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A First Amendment Fight At Oregon State University Leads to an Interesting Decision From a Panel of the U.S. Court of Appeals for the Ninth Circuit

On October 23d, a two-judge majority of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its opinion in OSU Student Alliance v. Ray.   The case concerned the distribution of the monthly conservative student newspaper at Oregon State University (OSU), The Liberty.

The panel majority rejected OSU’s motion to dismiss the complaint, and the case will therefore go forward to fact discovery. At the core of the case is the First Amendment, but the plaintiffs also brought related equal protection and due process claims, which were also sustained for now.

The Facts, and the Two Clear First Amendment Violations

The conflict began when, during the 2008–09 Winter Term, Oregon State University (OSU) Facilities Department employees took newsbins belonging to The Liberty and dumped them in a storage yard, without any prior notice to the newspaper that they were planning to do so. The Ninth Circuit panel majority noted that the employees were following a policy regarding newsbins, but described the policy as “unwritten and previously unenforced.”

After the newsbin incident, OSU gave The Liberty permission to replace the bins, but only in two designated areas on campus. However, OSU did not impose the same restrictions on the traditional OSU student newspaper, The Barometer.

Accordingly, The Liberty’s student editors and publishers sued under a federal statute, 42 U.S.C. sec. 1983, which authorizes damages awards for constitutional violations against state officials in their individual capacities, when those officials have deprived the plaintiff of a federal right, and when the plaintiff can prove that the deprivation caused the claimed damages.

The alleged First Amendment violations here were clear:  First, OSU employees, whose actions can, under the law, be attributed to the University, suppressed speech with no justification for doing so, when they discarded the copies of The Liberty.

Second, OSU granted The Liberty fewer outlets on campus to distribute its newspapers than it granted The Barometer, for no reason, it seems, in the end, except the impermissible reason that it disliked The Liberty.  That was clearly viewpoint discrimination, which the First Amendment forbids.

There was no newsbin policy at OSU, but University officials attempted to distinguish The Liberty due to its “off campus” location, despite the fact that it was written and edited by OSU students and published by an OSU organization.  Moreover, some genuinely off-campus publications—such as local papers and USA Today—were allowed to use the newsbins.

The only authentic difference between The Liberty and The Barometer, the Ninth Circuit panel majority noted, was that The Liberty was privately funded—refusing student fees, it said, in order to maintain its independence, whereas The Barometer accepted student fees from OSU.

Eventually, OSU adopted a policy for the future that wisely gave up on the on-campus/off-campus distinction.  But in the Ninth Circuit panel majority’s eyes, this was too little, too late.  The school’s belated explanations for its behavior regarding the newsbins, moreover, lacked credibility in the Ninth Circuit panel’s eyes.

Who Should Be Held Responsible for the First Amendment Violations at OSU?

Up to this point, the First Amendment issues were plain and commonsensical.  The Ninth Circuit panel majority deemed OSU’s campus a public forum, which meant that OSU could not treat campus newspapers differently due to their content, which was just what it had done with The Liberty.  Case closed.

But a related issue cropped up, which became the core of the Ninth Circuit panel majority’s opinion:  Who should be held responsible for the First Amendment violations?   It is of little use to have a right, unless that right is coupled with a remedy.

The panel majority deemed the Director of Facilities Services, Vincent Martorello, liable due to his directly refusing to treat The Liberty in the same way as The Barometer when it came to the newsbins, even after Barometer staff members made their case for equality to him directly.

Moving on to OSU President Ed Ray and OSU Vice President Mark McCambridge, the panel majority also found them liable, because they oversaw Martorello’s decision, and because hey acquiesced in it, as numerous emails evidenced. (Another OSU official, Larry Roper, Vice Provost for Student Affairs, was also named in the complaint, but was dismissed from the suit due to his minimal role in it; he received one forwarded email and that was it.)

It’s very disappointing that no one within the OSU Administration had the common sense to see, early on, that this was a valid First Amendment issue—indeed, a no-brainer—and thus to head off a lawsuit that everyone in the Administration should have seen coming.  Let’s hope that the Administration and its lawyers now do the smart thing, and offer a settlement to The Liberty —one that ensures OSU better respects students’ and student organizations’ First Amendment rights in the future.

Julie HildenJulie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Her website’s address is www.juliehilden.com.
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