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Ninth Circuit:
Campus Ban on Posting Flyers With Offensive Or ‘Inappropriate’ Content Properly Blocked
By a MetNews Staff Writer
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Pictured is then-student Alejandro Flores, lead plaintiff in an action against administrators at Clovis Community College. The Ninth U.S. Circuit Court of Appeals yesterday upheld a preliminary injunction barring enforcement on a campus ban on posting offensive materials.
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The Ninth U.S. Circuit Court of Appeals held yesterday that the District Court did not abuse its discretion in issuing a preliminary injunction barring enforcement of a community college directive prohibiting postings on campus hallway bulletin boards containing “inappropriate or offense language or themes.”
A three-judge panel said in a memorandum opinion that Magistrate Judge Jennifer L. Thurston of the Eastern District of California correctly determined that the plaintiffs—three students and the campus chapter of the conservative Young Americans for Freedom (“YAF”)—were likely to prevail on the merits in their challenge to the policy predicated on the First and Fourteenth Amendments.
Thurston said in her Oct. 14, 2022 decision:
“The Flyer Policy’s combination of the preapproval system and broadly defined ban on offensive speech likely creates a chilling effect on student speech and an ‘unacceptable risk of the suppression of ideas’ otherwise protected by the First Amendment.”
Also finding that the policy appears impermissibly vague, in violation of the Due Process Clause of the Fourteenth Amendment, the magistrate judge expressed agreement with the plaintiffs that “the Flyer Policy does not give a person of ordinary intelligence a reasonable opportunity to know what speech is prohibited under the ‘inappropriate or offense’ provision.”
College in Fresno
The policy was instituted at Clovis Community College in Fresno. The defendants are the college’s president, vice president, dean of students, and senior program advisor.
Comprising the Ninth Circuit panel were Circuit Judges Milan D. Smith Jr. and Kim Wardlaw, joined by District Court Judge Douglas L. Rayes of the District of Arizona, sitting by designation. They said:
“The district court did not err in determining that there was likely a substantial amount of protected speech that would be potentially chilled by the Flyer Policy. What is ‘inappropriate’ or ‘offensive’ is a subjective determination, which would vary based on a college administrator’s personal beliefs. Political speech, for example, has a high propensity to be viewed as ‘offensive,’ and the First Amendment ‘affords the broadest protection” to political expression.’ ”
The panel went on to say:
“Nor did the district court abuse its discretion in concluding that the Flyer Policy was likely unconstitutionally vague in violation of the Fourteenth Amendment.”
It expressed agreement with Thurston’s impression that it would be difficult to determine what was a permissible expression and what was not.
Defendants’ Contention
The defendant argued that the bulletin boards are non-public and that the college’s administrators are art liberty to control what is posted under the “the school-sponsored speech doctrine.”
That doctrine applies where it could be inferred that views being expressed are those of the school.
The panel responded:
“[A]ssuming without deciding that the school-sponsored speech doctrine applies, the Flyer Policy was nevertheless required to be ‘reasonably related to legitimate pedagogical concerns.’ …While Clovis may have been able to permissibly ban lewd and obscene flyers that included nudity or profanity…, the district court did not abuse its discretion in determining that a ban on ‘inappropriate and offense language or themes’ is likely too broad to be ‘reasonably related to legitimate pedagogical concerns.’ ”
Although the policy in question has been rescinded, the panel said, the matter is not moot. The judges explained:
“Defendants could easily reinsert the challenged provision into Clovis’s flyer policy absent the preliminary injunction.”
The suit was brought by then-students Alejandro Flores, founder of the campus chapter of YAF, Daniel Flores, and Juliette Colunga, as well as by the YAF chapter, after posting of their “pro-life” flyers was disallowed. Posters reflecting conservative views had been approved for pinning on a bulletin board but, after complaints were lodged, they were removed after “Freedom Week” had concluded.
One of their contentions was that the policy results in an impermissible prior restraint, and, as applied, viewpoint discrimination.
Thurston said that “having found a likelihood of success under the overbreadth and vagueness claims, a determination on the prior restraint challenge is unnecessary to issue the preliminary injunction,” and that the same applied to viewpoint discrimination. The Ninth Circuit panel echoed: “Because we affirm the district court’s overbreadth and vagueness determinations, we decline to reach the Plaintiffs’ prior restraint and viewpoint discrimination claims.”
The case is Flores v. Bennett, 22-16762.
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Depicted above are posters that were affixed to a Clovis Community College for a week, then ordered removed, pursuant to a policy against matter containing “inappropriate or offense [sic] language or themes.”
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