Advancing Religious Liberty
10/29/12 at 02:17 PM 0 Comments

The Liberty Prevails: Ninth Circuit Rules in Favor of Student Newspaper

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Author: Alliance Defending Freedom Senior Legal Counsel David Hacker

Alliance Defending Freedom received an outstanding First Amendment victory Tuesday when the U.S. Court of Appeals for the Ninth Circuit ruled against Oregon State University in OSU Student Alliance v. Ray, a case brought by The Liberty, an independent student newspaper at OSU. Read our previous posts about this case here, here, and here.

The Liberty sued OSU in 2009 after university officials removed all of The Liberty’s newsbins from campus and dumped them in a trash heap. OSU acted pursuant to an unwritten and previously unenforced policy and without any prior notice to The Liberty. Only after The Liberty’s staff reported the bins as stolen did the police determine that OSU confiscated them. OSU claimed it removed the bins to clean up campus, but noticeably left the newsbins of the Daily Barometer and other off-campus papers untouched. Afterward, OSU refused to allow The Liberty to replace its bins anywhere except in two locations near the student center. The newsbins of the other papers remained scattered across campus.

The Ninth Circuit’s opinion contains several important conclusions. First, it finds that OSU’s campus is a public forum for students, meaning that university policies that restrict student speech are subject to the most exacting constitutional scrutiny.

Second, OSU violated the First Amendment by acting with unbridled discretion. According to the Ninth Circuit:

The policy that OSU enforced against plaintiffs, however, was not merely unwritten. It was also unannounced and had no history of enforcement. It materialized like a bolt out of the blue to smite the Liberty’s, but not the Daily Barometer’s, newsbins onto the trash heap. The policy created no standards to cabin discretion through content or history of enforcement, and it set no fixed standard for a distinction between the Barometer and the Liberty. The policy’s enforcement against plaintiffs therefore violated the First Amendment.

Third, in the words of Ninth Circuit, OSU’s insistence that it may treat The Liberty differently than the Daily Barometer because the latter has been on campus longer and is allegedly more connected to the university “raises the ominous specter of viewpoint discrimination.”

Fourth, OSU’s failure to give notice to The Liberty before confiscating its bins violated its right to due process. As the Court said:

Clearly there was no urgency and no reason to junk the bins instead of directing plaintiffs to remove them. Moreover, contact information for the paper’s editorial board appeared inside the first page of every copy of the Liberty. Providing notice would have been as simple as flipping a page and making a phone call or sending an email. The Facilities Department’s decision to forego this procedure in favor of summarily confiscating the newsbins — more like a “thief in the night” than a “conscientious public servant” — violated due process.

Finally, the Court held that OSU’s president and two other officials may be held personally liable for these unconstitutional actions. The case now returns to the federal district court for further proceedings.

Has your student group been treated in a similar way? Let us know.

This post originally appeared here.

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