Petition for Writ of Certiorari — Supple v. Hays County Guardian

Supreme Court brief1993

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IN THE SUPREME COURT OF THE UN

OCTOBER TERM, 1992

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JEROME K. SUPPLE, DANIEL S. OUELLETTE,

DANIEL N. MATHESON, III, THOMAS R. KOWALSKI,

JANE C. MONDAY, WILLIAM L. CUNNINGHAM, W. C.

PERRY, NORMAN D. ELDER, CLYDE C. WADDELL, JR.,

BECKY R. ESPINO, and TOM BURDENSKI,

Petitioners

vs.

HAYS COUNTY GUARDIAN, JEFFREY STEFANOFF,

VICKI HARTIN, WEBB BRANEN, JOE GADDY,

JODY DODD, JOE PTAK, ROBERT MARTINEZ,

and JOHN DEMAREE,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DAN MORALES JAMES C. TODD

Attorney General of Texas ATTORNEY OF RECORD

Appellate Coordinator

WILL PRYOR

First Assistant CHRISTOPHER JOHNSEN

Attorney General Assistant Attorney General

General Litigation Division

MARY F. KELLER

Deputy Attorney General P.O. Box 12548, Capitol Station

for Litigation Austin, Texas 78711-2548

Phone: (512) 440-4550

JORGE VEGA, Chief Fax: (512) 447-0511

General Litigation Division

QUESTIONS PRESENTED

Whether a state university’s “anti-solicitation" rule,

which restricts the distribution of any newspaper

containing commercial advertising to "racks" at

designated points on campus, to subscription through

the mail, and to distribution by sponsored student

organizations from tables continuously manned by

Students in a designated free speech area, violates

freedom of speech under the First Amendment.

Whether all of a state university’s outdoor premises

constitute a designated public forum for students so

that the university is constitutionally barred from

restricting student distribution of materials containing

commercial advertisement at any outdoor location on

its campus.

TABLE OF CONTENTS

(Questions Pemeemeed o5:a60 55 a6 es ee ee 8 65%

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Constitutional and Regulatory Provisions Involved... . . 2

Statement of the Cas® oc. is cc eeeees re ee 2

Reasons for Granting the Petition................. 7

1. The ability of a state university to

restrict the distribution of commercial

advertising on campus within the bounds of

First Amendment protection of free speech

is an important question of federal law

which has not been, but should be, settled

im CN SE oon cs vce ee ea eae 7

2. The decision by the court of appeals

holding that all of the outdoor grounds

of Southwest Texas State University

constitute designated public fora for

students conflicts with the decision of

another circuit and with applicable

Gocishoms OF Us SA og oe ca sk tak oa seas 12

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TABLE OF AUTHORITIES

Cases:

Bd. of Trustees of State Univ.

of N.Y. v. Fox, 492 US.

469, 109 S.Ct. 3028 (1989) ......... 7,8,10,11,12

Glover v. Cole, 762 F.2d 1197

SN I 9.0 6m 0-5 wd 6a. 06d oink 0 ROO 8,15

Hays County Guardian v. Supple,

969 F.2d 111 (Sth Cir.

RO eae ee ae ae eee ee ae passim

Hazelwood School District v.

Kuhlmeier, 484 U.S. 260,

Se CE 6 5 bea 6 eek eK ERE 15

Perry Educ. Assn. v. Perry Local

Educators’ Assn., 460 U.S.

Do_ PD GG PU CEM) ccc cect venas 13,14,15

Planned Parenthood v. Clark County

School Dist., 941 F.2d 817

ok | ee er eee ee 15

Riley v. National Federation of

the Blind, 487 U.S. 781,

Ee A ET EE ooo ood va 00 0 8 wie eee es 1]

Texas Review Soc. v. Cunningham,

659 F.Supp. 1239 (W.D. Tex.

ea he Rd eee ae ea gree war eee 8

United States Postal Service v.

Council of Greenburgh Civic

Assns., 453 U.S. 114, 101 S.Ct.

Pt Re eae area 13

Widmar v. Vincent, 454 U.S. 263,

ete ft, 3) eee 7,10,11,12,13,14

Statutes:

ae Ses Oe UE as Cd 5 ba ee ee ee 2

Miscellaneous:

hfs ae Gs PUI ED Ge cecs cab scant oes passim

Southwest Texas State University

CORTEEIS EUUOE File gic ccc ccawanteree Oe

Southwest Texas State University

eo a ee 8 ee eer er ee ee 3

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1992

JEROME K. SUPPLE, DANIEL S. OUELLETTE,

DANIEL N. MATHESON, III, THOMAS R. KOWALSKI,

JANE C. MONDAY, WILLIAM L. CUNNINGHAM, W. C.

PERRY, NORMAN D. ELDER, CLYDE C. WADDELL,

JR., BECKY R. ESPINO, and TOM BURDENSKI,

Petitioners

VS.

HAYS COUNTY GUARDIAN, JEFFREY STEFANOFF,

VICKI HARTIN, WEBB BRANEN, JOE GADDY,

JODY DODD, JOE PTAK, ROBERT MARTINEZ,

and JOHN DEMAREE,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

The Attorney General of Texas, on behalf of the

petitioners herein, officials of the Texas State University

System and Southwest Texas State University, respectfully

petitions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals, reproduced at

Appendix A, al-a24, is reported at 969 F.2d 111. The final

judgment, amended final judgment, and findings of fact and

conclusions of law, reproduced at App. B, a25, App. C, a26,

and App. D, a27-52, are not reported.

JURISDICTION

The judgment of the court of appeals was entered on

August 10, 1992. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND REGULATORY PROVISIONS

INVOLVED

U. S. CONSTITUTION, AMENDMENT 1

"Congress shall make no law... abridging the freedom

of speech..."

UNIVERSITY POLICIES AND REGULATIONS

The pertine*’ provis! . :s of the rules of the Board of

Regents of the ‘iexa< ~...* University System and the

"Operating Letters" ("OL") of Southwest Texas State

University are reproduced verbatim at Appendices E, F, G,

H and I.

STATEMENT OF THE CASE

Southwest Texas State University ("the university") is

a coeducational institution of higher education located in San

Marcos, Texas, and governed by the Texas State University

Board of Regents ("the regents" or "the Board of Regents"),

a state agency established by Texas law. Approximately

5,000 of the university’s 22,000 students live on campus. The

Hays County Guardian is an independent newspaper

cooperatively owned and published by plaintiffs/respondents

Steffanoff, Hartin, Branen, Gaddy, Martinez and Demaree’.

The paper, featuring articles on "environmental, peace and

social justice issues," is distributed free and depends in part

on commercial advertising to cover the costs of publication.

Prior to October 10, 1989, the plaintiffs distributed the

Guardian at a variety of locations throughout the university

campus, including academic departments, the student center,

sidewalks, and walkways. However, on August 31, 1989, the

university amended its “anti-solicitation" regulation to apply

to newspapers distributed at no charge. The policies of the

Board of Regents allow "free speech activities on the grounds

of the campus" of each university within the system, subject

however to each university president’s authority to "adopt

reasonable non-discriminatory regulations as to time, place,

and manner of such activities." 969 F.2d at 117, App. A at

a7. The university's implementing regulation, Operating

Letter ("OL") 9.06 allows students and student organizations

to "publicly distribute outdoors," on university grounds, any

"pieces of literature that are not obscene, vulgar, or libeious,

or that do not contain impermissible solicitation." App. G at

a67-a68 (emphasis added). "Solicitation" is defined in Board

policy and university regulation as "the sale or offer for sale

of any property or service" or "receipt on request for any gift

or contribution." On August 31, 1989, the university revised

OL 9.05 to apply to free mewspapers containing

advertisements.

The regents’ policy and university regulations on

solicitation provide for three methods by which newspapers

and other publications containing commercial advertisements

may be distributed on campus. First, they may be dispensed

from vending machines or distribution stands in areas

designated by the university president. (At the time of trial,

newspapers were distributed from forty-eight newsstands at

five locations on campus.) Second, a registered student

' Plaintiffs Demaree, Dodd and Ptak were students registered at the

university during the times relevant to this suit.

organization may distribute such papers from a table,

manned at all times by students, in the designated free

speech area known as "the Quad." Third, students are

allowed to subscribe to periodicals which may be mailed or

delivered to them on campus. What students are not

allowed to do is hand out newspapers or any other material

with commercial advertising anywhere they choose on

campus. By contrast, students may distribute material that

does not contain commercial advertising throughout the

campus outdoors.

On or about October 10, 1989, defendant/petitioner

Burdenski wrote to the Guardian informing the distributors

that they must either "provide a rack at one of the approved

locations, or arrange delivery by subscription....". At about

the same time, similar letters were sent to several other

newspapers and magazines, including the Houston Post, the

Houston Chronicle, the Austin Chronicle, Take Five Magazine,

The Plebeian, and the SWT Press. When the plaintiffs

continued to distribute the Guardian in the same manner,

Mr. Burdenski wrote again on November 27, 1989,

emphasizing that the Guardian could not be handed out to

passersby on campus. Thereafter, the plaintiffs ceased

publication of the Guardian when advertising revenue dried

up’.

On January 16, 1990, plaintiffs filed suit in state

district court against the Texas State University System Board

of Regents; Southwest Texas State University; defendant

Supple, the university president; defendants Matheson, Perry,

Drain, Longcope, Ouellette, Martin, Clark and Elder, the

* At trial, the plaintiffs offered no evidence to indicate that restricting

the distribution of the Guardian in accordance with the anti-solicitation

policy caused advertising revenues to cease.

regents’; and defendant Burdenski.

After the plaintiffs amended their suit to add federal

claims for violations of their rights to free speech and equal

protection, the defendants removed the case to the United

States District Court for the Western District of Texas.

Subsequently, on the plaintiffs’ motion, the district court

remanded all claims against the Board of Regents and the

university to state court, leaving before the federal court the

claims against the individual defendants in their official and

personal capacities.

After a bench trial on December 19, 1990, the

Honorable Walter Smith issued Findings of Fact and

Conclusions of Law and a Final Judgment on February 27,

1991. App. D, a27-a52; App. B, a25. In the decision, the

trial court remanded all of plaintiffs’ state law claims to state

court and ordered that plaintiffs take nothing on their federal

constitutional claims‘.

On appeal, the United States Court of Appeals for

the Fifth Circuit affirmed the trial court’s decision in part

and reversed and remanded in part. 969 F.2d 111; App. A,

al-a24. In actions not presented for this Court’s review by

this petition, the court of appeals upheld university

regulations insofar as they delegate to the dean of students

the discretion to designate locations for newspaper vending

machines and distribution boxes, upheld the university’s

subsidy of the official student newspaper from mandatory

student fees, affirmed the district court’s remand of state law

> Petitioners Thomas R. Kowalski, Jane C. Monday, William L.

Cunningham, and Becky R. Espino are successors in office to defendants

Lee Drain, Edmund M. Longcope, III, Jack L. Martin and Sheila

Wheatley Clark.

‘In an amended judgment entered on March 22, 1991, the court

corrected an oversight and, instead of remanding the plaintiffs’ federal

Sherman Antitrust Act claim to state court, ordered that Plaintiffs take

nothing by that claim. App. C, a26.

claims to state court, and affirmed the district court’s denial

on qualified immunity grounds of the plaintiffs’ claims for

monetary damages against the defendants in their individual

capacities. 969 F.2d at 122-126; App. A, at al8-a24.

However, the court of appeals held that all of "the outdoor

grounds of the campus such as the sidewalks and plazas are

designated public fora for the speech of university students,"

that "[r]Jestricting distribution of newspapers with commercials

was an anomalous departure from the general policy of

protecting speech such as the political reporting and

commentary in the Guardian," and that as a consequence,

"the anti-solicitation regulations cannot be applied to forbid

an individual student from handing out a newspaper solely

because that paper contains advertisements." 969 F.2d at

116-118; App. A at -a5-a9.

In sum, we hold that the

University may not enforce its

anti-solicitation policy contained

in either Operating Letter 9.05

or in applicable rules of the

Board of Regents to restrain the

distribution of the Guardian on

the outdoor grounds of the

campus. The Guardian is

entitled to the same access to

the University campus given to

publications distributed without

charge that do not contain

commercials.

969 F.2d at 121; App. A at al6. The court then remanded

the case for consideration of appropriate injunctive and

declaratory relief, and possibly attorneys’ fees. 969 F.2d at

126; App. A at a22-a24.

—

veneer

REASONS FOR GRANTING THE PETITION

1. The ability of a state university to restrict

the distribution of commercial advertising on

campus within the bounds of First

Amendment protection of free speech is an

important question of federal law which has

not been, but should be, settled by this Court.

State university officials and federal courts need

guidance from this Court because the issue is important, it

requires a delicate balance between competing policy

interests of great value, the court of appeals’ decision places

state college administrators in a difficult dilemma, and this

Court has not directly addressed the question.

The court of appeals acknowledges as it must that a

state university has at least some legitimate interest in

restricting commercial solicitation on campus. 969 F.2d at

120-121; App. A at al4. This Court has "recognized that

First Amendment rights must be analyzed ’in light of the

special characteristics of the school environment,” and

consequently has "never denied a university’s authority to

impose reasonable regulations compatible with that mission

[education] upon the use of its campus and facilities."

Widmar v. Vincent, 454 U.S. 263, 267 n.5, 102 S.Ct. 269, 273

n.5 (1981). Even more directly on point, this Court has

agreed that the state’s interests in limiting commercial speech

on a state higher education campus "are substantial:

promoting an educational rather than commercial

atmosphere on [state university] campuses, promoting safety

and security, preventing commercial exploitation of students,

and preserving residential tranquility." Bd. of Trustees of

State Univ. of N.Y. v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 3032

(1989).

Although the court of appeals seemed to minimize the

problem, the threat posed by commercial solicitation to the

academic environment is not one which state higher

education administrators may take lightly. More affluent

than the population generally, more inclined to "discretionary

spending," and concentrated together in a small area,

university students constitute a tempting market for sellers.

The judgment of academic administrators on the scene, that

without significant limitations the campus would eventually

be dominated by “unwarranted hawking" from "every ...

salesperson ... in town," 969 F.2d at 120, either in person or

through the Trojan horse of advertising within publications

disseminated on campus, should not be lightly dismissed by

the courts. Thus, in a variety of contexts, state university

administrators have adopted anti-solicitation policies. For

example, compare Bd. of Trustees of State Univ. of N.Y. v.

Fox, 109 S.Ct. at 3030; Glover v. Cole, 762 F.2d 1197, 1198-

1200 (4th Cir. 1985); Texas Review Soc. v. Cunningham, 659

F.Supp. 1239, 1241-1242 (W.D. Tex. 1987).

On the other hand, while newspapers are a major

vehicle for commercial advertising, petitioners will be the first

to agree that the authors of the First Amendment, with

recent memories of dissident presses closed down by British

authorities, had newspapers prominently in mind. And

students of an institution of higher learning have an

undeniable interest in and right to access to such an

important channel of information. This case, then, poses the

question of how state higher education officials must strike

the balance between the substantial state interest in

restricting commercial solicitation and the special status of

newspapers under the First Amendment. The petitioners

sought to strike the balance not by banning publications with

advertising from campus, but by restricting their distribution

to locations and methods which are easily accessible to

students without disturbing the educational atmosphere.

Allowing for as many as 48 newsstands in five campus

locations and extensive distributions through subscriptions

and from student organization tables in the free speech area,

the rule has not interdicted the spread of written speech on

campus.

BOs tin edpintag te ah it the

The court of appeals, by contrast, would strike the

balance by placing state university administrators in a serious

bind. The court of appeals concludes that because most of

the content of the Guardian is not commercial speech and

"(t]he advertisements in the Guardian were included to

finance the publication," therefore "[u]nder such

circumstances, commercial speech was inextricably linked to

the newspaper’s non-commercial speech, making the whole

paper non-commercial." 969 F.2d at 120; App. A at al4. On

the other hand, if the publication merely "comment[s] on

public issues in the context of a commercial transaction," the

university is free to regulate it as commercial speech. Thus,

instead of a bright line rule, which only inquires as to

whether the publication contains commercial advertising -- if

it does not, it may be freely distributed outdoors by students;

if it does, it is subject to the minimal restrictions described

above -- school authorities now must choose between two

unpalatable options. Either they must abandon any attempt

to manage the flow of commercial advertising on campus, so

that students may distribute any written matter at any

outdoor location on campus; or state administrators must

examine each publication proposed for distribution on

campus and make a subjective determination as to the

proportion of commercial to non-commercial speech. They

must decide whether the document consists primarily of

noncommercial speech, with advertisements merely "included

to finance the publication,” or rather consists of "comment{s]

on public issues in the context of a commercial transaction."

