[Eugene Volokh] Exclusion of Students for Justice in Palestine from U Missouri Homecoming Parade May Have Violated First Amendment

From Mizzou Students for Justice in Palestine v. Choi, decided earlier this month by Judge Stephen Bough (W.D. Mo.):

Plaintiff Mizzou Students for Justice in Palestine ("MSJP") is a registered student organization at the University of Missouri ("the University" or "MU"). MSJP is dedicated to advocating for Palestinian rights by raising "awareness on campus of the historical and ongoing injustices committed against Palestinians." MSJP has hosted dozens of events, including "marches, lectures, and panel discussions."

The University hosts an annual Homecoming Parade. In the fall of 2024, MSJP applied to be part of the Homecoming Parade for the first time. MSJP planned to perform a traditional Palestinian dance and pass out Palestinian sweets. It also planned on displaying signs that read "Ceasefire Now" and "Stop the Genocide." Dr. Choi is the Chancellor of MU. Although MSJP initially believed that its application to participate in the 2024 Homecoming Parade had been approved, Dr. Choi ultimately denied the application, citing concerns related to safety….

The Free Speech Clause restricts the government's regulation of private speech, but does not regulate government speech…. In determining whether "the government intends to speak for itself or to regulate private expression[,]" [this Court] … is driven by a case's context rather than the rote application of rigid factors [and looks to] … the history of expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression." Shurtleff v. City of Boston (2022)….

[a.] History of Expression

Under the history of the expression at issue factor, the Court looks to both the specific history of the MU Homecoming Parade and homecoming parades in general. The Complaint alleges that "[t]he University of Missouri has hosted an annual homecoming celebration for over 100 years. The University's Homecoming Parade is one of the oldest homecoming traditions in the country, with some even touting it as the very first homecoming tradition by an American university" and that "[t]he Homecoming Parade has long been a place for the expression of political and social messages, including ones widely considered controversial or offensive."

The Complaint further alleges that "[t]he Homecoming Parade has welcomed political campaigns and activist groups of all kinds, including many that people would find controversial or offensive." Finally, the Complaint alleges that "[e]ntities across the spectrum—from local businesses to student organizations—participated in the [2024] Homecoming Parade."

These allegations are sufficient to tilt the history of expression factor in MSJP's favor. The allegations of diverse participation stand in contrast with government-sponsored military parades, for example, which have a long tradition of communicating a more singular message to "celebrate [a nation's] militaries." Here, there does not appear to be a singular message as the Homecoming Parade has "long been a place for the expression of political and social messages[.]" Ultimately, the allegations do not show that the Homecoming Parade has "long conveyed important messages about the government." …

[Some more details from an earlier decision in the case: —ed.]

{[T]he MU Homecoming Parade … has a history of welcoming a diverse group of parade entries …, the Legion of Black Collegians led a march against racial injustices during the Homecoming Parade. In 2023, a Columbia resident described the Homecoming Parade participants to include a former city councilwoman in a suffragette costume, an LGBTQ group with dance music and a drag queen, and then lieutenant-governor, Republican Mike Kehoe, with "a crew politicking for his run for governor." In 2024, parade-walkers held signs advocating for a "yes" vote on Amendment 3 (a ballot measure to protect the right to abortion) and for national political candidates.

At the hearing, Dr. Choi and McCubbin stated that MU's Homecoming Parade has historically had campaigners for public office, student political organizations with opposing viewpoints, for-profit sponsors, non-profit organizations, and student affinity groups. Further, when the Court asked McCubbin whether the University had endorsed past political floats, he answered "no."}

[ii.] Public's Likely Perception

Under the public-perception factor, the Court considers whether, taking the alleged facts as true, the public would perceive the Homecoming Parade as an expression of governmental speech. As provided above, the Complaint provides that the Homecoming Parade has traditionally accepted a wide variety of participants including those with conflicting political views. For example, in the 2024 Homecoming Parade, examples of participants included "pro-choice and pro-life groups[,]" "a fraternity riding a truck while waiving 'TRUMP' and 'MAKE AMERICA GREAT AGAIN' flags[,]" "the Mid-Missouri Pride Fest[,]" and "the league of Women Voters[.]"

[Some more details from an earlier decision in the case, which discussed the slightly different 2025 policy, rather than the 2024 policy that is being challenged in the broader excerpt I quote:—ed.]

