Fox v. Board of Trustees

MAHONEY, Circuit Judge,

dissenting:

I respectfully dissent.

Other circuit courts have considered this issue, or cognate issues, and have concluded that university regulations of this nature do not offend the first amendment. Specifically, the Third Circuit concluded, in American Future Systems, Inc. v. Pa. State Univ., 752 F.2d 854 (3d Cir.1984), cert. denied sub. nom. Johnson v. Pa. State Univ., 473 U.S. 911 , 105 S.Ct. 3537 , 87 L.Ed.2d 660 (1985) (“American Future Systems”), that Pennsylvania State University could legitimately prohibit group sales demonstrations by American Future Systems, Inc., amicus here and a plaintiff below, in individual student rooms. 1 The majority opinion, in which the two other panel members who wrote separately concurred, see id., 752 F.2d at 867, 872, premised this result on a commercial speech analysis. Circuit Judge Adams, concurring, opined that the result could be justified by a number of rationales, including commercial speech analysis, time, place and manner restrictions, special considerations pertinent to a university setting, and public forum analysis. Id., 752 F.2d at 867-71 (Adams, J., concurring).

The Fourth Circuit considered the general question in Glover v. Cole, 762 F.2d 1197 (4th Cir.1985), and Chapman v. Thomas, 743 F.2d 1056 (4th Cir.1984), cert. denied, 471 U.S. 1004 , 105 S.Ct. 1866 , 85 L.Ed.2d 160 (1985). Glover held that West Virginia State College could validly enforce on its campus a state-wide policy prohibiting on-campus sales and fund raising activities by groups not sponsored by students or the college. The challenge there was posed by representatives of the Socialist Workers Party and the Young Socialist Alliance. Chapman concluded that North Carolina State University could constitutionally prohibit door-to-door solicitations in university dormitories, and apply that prohibition to a student who sought to promote attendance at Bible discussions on the university campus by such solicitations. The discussions *1215 were sponsored by the Church of Christ, a fundamentalist, evangelical church.

Against this backdrop, I would not invalidate on first amendment grounds the regulation which SUNY seeks to enforce here. If, as the district court deemed appropriate below, a “public forum” analysis is employed, the Supreme Court has explicitly held that a “decision to restrict access of a non-public forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 808 , 105 S.Ct. 3439, 3453 , 87 L.Ed. 2d 567 (1985) (emphasis in original). A “limited” public forum, which allows some, but less than indiscriminate, access to outsiders on terms which do not include the litigant seeking access, is subject to this analysis. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47-48 , 103 S.Ct. 948, 956 , 74 L.Ed.2d 794 (1983).

I do not understand the majority to assert that the SUNY regulation at issue here does not meet this test of reasonableness. Rather, the majority employs the “commercial speech” analysis articulated in Central Hudson Gas & Elec. Co. v. Public Serv. Comm’n, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), concluding that: (1) since the district court considered, under its “public forum” analysis, whether the SUNY regulation is reasonably related to the asserted governmental interests, rather than, as the Central Hudson test mandates, whether it “directly advance[s]” them, 447 U.S. at 564 , 100 S.Ct. at 2350 , the district court’s affirmative conclusion on this point is suspect; and, more dispositively, (2) Central Hudson, in specifying that “excessive restrictions cannot survive” if “the governmental interest could be served as well by a more limited restriction on commercial speech,” id., imposes a “least restrictive means” requirement. On the latter point, the majority rejects the contrary conclusion reached by the Third Circuit in American Future Systems, 752 F.2d at 865-66.

I do not find this analysis persuasive. First, I don’t see a significant difference between the “reasonable relationship” and “directly advances” criteria as to promotion of the admittedly substantial government interests which SUNY asserts in support of its regulation, believe that the situation before us can be validly analyzed under either approach, see generally American Future Systems, 752 F.2d at 867-71 (Adams, J., concurring), and in any event would find either test satisfied on this record.

Secondly, I do not believe that Central Hudson should be read as imposing a “least restrictive alternative” requirement. That case did not, on its facts, address such a question, since the regulation at issue there imposed a complete ban on advertising to promote the use of electricity. Central Hudson, 447 U.S. at 558 , 100 S.Ct. at 2347 . Moreover, subsequent to the Third Circuit’s ruling in American Future Systems, which I find persuasive in any event, the Supreme Court has squarely rejected the “least restrictive alternative” requirement in the cognate “public forum” area, Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 808 , 105 S.Ct. 3439, 3453 , 87 L.Ed.2d 567 (1985), and has emphasized in Hazelwood School Dist. v. Kuhlmeier, — U.S. —, 108 S.Ct. 562 , 98 L.Ed.2d 592 (1988), that “the education of the Nation’s youth is primarily the responsibility of parents, teachers and state and local school officials, and not of federal judges.” Id., 108 S.Ct. at 571 (citations omitted). 2 In light of these subsequent developments, and since Central Hudson did not, in my view, initiate a “least restrictive alternative” requirement, I would not impose such a requirement here.

I conclude, with Judge Adams of the Third Circuit, that:

*1216 With all due respect, I do not believe that the First Amendment’s protection of a free and robust marketplace of ideas requires that a university dormitory be turned into a marketplace for a private corporation’s sale of kitchenware.

American Future Systems, 752 F.2d at 871 (Adams, J., concurring). 3

I would therefore affirm, and accordingly dissent.

. A later enacted ban prohibited use of the common areas of dormitories for commercial demonstrations, as well, but the validity of the broader ban was not considered in that litigation. See id., 752 F.2d at 860 n. 21.

. It should be noted that Hazelwood dealt with a school newspaper produced in conjunction with the journalism class of a public high school, and expressly reserved the question "whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.” Hazelwood, 108 S.Ct. at 571 n. 7. I would not read this reservation, however, as totally undercutting Hazelwood’s applicability here.

. More colorfully, Judge Adams posed the issue elsewhere in his concurrence as "involving a corporation’s right to hawk housewares in a college dormitory ..." Id. at 867. I do not regard the issue as substantially transformed simply because the corporation in question, a party below, has adopted an amicus posture on this appeal. The essential nature of the commercial transaction and resulting free speech issue remains before us, although admittedly now to be viewed from the vantage of the student-hawkees.