U.S. Court upholds right to distribute anonymously

TEXAS — Officials at the University of Texas at Austin are debating whether to appeal a federal appeals court ruling that allows students to distribute pamphlets anonymously on campus, a spokesman for the Texas Attorney General’s Office said.

The U.S. Court of Appeals for the Fifth Circuit on May 27 upheld 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. The U.S. District Court for the Western District of Texas ruled in Justice for All’s favor in February 2004.

The school’s policy required all handout distributors to have a school-affiliated person or group responsible for 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, represented by the Alliance Defense Fund, brought the lawsuit against the university.

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.

The court said 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.

David Hudson, research attorney for the First Amendment Center, said the case is important although he added that it needs ”more litigation to flesh it out.”

”The opinion reaffirmed the fundamental principal that anonymous speech is protected under the First Amendment,” Hudson said. He added that since the 1960’s the courts have recognized this principle.

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.”

The university argued, however, 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.

”Under the Literature Policy, the only speech arguably burdened is that of students who may wish to stand on campus and distribute a piece of literature that does not contain some identification, either of themselves or a student organization,” the Texas Attorney General’s office argued in briefs filed in court. ”That thin slice of anonymity — whatever remains when a student already stands face-to-face with the audience to hand them a piece of literature — is not substantially more’ speech than necessary.’’

The court, however, stated that the person handing out the pamphlets only needs to tell the administration who they are, and does not need to reveal the source of literature to students.

”What remains of a student’s anonymity after he has identified himself to university officials, however, is significant. He may, if he chooses, remain anonymous in relation to other students, as well as most faculty and staff,” the court ruled.

Kermit L. Hall, president of University at Albany, State University of New York, said the reasons students might want to stay anonymous are numerous.

”Some people might be concerned that they are going to be retaliated against for handing out the pamphlets,” Hall said. ”Or if they work in an environment that’s threatening or closed they might fear retaliation.”

Gary McCaleb, senior counsel at the Alliance Defense Fund, said he was pleased with the court’s ruling and said it clarifies what areas on campus students could hold demonstrations.

”Public areas of campus are to be treated like public parks,” McCaleb said.

McCaleb said the ruling reaffirms ”a genuine right of anonymity on campus.”

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

For more Information: CASE: Justice For All v. Faulkner, 410 F.3d 760 (5th Cir. 2005).