United States District Court, D. Arizona
Roy E. Spears, Plaintiff,
Arizona Board of Regents, et al., Defendants.
K. Jorgenson United States District Judge.
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.").
Factual and Procedural Background
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. ¶¶
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.
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).
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.
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
(3) Therefore, Spears claim must be dismissed because his
speech was restricted in a constitutional manner making his
Court finds Defendants' arguments persuasive and will
grant their MTD for the reasons stated below.
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 ...