Censorship does not confine itself to the time when a journalist is investigating a scoop or an editor is readying an issue for printing. Sometimes the ugly face of censorship does not present itself until later in the publication process — at the time of distribution.
Legally, it is well-accepted that circulation and distribution of a publication is “as essential to that freedom [of press] as liberty of publishing.”1 The First Amendment’s freedoms of speech and press protect distribution as well as composition. Nevertheless, freedom to distribute on college campuses is not absolute.
Whether, in any particular case, a college’s attempt to regulate the means of distributing written material on campus is constitutionally permissible depends on several factors:
- Is the institution public or private?
- What is the desired method and location of dissemination?
- Is that location a designated “public forum” or a non-public forum?
- Is it a student or non-student publication?
- Is the university’s regulation content-based, or does it affect publications regardless of their content?
- Does the regulation “fit” with the objective the college is trying to achieve
- Does the regulation leave open ample alternate channels for the speaker to reach the intended audience?
The bottom line is that a public institution can never totally ban the distribution of student-produced newspapers, magazines, journals or other publications on campus. But it can regulate the time, place and method of distribution, so long as the regulations do not unreasonably obstruct the publisher from reaching the target audience. The following guide will help explain how courts have applied the First Amendment when publishers have challenged government restrictions on newspaper racks and other methods of distribution.
Public or Private School
The First Amendment does not afford protection from private censorship. With the exception of California postsecondary institutions,2 colleges are under no legal obligation to allow distribution of publications on campus (though they may be bound by any rules or policies they’ve adopted). The property rights that come with private ownership of the campus include the right to regulate or even abolish on-campus distribution.
Public institutions, however, are subject to the First Amendment, and to the free-speech provisions in many state laws and state constitutions. A public college or university is a government agency like a city or county, so the First Amendment court rulings that apply to a city or county should apply equally when the agency making the rules is a college.
Designated Public Forum or Non-Public Forum
The extent of any speaker’s First Amendment rights depends on the nature of the location that the speaker wishes to use. Government-owned property is categorized into public forums, designated public forums, limited public forums, and non-public forums. The forum status of the location determines how exactingly courts will scrutinize any restraint on using the location for expression. Public streets, sidewalks and parks are textbook examples of public forums, where free-speech rights are at their highest and the government’s ability to regulate is at its lowest.
Almost thirty years ago, the Supreme Court declared that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.”3 The Court in Widmar v. Vincent, and many other courts subsequently, hedged its ruling by saying that campuses are not traditional public fora for the speech of non-students. Although some have argued that entire campuses should be considered traditional public fora because of the presence of sidewalks, streets and parks, courts generally have granted “designated” or “limited” public forum status to the campus as a whole. Courts recently have recognized that a campus is made up of a “variety of fora,”4 some designated as public and some limited to particular content or non-public. (In recent years, schools have attempted to designate specific portions of their campuses as “free speech zones,” thereby hoping to apportion the campus into small designated public forum areas and large non-public forum areas. These attempts have prompted their own set of constitutional challenges, on the grounds that small or inconveniently located zones fail to provide reasonable access to reach the audience.5)
Two factors are determinative when addressing whether a particular area is to be considered a designated public forum or a non-public forum: “(1) the government’s intent with respect to the forum; and (2) the nature of the forum and its compatibility with the speech at issue.”6
Student or Non-Student Speech
The distinction between “designated” and “limited” public forums is not entirely well-defined, but it is legally significant. Designated public forums are areas that have been made accessible to the general public for exercise of all or certain First Amendment activities. Limited public forums, on the other hand, have been opened to only a limited group of people, or for a limited type of expressive activity. Courts that have deemed campuses to be “limited public forums” have confined the right of expression to members of the campus community only.7 Within a limited public forum, universities will have a freer hand to restrict non-student speech than they would have to restrict student speech.8 In a public or non-public forum, on the other hand, student and non-student speech are treated equivalently.
Content-based or Content-neutral
In all public fora (traditional, designated or limited), the next question to consider is whether the prohibition on distribution is content-neutral or content-based. Courts will overturn content-based restrictions unless they are narrowly tailored in service of a compelling government interest. Examples of content-based restrictions would be proscribing the distribution of any religious pamphlets or political endorsements. It is rare for an ordinance to satisfy this standard of strict judicial scrutiny.
Even if a regulation is seemingly not content-based, courts will invalidate the regulation if it yields unbridled discretion to an executive official. In a leading case, the Supreme Court struck down an ordinance that gave unfettered discretion to an Ohio mayor to either approve or deny applications for newsrack permits.9 The fear in such a case is that, although the law itself does not discriminate between publications based on their content, content-based discrimination may nonetheless arise through the official’s exercise of discretion.
