Opposition Brief — Supple v. Hays County Guardian

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No. 92-1008 av E Tt Leak |

In The

Supreme Court of the United States

October Term, 1992

e

JEROME K. SUPPLE, DANIEL £. 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, TOM BURDENSKI,

Petitioners,

HAYS COUNTY GUARDIAN, JEFFREY STEFANOFF,

VICKI HARTIN, WEBB BRANEN, JOE GADDY,

JODY DODD, JOE PTAK, ROBERT MARTINEZ,

and JOHN DEMAREE,

Respondents.

«

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

«

RESPONDENTS’ BRIEF IN OPPOSITION

¢

J. Patrick WIsEMAN

WIsEMAN, Durst & TUDDENHAM

600 West 7th Street

Austin, Texas 78701

(512) 479-5017

Telecopier No.: (512) 479-0409

Counsel of Record

Attorney for Respondents

COCKE LN oni caies bt —_

OR CALL COLLECT (402) 342-283

Pe a oe

QUESTIONS PRESENTED

Respondents do not believe that this case presents

either of the Questions set forth in Petitioners Applica-

tion for Writ of Certiorari and that those questions can

not be decided on this record.

Respondents restate the questions presented as fol-

lows:

1. The Question Of Non-Discriminatory

Restrictions On Commercial Advertising Is

Not Presented By The Opinion Below Or By

The Record.

2. The Decision By The Court Of Appeals That

The Outdoor Grounds Of A University Con-

stitute A Designated Public Forum Does Not

Conflict With An Opinion From This Court

Or From Any Other Circuit.

ii

TABLE OF CONTENTS

Page

CRIES Tree CIAO? cae icnieccvaceevesbes bees i

pp Re Bee ere re ee ii

TABLE OF AUTRE Tile ss wees cvivcicivccckecnss iv

fl. SEAT RMER CP FRAT. ac eke sen diannsews's 2

Il. REASONS FOR DENYING CERTIORARI..... 3

1.

The Question Of Non-Discriminatory

Restrictions On Commercial Advertising Is

Not Presented By The Opinion Below Or

OY TNO BOCOUG 2. oc asd ac ccveseuapenneess

A.

B.

Advisory ODO «2 «65s. ccsnkssusess

First Presumption: No Commercial

ve | ere ere eter err

Second Presumption: No Distribution

ee Mere ee

Third Presumption: Lawful Control of

Advertising Precluded...............

Fourth Presumption: Newspaper Is

Commercial Speech... ..csccseseeees

The Decision By The Court Of Appeals

That The Outdoor Grounds Of A Univer-

sity Constitute A Designated Public Forum

Does Not Conflict With An Opinion From

This Court Or From Any Other Circuit ..

A.

Designated Public Forum............

9

10

14

iii

TABLE OF CONTENTS - Continued

Page

B. No Conflict With This Court’s Prece-

TOIL: So od ey gietatn Gide a ica Oa ee ae 19

C. No Inter-Circuit Conflicts............ 20

D. Traditional Open Forum............. 22

en 5 ook bok 60eee eee es ke ee OAR F

iV

TABLE OF AUTHORITIES

Page

Cases

Abrams v. United States, 250 U.S. 616 (1919) .......... 7

Acorn v. St. Louis County, 930 F.2d 591 (8th Cir.

ES re ca cg ir sce tea yaa OC ey cak oes 18

Associated Press v. United States, 326 U.S. 1 (1945)..... 7

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)...... 5

Bigelow v. Virginia, 421 U.S. 809 (1975) ............ 9, 12

Board of Airport Comm'rs v. Jews For Jesus, 482 U.S.

Of Se ee etter ere en eT TT Terre Tree 17

Board of Educ., Island Trees Union Free School, Dis-

trict No. 26 v. Pico, 457 U.S. 853 (1982)............. 7

Board of Trustees of State Univ. of N.Y. v. Fox, __

eg ee a COED eos i puckecacannccees 12

Carey v. Brown, 447 U.S. 455 (1900). ..........2.2050:: 8

C.B.S Inc. v. Democratic Nat. Com., 412 U.S. 94

es RS year errr ree res rire rrr re rey rr 10, 12

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.

| Ee ee rere tee ee Te ey eee ee eee 9

Community for Creative Non-violence v. Turner, 893

uae Caer GER. SR FO oa s or cwsrvcsensdunvanans 16

Discovery Network, Inc. v. City of Cincinnati, 946

F.2d 464 (6th Cir. 1991) cert. granted sub nom.

Cincinnati, Ohio v. Discovery Network, Inc., __

tk eee ae ee 12, 13

TABLE OF AUTHORITIES - Continued

Page

Fane v. Edenfield, 945 F.2d 1514 (11th Cir. 1991),

cert. granted ___ -U.S. __, 112 S.Ct. 2272 (1992) ..... 9

First National Bank of Boston v. Bellotti, 435 U.S. 765

(IDF os Nees oa oe cvnveeekeueee Rees eee eee 12

Fest v. Cohen, 302 U.S. GS (HRI cis sc ccsrceceuesee 4

Glover v. Cole, 762 F.2d 1197 (4th Cir. 1985) ......... 22

Grayned v. Rockford, 408 U.S. 104 (1972).............. 9

Grosjean v. American Press Co., 297 U.S. 233 (1936) .... 10

Hays County Guardian v. Supple, 969 F.2d 111 (5th

| PERT EETEE EEO ET ee passim

Head v. New Mexico Board, 374 U.S. 242 (1963)....... 10

Healy v. james, 408 US. 169 (1972) 5.506. <csccnesece: 20

Heffron v. Internat’l Soc. for Krishna Consciousness,

Tae WS. GOD OFGD) «5 baenv5ar cen cunaeosauneurneaes 18

Houston Chronicle Pub. Co. v. City of Houston, 620

S.W. 2d 833 (Tex. Civ. App. — Houston [14th

L.S Tet, WE WER os ccc icin eee 16

Intern. Soc. for Krishna Consciousness v. Lee, ___ U.S.