The administrator cannot be certain that relative space

devoted to each will suffice to determine whether the

literature is devoted predominantly to commercial or non-

commercial speech. The distributer might well argue that

while commercial advertising occupies more column inches,

because that much space had to be sold in order to "finance

the publication," the overriding purpose of the publication

nevertheless is to present the less spacious non-commercial

* For what other purpose would a publication include

advertisements?

speech. Unavoidably, under the court of appeals

formulation, state university administrators will be drawn into

an undertaking which courts, universities, and free speech

advocates ought to wish for them to avoid, ie., examining

and evaluating speech for its content and "purpose".

This Court’s jurisprudence presently does not resolve

the dilemma. Rather, its First Amendment decisions merely

identify the outer limits of the continuum within which this

case falls. At one extreme, the Court has told state

universities that when they open a forum to registered

student organizations generally they may not deny the forum

to an otherwise qualified organization solely on the basis of

the content of its protected (in that case, religious) speech.

Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269 (1981). At

the other end of the spectrum, a state university may prohibit

salespeople from entering campus residences to demonstrate

their products to students, in presentations which incidentally

"touch on other subjects" that are not purely commercial,

even if the prohibition is not the least restrictive means of

accomplishing the purposes of the anti-solicitation policy.

Bd. of Trustees of State University of N.Y. v. Fox, 492 U.S. 469,

109 S.Ct. 3028 (1989). As a newspaper distributed and

partially published by students, covering social and political

issues, the Guardian certainly enjoys a more protected status

than non-student Tupperware merchants seeking access to

dormitories. On the other hand, as a mixture of advertising

and commentary, which is already permitted quite substantial

access to the campus (through receptacles in the newsstand

locations, student organization tables in the free speech

area, and subscriptions), the Guardian bears little if any

resemblance to an otherwise qualified student organization

denied access to a public forum solely because of the content

of its members’ protected speech. So, reading Fox and

Widmar does not enable a court or board of regents to

decide how to regulate the on-campus distribution of written

material such as the Guardian.

To fit the Guardian on the Widmar end of the

spectrum, the court of appeals relies on a decision of this

Court holding that when commercial speech is "inextricably

linked" to non-commercial speech, the entire speech is non-

commercial. 969 F.2d at 120, App. A at al4, citing Riley v.

National Federation of the Blind, 487 U.S. 781, 106 S.Ct. 2667

(1988). But as this Court explained in Fox, the Riley case

dealt with otherwise fully protected speech which was

required by law to include a commercial component. In that

instance, the speaker had no choice but to mix non-

commercial with commercial speech. Bd. of Trustees of State

Univ. of N.Y. v. Fox, 109 S.Ct. at 3031. In that sense, the two

were "inextricably intertwined." Jd.

By contrast, there is nothing whatever

"inextricable" about the noncommercial aspects

of these presentations. No law of man or of

nature makes it impossible to sell housewares

without teaching home economics, or to teach

home economics without selling housewares.

Nothing in the [challenged regulation] prevents

the speaker from conveying, or the audience

from hearing, these noncommercial messages,

and nothing in the nature of things requires

them to be combined with commercial

messages.

Id. Petitioners read the foregoing passage as permitting a

court to look only at the face of the contested policy to see

whether it necessarily prevents the writers from conveying (or

the students from reading) their non-commercial message.

Applying that analysis, petitioners argue that no law of man

or nature makes it impossible to write about environmental,

peace, and social justice issues without selling products and

services through paid ads. However, the court of appeals

seems to have viewed the commercials as "inextricably

intertwined" with the political and social commentary because

the publishers needed to sell the former in order to finance

the printing of the latter. If that is to be the standard, and

if a state university is to guard against the transformation of

the free marketplace of ideas into a commercial market of

goods and wares, then school administrators must assess the

extent to which commercial advertising is essential to the

existence of the publication in question. So now, not only

must state officials scrutinize the noncommercial content of

the material to determine whether the publication is

predominantly social/political commentary relying on

advertising only for funding, or primarily commercial with

merely a gloss of public interest. They now must also

examine the publishers’ books to determine the financial

necessity of the advertising. How ironic that such intrusions

are to be compelled in the name of the First Amendment.

If the foregoing is to be the result, this Court should

say so. Upon the granting of certiorari, the parties can argue

to the Court in more depth exactly where on the Fox to

Widmar continuum off campus publications with commercial

advertising belong and precisely where the balance must be

struck between freedom of speech and the state’s substantial

interest in restricting commercial solicitation on public

university campuses. But regardless of where such lines are

ultimately drawn, it is vitally important to all concerned that

this Court help guide the drawing.

2. The decision by the court of appeals holding

that all of the outdoor grounds of Southwest

Texas State University constitute designated

public fora for students conflicts with the

decision of another circuit and with applicable

decisions of this Court.

Whether all outdoor locations on the campus of the

university are "public fora" for students is a matter of

considerable importance. If a state university has opened a

forum to the public (or to its students as a "public") it may

not restrict access to the forum except by means "narrowly

drawn to effectuate a compelling state interest." Perry Educ.

Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46, 103

S.Ct. 948, 955 (1983), citing Widmar v. Vincent, 454 U.S. at

269-270, 102 S.Ct. at 279. By contrast, "[p]ublic property

which is not by tradition or designation a forum for public

communication is governed by different standards." Jd. On

the latter premises, "the State may reserve the forum for its

intended purposes, communicative or otherwise, as long as

the regulation on speech is reasonable and not an effort to

suppress expression merely because public officials oppose

the speaker’s view." Perry Educ. Assn., 460 U.S. at 46, 103

S.Ct. at 955, citing United States Postal Service v. Council of

Greenburgh Civic Assns., 453 U.S. 114, 129, 101 S.Ct. 2676,

2684 (1981).

Consequently, what is at stake here is not only the

ability of the university to restrict the distribution of

periodicals with commercial advertising to designated

locations on campus. The ruling also sharply curtails the

university’s ability to restrict other protected expressive

activity, such as public assembly, in outdoor locations beyond

the university’s designated free speech area -- for example,

sidewalks, parking lots, and the grounds in front of classroom

buildings. To reach the conclusion it did, the court of

appeals reasoned as follows:

Defendants argue that the outdoor

grounds of the University cannot be a

designated public forum, because the

University has not allowed unrestricted access

to the campus, even by students. Government

property, however, does not automatically

cease to be a designated public forum because

the government restricts some speech on the

property. Otherwise, the restriction of speech

on government property would be self-

justifying. The restriction would disprove any

intent to create a designated public forum, and

the failure to create a public forum would

justify the restriction of speech. The Supreme

Court has not adopted such circular reasoning.

969 F.2d at 117; App. A at a8.

But it is the reasoning of the court of appeals that is

circular. To say that university property "does not

automatically cease to be a designated public forum" assumes

the conclusion which the court reaches, that the property was

already a public forum when the university sought to restrict

access. But Supreme Court authority relied upon by the

court of appeals exposes the error of beginning the analysis

with the assumption that university property is a public

forum.

A university differs in significant

respects from public forums such as streets or

parks or even municipal theaters. A

university’s mission is education, and decisions

of this Court have never denied a university’s

authority to impose reasonable regulations

compatible with that mission upon the use of

its campus and facilities. We have not held,

for example, that a campus must make all of

its facilities equally available to students and

nonstudents alike, or that a university must

grant free access to all of its grounds or

buildings.

Widmar v. Vincent, 454 U.S. at 267 n.5, 102 S.Ct. at 273 n. 5.

(Streets and parks, of course, are "quintessential public

forums." Perry Educ. Assn., 460 U.S. at 45, 103 S.Ct. at 954-

955.) Since the premises of a state university campus thus

are not places which have been open to the public "by long

tradition...immemorially... [for] time out of mind...," intended

restrictions articulated by the university’s governing

authorities are highly relevant to a determination of which

parts of a campus are designated public fora.

Although the facts differ in some elements, the

reasoning of the Ninth Circuit in Planned Parenthood v. Clark

County School Dist., 941 F.2d 817 (9th Cir. 1991), would

compel a different result if applied to this case. Planned

Parenthood dealt with content-based restrictions on

advertising in a public high school newspaper. At first

glance, the case appears distinguished by the holding which

"invest[s] high school educators with greater control over

expressive activities that bear the school’s imprimatur than

other forms of speech or use of government facilities." /d.,

941 F.2d at 819. However, that distinction is balanced by the

difference that the authorities in Planned Parenthood

imposed a much greater restriction on speech, L.e., rejecting

an advertisement solely because of its content. So, after

controlling for the factor of greater official discretion in the

context of a more severe restriction, what remains of the

court’s reasoning applies to the Hays County Guardian facts.

Relying on Perry Educ. Assn., supra, and Hazelwood

School District v. Kuhlmeter, 484 U.S. 260, 108 S.Ct. 562

(1988), inter alia, the Ninth Circuit reasoned in pertinent part

... that "school facilities may be deemed to be

public forums only if school authorities have

‘by policy or by practice’ opened those facilities

‘for indiscriminate use by the general public,’

or by some segment of the public such as

student organizations." If, on the other hand,

school facilities have been reserved for other

intended purposes, "communicative or

otherwise," no public forum will have been

created and reasonable restrictions on speech

may be imposed.

941 F.2d at 822 (citations and footnote omitted). By the

foregoing analysis, the university campus in this case would

be deemed reserved for educational purposes rather than for

indiscriminate use by students. Compare Glover v. Cole, 762

F.2d at 1202. The very Board policy cited by the court of

appeals makes "free speech activities" subject to time, place,

and manner restrictions. 969 F.2d at 117; App. A at a7.

Pursuant to that authority, university regulations exclude

from free public distribution materials which "contain

impermissible solicitation." Jd.

The university and its regents have only opened

particular portions of the campus as a public forum for

students. That arrangement provides meaningful

opportunities for students to exercise their rights of

expression and offers meaningful access to students by

newspapers and periodicals, while assuring the orderly

functioning of the university as an educational institution.

Without justification under the applicable decisions of this

Court, the court of appeals erased the distinctions among

locations on campus and needlessly upset the delicate

balance between the First Amendment and the exigencies of

academic administration. The decision should not be allowed

to stand.

CONCLUSION

The petition for writ of certioran should be granted.

Respectfully submitted,

DAN MORALES

Attorney General of Texas

WILL PRYOR

First Assistant Attorney General

MARY F. KELLER

Deputy Attorney General

for Litigation

JORGE VEGA, Chief

General Litigation Division

JAMES C. TODD*

Attorney of Record

Appellate Coordinator

CHRISTOPHER JOHNSEN

Assistant Attorney General

General Litigation Division

P. O. Box 12548

Capitol Station

Austin, Texas 78711-2548

Phone: (512) 440-4550

Fax: (512) 447-0511

*ATTORNEY OF RECORD

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8168

HAYS COUNTY GUARDIAN, ET AL.,

Plaintiffs-Appeliants,

Vv.

JEROME K. SUPPLE, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

August 10, 1992

Before GOLDBERG, HIGGINBOTHAM, and DAVIS,

Circuit Judges.

HIGGINBOTHAM,, Circuit Judge:

Hays County Guardian, a newspaper, and students

currently enrolled at Southwest Texas State University

contend that University regulations unconstitutionally restrict

distribution of the Guardian on campus. Plaintiffs also

contend that the University has granted an inadequately

fettered license to its officials to regulate activity protected

under the First Amendment and that the University’s use of

mandatory student fees to finance a student-run newspaper

violates the First Amendment.

We find that plaintiffs’ objections to official discretion

and university funding of the university paper are meritless,

but we conclude that the University’s regulations against

On-campus solicitation unconstitutionally restrict the

distribution of the Guardian. We affirm the remand to state

court of state-law claims. Finally, we find that defendants in

their individual capacity enjoy qualified immunity to any

damages or attorney’s fees that might be awarded in the

federal suit.

The Hays County Guardian and students filed this

action in Texas state court against various Officials of

Southwest Texas State University and the Board of Regents

of the Texas State University System in their official and

individual capacities.' Plaintiffs alleged that defendants

violated their right to equal protection of the laws and to

free speech under both the Texas and U.S. Constitutions,

later adding claims under the Sherman Anti-Trust Act, 15

U.S.C. § 1, the Texas Constitution, the Texas Free Enterprise

and Anti-Trust Act of 1983, and the Texas Civil Practice and

Remedies Code, § 104.002-003. Plaintiffs sought monetary,

injunctive, and declaratory relief.

Defendants removed the case to federal district court.

In its final amended judgment following a bench trial, the

district court remanded all state-law claims to Texas state

court and held that plaintiffs should take nothing on all

remaining claims. Plaintiffs argue here that the district court

erred in dismissing the constitutional claims and in remanding

the state-law claims to state court.

The Hays County Guardian is a small local newspaper,

founded in 1989, concentrating on "environmental, peace,

and social justice issues." Distributed free of charge

'The original defendants included the Texas State University System

Board of Regents and Southwest Texas State University. On the

plaintiffs’ motion, the federal district court remanded all claims against

these two defendants to Texas state court. Appellants do not seek a

reversal of dismissal.

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throughout Hays County, its publication expense was covered

by donations and revenue from advertising by local

businesses.

Southwest Texas State University is a Texas state

university located in San Marcos, Texas with approximately

22,000 students. 5,000 students live on campus.

The University allows students to participate in a

broad range of expressive activities on campus. Board of

Regents rules provide that "[a]ny group or person . . . may

assemble and engage in free speech activities on the grounds

of the campus." The University’s Operating Letter Number

9.06 also allows students to "publicly distribute outdoors, on

grounds owned or controlled by the University, . . . pieces of

literature that are not obscene, vulgar, or libelous, or that do

not contain impermissible solicitation." One part of the

campus, a plaza between several University buildings known

as the Quad, has been designated by the University as a "free

expression area" and can be reserved by students for

demonstrations and "symbolic structures." Students may

hand out pamphlets, newspapers, and any other literature

without advertisements throughout the outdoor areas of the

campus.

This general policy of openness to expressive activity

is qualified by the University’s limits on commercial

solicitation. Both the written regulations of the Board of

Regents and the University’s Operating Letter 9.05 generally

prohibit "solicitation" on campus. "Solicitation" is defined as

"the sale or offer for sale of any property or service" or

"receipt on request for any gift or contribution." Before

August 31, 1989, the university did not appiy its solicitation

restrictions to newspapers that were distributed free of

charge, even if those newspapers contained advertisements.

On August 31, the Dean of Students instructed the

University’s counsel to revise the University’s “Operating

Letter 9.05" concerning solicitation so that free newspapers

containing advertisements would be treated as prohibited

solicitation.

Board of Regents policy prohibiting solicitation has

three relevant exceptions. First, the University permits the

sale of "any newspaper, magazine, or other publications by

means of a vending machine or distribution stand in an area

designated in advance by the President [of the University]."

At the time of trial, there were a total of 48 newsstands at

five locations on campus.

Second, the University permits "activities

sponsored by a registered student organization . . . which are

authorized and scheduled in accordance with the facilities use

regulations . . . as long as all aspects of the activity clearly

identify the organization sponsoring the event on all signs,

tickets, or literature." According to trial testimony, a

registered student organization could distribute a newspaper

containing advertisements by setting up a table in the Quad

manned at all times by a student. The student must remain

behind the table and may not approach others to distribute

the paper. Finally, the University permits students to

subscribe to periodicals, which may either be sent through

the mails or directly delivered to the student on campus.

Newspapers containing commercials may be

distributed on campus only through these three methods of

distribution. The University Star, a University-owned

newspaper run by the students in the Journalism

Department, is not subject to any of the University’s

otherwise applicable restrictions, despite the fact that it

contains advertisements. Most of the Star's budget derives

from advertising revenues, but the Star is also funded in part

by mandatory student fees. The Sar’s method of distribution

is determined by the Star’s staff and the Journalism

Department Faculty, who distribute the paper at about forty

drop-off sites and newsracks throughout the campus.

The Guardian was notified of this new policy on

October 10, 1989, when Tom Burdenski, an assistant director

of the student center, wrote to the Guardian to warn the

paper that it had improperly distributed copies of the

Guardian in "academic departments, inside the student

center, and the Quad Area." The letter informed the

Guardian that "[n]ewspapers may be circulated on campus in

one of two ways"--through the covered newsstands at

designated locations and through subscriptions "arranged by

the university department in advance" that are either directly

delivered or sent through the mail. Similar letters were sent

to seven other periodicals that had apparently violated the

University’s newspaper distribution policy.

