# Opposition Brief — Supple v. Hays County Guardian

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 1087

## Text

A
/ 2 i ‘ oD 4
j
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

:
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}
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1792%3A2. Public record. Not legal advice.