IN THE HIGH COURT OF FIJI

AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. ***/2023

BETWEEN: STUDENT of The University of Fiji.

PLAINTIFF

AND: THE UNIVERSITY OF FIJI an institute that provides higher education

to students.
DEFENDANT

___________________________________________________________________________________

PLAINTIFF’S SUBMISSION
___________________________________________________________________________________

May it please this Honorable Court

A. BACKGROUND

1. The plaintiff herein referred to as the student, is a student at the University of Fiji,
known for his strong social and political activism. The plaintiff was invited to
speak at a university event on campus. However, the university administration,
citing concerns about potential disruption and safety, and had attempted to cancel
the event.
2. The plaintiff therefore argues that this action from the institute infringes upon his
freedom of speech thus the plaintiff is seeking a court order to allow the event to
proceed under the ground of:
a) Freedom of Speech:
b) Balancing Rights:
c) Prior Restraint:
d) Content-Based vs. Content-Neutral Restrictions:
e) Public vs. Private University:
f) Alternative Venues and Protests:
 B. ISSUES
3. The issues to be determined by this Honorable Court are as follows;
(i) Whether the cancellation of the event is an infringement to the plaintiff right
or not.

C. APPLICATION
4. The plaintiff in this matter is seeking a court order challenging the university’s
decision to cancel the prominent student’s event on the grounds:
Ground 1- Freedom of Speech:
5. As a student, the plaintiff has the right to freedom of speech, which encompasses
the right to express their ideas, engage in political activism, and participate in
public discourse. This right extends to university campuses, which are often
considered as spaces for intellectual exploration, debate, and the exchange of
diverse perspectives. The canceling the event based on speculative concerns about
disruption undermines the principles of academic freedom and open dialogue that
are essential to the educational experience.
6. S17(1) of the Constitution of Fiji 2013 states that Freedom of speech and
expression is guaranteed. Every person has the right to freedom of speech and
expression, including the freedom to seek, receive, and impart information, ideas,
and opinions, regardless of frontiers.
“17.—(1) Every person has the right to freedom of speech, expression,
thought, opinion and publication, which includes—
(a) freedom to seek, receive and impart information, knowledge and ideas;
(b) freedom of the press, including print, electronic and other media;
(c) freedom of imagination and creativity; and
(d) academic freedom and freedom of scientific research.”
7. Pursuant to s17(3) of the Constitution of Fiji 2013, this right may be limited by
any law that is reasonably justifiable in a democratic society, including for the
interests of national security, public safety, public order, public morality, public
health, or the rights and freedoms of others.
8. Tinker v. Des Moines Independent Community School District (1969) 1 In this
case, the Supreme Court upheld the rights of students to express their political
1
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
 beliefs within public schools. The court ruled that students do not "shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.
9. If the students would not get a change to speak freely they might start to lack on
the important of it, Freedom of speech fosters critical thinking, academic growth,
civic engagement, respect for diversity, and inclusion in students. It encourages
open discussion, debates, and questioning of different perspectives, promoting
intellectual growth. It fosters active citizenship and democratic participation,
allowing students to voice concerns and advocate for causes. It promotes diversity
and inclusion, fostering an inclusive learning environment. Freedom of speech
equips students with essential skills and values, such as effective communication,
empathy, and constructive debates, which are valuable in the workplace and a
democratic society.

Ground 2- Balancing Rights:

10. Balancing students' rights is crucial for educational institutions, as it promotes
freedom, intellectual growth, and the educational mission. It involves content
neutrality, proportionality, and exploring less restrictive alternatives. Open
communication and mediation can help identify common ground and potential
solutions. Balancing students' rights also ensures an inclusive environment, where
students feel empowered to express themselves and challenge norms.
11. It is argued that any restrictions on the student’s speech should be narrowly
tailored and proportionate to the legitimate concerns raised. In the case of R. v.
Oakes (1986)2 The Supreme Court of Canada established a test for determining
whether a limitation on a Charter right is justifiable. This test includes a
proportionality requirement, where the limitation must be rationally connected to
a pressing and substantial objective and must minimally impair the right in
question.
The Oakes test is a legal framework in Canada that determines if a limitation on a
Charter right is constitutional. It consists of two stages: establishing the
limitation's pressing objective and determining proportionality. The objective
must be connected to public safety, order, health, morality, or others' rights. The
second stage examines the means chosen to achieve the objective, ensuring a
rational connection, minimal impairment, and proportional balancing. The court
2
R v Oakes [1986] 1 SCR 103
 must consider whether the negative impact on the right is proportionate to the
intended goal. The Oakes test is designed to strike a balance between protecting
individual rights and accommodating reasonable limits on those rights in a
democratic society. It provides a structured approach for courts to assess the
constitutionality of laws or government actions that restrict Charter rights,
ensuring that the limitations are justified, reasonable, and proportionate.
12. Applying the Oakes test in this matter at hand, the defendant needs to provide
evidence of past instances where unrestricted assemblies have led to disruption. It
should also show that the restriction imposed on freedom of assembly is the least
restrictive means available to achieve the objective of maintaining public safety,
and that it strikes a reasonable balance between protecting individual rights and
preventing potential harm.
Ground 3- Prior Restraint
13. Prior restraint refers to government actions that prevent speech from occurring
before it takes place. Courts generally disfavor prior restraints and view them as a
significant infringement on free speech rights. The student herein is arguing that
the attempted cancellation of the event has a chilling effect on free speech. Prior
restraints create an atmosphere of fear and self-censorship, deterring individuals
from expressing their views due to the potential consequences of the
administration’s interference. This argument highlights the importance of
protecting not only the student's individual right to speak but also the broader
societal interest in fostering open and robust public discourse.
14. If the university administration has legitimate concerns about disruption or safety,
there are less restrictive means available to address those concerns. For example,
they can propose alternative security measures, such as increased police presence
or crowd control measures, rather than outright canceling the event. The argument
here is that prior restraint should only be used as a last resort when no other
reasonable alternatives are available.
15. In the case of American Samoa Government v Pitoitua [2005]3 stated that
“One who seeks a prior restraint in the courtroom must show:
(1) a clear threat to the fairness of the trial;
(2) such threat is posed by the actual publicity to be restrained; and
(3) no less restrictive alternatives are available.”