The Guardian published Burdenski’s letter in their

paper. Despite Burdenski’s warning, the Guardian continued

to deliver its paper on campus. Burdenski sent a second

letter repeating the University’s restrictions on newspaper

distribution and threatening to refer "further violations . . . to

the University Attorney for appropriate action." The

Guardian’s advertising revenue dried up, and the newspaper

ceased publication.

II.

The district court found that the rules contained in the

Board of Regents’ regulations and the University’s Operating

Letter Number 9.05 did not violate the Guardian’s and

students’ rights under the First Amendment. This conclusion

is a mixed question of fact and law that we review de novo.

International Society for Krishna Consciousness v. Baton

Rouge, 876 F.2d 494, 496 (Sth Cir. 1989).

It is undisputed that the speech in

question--distribution of a newspaper containing political and

social commentary and reportage--is protected speech.

Heffron v. International Society for Krishna Consciousness,

Inc., 452 U.S. 640 (1981). There is also no contention that

the government must hold open all government-owned or

government-controlled property to all forms of speech. See

Comelius v. NAACP Legal Defense & Educ. Fund, 105 S.Ct.

3439, 3447 (1985). The parties concede, as they must, that

a speaker’s right to access government property is

determined by the nature of the property or "forum." Perry

Educ. Ass’n v. Perry, Local Educators’ Ass’n, 460 U.S. 37, 103

S.Ct. 948 (1983).

The right of access to government-owned property for

expressive activity is greatest when the property is a "public

forum." Government property is a "traditional public forum"

if the property has traditionally been used by the public for

purposes of assembly and debate. Perry Educ. Ass’n, 103

S.Ct. at 955. See also United States v. Kokinda, 110 S.Ct.

3115, 3119 (1990). The government may also create public

fora on property not traditionally used for public expression

by intentionally opening it for public discourse. Jntemational

Soc'y for Krishna Consciousness, Inc. v. Lee, 60 U.S.L.W.

4749, (June 26, 1992).

The government may designate a forum for the public

at-large or only for certain speakers or for the discussion of

only certain subjects. Comelius, 105 S.Ct. at 3449; Perry

Educ. Ass’n, 103 S.Ct. at 955 n.7. In each case, speech for

which the forum is designated is afforded protection identical

to the protection provided to speakers in a traditional public

forum. Kokinda, 110 S.Ct. at 3119.

Regulation of expressive activity on property that has

been made available for public expression is limited.

Content-based restrictions must be necessary to serve a

compelling state interest and be narrowly drawn to achieve

that end. Significantly, even content-neutral restrictions must

be narrowly tailored to serve a significant government

interest and leave open ample alternative channels of

communication. Frisby v. Schultz, 108 S.Ct. 2495, 2499-501

(1988); International Society for Krishna Consciousness22, 876

F.2d at 497.

The government may reasonably limit speech in a

non-public forum as long as the limitation is "not an effort to

suppress expression because public officials oppose the

speaker’s view." International Soc’y for Krishna Consciousness,

879 F.2d at 494. Even a complete prohibition on speech is

permissible if the prohibition is reasonable and

content-neutral. /d.

The district court found that the campus of Southwest

Texas State University is not a public forum by either

tradition or government design. We disagree. The

undisputed facts show that the outdoor grounds of the

campus such as the sidewalks and plazas are designated

public fora for the speech of university students.

The Supreme Court has noted that the "campus of a

public university, at least for its students, possesses many

characteristics of a public forum." Widmar v. Vincent, 454

U.S. 263, 267 n.5 (1981). See also Healy v. James, 408 U.S.

169, 180 (1972). Roughly 5,000 students live and work on

the campus, making the campus, in the words of the

University’s own promotional booklet, a "town" of which the

resident student will be a "contributing citizen" and "voting

member." The campus’s function as the site of a community

of full-time residents makes it "a place where people may

enjoy the open air or the company of friends and neighbors

in a relaxed environment," Heffron v. International Soc’y for

Krishna Consciousness, 101 S.Ct. 2559, 2566 (1981), and

suggests an intended role more akin to a public street or

park than a non-public forum. See Hague v. CIO, 307 U.S.

496, 515 (1939).

Southwest Texas State University’s written policies

further support the conclusion that the University intended

the campus to serve as a public forum for its students. The

Board of Regents’ Rules state that:

"Any group or person, whether or not a

student or employee, and whether or not

invited by a registered student, faculty, or staff

organization, may assemble and engage in free

speech activities on the grounds of the campus.

However, the University President or an

authorized designee may adopt reasonable

nondiscriminatory regulations as to time, place,

and manner of such activities. The President,

or the authorized designee, may prohibit such

activities if it is determined, after proper

inquiry, that the proposed speech constitutes a

clear and present danger to the University’s

orderly operation as defined in Subsection 4.4

below."

Interpreting this general policy of protecting “free speech

activities" on campus, Southwest Texas State University’s

Operating Letter 9.06, § 2.02 allows any "student or an

organization [to] publicly distribute outdoors, on grounds

owned or controlled by the University, petitions, handbills, or

pieces of literature that are not obscene, vulgar,or libelous or

that do not contain impermissible solicitation.". (Emphasis

added).

The University requires only that the literature being

distributed "identify the student or organization distributing

it" and that the distribution not interfere with "free and

unimpeded flow of pedestrian and vehicular traffic or disturb

. academic, institutional, or other approved activities."

The clear implication of the Operating Letter is that the

University intends its outdoor grounds to be a forum for

student distribution of literature.

Finally, we note that the University authorizes the

widespread distribution on campus of the University Star, the

newspaper owned by Texas Southwest State University and

controlled by student editors. The Star, like the Guardian,

carries editorials, news stories, and advertisements.

All of this evidence compels the conclusion that the

University deliberately fosters an environment in which

students may freely distribute newspapers, pamphlets, and

other literature concerning public affairs "outdoors, on

grounds owned or controlled by the University," subject to

the limits necessary to preserve the academic mission and to

maintain order.

Defendants argue that the outdoor grounds of the

University cannot be a designated public forum, because the

University has not allowed unrestricted access to the campus,

even by students. Government property, however, does not

automatically cease to be a designated public forum because

the government restricts some speech on the property.

Otherwise, the restriction of speech on government property

would be self-justifying. The restriction would disprove any

intent to create a designated public forum, and the failure to

create a public forum would justify the restriction of speech.

The Supreme Court has not adopted such circular

reasoning. See Estiverne v. Louisiana State Bar Ass’n, 863

F.2d 371, 378 n.9 (Sth Cir. 1989). Rather, the Court looks to

whether the government was motivated by "an affirmative

Ni laa ak, —— ijn oe ae

desire," Cornelius, 105 S.Ct. at 3450, or “express policy," /d.

at 3449, of allowing public discourse on the property in

question. Such a general policy of open access does not

vanish when the government adopts a specific restriction on

speech, because the government’s policy is indicated by its

consistent practice, not each exceptional regulation that

departs from the consistent practice. Stewart v. District of

Columbia Armory Bd., 863 F.2d 1013, 1017 (D.C. Cir. 1988).

The University authorizes students to distribute by

hand literature on matters of public concern on the outdoor

parts of the campus. Restricting distribution of newspapers

with commercials was an anomalous departure from the

general policy of protecting speech such as the political

reportage and commentary in the Guardian. This departure

did not alone redefine the forum. We conclude that the

district court erred in finding that the university is not a

limited public forum, designated for the speech of students.

Having found that the University’s outdoor premises

are a designated public forum, we must ascertain whether the

regulations impermissibly restrain free expression. We will

assume arguendo that prohibiting the handing out of

newspapers containing advertisements on campus does not

discriminate on the basis of content. Even so, we find that

the anti-solicitation regulations cannot be applied to forbid

an individual student from handing out a newspaper solely

because that paper contains advertisements.

. Even a content-neutral regulation of speech on a

public forum must be narrowly tailored to serve a significant

government interest and must leave open ample alternative

channels of communication. Ward v. Rock Against Racism,

109 S.Ct. 2746, 2753 (1989); Clark v. Community for Creative

Non-Violence, 104 S.Ct. 3065, 3069 (1984). A regulation is

"narrowly tailored" when it does not "burden substantially

more speech than is necessary to further the government's

legitimate interests." Ward, 109 S.Ct. at 2758. At a

minimum, a regulation cannot be narrowly tailored unless the

cost to speech is "carefully calculated" and the fit between

al0

the burden and the state interest is "reasonable." Bd. of

Trustees of State University of New York v. Fox, 109 S.Ct. 3028,

3035 (1989). The government bears the burden of

establishing that the regulations are reasonable. /d. Even a

legitimate government interest cannot justify a restriction if

the restriction accomplishes that goal at an inordinate cost to

speech.

The University’s anti-solicitation provision contained

in the University’s Operating Letter 9.05 prohibits a student

from handing out a free newspaper with advertising on

campus unless that student belongs to a registered student

group that has agreed to "sponsor" the paper. Even then,

the student group sponsoring the paper must distribute the

paper only from a manned table and may not hand the paper

to passing students. These restrictions do not apply to the

Star or to any publication without advertising.’

This restriction on the distribution of newspapers is

not de minimis. It forecloses one medium of distribution for

newspapers with commercials--individual students’

distribution of unsponsored papers by hand. Registered

student groups could "sponsor" papers, a service for which

the group would generally demand a fee. However, an

individual student volunteer, lacking a student group’s

sponsorship, is prohibited from handing out free copies of

the Guardian to other students while on campus.

Moreover, the anti-solicitation policy restricts an

individual’s ability to hand out political commentary to the

passing public. This medium of communication is

traditionally afforded great protection under the First

Amendment because of its value to "poorly financed causes

of little people." Martin v. Struthers, 319 U.S. 141, 146

(1943). See also Lovell v. City of Griffin, 303 U.S. 444, 454

(1938) (pamphlets and leaflets "have been historic weapons

in the defense of liberty, as the pamphlets of Thomas Paine

The Dean of Students, Dr. Garrison, agreed at trial that, “if I’ve got

a newspaper that does not contain any advertising in it and I’m a student,

I can distribute it anywhere on campus.”

all

and others in our own history attest"). The undisputed

testimony was that handing out the Guardian on campus was

a more effective medium of delivery than distribution

through newsstands. Even a content-neutral restriction on

such a basic and traditional medium of distribution cannot be

justified by trivial gains in convenience or insignificant

reductions of litter. Schneider v. State, 308 U.S. 147, 164

(1939). See also Geoffrey Stone, Content-Neutral Restrictions,

54 U. Chi. L. Rev. 46, 95 (1987). Of course, the Guardian

could avoid these restrictions by not printing commercials.

Without commercials, however, the Guardian could not meet

expenses.

The district court found that the restrictions on the

Guardian’s distribution advanced several interests including

preserving the academic environment and security, protecting

privacy, traffic control, preserving the campus’s appearance,

preventing fraud and deception, and eliminating unnecessary

expenses.

There is no substantial evidence that a student’s

handing out of a free student newspaper would affect the

University’s academic mission or the rate of crime on

campus. The handing out of a political newspaper filled with

editorials and reportage about matters of public concern is

compatible with the University’s academic mission.

The University has a legitimate interest in preventing

litter, congestion, and invasions of privacy on campus.

Handing out a newspaper on campus might increase the risk

of litter, cause more congestion, and lead to students

approaching other students who do not wish to be

approached. However, the burden is on defendants to show

affirmatively that their restriction is narrowly tailored to

protect the identified interests. Fox, 109 S.Ct. at 3035;

Multimedia Publications v. Greenville-Spartanbura Airport, 774

F.Supp. 977, 985 (D.S.C. 1991).

Defendants failed to carry this burden. They darkly

warn in their brief that, because "approximately fifty papers

are distributed [from newsstands on campus]," allowing

newspapers to be distributed free of charge on the campus

would "seriously impact access to buildings, create an

al2

excessive litter problem, and create a bazaar-like atmosphere

on campus." This statement about "fifty newspapers,"

misrepresents the _ record. There were forty-eight

newsstands--not newspapers--on the campus at five different

locations. Each had newsstands containing the same major

Texas and national papers--USA Today, The New York Times,

Wall Street Journal, The Houston Post, San Antonio Light,

Dallas Morning News. There was no evidence that these

papers are handed out on campus.

Assuming that the University faced some marginal

increase of litter, congestion, and unwelcome advances by

over-zealous, newspaper-wielding students, there is no

substantial evidence that the anti-solicitation regulations were

reasonably well fitted to preventing these ills. If the

University wishes to prevent litter, it should prohibit littering.

Schneider v. State, 308 U.S. 147, 162 (1939). If it wishes to

prevent overcrowding, then the University should regulate

the time and place of students who hand out papers on the

campus to prevent congestion. Cf. Lee, 60 U.S.L.W. at

(O’Connor, J., concurring). If the University wants

to prevent obstreperous distribution of the papers, then it

should forbid students from pressing their publications on

unwilling recipients. Martin v. Struther, 318 U.S. 141, 148

(1943). Prohibiting students from handing out free

“unsponsored"” newspapers on the grounds that the

newspapers include an advertisement, no matter how willing

the recipient or how neat and circumspect the distributor, is

not a narrow tailoring to protect identified interests.

The speculative nature of the threat from litter and

congestion is illustrated by the fact that the University freely

allows distribution of publications that do not contain

"solicitation," defined as an “offer for sale of any property or

service" or "receipt of or request for any gift or contribution."

Students may, in the University’s judgment, pass out

pamphlets, announcements, artwork, or any other literature

not containing commercials without overwhelming the

campus with litter or congestion. Allowing the same students

to include a single advertisement in identical literature to

defray the printing expense would, it is said, impede "access

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to buildings, create an excessive litter problem, and create a

bazaar-like atmosphere on campus." There is no record

evidence that publications with commercials create

significantly more litter and congestion than publications

without. We do not find such a conclusion intuitively

obvious.

The University places no restriction on the University

Star, a paper that contains a greater number and density of

advertisements than the Guardian. 12,000 copies of each

issue of the Star were distributed on the campus. This

underinclusiveness cuts against the assertion that restricting

commercialism on campus was an interest of paramount

importance to the University--or at least an interest that

required a flat prohibition on an entire medium of

distribution. See The Florida Star v. B.J.F., 109 S.Ct. 2603,

2612-13 (1989) (Scalia, J., concurring) (prohibition on mass

media that is not applied to other forms of communication,

cannot be regarded as protecting interests of highest order,

because "it leaves appreciable damage to that supposedly

vital interest unprohibited"); United States v. Gilbert, 920 P.2d

878, 885 (llth Cir. 1991) ("an injunction that prohibits

[appellant] from engaging in expressive conduct (on a public

forum] that others are free to engage in clearly cannot

withstand strict scrutiny").

Aside from litter, congestion, and invasions of privacy,

defendants argue that "the restrictions of commercial

materials is [sic] necessary to maintain the academic

environment," because "unlimited distribution of newspapers,

coupons, flyers, and the like throughout campus would create

a circus atmosphere, destroying the unique quality of the

University campus." We can assume without deciding that

*The Guardian generally contained less than fifteen advertisements

of local businesses per eight-page issue. By contrast, the Star ran full

pages of advertisements containing well over twenty ads from local

businesses, not to mention a page of classified advertisements. In

addition, the Star sometimes included a separate national, full-color

insert containing advertisements targeted toward University students.

al4

the University may have interests sufficient to justify

restrictions on commercial speech, because speech that does

little more than propose a commercial transaction occupies

a subordinate position in the hierarchy of First Amendment

values. Fox, 109 S.Ct. at 3032.

However, little follows here from such an assumption,

because the Guardian is not commercial speech. It is speech

about matters of highest public concern--political and

economic reform and the local and _ international

environment. The advertisements in the Guardian were

included to finance the _ publication. Under such

circumstances, commercial speech was inextricably linked to

the newspaper’s non-commercial speech, making the whole

paper noncommercial. Riley v. National Federation of the

Blind, 108 S.Ct. 2667, 2677 (1988). If the purpose of the

University’s regulation is to limit commercial speech, then it

is overbroad when applied to newspapers like the Guardian.

At the same time, commenting on public issues in the context

of a commercial transaction does not elevate speech from

commercial to political rank. See Bolger v. Youngs Drug

Products Corp., 103 S.Ct. 2875, 2881 (1983).

Defendants emphasize another interest. As the Dean

of Students testified, the anti-solicitation policy served to

protect the students from “unwarranted hawking [of] every

Tupperware Salesperson, pots and pans salesman in... .

town."

