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Citing “an unnecessary and impermissible prior restraint on political expression” as well as “vague, overbroad and standard-less policy,” the ACLU of Kansas filed a lawsuit Thursday on behalf of three Kansas State University Students recently detained by Statehouse officials after unfurling a banner in the Capitol rotunda.
The suit, filed in U.S. District Court, names Duane Goossen in his capacity as administrative secretary of administration, Tom Day in his capacity as administrative services director, and Sherman Jones, superintendent of the Highway Patrol and seeks an injunction preventing the defendants from enforcing what they consider these flawed policies.
“We’re arguing that the Statehouse should not impose arbitrary and unnecessary restrictions that suppress political expression,” said ACLU of Kansas Interim Executive Director Lauren Bonds. “The building belongs to the people of Kansas and by shutting down speech, the state is preventing our clients from being able to exercise their First Amendment right to petition their government.”
Current practice at the Capitol, constitutes “an unnecessary and impermissible prior restraint on political expression at the core of First Amendment protection,” The ACLU of Kansas said in the lawsuit. “Moreover, Defendants’ blanket prohibition on signs is not narrowly tailored to serve any significant government interest. Finally, the standard-less policy permitting Capitol Police to impose indefinite premises bans on members of the public for Statehouse policy violations, regardless of the severity of the violation, is vague, overbroad, and unconstitutionally suppresses core petitioning activities protected under the First Amendment without due process of law.”
The lawsuit stems from an incident late last month when Capitol Police banned the three students, Jonathan Cole, Katie Sullivan, and Nathan Faflick, for a year after the students briefly hung a banner favoring Medicaid expansion from the fifth-floor rotunda.
The banner took aim at Republican legislative leaders opposing Medicaid expansion and read that they had “blood on their hands.”
Officials removed the banner within minutes and then imposed a yearlong ban because the students’ failed to obtain permission to hand the sign in advance. The students were told that they faced a criminal trespassing citation if they returned within a year.
The students, however, “seek to engage in individual and three-person demonstrations at the Statehouse without prior approval, to silently display signs expressing opposition or support for pending legislation, and to ensure that neither they nor anyone else is impermissibly or arbitrarily issued a categorical Statehouse premises ban.”
Because any application for a permit is subject to Defendants’ standard-less discretion and will only be considered if Plaintiffs first find a legislator willing to endorse their message.  Plaintiffs are also categorically banned from bringing any personal signage into the Statehouse, including small handheld signs.  If Plaintiffs were to violate Defendants’ permitting or signs policy, they would be subject to expulsion penalties set at the unfettered discretion of the individual Kansas Capitol Police officer who detains them—penalties which could include a total ban from the Statehouse.
The students argue in the lawsuit that “It is well-established that the suppression of speech, even for short periods, constitutes irreparable injury,” and “it is not at all clear how Defendants will suffer if people are allowed to peaceably assemble in small groups and quietly display hand-held signs given all of the existing regulations and rules that serve the government’s interests.”