cnet: RA es ER EI eevee ads eae 16

Jones v. Board of Regents of the University of Arizona,

ee ee ee rrr 22

Jones v. Memorial Hospital System, 746 S.W.2d 891

(Tex. App. — Houston [1st Dist.] 1988, no writ) .... 15

Kleindienst v. Mandel, 408 U.S. 753 (1972)............ 20

vi

TABLE OF AUTHORITIES - Continued

Page

Law Students Civ. Rts. Research Council, Inc. v. Wad-

mond, 401 U.S. 154 (1971)... cee cee ee eee 9

Linmark Associates, Inc. v. Township of Willingboro,

ok WS. OS C1977) 6 usr anes vrevayevenavessournesens 9

Lovell v. City of Griffin, Ga., 303 U.S. 444 (1938) ..... 14

Martin v. City of Struthers, 319 U.S. 141 (1943)........ >

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

he) 5 a 18

Meyer v. Grant, 486 U.S. 414 (1988).................. 13

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

SES. sb hoes 64464 bean ERE anandeeneeeeseesaes 11, 12

Mills v. Alabama, 384 U.S. 214 (1966)................ 11

Minn. Star & Tribune v. Minn. Com’r of Rev., 460

NE SOU oc 44) 54.509. 4 ooh 0 hake Aarne aa en 6

Montana v. Imlay, ___ U.S. __, 113 S.Ct. 444 (1992) ..... 4

Murdock v. Penn., 319 U.S. 105 (1943).............006. 9

New Jersey v. Schmid, 423 A.2d 615 (N.J. S.Ct. 1980)

appeal dismissed sub. nom., Princeton Univer-

sity v. Schmid, 455 U.S. 100 (1981)................. 16

New York Times Co. v. U.S., 403 U.S. 713 (1971)...... 10

Papish v. Board of Curators, 410 U.S. 677 (1973)....... 8

Perry Education Ass'n v. Perry Local Educator's

Se a Oh. OF CHMOD acs cin yack okeneebaste gman 17

Pittsburgh Press Co. v. Pittsburgh Com’n on Human

Relations, 413 U.S. 376 (1973) ........ 9, 10, 12, 13, 19

Planned Parenthood v. Clark County Sch. Dist., 941

arear Goee Cit, TOPE. cc cecssviveviawen 20, 21, 22

Vil

TABLE OF AUTHORITIES —- Continued

Posadas De Puerto Rico Ass‘n v. Tourism Co., 478

is. SE CEMON osc ces vccsenrnvendesenered ene 10

Princeton University v. Schmid, 455 U.S. 100 (1981).... 16

Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367

(1969) oo ccc STccccssccsccusccsncusecdoveasienaes 8, 12

Right to Life Advocates, Inc. v. Aaron Women’s Clinic,

737 S.W.2d 564 (Tex. App. - Houston [14th

Liet.| TGs, weit GOnbees. os oscsak coves ks cee 15, 16

Riley v. Nat'l Federation of the Blind of N.C., 487 U.S.

SOL GEOUEN sos c cwaxcccenee saan eae 6 eee 13

Rust v. Sullivan, ___ : U.S. __, 111 S.Ct. 1759 (1991) .... 22

Sabel Communications of Calif. Inc. v. F.C.C., __

US... 19 SCE ee... 20

Schaumburg v. Citizens for a Better Environment, 444

US: Gab Ct. oe ee 18

Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989)...... 17

Sentinel Communication Co. v. Watts, 936 F.2d 1189

(hiths Cie TOE. os oss doe ee 17

Shapiro v. Kentucky Bar Ass‘n, 486 U.S. 466 (1988) ..... 5

Thomas v. Collins, 323 US. SIS CiSGS) «onc cc ccciascwks 8

U.S. v. Grace, SOL U5. 178 (IRRD) voc ces vevesvasnes 17

U.S. v. Kokinda, ____ U.S. __, 110 S.Ct. 3115 (1990) .... 17

Valentine v. Chrestensen, 316 U.S. 52 (1942)........... 12

Widmar v. Vincent, 454 U.S. 263 (1981)............ 19, 20

Vill

TABLE OF AUTHORITIES — Continued

Page

MIscELLANEOUS

P. Linzer, Why Bother With State Bills of Rights, 68

p ROR kt |. Se 16

P. Stewart, On Freedom of the Press, 26 Hastings L.

eres ae epee ee 4 CERN as sate dak aad eb 9 1]

No. 92-1008

¢

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, TOM BURDENSKI,

Petitioners,

HAYS COUNTY GUARDIAN, JEFFREY STEFANOFF,

VICKI HARTIN, WEBB BRANEN, JOE GADDY,

JODY DODD, JOE PTAK, ROBERT MARTINEZ,

and JOHN DEMAREE,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

‘

RESPONDENTS’ BRIEF IN OPPOSITION

4

The Respondents, The Hays County Guardian, et al.,

(“Guardian”) respectfully request that this Court deny

the petition for writ of certiorari seeking review of the

Fifth Circuit’s opinion in this case. That opinion was

decided on August 10, 1992 and is reported at 969 F.2d

111 (5th Cir. 1992).

