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Spears v. Arizona Board of Regents

United States District Court, D. Arizona

August 20, 2019

Roy E. Spears, Plaintiff,
v.
Arizona Board of Regents, et al., Defendants.

          ORDER

          Cindy K. Jorgenson United States District Judge.

         Pending before the Court is the Motion to Dismiss ("MTD") (Doc. 48) filed by State Defendants seeking to dismiss the Second Amended Complaint (Doc. 44) filed by Plaintiff Roy E. Spears ("Spears"). The parties have thoroughly presented the facts and briefed the legal issues. Therefore, the Court declines to set this matter for oral argument. See LRCiv 7.2(f); 27A Fed.Proc., L.Ed. § 62:367 (March 2016) ("A district court generally is not required to hold a hearing or oral argument before ruling on a motion.").

         I. Factual and Procedural Background[1]

         Spears attended the 2017 Festival (“Festival”) on the University of Arizona ("UA") campus mall ("UA Mall") on March 17, 2017. ¶ 15. He was soon immersed by the amplified sound of the festival. ¶ 45. Spears put on his GoPro, amplification system, headset microphone, placed Gospel signs around a tree, held one Gospel sign, and began to speak at approximately 12:20 p.m. ¶ 46. Within several minutes, Rebekah Salcedo ("Salcedo"), a UA "First Amendment Monitor," approached and asked Spears to turn off his microphone explaining that amplification can only be used on the sound stages and with a permit. ¶ 47. She clarified that, under the Festival's policy, he could stay and speak as long as he did not use amplification. Id. Spears disagreed with the policy claiming that it was arbitrary. ¶ 48. Salcedo replied that it was not arbitrary because the Festival had reserved the stages and sound licenses for the weekend through UA. ¶¶ 49-50.

         Dean of Students Kathy Adams Riester ("Riester") arrived several minutes later. ¶ 51. Riester told Spears his amplifying sound was disruptive to the Festival of Books and that volunteers from the Festival had complained. ¶ 52. University of Arizona Police Department ("UAPD") Officer Ian Theel ("Theel") arrived and advised Spears that, if he continued to speak using amplification, he would face arrest if he failed to obey Riester. ¶ 55. After Spears continued to speak using amplification, he was arrested. ¶ 55.

         On March 8, 2018, Spears filed a civil rights Complaint (Doc. 1) with this Court. On May 29, 2018, Spears filed his First Amended Complaint. (Doc. 7). On July 5, 2018, Defendants filed a Motion to Dismiss (Doc. 27). The Motion to Dismiss was granted with leave to amend. (Doc. 41). Spears has filed his Second Amended Complaint (“SAC”). (Doc. 44). State Defendants filed a MTD the SAC asserting Spears has not stated a claim. (Doc. 48). Spears has responded (Doc. 49) and Defendants have replied (Doc. 50).

         Spears argues that he has stated a claim because:

(1) The Festival was a traditional public forum.
(2) Defendants' restriction was unreasonable because he was not disrupting the festival.
(3) Therefore, Defendants restricted his constitutionally protected speech in an unconstitutional way.

         Defendants argue that Spears has failed to state a claim as he does not allege any illegal conduct because:

(1) The Festival was a limited public forum so the scrutiny for restriction is lower.
(2) However, even if the scrutiny for restriction was higher, the time, place, and manner restriction is still constitutional.
(3) Therefore, Spears claim must be dismissed because his speech was restricted in a constitutional manner making his claim implausible.

         This Court finds Defendants' arguments persuasive and will grant their MTD for the reasons stated below.

         II. Analysis

         With the exception of the A.R.S. § 15-1861, the Court extensively discussed the issues presented in the original Motion to Dismiss, response, and reply in its March 7, 2019, Order (Doc. 41). As a number of these issues are ...


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