Administrators at Oregon State University who signed off on the seizure and disposal of a conservative student publication’s distribution bins might have to go to trial after all, after an appeals court on Tuesday overturned a ruling  dismissing the students’ complaint against them.
Two of three members of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit concluded that the student journalists had provided sufficient evidence to make a claim of free speech violation, but were prevented from presenting it because the lower court judge erred in not letting them amend their lawsuit. Officials at the university may have violated the students’ right to free speech under the First and Fourteenth Amendments, the majority wrote in OSU Student Alliance v. Ray.
And even though top-level officials, including the university's president, evidently didn’t order the confiscation directly, the mere knowledge of it could be a violation, the court said. As a result, the lawsuit will proceed.
The lawsuit has clear implications for administrators regarding how they can (or can’t) regulate student publications’ distribution bins, said Frank LoMonte, executive director of the Student Press Law Center. But on the whole, he said, while distribution issues arise from time to time, the issues the complaint addresses are not the most prevalent ones surrounding student press freedom.
“A policy that gives some administrator complete and total discretion to decide where and when people can give out newspapers is never going to fly under the First Amendment. It sets up too much opportunity for mischief and retaliation, which I think was a concern that you saw underlying the majority opinion,” LoMonte said. “Most places, they’ve learned to peacefully coexist with newspapers and they realize it’s not a hazard or an obstruction or a hindrance to them doing business…. I don’t know that there are hundreds more situations that are analogous to this that are going to be immediately influenced.”
In short, the university removed and threw out the outdoor distribution bins of The Liberty, a conservative and independent student newspaper, and when confronted by student editors, referred to an unwritten and never-before-enforced policy dictating where on- and off-campus publications could place bins. Oregon State did not remove any other bins, including those of clearly off-campus publications.
The complaint targets Oregon State's president, Ed Ray; Vice Provost for Student Affairs Larry D. Roper; Vice President for Finance and Administration Mark McCambridge; and Vincent Martorello, the director of facilities services. The court held that the complaint stated valid free speech claims against Martorello, McCambridge and Ray, in addition to due process claims against Martorello. (No valid claims were made against Roper, the court concluded.)
But the court’s dissenting judge, Sandra S. Ikuta, argued that officials who did not directly carry out the disposal should not be held responsible for it, in part because they were not legally required to stop it.
“Plaintiffs here did not allege that Ray or McCambridge engaged in any misconduct or that these officials caused their injury. Therefore, the complaint in its current form does not meet the bare minimum for stating a First Amendment claim,” Ikuta wrote. “In place of personal misconduct and causation, the majority substitutes mere knowledge of a lower-ranking employee’s misconduct,” despite this standard being rejected in previous court cases.
Without notifying any Liberty staff members, campus facilities employees removed all of the magazine’s outdoor distribution bins “and threw them in a heap by a dumpster in the storage yard.”
The Liberty, funded through private donations and advertising revenue, is considered an alternative to the official student newspaper, The Daily Barometer, which receives student fees as part of its funding.
The Liberty’s outdoor bins were placed in high-traffic areas around campus where many Daily Barometer bins were located as well. After the rest of the bins disappeared during the 2008-9 winter term, student editors called the police, only to discover that the confiscation was a university-sanctioned decision. Facilities staff directed students to the storage yard, where they found one bin was cracked and others had spilled open, damaging 150 copies of The Liberty.
Martorello told the magazine’s executive editor that the university was “catching up” on a 2006 policy restricting off-campus publication news bins on campus property except for two specific spots -- near the bookstore and the student union – to keep the campus tidy. He also said the bins could not be chained to school property.
The Liberty is written and edited by Oregon State students, and is published by a sanctioned student group. The editor pointed this out to administrators, asking why this rule would apply to the magazine but not to The Daily Barometer, and requesting a copy of the policy. The university’s general counsel later told the editor that the policy was unwritten but that state law gives the university control over its grounds, buildings and facilities. Further, the lawyer said, The Daily Barometer was not subject to the unwritten policy because it has been the campus newspaper since 1896 and was funded through the student government. (The Liberty was founded in 2002.)
Ray, McCambridge and OSU associate general counsel Charles Fletcher “refused to consider” an alternative policy proposed by Liberty editors, court documents say, but the administration adopted a new written policy after the lawsuit was filed – on that did not distinguish between on- and off-campus publications but required any person to obtain permission to place a bin on campus.
So, the district court dismissed the suit and said no damages could be awarded because the plaintiffs did not allege that any of the defendants actively confiscated the bins.
The court notes that “the circulation of newspapers is expressive conduct protected by the First Amendment…. Therefore, if the government wishes to regulate the placement of newsbins in a public forum, it must do so according to established, content-neutral standards.”
The majority opinion also challenges Fletcher’s argument, noting that his explanation employs “viewpoint discrimination” and also doesn’t speak at all to the policy’s stated purpose of keeping the campus clean. “The explanations’ most obvious flaw, however, and the flaw that guides our decision here, is their timing,” the court wrote. “Maybe the unwritten policy sought from its inception to differentiate papers based on their sources of funding, or maybe OSU officials seized up this criterion after the Liberty published something that infuriated them…. The fact that the ‘policy’ was not written or otherwise established by practice meant there were no standards by which the officials could be limited. It left them with unbridled discretion.”