9

_

I.

STATEMENT OF FACTS

The Respondents adopt the Petitioners Statement of

Facts with the following revisions and corrections:

SWTSU is not, even under its own policies, an

enclave without commercial activity. While SWTSU

actively encourages and promotes the sale and the offer

for sale of a wide range of goods, OL 09.05, appx. at

53-57,! it seeks to burden newspapers (other than its own)

with substantially more onerous rules than those

enforced against other commercial products. OL 09.05

§ 2.05(a), appx. at p. 54.

Southwest Texas State University (“SWTSU”) is the

seventh largest public institution of higher learning in the

State of Texas. Merchandise, such as candy, soft drinks

and the like are widely available for sale on campus. Rec.,

Tr. Vol. I, p. 141/In. 7-16. “Yellow page” advertising and

the like are found throughout the campus. Rec., Tr. Vol. I,

p. 142/In. 23 -p. 143/In. 19.

The University publishes its own student newspaper,

the University Star (“Star”). SWTSU imposes no restric-

tions on the Star, either as to advertising or as to where it

may be distributed on campus. Hays County Guardian v.

Supple, 969 F.2d 111, 120 (5th Cir. 1999) (“Guardian II”)

appx. at 13. The Star carries advertisements which are

identical to those carried in the Guardian. Hays County

Guardian v. Supple, C.A. No. A-90-CA-203 (W.D. Tex. 1991)

1 Appendix citations are to the appendices contained in the

Petition for Writ of Certiorari.

(Guardian |), appx. at p. 33 (FOF 30: “The Star competes

for and publishes commercial advertising identical to the

advertising found within the Guardian.”) The University

Star “contains a greater number and density of advertise-

ments than the Guardian.” Guardian II, 969 F.2d at 120,

appx. at 13.

Prior to August 31, 1989 the Guardian was allowed

free access to the University. On that date a small group

of university officials met without notice to the Guardian

and determined to “reinterpret” the University’s regula-

tions against soliciting. For the first time the University

began enforcing its ban on soliciting (that is, any sale or

offer for sale of merchandise, OL 9.05, appx. at 53) in such

a manner as to include free newspapers such as the

Guardian.

Il.

REASONS FOR DENYING CERTIORARI

1. The Question Of Non-Discriminatory Restrictions

On Commercial Advertising Is Not Presented By

The Opinion Below Or By The Record.

A. Advisory Opinion

In their First Question, Petitioners call upon this

Court to delineate the “ability of a state university to

restrict the distribution of commercial advertising on

campus” [Petition, First Question Presented]. In order to

claim this question Petitioners presume four issues. First,

they presume that Southwest Texas State University has

an inflexible rule that no commercial activity is allowed

on its’ campus. Second, they argue that no newspaper is

allowed to distribute in the campus market if it contains

advertising. Third, they presume that the Court of

Appeals has forbidden lawful control of commercial

speech. Fourth, they claim that the newspaper in ques-

tion, the Guardian, is one with no purpose other than to

propose commercial transactions. As Respondents show

below the record does not support any of these assump-

tions.

Since these premises do not, in fact, present them-

selves on this record the Court is not in a position to issue

“guidance” [Petition at p.7] to the defendants’ on how

best to preclude the dissemination of ideas on the SWTSU

campus. Put another way, the Petitioners simply request

an improper advisory opinion, Montana v. Imlay, U.S.

___ 113 S.Ct. 444, 445 (1992) (Justice Stevens, concurring);

Flast v. Cohen, 392 U.S. 83 (1950), on how best to skirt the

First Amendment’s prohibition on governmental intru-

sion into the commerce of information which the Foun-

ders sought to protect.

B. First Presumption: No Commercial Activity.

Both the Court of Appeals and the District Court

found that commercial activity is ubiquitous on the

SWTSU campus. The University Star carries advertising

that is identical to that carried by the Guardian. Guardian

I], 969 F.2d at 120, appx. at 8. Given the broad availability

of advertising at SWTSU, the Petitioners’ free speech

discrimination must be rejected. See, Shapiro v. Kentucky

Bar Ass'n, 486 U.S. 466, 473 (1988)(“Our advertising cases

have never distinguished among various modes of writ-

ten advertisements to the general public.”)?

In this case newspapers competing with the Univer-

sity’s newspaper are singled out and confined to remote

locations on this large urban campus because they con-

tain print advertisements about products, many of which

are directly available for sale on campus. These are often

the same advertisements contained in the University’s

“student” newspaper. (Rec., Tr. Vol. I, p. 141/In. 716). As

this Court said in Martin v. City of Struthers, 319 U.S. 141,

(1943):

Freedom to distribute information to every citi-

zen whenever he desires to receive it is so

clearly vital to the preservation of a free society

that, putting aside reasonable police and health

regulations of time and manner of distribution,

it must be fully preserved. The dangers of distri-

bution can so easily be controlled by traditional

legal methods, leaving to each householder the

full right to decide whether he will receive

strangers as visitors, that stringent prohibition

can serve no purpose but that forbidden by the

2 And as Shapiro notes, Bates v. State Bar of Arizona, 433 U.S.

350, 372, n.26 (1977) equates advertising in telephone directories

with newspaper advertising. Shapiro, 486 U.S. at 473. Yellow

page advertising is not banned from the SWTSU campuses.

