U.S. court: Texas college was wrong to prohibit pamphlet distribution

TEXAS — A federal appeals court has ruled that a University of Texas at Austin policy banning the distribution by students of anonymous pamphlets on campus is unconstitutional.

The Fifth U.S. Circuit Court of Appeals upheld on May 27 a district court ruling that the anti-abortion student group Justice for All should have been allowed to hand out pamphlets on campus, even though they did not list a campus group responsible for them. A U.S. District Court ruled in Justice for All’s favor in February 2004.

The school’s policy required all handouts to have a school-affiliated person or group responsible for distributing the handouts listed on the materials.

The case started in February 2001 when members of Justice for All requested to erect a large display of anti-abortion pictures in the main plaza on campus. The group’s members allege that while near the display, they were prevented from handing out pamphlets reading “Life is beautiful–choose life” because Justice for All was not identified as the group responsible for the pamphlets. The group brought the lawsuit against the university, represented by the Alliance Defense Fund.

In its ruling, the court ruled that the outdoor open areas of the University of Texas at Austin campus were designated public forums for students, faculty and staff, and thus content based restrictions on speech would rarely survive First Amendment scrutiny.

Thus the court and the university could ask those distributing the pamphlets to identify themselves as students to school officials, but could not require that they tell those who receive the pamphlets who is responsible for their contents.

The court, citing the 1995 U.S. Supreme Court ruling McIntyre v. Ohio Elections Commission, found that “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent” that “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.”

Gary McCaleb, senior counsel at the Alliance Defense Fund, said the court helped to clarify the right of anonymity on campus for students.

“Whatever interest the university has, it doesn’t trump the right to comment through an anonymous pamphlet,” McCaleb said.

The university argued that by banning anonymous pamphlets, they are preventing outside groups from distributing materials on campus and are preserving the campus for the students and staff to have open discussions.

Don Hale, vice president for public affairs at the University of Texas at Austin, said the school has not made a decision yet on whether to appeal, and has to meet with counsel from the University of Texas System before they make any decisions.

By Rebecca McNulty