National Review

A Campus Free-Speech Case with a Dash of Irony

March 19, 2023

(National Review)—In a promotional video made by Arizona State University (ASU), the school says that it “respects and expects free speech on all of its campuses” and is committed to “fostering the free exchange of ideas.” A case involving a student recently enrolled there raises some questions about how well the free-speech policy is implemented.

In March 2022, Tim Tizon, then an ASU student, was arrested and convicted of trespassing after he had been distributing copies of the Constitution to other students from a table he set up on campus. On January 26, the Liberty Justice Center (LJC), the national law firm that litigated the landmark Supreme Court case Janus v. AFSCME, and whose stated aim is to “fight to protect government employees, students, families, and other Americans whose constitutional rights have been violated,” filed an appeal on his behalf.

Tizon, a member of the Young Americans for Liberty, a student organization, had set up a small table with the YAL logo in the North Plaza of ASU’s Tempe campus, away from most of the foot traffic, to make pamphlet copies of the Constitution available to students passing by. University officials approached him and claimed that his setup violated an ASU reservation policy that requires students to reserve space before tabling (that is, setting up a table on campus). When ordered to move to an isolated area elsewhere on campus, Tizon refused. He was subsequently arrested for trespassing, and university police removed him from the location.

Tizon was convicted of criminal trespassing in the third degree in University Lakes Justice Court and ordered to pay a fine and perform community service. LJC is now helping Tizon appeal his conviction in the Maricopa County Circuit Court, seeking to vindicate his right to free speech and expression on campus. Daniel Suhr, the managing attorney at LJC, says that “the actions taken against Tim are a clear violation of his First Amendment rights. Students have the right to express themselves freely on campus, and universities must respect this fundamental right. Case law from the Ninth Circuit clearly states that tables are an important adjunct to free speech and within the zone of protected First Amendment activity.”

Suhr believes the university was wrong in its insistence that Tizon could not continue his activities in the spot where he had set up. “We believe that every part of the campus should be considered a public forum, where students can freely express themselves without fear of retaliation or censorship.”

When asked what motivated LJC to represent Tizon, Suhr said the firm’s staff were “taken aback” by his treatment. “There’s nothing more American than pamphleteering, and the irony of being arrested for handing out pocket Constitutions is rich. His arrest and conviction are clear examples of government overreach and abuse of power,” Suhr said. “The university officials had no legal basis to arrest Tim.” Suhr also decried a seeming double standard: “I guarantee you if Tim was demonstrating for Black Lives Matter at the height of the George Floyd protests in 2020, he wouldn’t have been subjected to this unjust treatment.”

An ASU spokesperson challenged the YAL’s characterization of the arrest, telling the Daily Caller: “To clarify, this individual was not arrested for handing out Constitutions on campus. He refused to vacate a spot reserved for student and other university group tabling events. Individuals who do not have a reservation are asked to relocate to a space not designated as reservable. Mr. Tizon was given numerous opportunities to relocate, but he refused. He was then trespassed and cited by university police, as authorized under Arizona Law.”

As for Tizon’s prospects of success in court, Suhr thinks the law is unambiguous here. “Arizona’s decision to adopt a campus free-speech statute, which voluntarily assumes strict scrutiny for any university action that infringes on free speech, coupled with Tim’s constitutional protections and the Ninth Circuit’s case law in these types of cases, makes for a really strong case,” he says. A victory for Tizon would set an important precedent for free speech on college campuses nationwide.