(Rec., Tr. Vol. 1, pp. 142/In. 23-143/In. 19.)

Constitution, the naked restriction on the dis-

semination of ideas.

Martin, 319 at 146-47.

Here, the university seeks to forbid distribution of

newspapers (other than its own) while at the same time

allowing the underlying commercial transactions that its

rules refuse to allow advertising for. It singles out the

independent press for treatment not generally applicable

to other enterprises on campus. Compare OL 09.05 §2.02(a)

(distribution of newspapers) with §2.02(b) (sale of food

items), §2.02(c) (distribution of the University Star and

other publications) and §2.02(m) (advertisements in Uni-

versity publications), appx. at 54-56. It is true that the

First Amendment does not prohibit all regulations of the

press; however, the Free Press Clause does forbid sin-

gling out the press for treatment that is discriminatory.

Minn. Star & Tribune v. Minn. Com’r of Rev., 460 U.S. 575,

581 (1983) (“[D]ifferential treatment, unless justified by

some special characteristic of the press, suggests that the

goal of the regulation is not unrelated to suppression of

expression, and such a goal is presumptively unconstitu-

tional.”)

C. Second Presumption: No Distribution On

Campus.

The University argues that adult students must be

protected from themselves. SWTSU claims (without sup-

port in the record) that university students are: “[MJore

3 Since the age of majority in Texas is eighteen, the over-

whelming number of these students are adults.

affluent than the population general'y, more inclined to

‘discretionary spending’,” and that they are “concen-

trated together in a small area, [and thus they] constitute

a tempting market for sellers”. Petition at 8.

Only by denigrating the hard work, long hours and

personal sacrifice of the vast majority of students who

struggle to obtain their degree could the Court adopt

defendants’ reasoning. But what weight would this argu-

ment carry? Only a sub-silentio challenge to the free mar-

ket system, the same market system that the University

Star relies upon for its continued existence. The transpar-

ency of the University’s argument is especially evident

when the Court recalls that the University newspaper

runs identical advertisements to the ones which SWTSU

claims are harmful in competing newspapers.

We know that the free market of ideas is the quintes-

sential market in American society.* That is, the rights of

free speech and press are upheld to promote and preserve

a “free trade of ideas.” Abrams v. United States, 250 U.S.

616, 630 (1919). Freedom of speech “rests on the assump-

tion that the widest possible dissemination of information

from diverse and antagonistic sources is essential to the

welfare of the public, that a free press is a condition of a

free society.” Associated Press v. United States, 326 U.S. 1,

20 (1945).

4 Even in the elementary/high school setting, much less

with regard to adult college students, a school board “may not

act to deny access to an idea simply because state officials

disapprove of that idea for partisan or political reasons.” Board

of Educ., Island Trees Union Free School, District No. 26 v. Pico, 457

U.S. 853, 879 (1982) (Blackman, concurring).

It is this market that SWTSU seeks to minimize. The

First Amendment and this Court’s jurisprudence will not

allow such a result, especially not on the campus of an

institution of higher learning. Papish v. Board of Curators,

410 U.S. 677, 670 (1973). “The very purpose of the First

Amendment is to foreclose public authority from assum-

ing a guardianship of the public mind through regulating

the press ...”. Thomas v. Collins, 323 U.S. 515, 545 (1945)

(Jackson, J., concurring). Are we to presume (without

record evidence) that college students need protection

above and beyond that of the general population from

print advertisements? And if we are, how do we reconcile

the University Star's far more extensive distribution of

identical ads. Guardian II, 969 F.2d at 120, appx. at 13.

The University’s underinclusive regulation is broadly

unconstitutional and the Court of Appeals so found.

The University places no restrictions on the Unt-

versity Star, a paper that contains a greater

number and density of advertisements than the

Guardian. Twelve thousand 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 Uni-

versity or at least an interest that required a flat

prohibition on an entire medium of distribution.

Guardian II, 969 F.2d at 120, appx. at 13. See also Carey v.

Brown, 447 U.S. 455 (1980)(ordinance against residential

picketing found to be under-inclusive because it

exempted labor picketing); and, Red Lion Broadcasting Co.

v. F.C.C., 395 U.S. 367, 390 (1969) (“It is the purpose of the

First Amendment to preserve an uninhibited marketplace

of ideas in which truth will ultimately prevail, rather than

to countenance monopolism of that market, whether by

the Government itself or a private licensee.”)

D. Third Presumption: Lawful Control Of Adver-

tising Precluded.

When government seeks to restrain a channel of

speech, it must be shown that the manner of expression is

basically incompatible with the normal activity of a par-

ticular place at a particular time. City of Lakewood v. Plain

Dealer Pub. Co., 486 U.S. 750, 763 (1988), citing, Grayned v.