We recognize that government may have an interest

in restricting commercial solicitation of passers-by to prevent

disruption of traffic and harassment by insistent hawkers.

Soc’'y for Krishna Consciousness, 876 F.2d at 497 (citing

Heffron, 101 S.Ct. at 2567). See also Lee, 60 U.S.L.W. at __

; ACORN v. City of Philadelphia, 798 F.2d 1260, 1269 (9th

Cir. 1986). Glover v. Cole, 762 F.2d 1197, 1202 (4th Cir.

1985). Because solicitation requires purchasers or

contributors to stop, listen to a sales pitch, and then produce

a payment or contribution, it "can prove more disruptive of

order and crowd control" than simple distribution of

literature. Jnternational Soc'y for Krishna Consciousness, 876

F.2d at 497. See also Kokinda, 110 S.Ct. at 3123. Moreover,

al5

face-to-face solicitation "presents risks of duress that are an

appropriate target of regulation." Lee,60 US.L.W. at.

Neither of these concerns is implicated by the handing

out of a paper gratis. The passer-by’s response to the

distributor of a newspaper is simply to take or reject the

paper. She need not stop and disrupt traffic. When the

distributor does nothing more than proffer a paper for which

no compensation is asked, there is also little risk of

fraudulent over-reaching. The need to restrict hawking and

sales, therefore, does not justify the restrictions on the

Guardian. In fact, this court has found restrictions on

solicitation narrowly tailored precisely because they did not

restrict "oral advocacy, distribution of literature, or other forms

of communication and expression." Soc’ jor Knshna

Consciousness, 876 F.2d at 498 (emphasis added). See also

Lee, 60 US.L.W. at _— — (O'Connor, J., concurring)

(distinguishing solicitation from distribution of literature).

Finally, defendants state that the University has a

valid educational interest in protecting the Star from

competition from other newspapers. According to

defendants, this serves "a legitimate state interest--education

of the students enrolled in the journalism program."

This argument rests on the assumption that a

University may enhance the popularity of its own publication

by burdening the distribution of other publications. "[T]he

concept that government may restrict the speech of some

elements of our society in order to enhance the relative voice

of others is wholly foreign to the First Amendment." Buckley

v. Valeo, 424 U.S. 1, 48-49 (1976). Proper time, place, and

manner requirements "do not discriminate among speakers or

ideas" and "further an important governmental interest

unrelated to the restriction of communication." Id. at 18

(emphasis added). The restriction of newspapers other than

the Star cannot be justified by the University’s desire to

curtail the restricted newspapers’ popularity.

Defendants argue that the University need not give

students and non-students equal access to the University

campus. This assertion is true. Perry Educ. Ass’n, 103 S.Ct.

at 954. However, plaintiffs do not contest the University’s

al6

exclusion of nonstudents from campus. They challenge the

anti-solicitation regulation’s application to students who wish

to distribute the Guardian to other students or, for that

matter, wish to distribute their own paper containing

commercials."

In sum, we hold that the University may not enforce

its antisolicitation policy contained in either Operating Letter

9.05 or in applicable rules of the Board of Regents to

restrain the distribution of the Guardian on the outdoor

grounds of the campus. The Guardian is entitled to the same

access to the University campus given to publications

distributed without charge that do not contain commercials.

We express no opinion about the constitutionality of other

time, place, and manner restrictions.

III.

Plaintiffs also contend that the University’s regulations

are facially unconstitutional because they bestow unlimited

discretion on the Dean of Students to limit the distribution

of newspapers on campus. Plaintiffs point to Section 2.02(a)

~ Of Operating Letter 9.05, which provides for the "sale or

offer for sale of any newspaper, magazine, or other

publication by means of a vending machine or distribution

stand in an area designated in advance by the Dean of

Students (or designee) for the conduct of such activity.’

‘Several University students have worked on the Guardian's staff as

writers.

‘The plaintiffs also point to an internal 1977 memo from the

Dean of Student Life, Dr. Joseph Belvilaqua, to the Director of Student

Development. In this memo, Dr. Belvilaqua states that

"I will ultimately be responsible for making decisions

regarding the reasonableness, taste, decency, etc. of such

publications [i.e., publications covered by the oncampus

solicitation Operating Letter] for distribution

on-campus. As you well know, decisions regarding such

al7

Plaintiffs contend that this discretion to designate areas for

newsstands violates the First Amendment. We disagree.

In challenging the discretion given to the Dean of

Students in designating newsstands, plaintiffs rely on City of

Lakewood v. Plain Dealer, 108 S.Ct. 2138 (1988). In Plain

Dealer, a newspaper challenged facially a municipal

ordinance requiring the newspaper to obtain a license

annually in order to place a newsstand on city-owned

sidewalks. The ordinance delegated to the mayor the

decision to grant or deny applications for newsstand permits,

but provided no standards to guide the mayor’s discretion.

Justice Brennan, writing for four members of the

Court, stated that "a facial challenge lies whenever a licensing

law gives a government official or agency substantial power

to discriminate based on the content or viewpoint of speech

by suppressing disfavored speech or disliked speakers." Plain

Dealer, 108 S.Ct. at 2145. The Court held that the City

ordinance was facially unconstitutional, because it gave

unbridled discretion to the mayor to deny individual

newspapers’ applications for newsstand licenses.

The University regulation in this case is distinguishable

from the City ordinance in Plain Dealer. The City ordinance

gave the mayor discretion to "permit[] communication by

some but not for others": the mayor could grant or deny

individual publications’ applications for a license to erect a

newsstand on the sidewalk. It was this ability to discriminate

among different publications that "raise{[d] the specter of

content and viewpoint censorship." Plain Dealer, 108 S.Ct. at

2147.

Standards are usually based upon broadly stated

regulations; and I will depend on you and the staff

members in helping arrive at decisions in approving or

disapproving certain items from time to time."

This internal memo, however, says little about the discretion to restrict

speech allowed by the University’s regulations. The plaintiffs presented

no evidence that Dr. Belvilaqua’s interpretation of the regulations was

ever promulgated or enforced.

al8

By contrast, the Dean’s discretion extends only to the

initial designation of areas of the campus reserved for

newsstands. Once such areas have been designated, the

record suggests that any newspaper could place its stand in

the area without further approval from the Dean*" Because

the University regulation provides no opportunity to

discriminate among different publications, the Dean’s

discretion under the regulations does not implicate Plain

Dealer’s concerns about content discrimination.’ Plaintiffs’

facial attack on the Dean’s discretion to designate areas for

newsstands is without merit.

IV.

Plaintiffs contend that the University’s funding of the

University Star with student fees violated their First

Amendment right not to subsidize views with which they

disagree. We disagree.

It is well-established that the freedom of speech and

association protected by the First Amendment includes the

freedom to choose “both what to say and what not to say."

Riley v. National Federation for the Blind, 108 S.Ct. 2667, 2677

(1988) (emphasis in original). See also Wooley v. Maynard,

430 U.S.705 (1977). This right to refrain from speech is

violated when the government compels an individual to

endorse a belief that she finds repugnant. West Virginia State

Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). It also

may be violated when the government compels an individual

to subsidize "political and ideological purposes," Lyng v.

°The letters sent to various newspapers warning them not to distribute

their papers by hand on campus, state without qualification that “you may

place newspaper dispensers in the [designated areas]."

"Each approved location for newsstands was approved for a limited

number of stands. If the spaces for stands were exhausted at the

approved locations, then the Guardian wouid have to apply for additional

space on which to place a stand. However, there is no evidence in this

record that the space at the approved locations was inadequate to

accommodate the Guardian’s stand.

al9

International Union, United Auto Workers, 108 S.Ct. 1184,

1191 (1988), with which she disagrees. Chicago Teachers

Union Local No. 1 v. Hudson, 106 S.Ct. 1066, 1073 (1986);

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977).

The government does not, however, violate the First

Amendment whenever it forces an individual to subsidize

speech. Any such position would implicate many state

subsidies for public universities, for free speech is at the

heart of teaching and universities by definition support

speech--often extremely controversial speech. See Widmar,

454 US. at 278-79, 102 S.Ct. at 279 (Stevens, J., concurring).

Rather, the First Amendment prohibits the government from

forcing an individual to contribute to the ideological

expression of other private citizens for the purpose of

advancing those citizens’ ideological biases rather than

substantial public interests.

In Abood, for instance, the Court upheld state

requirements that teachers pay a fee to the union for the

purpose of supporting collective bargaining, even though such

coerced contribution would have "an impact on [the

dissenting teachers’] First Amendment interests." Abood, 431

U.S. at 222. The Court reasoned that the interference with

the employee’s freedom to associate was constitutionally

justified by "the legislative assessment of the important

contribution of the union shop to the system of labor

relations established by Congress." Jd.

The lesson of Abood, therefore, is that the

government may compel an_ individual to subsidize

non-governmental speech when such compulsion

accomplishes the "government'’s vital policy interest." Lehnert

v. Ferris Faculty Ass’n., ill S.Ct. 1950, 1959 (1991). See Carroll

v. Blinken, 957 F.2d 991, 997 (2d Cir. 1992) (citing cases)-

The question here is whether a University-sponsored

newspaper advances an important educational purpose in a

narrowly tailored manner.

We find the University’s educational goals sufficiently

weighty to justify the University’s subsidy of a student-run

newspaper. Such a newspaper allows students to have

first-hand journalism experience difficult to obtain otherwise.

a20

It also creates a forum for public discussion of

University-related issues that can "stimulate uninhibited and

vigorous discussion on matters of campus and public

concern." Carroll, 957 F.2d at 1000. The University Star

"increases the overall exchange of information, ideas, and

opinions on the campus," Kania v. Fordham, 702 F.2d 475,

480 (4th Cit. 1983), and thus advances a central purpose of

the University. Carroll, 957 F.2d at 1001. See also Keyishan

v. Bd. of Regents, 385 U.S.589, 603 (1967) (noting importance

of robust debate to University).

We also find that the University’s financial support for

the student-run newspaper is a narrowly tailored means of

advancing these interests. The record indicates that the

University did not attempt to control the viewpoints

expressed by the newspaper and that there were no

ideological prerequisites for joining the paper’s staff. The

University provided the students with the funds needed for

the students themselves to engage in debate and did not

force ideological conformity. This method of creating a

forum for student expression is a minimally restrictive means

of advancing an educational interest. Kania, 702 P.2d at 480

(upholding university financing of student newspaper through

mandatory fees); Veed v. Schwartzkopf, 353 F. Supp. 149, 152

(D.Neb. 1973) (same).

Plaintiffs contend that the University "exercises

considerable control over the views expressed in the Star."

We find no evidence of such control in the record. On the

contrary, the record shows that the Svar attacked the

Univers*y’s administration vigorously, in one cartoon

comp:ig that administration to the South African

governinent. The University appointed a_ faculty

representative from the Journalism Department to assist in

the paper’s publication, but there is no evidence that the

faculty adviser controlled the newspaper’s content.

Plaintiffs rely heavily on the Third Circuit’s opinion in

Galda v. Rutgers University, 772 F.2d 1060 (3d Cir. 1985), in

which the court held that Rutgers University could not

subsidize the New Jersey Public Interest Research Group

with mandatory student fees. Galda has little relevance to

a2l1

this case. First, we note that the Second Circuit has rejected

Galda. Carroll v. Blinken, 957 F.2d 991, 1001 (2d Cir. 1992)

(holding that State University of New York can subsidize

New York Public Interest Research Group’s on-campus

activities with mandatory student fees).

Second, Galda is distinguishable from this case.

Galda is explicitly limited to mandatory fees used to finance

"an independent outside organization that espouses and

actively promotes a political and ideological philosophy."

Galda, 772 F.2d at 1064. The court noted that "there is a

distinction between PIRG and student organizations . . .

funded through the student activity fee" because the latter

provided a forum for University students to engage in "the

expression of differing views." Jd. (quotations omitted)- By

contrast, PIRG’s purpose was not to provide students with a

forum for expression but rather to advance a particular

political agenda both on and off campus.

In its final judgment, the district court held that the

Eleventh Amendment, as interpreted by Pennhurst State

School and Hospital v. Halderman, 465 U.S. 88 (1988), barred

it from considering plaintiffs’ state-law claims for monetary

relief. The district court was also "persuaded that these

claims should be remanded rather than dismissed to avoid

-any limitations problems." The district court, therefore,

remanded the state-law damages claims to state court.

Plaintiffs urge that the district court erred in finding

that it lacked jurisdiction over the state-law claims.

Defendants respond that 28 U.S.C. § 1447(d) bars this court

from reviewing the district court’s remand of plaintiffs’

state-law claims. We find that § 1447(d) presents no bar to

our review of the district court’s final judgment, including its

remand of the state-law claims. We also find, however, no

error in the district court’s remand of plaintiffs’ state-law

claims to state court.

28 U.S.C. § 1447(d) Provides, in relevant part, that

"[a]n order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise. . .

a22

." § 1447(d), however, does preclude all review of remand

orders. Rather, § 1447(d) only bars review of remand orders

authorized by 28 U.S.C. § 1447(c). In Re Shell Oil Co., 932

F.2d 1518, 1521 (Sth Cir. 1991). § 1447(c) Provides that "[iJf

at any time before final judgment it appears that the district

court lacks subject matter jurisdiction, the case shall be

remanded" (emphasis added).

By its terms, the district court’s remand in this case

did not occur "before final judgment." Rather, the remand

was part of the final judgment on the merits. Therefore, the

remand was not authorized by § 1447(c) and is not covered

by § 1447(d). In re Carter, 618 F.2d 1093, 1098-99 (Sth Cir.

1980), cert. denied sub nom. Sheet Metal Workers’ Int’l Ass’n

v. Carter, 450 U.S. 949 (1981) (remand to state court after

final judgment not authorized by § 1447(c) and therefore not

covered by § 1447(d)). See also Joan Steinman, Removal,

Remand, and Review in Pendent Claim and Pendent Party

Cases, 41 Vand. L. Rev. 923, 1000-1002 (1988). § 1447(d)

presents no bar to our consideration of the district court’s

remand order.

We also find no error in the remand of the state-law

claims against defendants in their official capacities. In

Pennhurst, the Supreme Court held that the Eleventh

Amendment bars pendent statelaw claims from being

brought in federal court against the state. The district court

thus lacked jurisdiction to hear the state-law claims against

defendants in their official capacity. It properly remanded

these claims. Carmegie-Mellon University v. Cohill, 108 S.Ct.

614 (1988).

The Eleventh Amendment does not bar state-law

actions against state officials in their individual capacity.

Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974); Spruyette v.

Walters, 753 F.2d 498, 512-13 (6th Cir. 1985), cert. denied, 474

U.S. 1054 (1986). Nonetheless, once the state-law claims

against defendants in their official capacity had been

remanded to state court, the district court properly remanded

the same. state-law individual-capacity claims as well. Under

28 U.S.C. § 1367(c)(4), the district court may decline to

exercise supplemental jurisdiction over a claim if, "in

a23

exceptional circumstances, there are . . . compelling reasons

for declining jurisdiction."

We find such “exceptional circumstances" and

“compelling reasons" here. Adjudicating state-law claims in

federal court while identical claims are pending in state court

would be a pointless waste of judicial resources. The district

court’s decision to dismiss the state-law claims entirely, rather

than retain jurisdiction over the individual-capacity claims

while the official-capacity claims were being adjudicated in

state court, was within the court’s discretion under 28 U.S.C.

§ 1367(c)(4),

VI.

Although we agree with plaintiffs that the university’s

antisolicitation policy as applied to newspapers with

commercials violated plaintiffs’ First Amendment right to

free speech, we do not agree that defendants are liable for

monetary damages or attorney’s fees in their individual

capacities. Defendants are protected from such a remedy by

their qualified immunity as government officials.

A defense of qualified immunity can be overcome

on|y if an objectively reasonable officer would know that his

conduct was illegal given the facts available to him at the

time of his action and the law that was clearly established at

the time of the alleged illegal acts. Anderson v. Creighton,

107 S. Ct. 3034, 3039 (1987); Harlow v. Fitzgerald, 102 S. Ct.

2727, 2738 (1982). The University’s Operating Letter 9.05

became effective on January 15, 1988. Shortly before this

date, similar University regulations had been upheld by a

district court in this circuit. Texas Review Society v.

Cunningham, 659 F.Supp. 1239 (1987).

