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ASU System turns to pricey D.C. law firm in free-speech case

by Jaime Adame | May 23, 2021 at 3:27 a.m.
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A high-powered attorney is costing the Arkansas State University System about $116,000 for work done over a two-month period to defend against a petition before the U.S. Supreme Court.

David C. Frederick, a Washington, D.C.-based attorney, filed a brief last month arguing against a request by legal advocacy group Alliance Defending Freedom to have the nation's highest court review a free-speech lawsuit dismissed in 2019.

The Supreme Court has not yet said whether it will grant a full review.

"We chose a law firm with significant experience handling U.S. Supreme Court cases to ensure the university is properly represented," Jeff Hankins, an ASU System spokesman, said in an email. The system released invoices documenting the attorney fees under the state's public disclosure law.

Alliance Defending Freedom claims that questions remain unresolved after the 8th Circuit Court of Appeals upheld the dismissal of a lawsuit filed by an ASU student and a chapter of the conservative group Turning Point USA.

In October 2017, Ashlyn Hoggard and a representative of Turning Point were told by an ASU administrator that they could not have an information table in an area reserved for "tabling" by registered student organizations.

Despite policy changes cited in the U.S. District Court order dismissing the case in 2019, the Alliance Defending Freedom seeks to have the Supreme Court review the immunity standard for public university officials, particularly in First Amendment cases, and deny immunity to ASU officials.

An 8th Circuit opinion states that "the Tabling Policy's enforcement against Hoggard on Oct. 11, 2017, was unreasonable and unconstitutional," but that defendants named in the lawsuit -- including members of ASU's governing board -- "may reasonably have not understood this at the time."

The Alliance Defending Freedom, which describes itself as a faith-based nonprofit organization, has scored victories in the U.S. Supreme Court, most recently in a case decided in March.

As reported by The Associated Press, the advocacy group argued that Georgia Gwinnett College, even after changing a policy on free-expression zones, should still be held responsible for its past policies. The Supreme Court reinstated a lawsuit that had been dismissed by a lower court.

The 27-page brief submitted in April by Frederick on behalf of the ASU defendants states that the case "concerns an isolated episode in which ASU officials applied a now-repealed policy limiting the ability to set up tables outside a student union to registered student organizations."

The brief also states that the case is "neither the appropriate vehicle nor sufficiently important to deserve review by this Court, let alone to establish the transformative and consequential doctrinal changes that petitioner seeks."

Frederick is a partner in the law firm Kellogg, Hansen, Todd, Figel & Frederick and has argued more than 50 appeals before the U.S. Supreme Court, according to a biography on the firm's website.

A February letter outlining the agreement between Frederick and the ASU System states that he charges $1,265 per hour, with other attorneys at the firm expected to assist with the case charging less. In the letter, Frederick states he's offering a 15% discount on the hourly rates because of the system's status as a public entity.

Arkansas-based attorneys have previously been hired to defend against the lawsuit, including Jeffrey W. Puryear with the Jonesboro firm Womack, Phelps, Puryear, Mayfield & McNeil, and Rodney P. Moore with Little Rock-based Wright, Lindsey & Jennings.

The letter agreement was released under the state's public disclosure law, as was a May 3 email from Brad Phelps, general counsel for the ASU System, recommending the payment of an invoice from Frederick's firm.

"Hopefully this will be the end of it (or close)," Phelps wrote.

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