Rockford, 408 U.S. 104, 116 (1972). See also, Fane v. Eden-

field, 945 F.2d 1514, 1517 (11th Cir. 1991), cert. granted __

U.S. __, 112 S.Ct. 2272 (1992). No such showing is pre-

sent on this record. Given the University Star’s distribu-

tion of identical ads no such showing could have been

made. Linmark Associates, Inc. v. Township of Willingboro,

431 U.S. 85, 93-94 (1977).

Plaintiffs concede that an appropriate governmental

agency may legitimately prevent illegal activity even on

the part of a newspaper. Pittsburgh Press Co. v. Pittsburgh

Com’n on Human Relations, 413 U.S. 376 (1973); Law Stu-

dents Civ. Rts. Research Council, Inc. v. Wadmond, 401 U.S.

154 (1971). Where the newspaper is not involved in the

illegal activity the issue is more complex. The inclusion of

information in a newspaper is the last place that govern-

ment should look to prevent the dissemination of inap-

propriate information. That is, the general approach must

be that the advertiser itself should be the party under

scrutiny. Cf. Bigelow v. Virginia, 421 U.S. 809 (1975). Only

where the newspaper can be charged with conspiring to

10

engage in unlawful activity, Pittsburgh Press, 413 U.S. at

387, may government attack the messenger rather than

the message itself.

If the University — or any other state entity — believes

that a particular advertisement is false or misleading, it

may preclude that ad’s distribution and thereby test the

reasonableness of such a ban. Cf. Head v. New Mexico

Board, 374 U.S. 242 (1963). It may even have the authority

to ban literature which contains such ads. Posadas De

Puerto Rico Ass‘n v. Tourism Co., 478 U.S. 328 (1986). But it

may not issue a blanket prohibition against the dissem-

ination of nongovernmental news sources simply because

one of these entities might someday contain such an ad.

In the analogous circumstance of the electronic press,

Chief Justice Burger has held that, because a broadcast

entity has First Amendment protection, the government

has little power to interfere with the editorial decision te

accept or reject advertisements. C.B.S., Inc. v. Democratic

Nat. Com., 412 U.S. 94, 120-21 (1973).

E. Fourth Presumption: Newspaper Ils Commer-

cial Speech.

The Press Clause of the First Amendment provides

protection separate and apart from the Speech Clause of

the First Amendment. Grosjean v. American Press Co., 297

U.S. 233 (1936). “In the First Amendment the Founding

Fathers gave the free press the protection it must have to

fulfill its essential role in our democracy.” New York Times

Co. v. U.S., 403 U.S. 713, 717 (1971) (Justice Black, concur-

ring).

11

A newspaper is more than a passive receptacle

or conduit for news, comment, and advertising.

The choice of material to go into a newspaper,

and the decisions made as to limitations on the

size and content of the paper, and treatment of

public issues and public officials - whether fair

or unfair — constitute the exercise of editorial

control and judgment. It has yet to be demon-

strated how governmental regulation of this

crucial process can be exercised consistent with

First Amendment guarantees of a free press as

they have evolved to this time.

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258

(1974) (footnote omitted). In Justice Stewart’s words

“(t]he primary purpose of the constitutional guarantee of

a free press was... to create a fourth institution outside

the Government as an additional check on the three offi-

cial branches.” P. Stewart, “On Freedom of the Press,” 26

Hastings L. J. 631, 634 (1975). “Thus the press serves and

was designed to serve as a powerful antidote to any

abuse of power by governmental officials and as a consti-

tutionally chosen means for helping officials elected by

the people be responsible to all the people whom they

were selected to serve.” Mills v. Alabama, 384 U.S. 214, 219

(1966).

This right extends to the editorial function of adver-

tising.

The power of a privately owned newspaper to

advance its own political, social and economic

views is bounded by only two factors: First, the

acceptance of a sufficient number of readers -

and hence advertisers — to assure financial suc-

cess; and, second, the journalistic integrity of its

editors and publishers.

12

C.B.S., Inc., 412 U.S. at 117 cited with approval in Miami

Herald, 418 U.S. at 255. “The press cases emphasize the

special and constitutionally recognized role of that insti-

tution in informing and educating the public, offering

criticism, and providing a forum for discussion and

debate.” First National Bank of Boston v. Bellotti, 435 U.S.

765, 781 (1978) (footnote omitted). See also Red Lion, 395

U.S. at 390.

The university may not merely label the Guardian

commercial and thus ban it. State labels are not disposi-

tive of the degree of speech protection. Bigelow, 421 U.S.

at 826. But, even though it contains commercial advertise-

ments with lower protected status on the First Amend-

ment ladder, Board of Trustees of State Univ. of N.Y. v. Fox,

___ ;U'S. __, 109 S.Ct. 3028, 3033 (1989), that does not

make the commercial speech the lowest-common-denom-

inator in the speech equation. Where traditional and com-

mercial speech are intertwined the Court must determine

whether the fully protected speech is the significant com-

munication or whether it is simply an after thought

tacked on to a sales pitch. Fox, 109 S.Ct. at 3031.

In the instant cause, the record is undisputed that

speech of the highest order is at stake. Miami Herald, 418

U.S. at 258; Discovery Network, Inc. v. City of Cincinnati,

946 F.2d 464, 467, n.4 (6th Cir. 1991), cert. granted sub

nom. Cincinnati, Ohio v. Discovery Network, Inc., __ U.S.

__, 112 S.Ct. 1290 (1992). While the Guardian does con-

tain advertisements, nevertheless these advertisements

are not the purpose of the paper. See, Valentine v.

