to my client ashley hoggard ashlan is a former student at arkansas state university whose st amendment rights were violated in two ways when she attempted to speak on her college campus to recruit members for her student group and was  shut down and had the police called on her because she failed to ask permission from the school twenty four hours advance on campus and also because the enforcement officials had discretion to decide whether or not to grant her an exception to allow her to of the patio three policy where we're entirely dependent on the deposition testimony and those terms are never written down anywhere in any written policies and she was given multiple opportunities to state what those terms are what she claims the terms were is that they had developed an unwritten rule limiting the use of that base to register student organizations and of course the policies as written because they gave bridal discretion to enforcement officials to determine whether or not to allow students to speak in members of the board of trustees they're responsible for approving and maintaining unconstitutional policies that did two things that were challenging it was a violation as this specific crime of the violation is that she was not allowed to speak in one of the free speech areas without twenty four hours notice that prior restraint imposed on her small group of speakers and the nd violation is the unbridled discretion that was exercised that refused to allow her to speak in either the free speech area or the area outside of the student union so we're no longer on the field and testing whether or not that paid area outside the student union is a limited public forum we're no longer contesting whether or not just a m that as written is constitutional but applying it in a way that is unconstitutional what we have in this case is policies that as written are unconstitutional and therefore they allow enforcement officials to enforce those unconstitutional policies but the personal hard decision a nine hundred and eighty three dealing with a director of the state department of corrections who was held personally liable for policies that a warden a subordinate and acted on the basis that the authorities changed those unconstitutional policies held that there was a material disputed issue of fact as to whether or not you defend that was personally liable because the court said the plaintiffs quote may be able to prove that the defendant was personally involved in creating applying or interpret a policy that failed to and then of course they exercise that through so all of them are responsible for implementing a policy that as written was unconstitutional because it imposed a prior restraint on even small groups of people speakers which  is applied against individual defendants violate their constitutional rights and that individual as happened here and that defendant can raise an as applied challenge with respect to your assertion that this is unconstitutional honest question the district court ruled that the claims for injunctive in the clear to relief are moves the facial claims are made that we have left or the as applied claim for damages for nominal damages a compensatory damages which we are continuing to serve in this clearly established rule prohibiting a grant of unbridled discretion to enforcement official and forcing a restriction on speech that clearly established rules days all the way back to the supreme court decision and cost the state of louisiana it's been embraced applied by five state in our brief including by this court in the case of lewis versus wilson involving a license plate all these cases have held is that does not matter the type of you're dealing with if you what counts for purposes of this appeal is that discretion that allow to force an official to enforce their policies arbitrarily they seceded they previously and they were willing to make exceptions for some group they would make an exception for this d group that makes  happy to do so so we are not making a claim that we have evidence that there is viewpoint basis criminal action applied against my client we certainly believe that that's what happened in this case but a claim is not based on a showing that there is evidence that it occurred as required under the umbrella discretion doctrine that there is an opportunity for that new point based discrimination to occur and that opportunity coupled with the arbitrary force that we see in the record in this case that we've cited to our brief is what makes the policies unconstitutional and makes this case squarely within the confines of the supreme court's decision fifty five years ago in cox versus state of louisiana where the supreme court in that case is dealing with a peaceful protest or on public sidewalk who was convicted under a statute  prohibiting obstructing obstructing passages and what the court the supreme court said in that case is by allowing for some exceptions but not allowing for an exception for the speaker there that violated his right to be free from bridal discretion allow some groups to stay here in table i had the discretion to decide who could say who couldn't and i decided not to allow this group to stay that makes that discretion exercise brought into question unconstitutional as applied to my clients who are not allowed to be anywhere on her same to at least rule on the constitutionality of prior restraints on speakers on college campuses and bridle discretion and hold that those policies are unconstitutional and then separately the court could reach the question of whether the constitutional rules d are clearly establish  others were involved and been mentioned here such as miss ross and the officer miss potter and miss perry but those individuals are not parties they don't have claims and their actions are not the subject of the appeal mis parker did set up in an area that had been designated specifically arkansas state or they are supposed to richer student organizations and with the university departments counseling but let me ask you a question about