Content-neutral regulations, also known as “time, place and manner” regulations, will be overturned unless the government can show that the regulation is narrowly tailored to serve a significant government interest and that it yet leaves open ample alternative channels of communication. Examples of content-neutral restrictions on distribution would be: “No leafleting between 12 midnight and 6 A.M.” or “No newsboxes may be located within 10 feet of a fire exit.” Where rules are generally applicable to all publications and do not “confer benefits or impose burdens on speech without reference to the ideas or views expressed,” courts will ordinarily find content-neutrality.10
Narrow Tailored to a Significant Government Interest
Content-neutrality on its own is not enough to justify a regulation. The regulation must be in furtherance of a “significant” (or “substantial”) government interest.11 Although the courts give lip service to the need for a “significant” or “substantial” government interest, in practice courts have endorsed nearly any interest that is plausibly legitimate. The following list contains some common justifications that courts have judged to be “significant”:
- public safety13;
- preventing congestion and maintaining order14, and
- preserving a city government’s revenue stream (from the exclusive sale of newspapers at an airport gift shop, instead of through newsracks).15
One justification that was held illegitimate was “foster[ing] the city’s relationship with [a] company which was underwriting city-sponsored programs.”16
Although the issue rarely has reached the courts, aesthetic concerns will apply at least as forcefully to a university campus location as to the city at large. While the government may have an easier time defending a “cosmetic” rationale if the restrictions on newsracks are part of a larger beautification initiative, the interest in aesthetics is still “significant” even without a comprehensive beautification plan.17 Courts undoubtedly consider safety, traffic and congestion concerns to be “significant” interests. But when First Amendment rights are implicated, courts often do not defer to bald assertions of “safety” or “congestion” when those claims defy common sense and there is no evidence on which to rely.18
When regulations on distribution are challenged, a college’s toughest burden will be demonstrating that the regulation is “narrowly tailored” to the interest (whether that interest is safety, beautification, or something else). “Narrowly tailored” is a legal term of art that, despite the Supreme Court’s efforts, is still not perfectly lucid. In 1989, the Court attempted to clarify narrow tailoring in two prongs:
- “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation,”19 and
- the regulation “does not burden ‘substantially more’ speech than is necessary to further the government interest.”20
The first formulation appears to demand only that the regulation have some positive effect, however little. The second appears to be nothing more than a prohibition on unduly broad laws.
The elusiveness of the term explains at least partially why much of the litigation in this area focuses on whether or not a regulation is narrowly tailored. Judge Easterbrook, writing for the Seventh Circuit, demonstrates awareness of this phenomenon: “Whenever government draws a line, there will be cases close to the mark. One can always claim that a small change could have accommodated more conduct, at a little sacrifice in the government’s objective.”21
Despite the uncertainty, there are definite guideposts in attempting to grasp when a law is “narrowly tailored.” First and foremost, a regulation need not be the “least restrictive alternative” that the college could possibly think up. On the other hand, the existence of several less restrictive alternatives is solid evidence that the regulation does “burden substantially more speech than is necessary” and thus is not narrowly tailored.22 A second guidepost is that courts appear more likely to find narrow tailoring when the regulatory body has “carefully calculated” the possible negative consequences of the regulation.23 Still, that does not mean the government must show a highly formalized level of study went into the regulation; much less has been held to be constitutionally adequate. Courts sometimes also consider whether the regulation is so under-inclusive that it has no real impact on the problem — if so, it may flunk the constitutional requirement that the solution be tailored to address the need.24
In practice, wholesale bans on newsracks are likely to be struck down as overly burdensome. Courts are more apt to find narrow tailoring when the ban does not categorically exclude newsracks, but instead either subjects them to siting requirements,25 coloration requirements,26 homogenization,27 size limitations,28 or a combination thereof.
Ample Alternate Channels
When deciding whether a content-neutral restriction is constitutional, the final factor that a court will consider is whether the rule leaves open ample alternate channels of communication. As with narrow-tailoring analysis, absolute prohibitions are more likely to violate this requirement than are mere constraints on the number and location of distribution points.
A potentially strong argument on the behalf of a publication is that the particular mode of distribution outlawed is so uniquely valuable that any other mode of distribution is an inadequate replacement. That was what the Supreme Court ruled in a 1994 case, City of Ladue v. Gilleo,29 where a Missouri homeowner successfully argued that a city’s ban on yard signs could not possibly leave open adequate alternatives, because there is no adequate alternative to the “unique and important” medium of a yard sign.