Chrestensen, 316 U.S. 52 (1942) as analyzed in Pittsburgh

Press, 413 U.S. at 385. The purpose of the newspaper is to

13

report on issues concerning peace, justice and the envi-

ronment. Guardian II, 969 F.2d at 120, appx. at 14. Such

traditional First Amendment speech (or speech signifi-

cantly intertwined with traditional speech) is fully pro-

tected. Riley v. Nat'l Federation of the Blind of N.C., 487 U.S.

781 (1988).

The press, of course, cannot long publish without

financial support. Income is generally obtained by,

among other things, seeking and accepting commercial

advertising. Given these parameters it is clear that, at

least where the press is considered®, the “speech” of the

publisher so outweighs the commercial aspects of the

advertisements that the amalgamation must be evaluated

on a “pure” speech basis. Riley, 487 U.S. at 796. (“[W]Je do

not believe that the speech retains its commercial charac-

ter when it is inextricably intertwined with otherwise

fully protected speech.”) See also, Meyer v. Grant, 486 U.S.

414, 442, n. 5 (1988); and Discovery Network, 946 F.2d at

467, n.4

The Petitioners reject this analysis based upon a tor-

tured reading of Fox. That case is not dispositive of the

cause sub judice. First, freedom of the press is specifically

addressed in the Constitution, Tupperware - brand plas-

tic storage container parties (the event addressed in Fox)

are not. Why did the framers of the First Amendment add

press rights after speech rights? Is the Press Clause a

redundancy? Obviously not. Second, as demonstrated

above, freedom of the press requires more than that

5 And where no “illegal” conduct is undertaken. Pittsburgh

Press, 413 U.S. at 385.

14

newspapers be allowed editorial independence. They

must have financial independence. They cannot achieve

this independence without resort to advertising. Put

another way: “The press in its historic connotation com-

prehends every sort of publication which affords a vehi-

cle of information and opinion.” Lovell v. City of Griffin,

Ga. 303 U.S. 444, 452 (1938).

Il.

2. The Decision By The Court Of Appeals That

The Outdoor Grounds Of A University Consti-

tute A Designated Public Forum Does Not Con-

flict With An Opinion From This Court Or From

Any Other Circuit.

A. Designated Public Forum

The Board of Regents of the Texas State University

System have promulgated the following rule:

Speech on University Grounds. Any group or per-

son, 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.

Guardian II, 969 F.2d at 117, appx. at 7. The “University’s

operating letter 9.06, § 2.02 allows any “student. . . [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.” Id. at 7-8 (emphasis in

original). And, of course, the University Star is granted

unlimited distribution. Id. at 8. No clearer description of a

designated public forum could be possible.

15

The Court of Appeals found, based on this evidence,

that “the University deliberately fosters an environment

in which students may freely distribute newspapers,

pamphlets, and other literatures concerning public affairs

outdoors, on grounds owned or controlled by the Univer-

sity,” subject only to the limits necessary to preserve the

academic mission and maintain order. Id.

This finding is both logically and intuitively correct.

That is: (1) the University has chosen to open itself as a

forum; (2) the University places no restrictions on the

University Star newspaper which contains similar ads to

those found in the Guardian; and (3) the University allows

widespread sale and offer for sale of merchandise on

campus (restricting only newspapers other than the Unt-

versity Star to five remote locations).®

Alternatively, the university, or at least significant

portions of it, is designated by the Texas Constitution as

public. See, Jones v. Memorial Hospital System, 746 S.W.2d

891 (Tex. App. —- Houston [1st Dist.] 1988, no writ) and

Right to Life Advocates, Inc. v. Aaron Women’s Clinic, 737

6 The University allows widespread advertising in the Uni-

versity Star; it provides ample space in virtually every building

for sale of candy, soft drinks, etc. by vending machines; it allows

unregulated solicitation throughout campus by “yellow page”

advertising, and it does not seek to censor television, radio,

telephone and/or fax advertising. Thus, the result of the Peti-

tioners rule is singular: It precludes small, underfunded pub-

lications such as the Guardian from reaching their intended

audience with no incremental benefit in “protecting” the adult

faculty and students of the University from being exposed to

(protected) commercial information. At the very least this ren-

ders the regulation underinclusive.

16

S.W.2d 564 (Tex. App. - Houston [14th Dist.] 1987, writ

denied), cert. denied, ___ U.S. ___, 109 S.Ct. 71 (1988). Jones

and Right to Life Advocates establish that, under Texas law,

even a private corporation significantly “involved in state

and federal activity” is treated as “a public entity for

purposes of upholding the state constitutional right of

free speech.” Jones, 746 S.W.2d at 896. Right to Life Advo-

cates adopts and follows New Jersey v. Schmid, 423 A.2d

615 (N.J. S.Ct. 1980) appeal dismissed sub. nom., Princeton

University v. Schmid, 455 U.S. 100 (1981). Schmid in turn

applies state open forum analysis to a private university

campus and requires that freedom of speech be allowed

unhindered. See, P. Linzer, Why Bother With State Bills of

Rights, 68 Tex. L. Rev. 1573, 1599 (1990).

If the Texas Constitution makes SWTSU an open

forum it cannot be doubted that it is a public forum by

designation. Community for Creative Non-violence v. Turner,

893 F.2d 1387, 1391 (D.C. Cir. 1990). No higher authority

in Texas law exists to establish such a designation. It is

beyond debate that this Texas case law applies to the

distribution of newspapers. Houston Chronicle Pub. Co. v.