The regulations upheld in Texas Review Society

prohibited students at the University of Texas at Austin from

handing out newspapers containing commercials in the area

where student organizations maintained tables for

distribution of literature. Such newspapers could be

distributed only from unmanned newspaper racks. The

district court held that these regulations were a narrowly

tailored means of protecting the campus "from pollution by

a”

a24

commercial hawking and solicitation." Texas Review Society,

659 F.Supp. at 1245.

We express no opinion about whether Texas Review

Society was correctly decided. However, the regulations

upheld in Texas Review Society were sufficiently similar to the

regulations at issue here that it cannot be said that

defendants violated clearly established law at the time that

they enforced the University’s antisolicitation policy against

the Guardian.

Therefore, defendants’ defense of qualified immunity

bars an award of monetary damages or attorney’s fees

against defendants in their individual capacity. McNamara v.

Moody, 606 F.2d 621, 626-27 (Sth Cir. 1979). Plaintiffs are

entitled to prospective declaratory and injunctive relief

barring the enforcement of the University’s anti-solicitation

policy to restrict the distribution of the Guardian. They may

also be entitled to an award of attorneys’ fees from the

University. Jackson v. Galan, 868 F.2d 165, 168 (5th Cir.

1989).

AFFIRMED in part, REVERSED and REMANDED

in part for further proceedings consistent with this opinion.

a25

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CIVIL NO. A-90-CA-203

HAYS COUNTY GUARDIAN, ET AL.

vs.

JEROME K. SUPPLE, ET AL.

FINAL JUDGMENT

In accordance with the Findings of Fact and

Conclusions of law entered this date, the Court enters its

final Judgment:

IT IS ORDERED, ADJUDGED AND DECREED that

Plaintiffs’ claims under the Sherman Act, the Texas Business

and Commerce Act, the Texas Civil Practice and Remedies

Code, and the Texas Constitution are hereby REMANDED

to the 201st Judicial District Court of Travis County Texas.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Plaintiffs take nothing from Defendants

on their remaining claims.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that costs be borne by the party incurring the

same.

SIGNED this 26th day of February, 1991.

[s/ WALTER S. SMITH, JR.

WALTER S. SMITH, JR.

UNITEDSTATES DISTRICT JUDGE

a26

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIViSION

CIVIL NO. A-90-CA-203

HAYS COUNTY GUARDIAN, ET AL.

VS.

JEROME K. SUPPLE, ET AL.,

AMENDED FINAL JUDGMENT

In accordance with the Findings of Fact and

Conclusions of law previously entered by this Court, the

Court enters its Final Judgment:

IT IS ORDERED, ADJUDGED AND DECREED that

Plaintiffs’ claims under the Texas Business and Commerce

Act, the Texas Civil Practice and Remedies Code, and the

Texas Constitution are hereby REMANDED to the 201st

Judicial District Court of Travis County, Texas.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Plaintiffs take nothing from Defendants

on their remaining claims. IT IS FURTHER

ORDERED, ADJUDGED AND DECREED that costs be

borne by the party incurring the same.

SIGNED this 20th day of March, 1991.

/s/ WALTER S. SMITH, JR.

WALTER S. SMITH, JR.

UNITED STATES DISTRICT JUDGE

a27

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CIVIL NO. A-90-CA-203

HAYS COUNTY GUARDIAN, ET AL.

VS.

JEROME K. SUPPLE, ET AL.,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came on for trial before the Court on

December 18 through 19, 1990. The Court, having

considered the testimony of the witnesses and all of the

exhibits and evidence introduced, as well as the post-trial

briefs presented by counsel, issues its Findings of Fact and

Conclusions of Law.

I. INTRODUCTION

This action was originally filed in state court and was

removed by the Defendants on March 14, 1990. The original

defendants included Southwest Texas State University

("SWTSU") and the State University System Board of

Regents; however, these Defendants were remanded because

of the jurisdictional bar of the Eleventh Amendment. The

remaining defendants are Jerome H. Supple, President of

SWTSU; Tom Burdenski, Assistant Director of the Lyndon

a28

Baines Johnson Memorial Student Center at SWTSU; Daniel

N. Matheson, W. C. Perry, Lee Drain, G. W. Worth, Jr.,

Edmund Longcope, III, Daniel Ouellete, Jack L. Martin,

Sheila Wheatley Clark, and Norman Dwight Elder, regents

or former regents of the Texas State University System.

These defendants have been sued in both their individual and

official capacities.

Basically, the Plaintiffs complain that the Defendants

have infringed upon their Constitutional rights by enacting

and enforcing university regulations which restrict the Hays

County Guardian’s (the "Guardian") access to SWTSU. The

regulations at issue require that newspapers such as the

Guardian be distributed on campus only by use of newspaper

racks placed in designated location or by mail subscription.

Exempted from these regulations is the University Star (the

"Star"), the newspaper published by the journalism students

at SWTSU.

Plaintiffs Demaree, Dodd, and Ptak, Officially

registered students at SWTSU, further complain that their

rights have been violated because they have been denied

access to the Guardian and because they are forced to

support the editorial policies of the star through a mandatory

subscription extracted from their student service fees.

Plaintiffs assert claims under the First and Fourteenth

Amendments to the United States Constitution, and Article

I, § 8 of the Texas Constitution, based upon violations of free

speech and free press. The Plaintiffs also claim these acts of

the Defendants violate §§ 1, 2 and 15 of the Sherman Act,

and § 15.21 of the Texas Business and Commerce Clause,

because the alleged actions of the Defendants have resulted

in economic injury to their business, and because the

Defendants’ actions represent an attempt to monopolize

control over the newspaper market at SWTSU. Plaintiffs

finally assert that the Defendants’ actions constitute a

violation of Article I, §§ 3 and 3a of Chapter 104 of the

Texas Civil Practice and Remedies Code.

Plaintiffs seek a declaratory judgment that the

Defendants’ actions are illegal and unconstitutional.

Plaintiffs also seek to enjoin the Defendants from denying

a29

Plaintiffs equal access to the campus, as well as an award of

nominal, compensatory, treble and punitive damages from

each Defendant who acted in his or her individual capacity

and from Defendants in their official capacities under

Chapter 104 of the Texas Civil Practice and Remedies Code.

The Defendants assert that SWTSU is not a public

forum, and that the regulations placed upon distribution of

newspapers on the SWTSU campus are content-neutral and

constitute reasonable time, place, and manner restrictions.

Defendants allege that the regulations are necessary to

"prevent disruption of the academic mission of the

University." The Defendants assert that the Star is not

subject to editorial control by the University and that it is

exempt from the regulations in order to give the journalism

students a full opportunity to learn the business of publishing

a newspaper.

II]. FINDINGS OF FACT

A. The parties have stipulated to the following

findings of fact:

1. Plaintiffs Hays County Guardian, Jeffrey

Stefanoff, Vicki Hartin, Webb Branen, Joe Gaddy, Robert

Martinez, and John Demaree (the "newspaper plaintiffs")

cooperatively own and publish the Hays County Guardian

(the "Guardian"), an independent newspaper concerned with

“environmental and peace and social justice issues."

2. Plaintiffs John Demaree, Jody Dodd and Joe

Ptak (the "student plaintiffs") are students registered at

SWTSU.

3. The Guardian is not sold, but rather is given

away without charge. It does contain certain commercial

advertising to cover its costs.

4. SWTSU is a co-educational institution of higher

education located in San Marcos, Texas.

- SWTSU is situated on a large urban campus

and provides educational training, living facilities and other

services to approximately 22,000 students.

6. SWTSU employs approximately an equal

a30

number of faculty and staff.

7. SWTSU commits itself to contribute to the

greater body of knowledge in specific disciplines through

research, scholarship, and creative expression.

8. SWTSU believes that the primary purpose of

higher education is to promote learning and stimulate inquiry

for truth in an atmosphere of freedom.

9. Accordingly, SWTSU encourages students to

exercise the rights of citizenship.

10. The SWTSU community represents a large

percentage of the Guardian’s readership.

11. The Texas State University System Board of

Regents ("Board of Regents") is the state agency exercising

management and control over Texas State University

meember institutions, including SWTSU.

12. The university rules at issue in this suit were

generally promulgated by the Board of Regents and are

enforced by SWTSU officials.

13. The Board of Regents’ rules and university

policies are set forth in Rules and Regulations of the Board

of Regents, Texas State University System, and in "Operating

Letters” ("OL’s").

14.‘ The decision to enact a proposed OL is made

by the President’s Cabinet and the President.

15. Prior to October 10, 1989, the Guardian was

circulated at various locations on the SWTSU' campus,

including academic departments, the student center, and the

campus expression area (the "Quad Area").

16. On or about October 10, 1989, the Guardian

received a letter from Defendant Burdenski which stated:

Newspapers may be circulated

on campus in one of two ways:

First, by providing a covered

newspaper stand and placing it

along side the other newspaper

racks at the LBJ Student Center,

the bus shelter at Evans Field,

Harris Dining Hall on WeSt

The letter then directed the Guardian that it "either need[ed]

to provide a rack at one of the approved locations, or

arrange delivery by subscription to the department wishing to

receive" the newspaper in order to continue distributing the

newspaper on campus.

Defendants Lillian Dees and John Garrison.

Guardian, Mr. Burdenski relied upon the following rules,

policies, or regulations:

a31

Campus, or the SWT Bookstore.

Second, through a subscription

arranged by the _ university

department in advance and

distributed by direct delivery or

through U.S. mail.

The newspaper rack locations were selected by

In deciding to restrict circulation of the

a. SWT/OL No. 09.05

Effective Date: January 15, 1988

Status: Still in effect

b. Rules and Regulations of the Board of

Regents,

Texas State University System

Adopted: September 1, 1980

Amended: May 26, 1989

Status: Still in effect

o. SWT/OL No. 09.06

Effective Date: May 3, 1989

Status: Still in effect

d. SWT/OL No. 09.20

Effective Date: May 20, 1985

Revised: August 1, 1988

Status: Still in effect

e. SWT/OL No. 09.03

a32

Effective Date:

March 26, 1985

Deleted: June 1, 1989

19. These policies, rules, or regulations pertain to

the following terms:

a. Commercial newspaper -- a newspaper

other than a_ university-owned

publication that is sold or distributed

for commercial purpose.

b. Non-commercial mewspaper -- a

newspaper distributed free of charge

and that contains no commercial

advertisements.

.. Solicitation (commercial advertising) --

the sale or offer for sale of any

property or service, whether for

immediate or future delivery, and the

receipt of or requests for any gift or

contribution.

d. Impermissible solicitation -- solicitation

that violates the Regents’ solicitation

policies and rules. The sale or offer for

sale of any newspaper, magazine, or

other publication by means of a vending

machine or distribution stand in an area

designated in advance by [university

officials} for the conduct of such activity

is not impermissible solicitation.

20. ‘This letter was published by the Guardian in its

October 19 - November 1, 1989 issue.

21. ‘Plaintiffs had been distributing their newspaper,

throughout campus, by various means including hand-to-hand

delivery or leaving them in unattended stacks or boxes.

21. In a second letter addressed to the Guardian,

dated November 27, 1989, Mr. Burdenski wrote that

"University regulations require that newspapers be distributed

aa te

a33

either through a covered newspaper rack in an approved

location or through a prior arranged subscription.

Newspapers may not be handed out to passers-by in the

quad area or anywhere else on campus." Legal action was

threatened if the paper failed to comply.

22. The newspaper plaintiffs are not willing to

subject themselves to arrest or other potential criminal

sanctions in order to distribute the newspaper on campus.

23. | The Star is owned and operated by SWTSU.

It is an academic laboratory for journalism students as well

as a means of expression for students, faculty and staff.

24. The Star is funded through student services fees

and advertising revenues.

25. The Star is distributed by racks in 40 locations

throughout the campus.

26. Distribution locations for the Star were selected

by the paper’s circulation staff, journalism department

officials and the Dean of Students.

27. The locations were selected to serve the needs

of the students and university interests.

28. The Guardian and other publications are

limited to five campus distribution sites and distribution by

mail.’

29. _ Distribution of the Star is not restricted in the

ways set out in the letters of Defendant Burdenski to the

Guardian, and, conversely, the Defendants have placed more

restrictions on distribution of the Guardian than the Star.

30. The Star competes for and _ publishes

commercial advertising identical to the advertising found

within the Guardian.

31. Less than 15% of the Star’s operating budget

is derived from student fees.

32. The remainder of the Star’s operating budget

is obtained through solicitation and sale of commercial

advertisements in direct competition with the Plaintiffs and

‘At trial, the testimony revealed that three additional locations had

been added.

a34

other similarly situated newspaper publishers.

33. | The Star also carries national advertising in the

form of a monthly national campus newspaper insert.

34. Like the Guardian, the Star also takes stands or

positions on world, national, state, local, and university

matters.

35. As a small, independent newspaper, the

Guardian had worked hard through consistent and reliable

publication to develop readership and advertising. The

SWTSU campus represented a large percentage of the

Guardian’s readers.

36. ‘Plaintiffs John Demaree, Jody Dodd, and Joe

Ptak are officially registered students at SWTSU.

37. Plaintiff Demaree is also on the staff of the

Guardian.

38. ‘Plaintiffs Dodd and Ptak have not been

affiliated in any way with the Guardian, other than being

loyal readers.

39. | The Guardian does not demand any particular

- method of distribution.

40. Asa result of Defendants’ actions, Plaintiffs

have been forced to retain counsel to represent them in this

matter.

B. From the evidence introduced at. trial, the

Court makes the additional findings of fact.

1. The Board of Regents of the Texas State

University System have enacted rules prohibiting "solicitation"

on the campuses comprising the Texas State University

System. These regulations define "solicitation" as

the sale or offer for sale of any

property or service, whether for

immediate or future delivery,

and the receipt of or request for

any gift or contribution.

Regent’s Rules Chapter VII, Sec. 3.1. Certain activities are

not considered solicitation, including:

a35

The sale or offer for sale of any

newspaper, magazine, or other

publication by means of a

vending machine or distribution

| stand in an area designated in

advance by the President or a

: designated appointee for the

conduct of such activity.

Regent’s Rules Chapter VII, Sec. 3.111. Also exempted are

advertisements sent to students, faculty or staff through the

United States mail. Regent’s Rules Chapter VII, Sec.

3.11(14).

y Pursuant to these rules, the administration at

SWTSU has enacted similar policies regarding the SWTSU

campus. The SWTSU regulations include the same

definition of solicitation and the same exemption for

newspapers sold through vending machines. SWT/OL No.

09.05, Secs. 2.01, 2.02(a).

3. Pursuant to university regulations, solicitation

is restricted so that it will not:

a. Interfere with academic or other institutional

programs that are being carried on in campus

facilities;

b. Interfere with the free and unimpeded flow of

vehicular or pedestrian traffic on sidewalks and

streets and at places of ingress and egress to

and from campus buildings;

C Use obscene or libelous language or materials;

d. Harass, embarrass, or intimidate the person or

persons being solicited;

C. Advocate the deliberate violation of a federal

or state law or a published University policy;

f. Constitute disorderly conduct, disrupt

classroom discussion, impede maintenance of

public order, or constitute a danger to the

person distributing or disseminating material or

to any other individual or group; or

a36

g. Litter the campus grounds.

3.[sic] The Board of Regent regulations further

provide that distribution of petitions, handbills, etc. is

permissible, but subject to "[rjeasonable and

nondiscriminatory rules and regulations as to time, place, and

manner." Regent’s Rules Chapter VII, Sec. 3.2. The

SWTSU regulations provide that petitions, handbills or other

literature may be distributed by students or organizations, so

long as the requirements of SWT/OL No. 09.05 regarding

solicitation on campus are followed. SWT/OL No. 09.06.

4. It was based upon the foregoing rules that

Burdenski informed the Guardian that copies of the

newspaper could not be handed out, but must be placed in

newspaper vending racks.

a The administration at SWTSU has created a

“campus expression area" where "within the regulations

specified [by the administration], all persons may express

themselves on any topic and enjoy their rights of free speech

and assembly guaranteed under the First and Fourteenth

Amendments of the Constitution of the United States."

SWT/OL No. 09.20, Effective Date 6/4/81, Joint Exhibit #4.

The use of the campus expression area is subject to

compliance with SWT/OL No. 09.05, regarding solicitation on

campus.

6. These regulations were enforced against not

only the Guardian, but also against other organizations which

attempted to distribute their publications other than through

vending racks at designated locations or through mail

subscriptions. Letters were mailed to publications as diverse

as The Houston Post, The Pelebian, The Houston Chronicle,

The Austin Chronicle, Take 5 Magazine, America, and The

SWT Press.