that is is the right to priest beach or the rather in the reason you're speaking of the aristo policy you history which comes under the limited form analysis as agreed by counsel in his opening comments and the restraint need only be reasonable in that  herself without a table and have a stand or just have a discussion with people because the policy prohibit that you are the policy does not prohibit anyone from going through that area what it prohibits just what she did that day which was setting up a table with a specific purpose of promoting an organization of which she was not and our so and she agreed to that she was on it are there any circumstances under the policy under which miss her could essentially prevented her from having a conversation about limited government or big government or turning corn usa anywhere on campus but then without i wimp out without previously getting some sort of permission officials no one took any action toward her because of any message it was simply her sitting at the table in the area that was reserved for others and she was provided information that week before to go to another area of campus and there's things that ms rounds could have done right she could she had in the past said ok i'm going to let you stay here but you need to register next time she didn't do that here she could have said you could go there without prior registration and  that or she could have said well you have your phone right there with you just send me an e mail right now and then you've confirmed the registration with our mentor and the prior notice requirement and you can go on top so what can we infer from those facts was explaining that in the video what she also said in her deposition was that if you identify with an artist so then you have the ability to table in that area and all this explaining to her at that time so there  there as a group she can't register as a group until she has five people but she can't solicit people for a group until she's registered to be a group there are other mrs miss hoggard was not prevented from so listen team members of any group at any time any where or what she was asked the reason they were asked to move is because they said at the table in that area she could recruit members for the organization anytime anywhere and in fact the video shows as they were sitting there and happening at the table even they were recruiting members right there in that area so she was never prevented from speaking with anyone of any well counsel you rely heavily on bowman so i want to focus on a couple of things with respect to bone and bone and balls and people there but let's focus bowman a little bit further as a non student bowman had no obligation to be on campus but here ms harvard has an obligation to be on campus right let's leave aside code nineteen issues but  students required to attend class and aren't students required to attend certain functions of the university and therefore be on campus and isn't that work and many still universities have policies that or choir students to live on campus one hundred and twenty three or even fo years and as such if you're going to place a restriction on her right to speak anywhere on campus and i grant that i recognize that that goes to facial their purses and that is implied challenge but tell me how that's not different for bowman where it's a non student than it is for here from his harvard who's a student who's required to be on campus and our only avenue for speech may be on campus particular she's required to live there you're a boeing is important for this reason judge holmes on that opinion for the qualified immunity analysis and what we know from the boeing decision is that the established principles from this court were that in a traditional or in that case that designated holmes did not resolve the constitutional question he did not make a finding that there was a constitutional violation but if we were going to go down that road and make the analysis of constitutional action or violation it with miss podder on the day in question they never spoke far they never interacted with her she never made a request to schedule any free expression zone or anywhere else on campus and she was never  circuit they are not binding they would not have communicated to a reasonable trustee you need to fight a lot from some other circuit when the th circuit has already spoken on these issues or a college campus in arkansas and so we believe that the district  standard us policy i believe it does your honor and i believe in this instance that you've got to have individual activity for each of the board members to to impose any liability upon them all but they would have acted reasonably and rely on the court's decisions as judge homesteaded both bowman and ball to believe that the policies that arkansas state were in fact constitutional and the flip of that is  amendment and the board members who are responsible for maintaining them are personally responsible secondly does clark is absolutely correct this is a perfect test twenty two my client was attempting to do is follow the rules set up a table and recruit members recruit five signatures so that she could continue to speak in that area on campus and she was prevented from doing that had the police called on her and was sent away given no opportunity to continue to recruit members by school  this policy is unconstitutional because it is written in the policy that you can't discriminate based on association or you point to somewhere else in the in the in the universities manual and policies or even in current coverage discrimination absent discrimination we have it applied against the plaintiff who does not claim it was applied against her for content discrimination reasons and yet you're saying it's  other directions on that as a result raster whoever else in her office came up with this unwritten are the only policy has the umbrella discretion to create that policy out of whole cloth and then to enforce it against my client and for that reason the name defendants in this case