Sarah Anderson
Rachael Eversfield
April 21, 1998


This case is titled Gay Lesbian Bisexual Alliance v. Bill Pryor, Attorney General of the State of Alabama. It is an appeal to the Eleventh Circuit Court of Appeals by Bill Pryor, the Attorney General of the State of Alabama, about a decision made by the U.S. District Court for the Middle District of Alabama. This lower court had found an Alabama law barring public colleges from supporting gay student organizations unconstitutional. The Eleventh Circuit Court of Appeals affirmed this decision.

The Gay Lesbian Bisexual Alliance (GLBA) was a recognized student organization at the University of South Alabama (USA). According to the GLBA constitution, the purpose of the group was to:

provide a foundation for unification for homosexual and nonhomosexual people of the student population, in order to draw support to further our efforts in educating all members of the university community on the fears and dangers of homophobia and to provide a support system for the USA's homosexual students.

USA had over 100 registered organizations and encouraged a wide variety of student activities on campus. Certain benefits were available to these organizations including on-campus banking services, funding from the student government and use of on-campus meeting rooms.

The Alabama Code, §16-1-28 deals with the student organizations and the funding for them. The Ala. Code § 16-1-28 provided that:

a. No public funds or public facilities shall be used by any college or university to directly, or indirectly, sanction, recognize, or support the activities or existence of any organization or group that fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of 13A-6-63 to 13A-6-65.
Alabama law defines sodomy or deviate sexual intercourse an "any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another." ALA.CODE 13A-6-60(2)

b. No organization or group that receives public funds or uses public facilities, direct or indirectly, at any college or university shall permit or encourage its members or encourage other persons to engage in any such unlawful acts or provide information or materials that explain how such acts may be engaged in performed.
c. This section shall not be construed to be a prior restraint of the first amendment protected speech. It shall not apply to any organization or group whose activities are limited solely to the political advocacy of a change in the sodomy and sexual misconduct laws of this state.

Two incidents occurred that were the cause of the initial case. USA effectively denied on-campus banking privileges to GLBA and USA denied funding to GLBA based on § 16-1-28. GLBA filed suit against the Attorney General and two USA officials alleging that § 16-1-28 violated the First Amendment facially and as applied to GLBA. GLBA also raised Equal Protection Clause and First Amendment considerations concluding vagueness of the statute. The parties submitted the case on a joint written record, supplemented by briefs and oral argument. The district court held that §16-1-28 violated the First Amendment on its face and as applied to GLBA. The district court did not reach the equal protection or vagueness claims.

The rationale for the district court's decision that § 16-1-28 violated the First Amendment both on its face and as applied to the Gay Lesbian Bisexual Alliance, can best be understood by examining the arguments made by the Eleventh Circuit Court of Appeals when Bill Pryor, the Attorney General, appealed the decision of the district court. The Eleventh Circuit Court of Appeals' affirmation of the district court's initial decision lends strong support that the basis for the original ruling was within the bounds of the Federal Constitution.

The first issue dealt with by the Eleventh Circuit Court of Appeals was related to whether § 16-1-28 violated the First Amendment as applied to the Gay Lesbian Bisexual Alliance. The argument in favor of § 16-1-28 disputed that the expression affected by the statute was not constitutionally protected speech because the statute was limited to the speech which advocated violation of the sodomy or sexual misconduct laws. Using the Brandenburg v. Ohio case of 1969, the court provided precedence which established that the First Amendment protects advocacy to violate a law, as long as the advocacy is not directed to "inciting or producing imminent lawless action and is likely to incite or produce such action." The court also found, as applied to the particular case of GLBA, the language of the statue to be especially broad, especially Part B. which prohibited funding any group that "encourage[s] its members or encourage[s] other persons to engage in [sodomy] or provide information or materials to explain how [sodomy] may be engaged in or performed." The broad language in conjunction with the message of the Brandenburg decision demonstrates that it would be difficult to interpret the statute as applying only to incitement of imminent lawless action, and therefore, the speech at issue was protected under the First Amendment.

The second issue in determining whether or not § 16-1-28 violated the First Amendment had to do with the concept of viewpoint discrimination, which in turn was related to the establishment of a limited open forum. The 1995 U.S. Supreme Court decision in Rosenberger v. Rector & Visitors of the University of Virginia, supported the claim that the University of South Alabama's system for funding student groups created a limited open forum. In Rosenberger, Justice Kennedy, writing for the majority, explained that the state may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of viewpoint. Regulating speech as a means of restricting a particular ideology or point of view is blatantly unconstitutional. Based on § 16-1-28, the University of South Alabama denied funding to GLBA because of an unsupported assumption that GLBA promoted a violation of the sodomy and sexual misconduct laws. The viewpoint of GLBA was discriminated against because funding of groups which promote compliance with the sodomy and misconduct laws was permissible.

The final issue for the Eleventh Circuit Court of Appeals was to decide whether or not § 16-1-28 violated the First Amendment on its face. The question involved in determining facial validations is whether a statute is capable of a narrow interpretation that would render it constitutionally permissible. The district court found that § 16-1-28 facially violated the First Amendment because the key language of the statute (previously stated) was overbroad and not susceptible to a narrow interpretation. The only way the statute would be valid was if it could be interpreted as applying only to speech designed to incite or produce imminent lawless action. The language of the statute did not permit such an interpretation, so facially it violated the First Amendment.