City of Houston, 620 S.W.2d 833, 837 (Tex.Civ.App. -

Houston [14th Dist.] 1981, no writ); Ex Parte Neil, 222

S.W.923, 924 (Tex. 1893).

This being so, SWTSU cannot limit free access in the

designated public forum portions of the university. “Reg-

ulation of such property is subject to the same limitations

as that governing a traditional public forum.” Intern. Soc.

For Krishna Consciousness v. Lee, we. . he BEE

2701, 2705 (1992).

17

The [United States] Constitution forbids a State

to enforce certain exclusions from a forum gen-

erally open to the public even if it was not

required to create the forum in the first place.

Although a State is not required to indefinitely

retain the open character of the facility, as long

as it does so it is bound by the same standards

as applied in a traditional public forum.

Perry Education Ass‘n v. Perry Local Educator’s Ass‘n, 460

U.S. 37, 45-6 (1983). Once a forum is generally open,

government can not pick and choose the type of expres-

Sive activity allowed simply by whim.” Searcey v. Harris,

888 F.2d 1314, 1324 (11th Cir. 1989).

“While it is proper to weigh the need to maintain the

dignity and purpose of a public building, or to impose

special security requirements, other factors may point to

the conclusion that the Government must permit wider

access to the forum than it has otherwise intended.” U.S.

v. Kokinda, __ U.S. __, 110 S.Ct. 3115, 3125 (1990) (Ken-

nedy, concurring) (citations omitted). See also Guardian II,

969 F.2d at 117, appx. at p. 5. Having opened the campus

for expressive activity by students and non-students

alike, the university cannot withdraw a portion of these

rights — that is the right to pass out newspapers - except

by establishing that its actions are reasonable time, place

and manner restrictions. U.S. v. Grace, 461 U.S. 171 (1983);

7 Even in a non-forum the government must demonstrate

that its actions are reasonable. Board of Airport Comm’rs v. Jews

For Jesus, 482 U.S. 569 (1987). This is so even for leafletting. Lee,

112 S.Ct. at 2713 (O’Connor, J. concurring). Regulation of news-

papers in non-public forums must be particularly reasonable.

Sentinel Communication Co. v. Watts, 936 F.2d 1189, 1205-07 (11th

Cir. 1991).

18

Acorn v. St. Louis County, 930 F.2d 591, 594 (8th Cir. 1991).

Thus, Petitioners claim that the ruling below “sharply

curtails the university’s ability to restrict other protected

expressive activity .. . in outdoor locations,” Petition at p.

13 (emphasis supplied), is both clearly correct and totally

beside the point.

First, the Petitioners are correct that the First Amend-

ment is specifically designed to limit government’s

powers to restrain what Petitioners admit is, “protected

expressive activity”. The Amendment accomplishes its

very purpose if it does, in fact, provide free access to

information on the SWTSU campus. But it is to this

conclusion that the Petitioners lodge their real objection.

That is, this university takes exception to the very genius

of the Bill of Rights.

SWTSU must acknowledge that the expressive activ-

ity it seeks to limit (i.e., advertising) is widely dissemi-

nated throughout the campus by the university using the

university sponsored and controlled newspaper as its

vehicle and revenue collector. If government can, within

the limits of the First Amendment, distribute (and

monopolize) such income-generating ads while at the

same time denying other newspapers their very existence

then the independence of the Fourth Estate must be writ-

ten off. But such is not the jurisprudence of the First

Amendment. Cf. Metromedia, Inc. v. City of San Diego, 453

U.S. 490, 513 (1981).

The degree of First Amendment protection is not

diminished even where newspapers are sold rather than

given away. Heffron v. Internat’l Soc. for Krishna Conscious-

ness, 452 U.S. 640, 647 (1981); Schaumburg v. Citizens for a

ina eeeceseaniaeanieeiaieeiaaiinieiinaniaaaiiiiianiiell

19

Better Environment, 444 U.S. 620, 632 (1980); Pittsburgh

Press, 413 U.S. at 385; Murdock v. Penn., 319 U.S. 105, 111

(1943). How then can the Guardian's First Amendment

rights be diminished when it simply includes truthful ads

which are already made available on campus by the

university itself.

Second, the University’s claim is beside the point

because the Fifth Circuit did not preclude it from restrict-

ing improper or inappropriate activity even if it would

otherwise be sanctioned by the First Amendment. As the

Court below carefully stated, the designated forum in

question remains “subject to the limits necessary to pre-

serve the academic mission [of the University] and to

[its’] need to maintain order.” Guardian II, 969 F.2d at 117,

appx. at 8. See also, Metromedia, Inc., 453 U.S. at 516.

B. No Conflict With This Court’s Precedents

Petitioners claim a conflict between the reasoned

decision below and this Court’s precedents. Yet no such

conflict appears in Petitioners’ Brief. Widmar v. Vincent,

454 U.S. 263 (1981), is cited as conflicting with the panel

decision below. But that case affirmatively states:

This Court has recognized that the campus of a

public university, at least for its students, pos-

sesses many of the characteristics of a public

forum. “The college classroom with its sur-

rounding environs is peculiarly ‘the mar-

ketplace of ideas’.” Moreover, the capacity of a

group or individual “to participate in the intel-

lectual give and take of campus debate

. .. [would be] limited by denial of access to the

customary media for communicating with the

a

20

administration, faculty members, and other stu-

dents.” We therefore have held that students

enjoy First Amendment rights of speech and

association on campus, and that the “denial [to

particular groups] of use of campus facilities for

meetings and other appropriate purposes” must

be subjected to the level of scrutiny appropriate

to any form of prior restraint.

