When religious activists set up in the middle of Eastern Washington University's campus in November — intending to share their anti-abortion and anti-LGBT beliefs — there was little question that they had a right to be there.
There was also no question that the hundreds of students who engulfed them in opposition had a right to be there as well. This was a public space, after all. They were protected by the First Amendment.
But did police have the right to keep two groups separate?
That's the question posed by Steve Graham, an attorney representing an EWU student who was arrested during the protest on Nov. 7. Police were worried that the protest could turn violent, so they created a "safety zone" to separate the students from the religious activists. But the EWU student, named Maya Caruth, crossed the invisible barrier to get closer. Cheney Police Officer Zebulon Campbell stopped her. Caruth argued that he had no right to tell her where to be. After continuing to refuse the officer's request, Caruth was arrested for obstruction.
Graham argues the arrest was unconstitutional and invoked the First Amendment in asking Cheney Municipal Judge Robert Leland to dismiss the charge. Last week, Leland declined to do so, saying in his order that "law enforcement had to make decisions to protect the safety and interests of the public," and that Caruth's actions "created a significant safety concern."
Graham, however, thinks the charge will be dismissed once video evidence of the encounter comes out.
"I think it's clear that Ms. Caruth was singled out," Graham tells the Inlander. "I think [video evidence] would also show that the order of the Police Department not to enter this zone was not clearly communicated whatsoever."
It's a case that's indicative of the difficult balance that local police must strike when handling large protests. Yet the EWU protest is just one local example of that.
In June of last year, protesters and counter-protesters gathered outside the Spokane Public Library on the South Hill because of the planned Drag Queen Story Hour, where drag queens read stories to children.
Afshin Yaghtin, a pastor at the New Covenant Baptist Church, wanted to go in the library to speak against the event. Spokane Police wouldn't let him, so he and a small group of people gathered on a strip of grass in the parking lot, separate from the other crowds, which had been divided into protesters and counter-protesters.
When asked to move to a designated protest zone, he refused. Spokane Police arrested him.
Yaghtin, like Caruth, argued that it was an unlawful arrest that violated his First Amendment rights. But unlike Caruth, he was successful in that argument. Spokane County Judge Tracy Staab threw out the case last month. In the order, Staab wrote that "the command to move to a protest zone was not narrowly tailored to apply to only those who wished to protest" and that the grass strip where he stood was not closed to the public but "apparently closed to persons who manifested a certain belief regardless of whether that belief was being conveyed to the public."
As Jorge Ramos, attorney for Yaghtin, puts it: "Beliefs alone are not enough to tell someone to go here or there."
Of course, there are exceptions. It can depend on whether or not an event is permitted, and what kind of public space it is. Some college campuses may be a traditional public forum, just like a sidewalk, and others may not be, depending on where they're located, says Nancy Talner, a staff attorney with the American Civil Liberties Union of Washington.
Balancing free speech rights with public safety only became more difficult after the Charlottesville protests in 2017, which resulted in a woman being killed by a neo-Nazi who intentionally drove his car into a crowd. Police want to err on the side of caution. If a group of people is marching down the street and another group is heckling them, police will generally try to keep space between them to reduce the risk of violence. In Portland, police regularly keep far-right and far-left groups separated to avoid violence — though some have argued that only increases tension.
"It's hard for the police to make these distinctions," Graham admits.
But he says the case with Caruth at EWU should be dismissed just like Yaghtin's case. Once more evidence is gathered, he'll likely try to get it dismissed again.
"I'm really confident this is going to go the way of Yaghtin's case," he says, "once we establish just how similar it is."
Aside from police separating groups based on their beliefs, the Drag Queen Story Hour and EWU protests both raise other concerns with free speech, attorneys say.
In January, Yaghtin filed a lawsuit against the city and Police Chief Craig Meidl claiming his First Amendment rights were violated in the protests at the downtown library for the Drag Queen Story Hour — days after he was arrested at the South Hill location. He claims he went downtown as a journalist for Saved Magazine and that police — through threats and intimidation — prohibited him from conducting interviews.
Graham takes a different angle when it comes to the First Amendment. He argues the religious "street preachers" who went to EWU in November could have consequences for the things they've said targeting students. One of the activists Caruth was protesting against, Thomas Meyer, was accused of slapping a different student's butt and calling her a "whore" and "harlot," according to police reports — though no charges have been filed.
"I'm not sure that the students really need to tolerate a lot of the verbal abuse and threats by these agitators," he says.
Graham knows that the First Amendment protects the right to make derogatory statements generally in public spaces. But when they single out individuals, he argues those can be "fighting words." A U.S. Supreme Court decision in 1942, Chaplinsky v. New Hampshire, established that words inflicting injury or incite violence could be an exception to free speech.
Graham imagines what would happen if a woman was called a "whore" in a tavern: The people making those statements would be "picking up their teeth off the floor," he says.
"But on a college campus, you make the same statements about these women face-to-face," he says, "and police haven't taken action on that." ♦