Arizona State University (ASU) student Tim Tizon was convicted in October of criminal trespassing in the third degree for handing out copies of the U.S. Constitution on the school’s campus. University Lakes Justice of the Peace Tyler Kissell, a progressive, conducted the trial. The Liberty Justice Center is now representing Tizon with an appeal, which was filed on Thursday.
Marc Victor, a longtime criminal defense attorney in Arizona and owner of the Attorneys for Freedom law firm, told The Arizona Sun Times, “Mr. Tizon’s criminal conviction for simply handing out Constitutions in a public forum on a university campus is yet further evidence of our country’s departure from the very principles that made it great in the first place. We’re in the midst of a character and values crisis that we must reverse. Hopefully, the appellate court will remedy this injustice.”
ASU claimed Tizon was not authorized to hand the Constitution out on the North Plaza of the ASU Memorial Union, where he’d set up a Young Americans for Liberty table out of the way of foot traffic. His appeal brief stated that he “was not taking any other group’s reserved space —indeed, no one had reserved space that day and no other groups had set up tables.” Officials insisted he move to an isolated location away from the main campus plaza, stating that in order to have a table, he had to reserve the space. When Tizon refused, university police arrested him.
Tizon, a past chair of Arizona Young Americans for Liberty, was charged with criminal trespassing in the third degree and convicted and ordered to pay a fine and perform community service.
The applicable part of the criminal trespass in the third-degree statute, which is a class 3 misdemeanor, states, “Knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by a law enforcement officer, the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.”
Tizon asserts that he didn’t knowingly remain there unlawfully since he believed it was a public space open to everyone. The North Plaza of ASU’s Tempe campus, where Tizon handed out the Constitution, is designated as a public forum. Arizona state law defines all public areas of Arizona’s state universities as public forums. A.R.S. 15-1864(D), known as the Arizona Forum Act, states, “The public areas of university and community college campuses are public forums and are open on the same terms to any speaker.” Additionally, it provides that any time, place, and manner restrictions enacted by a university must be “necessary to achieve a compelling governmental interest” and “the least restrictive means to further that compelling government interest.”
Tizon’s appeal brief cited the First Amendment as well, “Based on longstanding precedent under the Forum Act or the First Amendment, public forums are open to exactly the kind of speech at issue here.” The brief observed that the U.S. Constitution, the Arizona Constitution, and the Arizona Forum Act take precedence over an ASU policy. “Secondly, a constitutional right is a complete defense to a criminal charge.”
Tizon argued that ASU’s policy did not pass constitutional muster or comply with the Arizona Forum Act. “ASU cannot simply ‘assert’ a compelling interest in pedestrian safety and traffic congestion — it must prove it with evidence,” the brief stated. Nor is permitting the “least restrictive means.” The brief cited case law which held, “A permitting requirement is a prior restraint on speech and therefore bears a ‘heavy presumption’ against its constitutionality.”
Reilly Stephens, one of the attorneys representing Tizon, said universities like ASU have tried to implement these “Orwellian free speech zones” to limit free speech. He doesn’t see how ASU has “any legitimate interest” in prohibiting a student from distributing copies of the Constitution. “Sitting in an alley or an empty patch of grass is not the same as setting up in an open space,” he said.
Judge Tyler Kissell, who conducted the trial of Tizon, does not appear to be a lawyer and was described on Facebook, “Tyler possesses a true progressive spirit.” A birthday party for him featured a co-host committee of progressive politicians, with a discount price for Young Democrats.
FIRE rates colleges on how well they protect free speech. While ASU ranks relatively high at 94 percent (green), it has a yellow rating for its harassment policy. Policy 5-308 of the Student Code of Conduct has a broad harassment policy, which leaves it to a “reasonable person” to decide whether they feel harassed.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Tim Tizon” by Tim Tizon.