7. The Guardian was distributed free of charge,

with its publication costs defrayed through advertising

revenues. Approximately 90% of the issues were distributed

in Hays County, while approximately one-third were

distributed at SWTSU.

8. The Guardian was passed out by hand rather

a37

than through racks or boxes because of advice received from

other journalists about creating a "mystique" -- a product

would be in greater demand if it was harder to get.

9. After receiving Burdenski’s letter, the Guardian

failed to comply with the University regulations, according to

Plaintiff Stefanoff, because it was felt the Guardian was being

singled out for such harsh treatment.

10. After Burdenski’s letter was published in the

Guardian’s \8th issue, advertising revenue dramatically

decreased.

11. The Plaintiffs halted publication of the

Guardian after Burdenski’s second letter not because they

feared legal action, but because the advertising revenue had

dried up.

12. ‘If the Plaintiffs are allowed to distribute che

Guardian by hand on the SWTSU campus, they will resume

publication.

13. While the Star also accepts advertisements, the

revenue generated goes back into production of the

newspaper and into scholarships for students.

14. Defendants have not restricted student access

to the Guardian and the ideas and information contained

therein without justification.

15. Restricting distribution of the Guardian

promotes the following interests:

(a) Preserving an academic atmosphere;

(b) maintaining security and safety for persons and

property on campus;

staff;

(d) controlling pedestrian and vehicular traffic;

(e) protecting persons on campus from crime and

unlawful activities;

(f) preserving the beauty of the campus ,

buildings, and facilities;

(g) | maintaining the campus, buildings, and facili-

ties in a clean, orderly, and appealing ap-

pearance and avoiding unnecessary wear and

a38

tear on buildings, grounds and facilities;

(h) preserving the architectural lines of university

buildings;

(i) protecting students faculty and staff from

deception, fraud, and commercial exploitation;

and

(j) eliminating unnecessary costs and waste of

university resources.

16. |The SWTSU campus is not a public forum. It

has not been designated as such, nor is it a traditional or

public forum although there is a free speech area on campus.

17. The restrictions upon solicitation and

newspaper vending promulgated by the Board of Regents

and the SWTSU administration, and enforced at SWTSU,

were not based upon the content of the Guardian or of any

other publication.

18. The time, place and manner restrictions

imposed by the Board of Regents and SWTSU regulations

are reasonable and narrowly tailored to serve a significant

governmental interest, that is, maintenance of an appropriate

educational environment and education of not just journalism

students with respect to publication of a newspaper.

19. Defendants’ actions do not constitute a

compulsory scheme by which the Board of Regents and/or

SWTSU require SWTSU students to finance political and

ideological activities with which they disagree.

20. The Defendants do not exercise editorial

control over the Star.

21. Defendants’ actions have not restrained,

monopolized, or denied Plaintiffs’ equal access to the

SWTSU campus to distribute the Guardian.

22. ‘The Plaintiffs are currently free to publish and

distribute their newspaper.

23. There are sufficient alternative means: of

distribution of the newspaper including through vending

machines, mailing and subscriptions.

24. Plaintiffs Dodd and Ptak failed to establish that

the actions of the Defendants were the cause of their no

a39

longer being able to read and enjoy the Guardian.

2S. Defendants have not agreed, contracted, or

conspired to restrain trade in newspapers in interstate and

intrastate commerce on the SWTSU campus.

26. | Defendants’ acts do not constitute conspiracy

or an attempt to monopolize trade in newspapers in

interstate and intrastate commerce, or to exercise monopoly

control over the newspaper market on the SWTSU campus.

27. There is no connection between the monetary

damages suffered by the Plaintiffs and the actions of the

Defendant.

28. Any of the above findings of fact which should

more properly be considered a conclusion of law is hereby

deemed as such.

III. CONCLUSIONS OF LAW

A. Eleventh Amendment Sovereign Immunity. The

Eleventh Amendment prohibits a citizen from bringing suit

in federal court against his own state. Pennhurst State School

& Hospital v. Halderman, 465 U.S. 88, 104 S.Ct. 900 (1984).

A state may be sued only to the extent that it consents to be

sued. /d. "This jurisdictional bar applies regardless of the

nature of the relief sought." Jd. at 908. The doctrine of

sovereign immunity bars suit not only against a state, but

likewise against state officials when "the state is the real,

substantial party in interest." Ford Motor Co. v. Dept. of

Treasury of Indiana, 323 U.S. 459, 464 (1945). Relief sought

nominally against a state official is a suit against the

sovereign if the judgment awarded would operate against the

state. Pennhurst State School & Hospital v. Halderman, 104

S.Ct. at 909. Such recovery is barred regardless of whether

it is for damages or injunctive relief. Jd. However, "a suit

challenging the constitutionality of a State official’s action is

not one against the State." /d.

An additional exception applies when a suit is based

upon the actions of a state officer who is acting in his official

capacity "but without any statutory authority." /d. at 915,

quoting Florida Dept. of State v. Treasure Salvors, Inc., 458

a40

U.S. 670 (1982). This “ultra vires" doctrine has no

application in the present case because there was no

evidence presented to the Court that the Defendants were

acting beyond their official authority.

Nor does the doctrine of pendent jurisdiction permit

a federal court to contravene the language of the Eleventh

Amendment. "[N]either pendent jurisdiction nor any other

basis of jurisdiction may over ride the Eleventh Amendment."

Id. at 919. Pennhurst clearly provides that "a suit against

state officers for retroactive monetary relief, whether based

on federal or state law, must be brought in state court.” Jd.

(emphasis added). Accordingly, the Court is without

jurisdiction to consider those claims brought by the Plaintiffs

which seek an award of monetary damages.

As this case was originally brought in state court, the

Court is persuaded that these claims should be remanded

rather than dismissed to avoid any limitations problems.

Accordingly, it is ORDERED that Plaintiffs’ claims under the

Sherman Act, the Texas Business and Commerce Act, the

Texas Civil Practice and Remedies Code, and the Texas

Constitution are hereby REMANDED to the 201st Judicial

District Court of Travis County Texas.

B. Qualified Immunity. The Defendants have

asserted that they are entitled to qualified immunity as to

those claims brought against them in their individual

capacities. The general rule is that "government officials

performing discretionary functions, generally are shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The contours

of the right must be of such sufficient clarity that a

reasonable official would understand that his actions violate

that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Having considered the testimony and evidence presented, the

Court is persuaded that the Defendants are entitled to

qualified immunity from damages in their individual

capacities.

The regulations passed and the enforcement of those

regulations were consistent with First Amendment authority.

The regulations are facially content neutral and there is

nothing before the Court to indicate that the content of

Plaintiffs’ publication had anything to do with the

Defendants’ enforcement of those regulations.

Additionally, although there is numerous case

authority regarding the parameters of First Amendment

rights (all of which has been presented extensively by the

Plaintiffs), the Court has been unable to find any authority

that clearly prohibits a state university from giving the

university’s own newspaper more favored treatment than that

afforded outside periodicals.

The burden is upon the Plaintiffs to overcome the

Defendants’ defense of qualified immunity. Saldana v.

Garza, 684 F.2d 1159, 1163 (Sth Cir. 1982), cert. denied, 460

U.S. 1012 (1483). Plaintiffs have failed to meet this burden.

Because of the foregoing, the Court is persuaded that the

Defendants are entitled to qualified immunity from civil

damages under S 1983. Accordingly, it is ORDERED that

Plaintiffs take nothing from Defendants on their claims for

individual damages arising under § 1983.

C. Sherman Act Claims. To the extent that any

claims for injunctive or declaratory relief remain under the

Sherman Act, the Court is persuaded that such claims are

precluded. The Courts have determined that "Congress did

not intend the Sherman Act to apply to the states." Limeco,

Inc. v. Division of Lime of the Miss. Dept. of Agriculture &

Commerce, 778 F.2d 1086, 1087 (Sth Cir. 1985), citing Parker

v. Brown, 317 U.S. 341 (1943). In the Limeco case, the Fifth

Circuit expressly refused to create an exception to this

doctrine when a state acts as a competitor in a commercial

activity. Accordingly, it is ORDERED that the Plaintiffs take

nothing from Defendants on their claims for injunctive and/or

declaratory relief under the Sherman Act.

D. State Anti-Trust Claims. To the extent that any

claims for injunctive or declaratory relief remain under the

a42

state antitrust statutes, the Court is persuaded that these

claims are likewise precluded. As the Texas statutes are

generally construed in line with federal law, the state action

exemption should similarly apply to an anti-trust claim under

Texas law. Additionally, the law recognizes that a company

cannot conspire with its own employees. See Red Wing Shoe

Co. v. Shearer’s, Inc., 769 S.W. 2d 339, 344 (Tex. App. --

Houston [ist Dist.] 1989, no writ). This “intracorporate

conspiracy doctrine" applies in the present case because all

of the Defendants are state officials and because the Star is

a state university publication. There was, additionally, no

evidence presented by the Plaintiffs to support an antitrust

cause of action. Accordingly, it is ORDERED that Plaintiffs

take nothing from Defendants on their claim for declaratory

and/or injunctive relief arising out of the state anti-trust act.

E. First Amendment. The Plaintiffs complain that

the actions of the Defendants violated their rights of free

speech and freedom of the press under the First and

Fourteenth Amendments to the U.S. constitution.

The First Amendment provides, in relevant part, that

"Congress shall make no law . . . abridging the freedom of

speech, or of the press. .. ." The First Amendment is binding

on the states through application of the Fourteenth

Amendment. Healy v. James, 408 U.S. 169, 171 (1972).

Despite the broad protection afforded, the First Amendment

“does not guarantee the right to communicate one’s views at

all times and places or in any manner that may be desired."

Heffron v. Int'l. Soc. for Krishna Consc., 452 U.S. 640, 647

(1980).

Although the First Amendment prohibits a

state from abridging freedom of speech, the

Amendment does not prohibit all regulation of

expressive activities. Likewise, although the :

distribution of a newspaper is protected by the

free press and speech provisions of the First

Amendment, . . . the Amendment does not

prohibit all regulation of distribution.

a43

Texas Review Society v. Cunningham, 659 F. Supp. 1239, 1244

(W.D. Tex. 1987). Activities protected under the First

Amendment are subject to reasonable time, place, and

manner restrictions. Jd.

The extent of permissible regulation depends upon the

place to be regulated. "[Cjonsideration of a forum’s special

attributes is relevant to the constitutionality of a regulation

since the significance of the governmental interest must be

assessed in light of the characteristic nature and function of

the particular forum involved." Heffron v. Int'l. Soc. for

Krishna Consc., 452 U.S. at 650-651. "The existence of a

right of access to public property and the standard by which

limitations upon such a right must be evaluated differ

depending on the character of the property at issue." Perry

Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37,

44 (1983). These forums are classified as: (1) places

traditionally open to the public; (2) places which the

government has opened for use by the public as a place for

expressive activity; and (3) public property which is not by

tradition or designation a forum for public communication.

Id. at 45-46.

Places traditionally open to the public consist of

streets and parks which "have immemorially been held in

trust for the use of the public and, time out of mind, have

been used for purposes of assembly, communicating thoughts

between citizens, and discussing public questions." Jd. at 45,

quoting, Hague v. CIO, 307 U.S. 496, 515 (1939). In such

traditional public forums, the government may not prohibit

all communicative activity, but

[wje have often approved

restrictions of that kind provided

that they are justified without

reference to the content of the

regulated speech, that they serve

a significant governmental

interest, and that in doing so

they leave open ample

alternative channels for

a44

communication of the

information.

Virginia Pharmacy Board v. Virginia Citizens Consumer

Council, 425 U.S. 748, 771 (1976).

In situations involving forums that have been opened

for use by the public, the State is bound by the same

standards that apply in a traditional public forum. See Perry

Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37,

45-46 (1983); Virginia Pharmacy Board v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976).

In the case of public property which is not by tradition

or designation a forum for public communication, a different

standard prevails. In addition to regulations as to time, place

and manner, the State "may reserve the forum for its

intended purposes, communicative or otherwise, as long as

the regulation on speech is reasonable and not an effort to

suppress expression merely because public officials oppose

the speaker’s view." Perry Educ. Assn. v. Perry Local

Educators’ Assn., 460 U.S. at 46. As the Court has noted on

several occasions, ""[t]he State, no less than a private owner

of property, has power to preserve the property under its

control for the use to which it is lawfully dedicated."" United

States Postal Service v. Council of Greenburgh Civic Assn., 453

U.S. 114. 129 (1981), quoting Greer v. Spock, 421 U.S. 828,

836 (1976), in turn quoting, Adderley v. Florida, 385 U.S. 39,

47 (1966). Property which is publicly owned or operated

does not become a "public forum" merely because members

of the public are permitted to come and go at will. United

States v. Grace, 461 U.S. 175, 178 (1983). And "[t]here is

little doubt that in some circumstances the government may

ban the entry on to public property that is not a ‘public

forum’ of all persons except those who have legitimate

business on the premises." /d.

The Supreme Court has recognized that the campus

of a public university, "at least for its students, possesses

many of the characteristics of a public forum." Widmar v.

Vincent, 454 U.S. 263, 267 n. 5 (1981).

a45

At the same time, however,our cases

have recognized that First Amendment rights

must be analyzed "in light of the special

characteristics of the schoo] environment."

Tinker v. Des Moines Independent School

District, 393 US. 503, 506 (1969). We

continue to adhere to that view. A university

differs in significant respects from public

forums such as streets or parks or even

municipal theaters. A university’s mission is

education, and decisions of this Court have

never denied a university’s authority to impose

reasonable regulations compatible with that

mission upon the use of its campus and

facilities. We have not held, for example, that

a campus must make ail of its facilities equally

available to students and non-students alike, or

that a university must grant free access to all

of its grounds or buildings.

Id. at 268 n. 5. "[NJowhere [have we] suggested that students,

teachers, or anyone else has an absolute constitutional right

to use all parts of a school building or its immediate environs

for ... unlimited expressive purposes." Perry Education Assn.

v. Perry Local Educators’ Assn., 460 U.S. at 44, quoting

Grayned v. City of Rockford, 408 U.S. 104, 117-18 (1972).

In addition to analyzing the type of forum involved,

the Court must also determine whether the regulation at

issue is directed at the content of the expressive behavior

which it is attempting to regulate.

For the State to enforce a

content-based exclusion it must

show that its regulation is

necessary to serve a compelling

state interest and that it is

narrowly drawn to achieve that

end. Carey v. Brown, 447 USS.

455, 461, 100 S.Ct. 2286, 2290,

a46

65 L.Ed.2d 263 (1980). The

State may also enforce

regulations of the time, place,

and manner of expression which

are content-neutral, are narrowly

tailored to serve a significant

government interest, and leave

open ample alternative channels

of communication.

Virginia Pharmacy Board v. Virginia Citizens Consumer

Council, 425 at 771 (1976).

There is no evidence before the Court that either the

Board of Regents or the administration at SWTSU has

permitted access to SWTSU to such a degree that it has

converted the campus into a "public forum." "The

government does not create a public forum by inaction or by

permitting limited discourse, but only by intentionally opening

a non-traditional forum for public discourse." Comielius v.

NAACP Legal Defense & Educational Fund, Inc., 473 US.

788, 802 (1985). Solicitation on campus is allowed only

pursuant to the Board of Regent rules and SWTSU

Operating Letters. Newspapers which contain commercial

advertisements are considered solicitation and are allowed to

be distributed on campus only if they are placed in racks in

designated locations. Therefore, the Court need only

consider whether the restrictions imposed are reasonable and

compatible with the university’s ultimate mission (education),

and that they are not an attempt to suppress expression

because of opposition to the speaker’s view. The evidence

before the Court clearly establishes that this is the case. The

Defendants contend that the University enacted the

regulations at issue to protect the following interests,

including:

1. Preserving an academic atmosphere;

2. Maintaining security and safety

for persons and property on

campus;

a47

3. protecting the privacy of students, faculty, and

staff;

4. Controlling pedestrian and vehicular traffic;

3. Protecting persons on campus from crime and

preventing unlawful activities on campus;

6. Preserving the beauty of the University’s

campus, buildings and facilities;

Vs Maintaining the campus, buildings, and facilit-

ies in a clean, orderly and appealing appear-

ance and avoiding unnecessary wear and tear

on buildings, grounds and facilities;

8. Preserving the architectural lines of important

and historic university buildings;

9. Protecting students, faculty and staff from

deception, fraud and commercial exploitation;

and

10. ‘Eliminating unnecessary costs and waste of

university resources. These are clearly

important considerations in light of the

educational purpose of the university.