3
American Samoa Government v Pitoitua [2005] ASLawRp 9; 10 ASR3d 40 (4 February 2005)
 Thus, herein the defendants should have not fulfilled the requirements and there
they should have not pose prior restraint as the had no clear threat which would
harm the audience of the event as well as the administration could have given
suitable measured as mentioned before.

Ground 4-Content-Based vs. Content-Neutral Restrictions

16. Content-based restrictions regulate speech based on its subject matter, whereas
content-neutral restrictions regulate speech without regard to its content. Content-
based restrictions are subject to strict scrutiny by the courts, meaning that they
must serve a compelling governmental interest and be narrowly tailored to achieve
that interest. The student therein argues that if the attempted cancellation is based
on the content of their speech or the viewpoint they express, it may be
unconstitutional unless it meets the strict scrutiny standard.
17. If the university's decision to cancel the event is based on the content of the
student's speech or their political activism, it could be deemed unconstitutional.
The university's cancellation of the event appears to be content-based, as it's
motivated by the content and political activism associated with the student. The
content-based restrictions on speech are subject to strict scrutiny and must serve a
compelling government interest, a standard that the university must meet if their
action is content-based.
18. In the case of Reed v. Town of Gilbert (2015, United States) 4 In this U.S. Supreme
Court case, the Court addressed content-based restrictions on speech in the context
of sign regulations. The Court held that a town's sign code, which imposed
different restrictions based on the content of the signs (e.g., political signs versus
event signs), was a content-based regulation subject to strict scrutiny. The Court
emphasized that content-based restrictions must be narrowly tailored to serve a
compelling government interest and cannot favor certain speech based on its
content.

Ground 5- Public vs. Private University

19. The distinction between public and private universities can impact the application
of constitutional rights. Constitutional protections, such as freedom of speech,
generally apply to public universities as they are government entities. Private
universities, on the other hand, may have more leeway in regulating speech on
their campuses, as they are not directly bound by the First Amendment or similar
constitutional provisions. However, private universities may still be subject to
contractual obligations or their own stated policies regarding freedom of speech.
Thus, the plaintiff has concerns on:
a) the student has entered into a contractual relationship with the university,
such as by enrolling as a student, so the attempted of cancellation violates
the terms of that contract.
b) the university has historically fostered an environment that encourages
open dialogue, debate, and activism. They can present evidence of past
events or instances where controversial speakers or discussions were

4
Reed v Town of Gilbert, 576 U.S. 155 (2015)
 allowed, demonstrating a consistent practice of respecting freedom of
speech.
c) The university's commitment to freedom of speech can play a role in
shaping the institution's actions so suppressing their speech could damage
the university's reputation as a place that values open discourse and
intellectual diversity.

Ground 6- Alternative Venues and Protests

20. The student argues that instead of canceling the event altogether, the university
should consider alternative venues that can address the concerns raised by the
administration. They can propose venues that provide a safer and more controlled
environment, such as larger lecture halls, auditoriums, or outdoor spaces that are
better equipped to handle potential disruptions or ensure security measures. In
concern of Time, Manner, and Place Restrictions, even if the original event cannot
proceed as planned, the student can explore the possibility of modifying the event
to address the administration's concerns. This can include negotiating with the
university to establish reasonable time, manner, and place restrictions that allow
the event to take place while minimizing potential disruptions. For example,
adjusting the event schedule, implementing security measures, or designating
specific areas for protests can be considered.
21. The student argues that peaceful protests and counter-protests are an inherent part
of free speech and should be accommodated, rather than using them as a
justification for canceling the event. They can propose guidelines or agreements to
ensure that protests are conducted peacefully and do not unduly disrupt the event,
while allowing for the expression of differing viewpoints.
Ultimately, the student can argue that alternative venues and protests should be
considered as a means to preserve their freedom of speech while addressing
legitimate concerns about safety and disruption. By proposing practical solutions
and engaging in dialogue, they can demonstrate their willingness to find a middle
ground that respects the rights of all parties involved.

D. CONCLUSION
It is respectively submitted, that the defendant by the foregoing reasons hereinabove shall be
ordered to remove the restraint and let the plaintiff hold and express his concern on the said
event.

Dated at Lautoka this day of, 2022.

Per …………………………….
Solicitor for the Plaintiff

IN THE HIGH COURT OF FIJI

AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. ***/2023

BETWEEN: STUDENT of The University

of Fiji.

PLAINTIFF

AND: THE UNIVERSITY OF FIJI

an institute that provides higher
education to students.

DEFENDANT

___________________________________________

PLAINTIFF’S SUBMISSIONS
[In Oppose of The Prior Restraint]
___________________________________________