{While the Parade Policy prohibits active campaigning this year, it still features a diverse mix of "invited participants" such as the Oscar Mayer Wienermobile and elected officials, neither of which are explicitly listed on the Parade Policy. The parade will also feature "paid sponsors" such as "HotBox Cookies," and community organizations such as "Columbia Christian Academy" and "Columbia Youth Lacrosse." The public does not tend to view MU as endorsing a sitting congressman, the Oscar Mayer Weinermobile, or a private Christian school just because they appear in its Homecoming Parade.}

Based on the allegations in the Complaint, the Court finds that the public would not "tend to view" the Homecoming Parade as the government speaking because the public seems unlikely to view the parade as "conveying some message" on the government's behalf. These allegations are sufficient to show that MU is not expressing a coherent governmental message. Indeed, if MU was expressing a message, given the variety of participants, it would be one that is "babbling prodigiously and incoherently." Matal v. Tam (2017) (concluding that if trademarks registered by the Patent and Trademark Office were government speech, the government would be "unashamedly endorsing a vast array of commercial products and services").

Finally, contrary to Dr. Choi's argument that "[a] reasonable observer at the parade would naturally conclude that the University is the speaker, since the University obtains the permit, funds the event, sets the theme, and orchestrates the proceedings[,]" those administrative acts, standing alone, do not transform private speech into government speech….

[iii.] The Extent to which the University has Shaped or Controlled the Expression

In assessing the extent to which the government has shaped or controlled the expression of the Homecoming Parade, the Court considers the role Dr. Choi plays in the 2024 Homecoming Parade. The Complaint alleges that "[a] University of Missouri official told MSJP leadership that its application would be subjected to a unique review process. Unlike every other student organization, Chancellor Choi had the final say on whether MSJP would be allowed to participate in the [2024] Homecoming Parade." These allegations are insufficient to tilt this factor in favor of MU as "the mere existence of a review process with approval authority is insufficient by itself to transform private speech into government speech."

Moreover, the Complaint's assertion that Dr. Choi had final authority over MSJP's participation—"unlike every other student organization"—suggests that he did not exercise such control over any other organization's message. Consequently, Dr. Choi has not "actively exercised" any authority to shape the message of the Homecoming Parade. Walker v. Sons of Confederate Veterans (2015) (noting that the Texas Department of Motor Vehicles Board had "rejected at least a dozen proposed [license plate] designs.")….

The court therefore concluded that the Parade was either a limited or unlimited designated public forum, that viewpoint discrimination was forbidden in either forum, and that the plaintiffs had adequately alleged such viewpoint discrimination:

The 2024 Homecoming Parade featured a wide array of participants expressing diverse and sometimes conflicting viewpoints, yet MSJP was the only group excluded from participation. Accordingly, the Court agrees with MSJP that the Complaint plausibly alleges that "MSJP's exclusion was not content-neutral," as "the only viewpoint barred from expression was one in support of Palestinians." …

The Complaint alleges that Dr. Choi "required of MSJP what [he] did not require of other student organizations—to explain in painstaking detail all of their plans for the [2024] Homecoming Parade." Dr. Choi also allegedly requested that MSJP "refrain from displaying [a] 'Stop the Genocide' [sign.]" Finally, after denying MSJP's application, another student group allegedly agreed to carry the Palestinian flag, but Dr. Choi "forbade them from holding the Palestinian flag unless the group also held the Israeli flag."

These allegations demonstrate that Dr. Choi subjected MSJP to a "unique scrutiny" and are sufficient to show that the exclusion was motivated by MSJP's viewpoint on Palestine and Israel….

And the court concluded that plaintiff's allegations, if shown, would show a violation of a clearly established constitutional right, so defendants couldn't claim qualified immunity.

An earlier decision granting a preliminary injunction concluded that plaintiffs had not only adequately alleged a First Amendment violation as to the 2024 parade denial, but that they were also likely to succeed on the merits as to the planned exclusion of the group from the 2025 parade.

Ahmad Kaki, Gadeir Abbas, and Lena F. Masri (CAIR Legal Defense Fund), C. Kevin Baldwin, Eric E. Vernon, and Sylvia Alejandra Hernandez (Baldwin & Vernon), and Benjamin J. Wilson and Lisa S. Hoppenjans (Washington University School of Law, First Amendment Clinic) represent plaintiff.

 

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