Additionally, there is nothing in either the regulations

or the actions of the Defendants to indicate that enforcement

was related to the content of the publications. As previously

noted, a number of other publications were also informed of

the university regulations. Nor does the failure to include the

Star within these regulations make their purpose

unreasonable or indicate any sort of content-based

restriction. The Star is published as a laboratory exercise for

journalism students and is an integral part of the education

process. While the Star accepts advertisements, the revenues

generated are put back into the paper or into scholarships

for students. The restrictions imposed are, therefore,

reasonable.

Even were the Court to determine that SWTSU is a

public forum, the outcome would be the same. As previously

noted, when a public forum is involved, the restriction on

speech must be content neutral, narrowly tailored to serve a

significant governmental interest, and leave open ample

a48

alternative channels for communication. However, the First

Amendment rights at issue must still be viewed "in light of

the special characteristics of the school environment." Tinker

v. Des Moines Independent School District, 393 U.S. 503

(1969).

"A major criterion for a valid time, place, and manner

restriction is that the restriction ‘may not be based upon

either the content or subject matter of speech.” Heffron v.

Int'l. Soc. for Krishna Consc., 452 U.S. at 648, quoting

Consolidated Edison Co. v. Public Service Commn., 447 U.S.

530, 536 (1980). Plaintiffs argue that the regulation at issue

is content based because it gives preferential treatment to

the Star--a publication that reflects the University’s own

viewpoint. However, as previously noted, a reading of the

regulations at issue establishes that, on their face, the

regulations are applied regardless of the content of the

publication. The evidence presented establishes that a

number of other publications were admonished about proper

distribution as well as the Guardian.

Additionally, ample alternative channels for

communication remain. If a publisher does not wish to

distribute his publication through vending machines, he may

distribute them through direct mailings, subscriptions or by

distributing them off campus. Also, the Plaintiffs could

distribute their newspaper without restriction if it were not

sold for profit and if all commercial advertisements were

removed.

Further, the regulations are narrowly tailored to serve

"a significant governmental interest." Virginia Pharmacy

Board v. Virginia Citizens Consumer Council, 425 US. at 771.

They do not prohibit newspapers on campus, only the means

in which they are distributed. The interests identified by the

Defendants addressing the "safety and convenience" of the

students at SWTSU and "maintaining the educational

atmosphere" on the SWTSU campus certainly constitute valid

governmental objectives. Texas Review Soc. v. Cunningham,

659 F.Supp. at 1246 (W.D. Tex. 1987). "As a general matter,

it is clear that a State’s interest in protecting the safety and

convenience’ of persons using a public forum is a valid

ae ener errant ene

a49

governmental objective." Heffron v. Int'l. Soc. for Krishna

Consc., 452 U.S. at 651, quoting Grayned v. City of Rockford,

408 US. 104, 115 (1972). Considering the valid

governmental objective of protecting the safety and

convenience of persons using a public forum along with the

special objective of maintaining the educational environment

on the university campus, the Court is persuaded that the

regulations are narrowly tailored to promote a significant

government interest. The exemption of the Star from these

regulations does not effect the significance of the

governmental interest. As noted in Perry and Widmar, a

university is not required to offer the same freedom of access

to non-students as is afforded students, faculty and staff, nor

is it required to provide nonstudents unlimited access to its

facilities. The wider distribution afforded the Star promotes

the primary purpose of the University education by giving

journalism students who publish it the broadest possible

exposure to all stages involved in the production of a

newspaper, including distribution.

While Plaintiffs argue that the same objectives could

be achieved by less restrictive measures, the “narrowly

tailored" standard identified by the Supreme Court has not

been "interpreted to require elimination of all less restrictive

alternatives." Bd. of Trustees of State Univ. of N.Y. v. Fox, __

U.S. __- 109 S.Ct. 3028, 3033 (1989), referencing Clark v.

Community for Creative Non-Violence, 468 U.S. 288, 299

(1984); Regan v. Time, Inc., 468 U.S. 641, 657 (1984).

Plaintiffs further argue that the regulations are not

reasonably related to the stated governmental interests

because they do not prohibit the distribution of commercial

items, such as candy bars and soft drinks, through vending

machines or other devices. This analogy is inapposite

because the distribution of such products does not implicate

freedom of speech. See City of Lakewood v. Plain Dealer

Pub. Co., _- U.S.__, 108 S.Ct. 2138, 2146 (1988).

Plaintiffs cite the Plain Dealer case as support for their

argument that the regulations at issue give the administration

"unbridled" authority to determine the placement of

newspaper racks. The present case differs from that in the

a50

Plain Dealer in a number of instances. First, there is no

annual or periodic renewal of licenses in order to place a

newspaper rack on the campus. Newspaper racks are

permitted so long as they are placed in approved locations.

Second, the regulations regarding solicitation apply to all

solicitation On campus, not just to newspapers.

Plaintiffs next assert that the regulations are invalid as

an impermissible restriction on commercial speech. The

Court is not persuaded that the regulations impinge upon any

commercial speech. Commercial speech has been identified

as that which proposes a commercial transaction, and is

different from speech for profit such as embodied in a

newspaper. Bd. of Trustees of State Univ. of N.Y. v. Fox, 109

S.Ct. at 3036. However, even under the less restrictive

commercial speech analysis, the Plaintiffs’ claims fail. The

Supreme Court has identified a four-pronged test for

determining whether a particular regulation impinges upon

commercial speech: .

At the outset, we must

determine whether the

expression is protected by the

First Amendment. For

commercial speech to come

within that provision, it at least

must concern lawful activity and

not be misleading. Next, we ask

whether the asserted

governmental interest is

substantial. If both inquiries

yield positive answers, we must

determine whether the regula-

tion directly advances _ the

governmental interest asserted,

and whether it is not more

extensive than is necessary to

serve the interest.

Central Hudson Gas and Electric Corp. v. Public Service

a51

Commission, 447 U.S. 557, 566 (1980). The Court has

already determined that the University has identified a

substantial governmental interest, and that the regulations

advance those interests and are no more extensive than

necessary to serve those interests. Additionally, the

regulations at issue are not directed at the advertising

contained in the newspaper, but rather at any form of

solicitation on the University campus.

In light of the foregoing, it is ORDERED that

Plaintiffs take nothing against the Defendants on their claims

under the First and Fourteenth Amendments.

F. Mandatory Subscriptions. The student Plaintiffs

assert that their constitutional rights have been violated

because they are assessed mandatory student service fees

which are used to support the Star, which they allege

espouses editorial policies and practices with which they do

not agree. The Supreme Court has recognized that in

certain situations an organization may not constitutionally

require its members to contribute to causes which they

oppose. See Abood v. Detroit Board of Education, 431 US.

209 (1977); International Association of Machinists v. Street,

367 U.S. 740 (1961). The Abood court determined the

“compulsory subsidization of ideological activity" cannot be

forced upon those who object to it. Adood v. Detroit Board

of Education, 431 U.S. at 237. The Abood court’s holding

has been extended to the university setting by the Third

Circuit. Galda v. Rutgers, 772 F.2d 1060 (3rd Cir. 1985), cert.

denied, 475 U.S. 1065 (1986). The Galda court held that a

state university could not compel students to pay to support

an independent outside organization that advocated political

and ideological philosophies with which many students did

not agree. Galda did not deal, however, with a situation in

which mandatory student services fees were used to support

university programs.

A case directly on point from the Pourth Circuit

controls the disposition of Plaintiffs’ claims. See Kania v.

Fordham, 702 F.2d 475 (4th Cir. 1983). In the Kania case,

students at the University of North Carolina at Chapel Hill

a52

filed suit complaining that their Fourteenth Amendment

rights were violated by the university’s use of student service

fees to subsidize the university newspaper, The Daily Tar

Heel, which espoused editorial views with which they

disagreed. As in the instant case, the university newspaper

was a product of the school of journalism and was distributed

on campus with charge. The Circuit Court determined that

the funding of the newspaper through mandatory student

fees was "the least restrictive means of accomplishing an

important part of the University’s central purpose, the

education of its students." Jd. at 480. The reasoning in Kania

controls the disposition of this case.

The Star is vitally important to SWTSU’s primary

mission, which, once again, is the education of its students.

Additionally, while the newspaper may publish editorial

opinions with which some students may not agree, there is no

evidence before the Court that those opinions are mandated

by the administration at SWTSU or by the Board of Regents.

Accordingly, it is ORDERED that the Plaintiffs take

nothing from Defendants on their claims related to

mandatory student fees.

Any of the foregoing conclusions of law that should

properly be considered a finding of fact is hereby deemed as

such.

Any further relief not expressly granted herein is

hereby DENIED.

SIGNED this 26th day of February, 1991.

s/ W. ER S. SMITH, JR.

WALTER S. SMITH, JR.

UNITEDSTATES DISTRICT JUDGE

a53

APPENDIX E

Memo To: All SWT/OL Holders SWT/OL No. 09.05

Issue No. 5

Subject: Solicitation on Campus* Effective Date:

01/15/88

Reviewer: Dean of Students

Review Cycle: December, E4Y

INDEXING TERMS FOR THIS OL

Booths

Solicitation

1. PURPOSE

1.01 The purpose of this operating letter is to

establish a policy concerning solicitation

activities On campus.

1.02 This OL does not govern political activities,

which are governed by SWT/OL No. 09.03,

"Political Activities on Campus."

y a SOLICITATION POLICY

2.01 As used in this OL, the word "solicitation"

means the sale or offer for sale of any

property or service, whether for immediate or

future delivery, and the receipt of or request

for any gift or contribution. The solicitation of

gifts or contributions to support political

candidates or issues, or the solicitation of

votes, or signatures for petitions or other

documents of a political nature are governed

by SWT/OL No. 09.03, "Political Activities on

Campus." Persons desiring to conduct

solicitation activities on campus must complete

a solicitation request form in the Office of

Student Center Services.

a54

2.02 Solicitation which may be conducted within the

boundaries of the University campus includes

the following:

* NOTE

This OL was formerly named "Solicitation and

the Distribution of Signs on Campus." The

solicitation information is included in this

SWT/OL 09.05, Issue No. 5; the information

on distribution of signs is now in SWT/OL

09.06.

The sale or offer for sale of any

newspaper, magazine, or other

publication by means of a vending

machine or distribution stand in an area

designated in advance by the Dean of

Students (or designee) for the conduct

of such activity.

The sale or offer for sale of any food or

drink item by means of vending

machines owned and operated by the

University or its subcontractor in an

area designated in advance by the Dean

of. Students (or designee) for the

conduct of such activity. All vendors/

caterers must be approved by the

University and must submit evidences

of insurance ($500,000 limit) and

commission for use of facilities on sales

to non-University entities. This

approval procedure is outlined in

SWT/OL 14.03, "Catered Events."

The sale or offer for sale of any

publication of the University, or of any

book or other printed material to be

used in the regular academic work of

the University.

The operation by the University or its

subcontractor of any bookstore,

specialty store, laundry, cafeteria, or

einen a

a55

other service facility maintained for the

convenience of the students, faculty

and/or staff.

e. The sale or offer for sale by the

University or its subcontractor of food

and drink items, souvenirs, tickets and

programs at athletic contests or at any

program or event sponsored or

authorized by the University.

f. The advertisement of any activity, item,

or product sponsored or authorized by

the University and approved by the

Dean of Students (or designee).

g. The collection of tuition and fees in

connection with enrollment of a student

in any course or degree program.

h. The collection of membership fees or

dues by registered student, faculty, or

staff organizations at meetings of such

organizations scheduled in accordance

with the facilities use regulations of the

University.

i. The collection of admission fees or

contributions for the exhibition of

movies or other programs, including but

not limited to fine arts and athletic

events that are sponsored by the

University, or by a registered student

organization or faculty organization and

which are authorized and scheduled in

accordance with the facilities use

regulations of the University.

j. Activities that are sponsored by a

registered student, faculty, or staff

organization on behalf of a charitable

organization and which are conducted

in accordance with nondiscriminatory

policies approved by the Dean of

Students (or designee) and scheduled in

a56

accordance with the facilities use

regulations of the University.

The activities that are sponsored by a

registered student organization or the

University and which are authorized

and scheduled in accordance with the

facilities use regulations of the

University as long as all aspects of the

activity clearly identify the organization

sponsoring the event on all signs, tickets

or literature. The University may, at its

discretion, require that solicitation be

conducted directly by the student

Organization and may _ impose

restrictions that would prevent student

organizations from using non-members

to solicit for the organization.

Activities of agents of companies

authorized as requested by the

University to provide information or

services related to _ instruments,

equipment, office supplies, health

insurance, optional retirement

programs, or tax-sheltered annuities

and other University-related services

specifically requested by the University.

The advertisement of any activity, item,

service or product in any University

publication.

The advertisement of any activity, item,

service, or product sent to University

students, faculty, or staff through the

United States mail.

The posting by individual students,

faculty, and staff members of

advertisements ior residential leases

and notices offering to sell personal

property outside the course of ordinary

business. All such posting on bulletin

2.03

2.04

a5S7

boards designated for such purposes by

the Dean of Students (or designee) is

allowable, provided that all

advertisements and notices must

conform to the requirements and

limitations set forth in this OL. Posting

must also conform to the policies and

procedures established in SWT/OL No.

09.06, "Posting/Distribution of Signs on

Campus."

Permissible solicitation must be conducted in

a manner that will not:

Interfere with academic or other

institutional programs that are being

carried on in campus facilities.

Interfere with the free and unimpeded

flow of vehicular or pedestrian traffic

on sidewalks and streets and at places

of ingress and egress to and from

campus buildings;

Use obscene or libelous language or

materials;

Harass, embarrass, or intimidate the

person or persons being solicited;

Advocate the deliberate violation of a

federal or state law or a published

University policy;

Constitute disorderly conduct, disrupt

classroom discussion, impede

maintenance of public order, or

constitute a danger to the person

distributing or disseminating material or

to any other individual or group; or

Litter the campus grounds.

All food and beverage handlers must possess

valid health permits when required by law.

a58

2.05 Any solicitation activity planned for a

residence hall must also be approved by the

Director of Residence Life (or designee).

2.06 If after a reasonable investigation, the Dean of

Students (or designee) determines that a

student or organization is soliciting in violation

of this OL, he shall order the violator to cease,

and he may refer the matter to the Director of

Student Justice for action under the Code of

Student Conduct.

2.07 Within thirty days after the end of each

semester or summer session, each person or

organization receiving permission to solicit

during the preceding semester or summer

session shall file with the Director of the

Student Center (or designee) a statement fully

disclosing the following:

a. The amount of money received from

solicitations;

b. The sources of money received from

solicitations;

e The expenditures made from funds

raised by solicitations; and

d. The beneficiaries of funds expended

from solicitations.

Any person or organization failing to comply

with the provisions of this section shall be

prohibited from further solicitations until

compliance is made.

3. BOOTHS

3.01 “Booth" means a table temporarily installed for

the purposes of engaging in solicitation.

3.02 Booths may be allowed only in the Campus

Expression Area, the LBJ Memorial Student

3.03

a59

Center, or, im the case of special activities, at

other locations as designated solely within the

discretion off the Dean of Students (or

designee). Booths maintained for political

activities must be located in the Campus

Expression Area and must be maintained in

accordance wiith SWT/OL No. 09.03, "Political

Activities on Campus."

Activities in alll booths must be conducted ina

manner consiistent with section 2.03 above,

and, in addittion, must meet the following

requirements:

a. Each booth must meet fire and safety

standards;

b. No booth may be installed and

maintained for more than five

consecutive calendar days;

e. Booths must be staffed by members of

the sponsoring organization or

department.

EXCEPTIONS AND APPEALS

4.01

The Dean of Students has the authority to

grant exceptions or variances to the provisions

of the OL to meet the exigencies of unusual

circumstances. No person or Organization may

conduct any of the activities governed by this

OL in variance to the policies stated herein

without permission from the Dean of Students.

PUBLICITY

5.01

Publication of the policy and related

procedures will be made each September 30th:

a. By the Dean of Students, through Hill

Hints;

b. By a memorandum from the Director

of the Student Center to department

a60

chairs, directors, deans and_ vice

presidents;

c. By an article printed in the University

Star;

d. By a letter from the Director of the

Student Center to all students

organizations;

e. By a notice included in the Student

Organization Handbook.

