First-amendment lawyer: Tech's two-week policy isn't reasonable

By Katie Brown, Journal staff | Thursday, May 10, 2007

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RAPID CITY -- The attorney for the California anti-abortion group member arrested earlier this week at the South Dakota School of Mines & Technology said Thursday that the school's two-week approval process for demonstrators does not constitute reasonable restrictions on time, place and manner and that it infringes on free speech.

Stephen Wesolick is representing Joey Cox, the 18-year-old California man arrested Tuesday for failure to vacate the campus. Wesolick said he agreed to represent Cox pro bono.

Wesolick is involved with the Alliance Defense Fund, a national organization dedicated to protecting first-amendment rights. Lawyers in the organization provide free legal service to church ministries and other groups.

Cox, a member of Survivors of the Abortion Holocaust, was arrested by Rapid City Police and was released on a $300 cash bond. He has continued on the group's Campus Life Tour, which will make its next stop in Illinois.

Cox faces a maximum penalty of 30 days in jail and a $500 fine for failure to vacate, a class 2 misdemeanor. Wesolick said that the charge could be raised to a class 1 misdemeanor, which would raise the maximum possible sentence to one year in jail and a $2,000 fine.

"It's a very serious matter," Wesolick said.

Wesolick said Tech's two-week policy applies to solicitors or people selling something, not to people demonstrating about a political issue.

"They were simply there to share information on their deeply held convictions concerning the abortion issue," he said. He said the group had planned to set up signs and hand out anti-abortion brochures and information.

Wesolick said Survivors of the Abortion Holocaust always contacts colleges before arriving on campus.

"The overwhelming majority says they are welcome to come on campus," he said.

He said that many campuses have set locations for demonstrations and that Survivors of the Abortion Holocaust members comply with campus policies.

"They want to comply with the reasonable time, place and manner regulation of the campus officials," Wesolick said. "In this situation, it was a two-week review and approval process, which is not a reasonable time, place and manner restriction on free speech."

Julie Smoragiewicz, vice president of university relations at Tech, said she gave the group two options: They could either give notice and come back at a later date, or they could set up on the sidewalks near the Surbeck Center, Tech's student center, which is not technically campus property but gets a lot of student traffic.

Wesolick said that was not good enough.

"That's not an accommodation when we're talking about equal-access rights for individuals to utilize campus space," he said.

Smoragiewicz said her priority is student safety and comfort.

"We just didn't feel it was appropriate to look at adjusting our policy with an hour's notice," she said.

"Most groups get approved," she said. "I can't imagine there would have been any issue."

Smoragiewicz said another anti-abortion group demonstrated on campus last fall and after notifying campus officials two weeks in advance.

Wesolick said that although some members of Survivors of the Abortion Holocaust are willing to be arrested for their cause, they do not go onto campuses with the intent of being arrested.

"I think the most my client thought would happen is that he'd be escorted off campus," Wesolick said.

Cox's initial appearance in 7th Circuit Magistrate Court in Rapid City will be May 16.

Wesolick will be able to represent him at that hearing, so Cox will not have to be present.

"He has continued with the tour, and when he's required to be in court, he will," Wesolick said.

He said he and Cox intend to challenge the charges.

"We are looking at options," Wesolick said. "We believe his civil liberties have been violated and have not yet made a decision on what the next course of action will be."

Contact Katie Brown at 394-8318 or katie.brown@rapidcityjournal.com