Widmar, 454 U.S. 263 at n. 5 (citations omitted). See also,

Healy v. James, 408 U.S. 169 (1972) and Kleindienst v. Man-

del, 408 U.S. 753, 763 (1972) (the right to free speech “is

‘no where more vital’ than in our schools and univer-

sities.”)

C. No Inter-Circuit Conflict.

The Petitioners cite Planned Parenthood v. Ciark County

Sch. Dist., 941 F.2d 817 (9th Cir. 1991) as compelling “a

different result if applied to this case.” Petitioner’s Brief

at p. 15. Even a cursory review of Planned Parenthood

demonstrates that it is not in conflict with the result

challenged here. Rather, Planned Parenthood fully supports

the ruling below.

To be sure, Planned Parenthood is driven by different

facts. It involves curtailing high school (juvenile) student

rights.® The Guardian is directed to adults. Planned Parent-

hood involves an advertiser’s demand for access to a

8 The Court has recently articulated the difference between

the First Amendment's effect on adults and it’s effect on minors.

See, Sable Communications of Calif., Inc. v. F.C.C. U.S. ___ 109

—

S.Ct. 2829, 2836 (1989). Put in Planned Parenthood terms: “In light

of the nature of the [high school] environment, educators must

have the ability to consider the ‘emotional maturity of the

21

school-sponsored publication. Planned Parenthood, 941

2 F.2d at 822. The Guardian is an entity totally independent

of SWTSU.? The high school in question treated all pub-

lications alike. Id. at 823. SWTSU allows the University

Star to carry ads which are identical to those in the

Guardian. Nonetheless, the Star distributes without Uni-

versity interference while the Guardian is threatened by

legal action.

Based on these critical distinctions alone, it is clear

that Planned Parenthood does not represent a conflict with

the opinion below. Nevertheless it is also important to

point out why Planned Parenthood affirmatively supports

(rather than opposes) the result in Guardian II.

Planned Parenthood found as an evidentiary matter

that there was no evidence “to demonstrate the ‘clear

intent to create a public forum’ [as] was present in other

public forum cases”. Planned Parenthood, 941 F.2d at 823.

In a footnote, the court carefully analyzed this Court’s

precedent upholding designated open forums (Id. at n. 9)"

intended audience’ as well as the authority to refuse to ‘associ-

ate the school with any position other than neutrality on matters

of political controversy’.” Planned Parenthood, 941 F.2d at 829.

® Planned Parenthood sought to force its ad into a school

sponsored newspaper which was part of the schools’ education

mission. “When ‘school-sponsored’ speech can fairly be charac-

terized as part of the schools’ mission . . . the first amendment

affords educators ‘greater control’ in deciding when the school

will affirmatively ‘promote’ or ‘lend its name and resources’ to

particular speech. Planned Parenthood, 941 F.2d at 828 (citations

omitted). The Guardian, of course, bears no imprimatur of

SWTSU. If there were confusion about the Guardian's distinction

from the university, the newspaper (possibly more than the

SWTSU) would wish to make its independence clear.

22

and noted that its result would be different were such

evidence found in the record. Id. at 825 (“We agree that a

high school may create a public forum or designate a

forum for limited purposes”.)

Second, Planned Parenthood requires analysis of the

most important factor in the public forum debate. “When

identifying the relevant forum, we focus ‘on the access

sought by the speaker’.” Planned Parenthood, 941 F.2d at

822, n. 5 (citations omitted). In Planned Parenthood access

was sought to the high school newspaper. In the cause

sub judice the forum is the outdoor areas of a large urban

campus.

In the final analysis “each public forum case is

unique on its facts”. Id. at 822. Planned Parenthood is

distinct factually and intellectually from the issues under

consideration here. Thus, it cannot constitute a conflict

with the holding below.

D. Traditional Open Forum

Because it found that the University has designated

the grounds of its campus as an open forum the Court

below did nc. reach the issue of whether the SWTSU

campus is a. aditional open forum. However, in Glover v.

Cole, 762 F.2d 1197 (4th Cir. 1985) the Fourth Circuit

reached and resolved this very question, finding that a

university campus is open for expressive conduct by all

members of the public. See also Jones v. Board of Regents of

the University of Arizona, 436 F.2d 618 (9th Cir. 1970). As

this Court recognized in Rust v. Sullivan, __ U.S. __, 111

S.Ct. 1759, 1776 (1991), a “university is a traditional

—e a

:

;

}

;

23

sphere of free expression so fundamental to the function-

ing of our society that the Government’s ability to control

speech within that sphere . . . is restricted by the vague-

ness and overbreadth doctrines of the First Amendment.”

Thus, if a question had existed as to the designation of

the outdoor grounds at SWTSU as an open forum, the

Court of Appeals would necessarily have had to conclude

that the campus was a traditional open forum.

Ill.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

WIsEMAN, Durst & TUDDENHAM

600 West 7th Street

Austin, Texas 78701

(512) 479-5017

Telecopier no.: (512) 479-0409

J. Patrick WIsEMAN

Counsel of Record for

Respondents.