7. MAJOR RESPONSIBILITIES ASSOCIATED WITH

THIS OL

7.01 Major responsibilities for routine

assignments associated with this

OL include the following:

Position Section Date

Dean of Students Review Dec. 1 (E4Y)

Approved: /s/ John H. Garrison

Reviewer

Approved: /s/ Leatha Milog

Vice President

Approved: (/s/ Robert C. Hardesty

President

Memo To :

Subject:

Reviewer:

1.01

1.02

2.01

2.02

a61

APPENDIX F

All SWT/OL Holders SWT/OL No. 09.06

Issue No. 1

Posting/Distribution Effective Date:

of Signs on Campus* 01/15/88

Dean of Students

Review Cycle: December, E4Y

INDEXING TERMS FOR THIS OL

Petitions

Posters

Signs

Solicitation

PURPOSE

The purpose of this operating letter is to

establish a _ policy concerning the

posting/distribution of signs, petitions,

handbills, posters and literature on campus.

With the exception of posting of signs or

posters, this OL does not govern political

activities, which are governed by SWT/OL No.

09.03, “Political Activities on Campus."

POSTING/DISTRIBUTION OF PETITION,

HANDBILLS, AND LITERATURE

A person or organization may distribute

petitions, handbills, or literature provided the

requirements of SWT/OL No. 09.05,

"Solicitation on Campus," are followed.

Distribution of materials under this section is

allowed only within the Campus Expression

area, the LBJ Memorial Student Center, or, in

a62

the case of special activities, at other locations

solely within the discretion of the Dean of

Students (or designee) The distribution of

political materials is governed by SWT/OL No.

09.03, "Political Activities on Campus," and is

limited only to the Campus Expression Area.

? NOTE: This OL was formerly part of SWT/OL 09.05,

"Solicitation and the Distribution of Signs on

Campus;" is [sic] now limited to informatior on

SWT/OL 09.05, "Solicitation on Campus."

2.03 Signs may be posted in buildings only on

bulletin boards.

2.04 If after a reasonable investigation, the Dean of

Students (or designee) determines that a

student or organization is posting in violation

of this OL, the Dean (or designee) shall order

the violation to cease, and may refer the

matter to the Director of Student Justice.

3. SIGNS AND BULLETIN BOARDS

3.01 "Sign" means any decal, notice, placard, or

poster; and "posting" means any method

employed for displaying a sign.

3.02 A person or organization desiring to post a

sign Or signs On campus, must comply with the

following rules:

a. The date of posting must be placed on

each sign.

b. Posting will be allowed for a two-week

period.

e. Signs may not exceed 22 x 28 inches in

size.

d. No_ object other than a sign may be

posted on campus.

a63

A person or organization desiring to

distribute or post materials on campus

must deposit a copy of each item with

the Director of the Student Center (or

designee). This requirement does not

mean that the Dean of Students (or

designee) must approve material before

it is distributed. Instead, it is intended

only as a means of keeping records of

activities on the University campus.

3.03 Signs may not be attached to or on:

a tree, shrub or plant;

a permanent sign or another sign which

has been properly posted;

a fence or chain or its support

structure;

a brick, concrete, or masonry structure;

a statue, monument, or similar

structure;

a utility pole or traffic light control

junction box;

a fire hydrant or any object within 25

feet of a fire hydrant;

a curb or sidewalk or between a curb

and sidewalk;

a building or wall, except on a bulletin

board, as provided in section 2.03

above.

a bench or bus stop;

a trash can or dumpster.

3.04 No sign may be posted if it:

will interfere with the free flow of

vehicular or pedestrian traffic:

is obscene or libelous;

advocates the deliberate violation of a

federal or state law or a published

POET LOS LR EIN — a meet OE -

ne ee ne eS

depen india alia att

3.05

3.06

3.07

3.08

3.09

a64

University policy;

d. will rapidly deteriorate and litter the

campus facilities.

The person or organization who posts a sign

shall remove the sign no later than 14 days

after posting or 24 hours after the event,

whichever is earlier. The area around which

the sign was posted shall be cleaned and left in

a good state of repair.

No person may remove a properly posted sign

without permission from the Director of the

Student Center (or designee).

University custodians and staff personnel have

authority to remove improperly posted signs

from campus facilities. The Director of the

Student Center (or designee) will convey this

policy in a memorandum to administrative

heads on or about September 1 of each Fall

semester, and on or about February 1 of each

Spring semester.

Spirit signs at athletic events must be approved

in advance by the Director of Athletics (or

designee).

Any posting/distribution activity planned for a

residence hall must first be approved by the

Director of Residence Life (or designee).

BOOTHS

4.01

4.02

"Booth" means a table temporarily installed for ,

the purposes of engaging in distributing

petitions, handbills, or literature; or in posting

signs.

Booths may be allowed only in the Campus

4.03

a65

Expression Area, the LBJ Memorial Student

Center, or, in the case of special activities, at

other locations as designated solely within the

discretion of the Dean of Students or designee.

Booths maintained for political activities must

be located in the Campus Expression Area and

must be maintained in accordance with

SWT/OL No. 09.03, "Political Activities on

Campus."

Solicitation activities in booths must be

conducted in a manner consistent with

SWT/OL No. 09.05, "Solicitation on Campus,"

and, in addition, must meet the following

requirements:

a. Each booth must meet fire and safety

standards;

b. No booth may be installed and

maintained for more than five

consecutive calendar days;

c. Booths must be staffed by members of

the sponsoring organization or

department.

EXCEPTION AND APPEALS

5.01

The Dean of Students has the authority to

grant exceptions or variances to the provisions

of the OL to meet the exigencies of unusual

circumstances. No person or organization may

conduct any of the activities governed by this

OL at variance with the policies stated herein

without permission from the Dean of Students.

PUBLICITY

6.01

Publication of the policy and related

procedures will be made each September 30th:

a. By the Dean of Students, through Hill

a66

Hints;

By a memorandum from the Director

of the Student Center;

By an article printed in the University

Star;

By a letter from the Director of the

Student Center to all student

organizations;

By a notice included in the Student

Organization Handbook.

MAJOR RESPONSIBILITIES ASSOCIATED WITH

THIS OL

7.01 Major responsibilities for routine

assignments associated with this

OL include the following:

Position Section Date

Director of 3.07 Sept. 1 (Fall)

Student Center Feb. 1 (Spring)

Dean of Students Review Dec. 1 (E4Y)

Approved: /s/ John H. Garrison

Reviewer

Approved: /s/ Leatha Milog

Vice President

Approved: /s/ Robert C. Hardesty

President

a67

APPENDIX G

Memo To: All SWT/OL Holders SWT/OL No. 09.06

Issue No. 1

Subject: Posting/Distribution Effective Date:

of Signs on Campus* 5/04/89

Reviewer: Dean of Students

Review Cycle: December, E4Y

INDEXING TERMS FOR THIS OL

Petitions

Posters

Signs

Solicitation

/ PURPOSE

1.01 The purpose of this operating letter is to

establish a _ policy concerning the

posting/distribution of _ signs, petitions,

handbills, posters and literature on campus.

a POSTING/DISTRIBUTION OF PETITION,

HANDBILLS, AND LITERATURE

2.01 A student or organization may distribute

petitions, handbills, or literature provided the

requirements of SWT/OL No. 09.05,

"Solicitation on Campus," are followed.

2.02 After complying with section 2.03, a student or

an organization may publicly distribute

outdoors, on grounds owned or controlled by

the university, petitions, handbills, or pieces of

literature that are not obscene, vulgar, or

libelous, or that do not contain impermissible

2.03

a68

solicitation. Distribution must be conducted in

a way that does not interfere with free and

unimpeded flow of pedestrian and vehicular

traffic or disturb or interfere with academic,

institutional, or other approved activities.

Each petition, handbill, or piece of literature

shall identify the student or organization

distributing it.

NOTE: This OL was formerly part of SWT/OL 09.05,

2.04

2.05

2.06

"Solicitation and the Distribution of Signs on

Campus;" is now [sic] limited to information on

SWT/OL 09.05, "Solicitation on Campus.”

No student or organization may distribute

literature accosting individuals, or by hawking

or shouting. A student or organization

distributing such literature shall clean the area

around which the literature was distributed.

In buildings, signs may be posted only on

bulletin boards.

If after a reasonable investigation, the Dean of

Students (or designee) determines that a

student or organization is posting in violation

of this OL, the Dean (or designee) shall order

the violation to cease, and may refer the

matter to the Director of Student Justice.

SIGNS AND BULLETIN BOARDS

3.01

3.02

"Sign" means any decal, notice, placard, or

poster and "posting" means any method

employed for displaying a sign.

A student or organization desiring to post a

sign Or signs On campus, must comply with the

a69

following rules:

Cc.

The date of posting and name of the

posting student or student organization

must be placed on each sign.

Posting will be allowed for a two-week

period.

Signs may not exceed 22 x 28 inches in

size.

No object other than a sign may be

posted on campus.

3.03 Signs may not be attached to or on:

a tree, shrub or plant;

a permanent sign or another sign which

has been properly posted;

a fence or chain or its support

structure;

a brick, concrete, or masonry structure;

a statue, monument, or _ similar

structure;

a utility pole or traffic light control

junction box;

a fire hydrant or any object within 25

feet of a fire hydrant;

a curb or sidewalk or between a curb

and sidewalk;

a building or wall, except on a bulletin

board, as provided in section 2.03

above.

a bench or bus stop;

a trash can or dumpster.

3.04 No sign may be posted if it:

will interfere with the free flow of

vehicular or pedestrian traffic:

is obscene or libelous;

3.05

3.06

3.07

3.08

3.09

a70

C. advocates the deliberate violation of a

federal or state law or a published

university policy;

d. will rapidly deteriorate and litter the

campus facilities.

The student or organization who posts a sign

shall remove the sign no later than 14 days

after posting or 24 hours after the event which

is advertised, whichever is earlier. The area

around which the sign was posted shall be

cleaned and left in a good state of repair.

No person may remove a properly posted sign

without permission from the Director of the

Student Center (or designee).

University custodians and staff personnel have

authority to remove improperly posted signs

from campus facilities. The Director of the

Student Center (or designee) will convey this

policy in a memorandum to administrative

heads on or about September 1 of each fall

semester and on or about February 1 of each

spring semester.

Spirit signs at athletic events must be approved

in advance by the Director of Athletics (or

designee).

Any posting/distribution activity planned for a

residence hall must first be approved by the

Director of Residence Life (or designee).

BOOTHS

4.01

"Booth" means a table temporarily installed for

the purposes of engaging in distributing

petitions, handbills, or literature; or posting

signs.

4.02

4.03

a7l

Booths may be allowed only in the Campus

Expression Area, the LBJ Memorial Student

Center, or, in the case of special activities, at

other locations as designated solely within the

discretion of the Dean of Students or design.

Solicitation activities in booths must be

conducted in a manner consistent with

SWT/OL No. 09.05, "Solicitation on Campus,"

and, in addition, must meet the following

requirements:

a. Each booth must meet fire and safety

standards;

b. A booth may be _ installed and

maintained in its reserved location for

up to five consecutive calendar days;

C. Booths must be staffed by members of

the sponsoring organization or

department.

EXCEPTION AND APPEALS

5.01

The Dean of Students has the authority to

grant exceptions or variances to the provisions

of the OL to meet the exigencies of unusual

circumstances. No student or organization

may conduct any of the activities governed by

this OL in variance to the policies stated

herein without permission from the Dean of

Students.

PUBLICITY

6.01

Publication of the policy and_ related

procedures will be made each September 30th:

a. By the Dean of Students, through Hill

Hints;

b. By a memorandum from the Director

of the Student Center.

a72

— By an article printed in the University

Star;

d. By a letter from the Director of the

Student Center to all student

organizations;

e. By a notice included in the Student

Organization Handbook.

MAJOR RESPONSIBILITIES ASSOCIATED WITH

THIS OL

7.01 Major responsibilities for routine

assignments associated with this

OL include the following:

Position Section Month Day

Dean of Students Review December (E4Y)1

Approved:

Reviewer

Approved:

Vice President

Approved:

President

a73

APPENDIX H

MEMO TO: All SWT/OL Holders SWT/OL No. 09.20

Issue No. 2

SUBJECT: Campus Expressions Area_ Effective Date:

REVIEWER: Dean of Students

REVIEW CYCLE: January (ONY)

INDEXING TERMS FOR THIS OL

Politics Speakers

Speeches

1. PURPOSE |

1.01 The purpose of this OL is to establish a

Campus Expression Area, define its location,

and prescribe regulations for its use.

1.02 Use of the Campus Expression Area may

require reference to and compliance with one

or more of the following SWT/OL’s:

a. SWT/OL. 09.03, "Political Activities on

Campus;

b. SWT/OL No. 09.21, "Speeches,

Lectures and Addresses by Off-Campus

Speakers;" or

c. SWT/OL No. 09.05, "Solicitation and

the Distribution of Signs on Campus."

re DEFINITIONS OF CAMPUS EXPRESSION AREA

2.01 The Campus Expression Area is defined as

that location where, within the regulations

specified below, all persons may express

themselves on any topic and enjoy their rights

" 2.02

a74

of free speech and assembly guaranteed under

the First and Fourteenth Amendments of the

Constitution of the United States, as

implemented by statutory law and defined by

judicial interpretation.

The Campus Expression Area is the area from

the first row of sidewalk steps east of LBJ

Drive to the statue of the horses in front of

Leland Derrick Hall, bounded on the north by

the Psychology Building and the Taylor

Murphy History Building, and on the south by

Flowers Hall and the Liberal Arts Building.

This area is graphically indicated on the

attached drawing.

3. USE OF THE CAMPUS EXPRESSION AREA

3.01

3.02

3.03

Students and members of the public may use

the Campus Expression Area for any lawful

purpose consistent with university rules and

policy. The Dean of Students will not deny a

request for its use unless after reasoned

inquiry, it appears that the user will advocate

actions constituting a clear and present danger

to the university’s orderly operation, or unless

such use conflicts with another scheduled use

of the Campus Expression Area.

"Advocate," as described in section 4.01 [sic]

above, means preparing the group addressed

for imminent action and steering it to such

action, as opposed to the abstract espousal of

the moral propriety of a course of action by

resort to force. There must be not only

advocacy to action but also a reasonable

apprehension of imminent danger to the

essential functions and purposes of the

university.

A speaker’s advocacy of the following action

constitutes a clear and present danger to the

university's orderly operations, and _is

3.04

3.05

3.06

a75

prohibited:

a. The violent overthrow of the

government of the United States, the

State of Texas, or any political

subdivision thereof; or

b. The willful damage or destruction, or

seizure and _ subversion, of the

university's buildings or other property;

¢. The forcible disruption or impairment

of or interference with the university’s

regularly scheduled classes or other

educational function; or

d. The physical harm, coercion,

intimidation, or other invasion of lawful

rights of the university’s officials, faculty

members, or students; or

e. Other campus disorder of a violent

nature. 3

The Campus Expression Area may be used for

approved purposes from 12:00 noon to 1:00

p.m. and 3:00 p.m. to 7:00 p.m. each day.

Request for reservations to use the Campus

Expression Area must be filed in the office of

the Dean of Students at lease 48 hours in

advance of the intended activity.

A reservation to use the Campus Expression

Area may be made for no longer than five

consecutive days per reservation.

The Campus Expression Area must be used in

accordance with the following rules:

a. There must be no interference with the

free flow of pedestrians or vehicular

traffic;

b. There must be no interruption or

disruption of classes or previously

scheduled university activities;

3.07

3.08

a76

c. Harassing or intimidating techniques or

behavior may not be used;

d. Obscene or libelous materials or

statement [sic] may not be used;

e. The area must be left clean and in a

good state of repair.

Approval for the use of the Campus

Expression Area or any part of that area after

7:00 p.m. for the social functions of student

organizations will be at the discretion of the

Director of Student Development.

Violations of the policies set forth in this O.L.

will be referred to the Director of Student

Justice for review and may result in sanctions

against students and/or student organizations

involved.

MAJOR RESPONSIBILITIES ASSOCIATED WITH

THIS OL |

4.01

Major responsibilities for routine assignments

associated with this OL include the following:

Position Section Month Day

Dean of Review January (ONY)I

Students

Approved:

Dean of Students

Approved:

Vice President for Student

and Institutional Relations

Approved:

President

a77

APPENDIX I

Memo to: All SWT/OL Holders SWT/OL No. 09.20

Issue No. 2

Subj: Use of the Campus Effective Date:

Expression Area and the

Symbolic Structure Area

Reviewer: Dean of Students

Review Cycle: January, Odd-Numbered Years

INDEXING TERMS FOR THIS OL

Symbolic Structure Area

Campus Expression Area

Student Organizations

Speakers Speeches

1. PURPOSE

1.01 We intend for this OL to establish places on

campus where persons may demonstrate an

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