/X at @brianwritesnews .
This article originally appeared on The Herald-Times: ACLU sues Indiana University for "overly broad" restrictions on free speech
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