One court has since refused to apply Ladue to a newspaper distribution case, finding that “there is no showing that distribution by newsrack is similarly unique.”30 But it seems that whether any given means of distributing is unique is a fact-intensive question that could vary from case to case. For instance, if a hypothetical anti-abortion magazine utilizes newsracks on which is written the motto “saving lives since 1988,” the substance of the message in effect merges with the means of distribution; an alternative channel that did not allow for the newsrack message might well be an insufficient replacement. Arguments that distinct appearance of a newsbox more easily alerts the reader, or that the “look” of the box is part of a protected trademark, have been unsuccessful,31 likely because these arguments effectively concede that the distribution mode itself does not carry any kind of expressive message (unlike the hypothetical anti-abortion newsrack).
Furthermore, the government may not compel speech by mandating the use of a distribution rack or stand that appears to endorse a specific idea or product. Even in an airport, a non-public forum, it was held unconstitutional for the Atlanta Department of Aviation to demand newspaper vendors use only newsstands with large Coca-Cola advertisements.32 Regulations of that kind, which compel speech, are often vulnerable to challenge as viewpoint discriminatory.
On a public college campus, students have a legally protected right to distribute messages — including newspapers, magazines and journals — in a way that affords reasonable access to their target audience. Although distribution is undoubtedly a constitutionally protected right, it is far from absolute. An outright ban on all distribution (including both newsracks and hand-delivery) would be easily challenged under the First Amendment. A college often will be able to justify a lesser ban that merely controls the type of distribution bins that are used, their number, location and appearance. Still, the regulation must be motivated by a legitimate purpose (such as public safety or campus beautification), the regulation must not be overly broad, and there must be some standards for granting or denying permission to distribute so that a government official cannot make random or discriminatory decisions.
- Ex parte Jackson, 96 U.S. 727, 733 (1877).
- See Calif. Educ. Code Sec. 94367 (“the Leonard Law”).
- Widmar v. Vincent, 454 U.S. 263, 274 n.5 (1981).
- Bowman v. White, 444 F.3d 967, 976 (8th Cir. 2006). One textbook example of a non-public forum is a university classroom. See id.; see also Linnemeir v. Bd. Of Trs., 260 F.3d 757,760 (7th Cir. 2001); Axson-Flynn v. Johnson, 356 F.3d 1277, 1285 (10th Cir. 2004); Bishop v. Aronov, 926 F.2d 1066, 1071 (11th Cir. 1991). Another possibly non-public area, though not a firmly settled issue, is a university hallway. See Smith v. Tarrant County College Dist., 694 F.Supp.2d 610 (N.D.Tex. 2010).
- These issues are described more fully in the SPLC’s Student Media Guide to Campus Free-Speech Zones, available at http://splc.org/knowyourrights/legalresearch.asp?id=78.
- Pro-Life Cougars v. University of Houston, 259 F.Supp.2d 575, 581 (S.D.Tex. 2003).
- See e.g., Hays County Guardian v. Supple, 969 F.2d 111 (5th Cir. 1992); Justice for All v. Faulkner, 410 F.3d. 760 (5th Cir. 2005); Gilles v. Garland, 281 Fed. Appx. 501 (6th Cir. 2008).
- Bourgault v. Yudof, 316 F.Supp.2d 411 (N.D. Tex. 2004).
- City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988).
- Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1043-44 (9th Cir. 2002) (quoting Turner Broad. Sys. v. FCC, 512 U.S. 622, 642-43 (1994)).
- This standard is far less taxing than the “compelling” interest standard used when the regulation is content-based.
- See e.g., Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984).
- See e.g., Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 1336 (11th Cir. 1994).
- See e.g., Multimedia Pub. Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993).
- See e.g., Jacobsen v. City of Rapid City, 128 F.3d 660 (8th Cir. 1997).
- Atlanta Journal and Constitution v. City of Atlanta Dep’t of Aviation, 277 F.3d 1322 (11th Cir. 2002), reversed on other grounds by Atlanta Journal Constitution v. City of Atlanta Dep’t of Aviation, 322 F.3d 1298 (11th Cir. 2003). Both the circuit and district courts in the Atlanta Journal Constitution case seemed to suggest that the “fostering relationship” rationale may be impermissible viewpoint-based discrimination, which explains why it was not even sufficient to sustain newsrack regulation in an airport (i.e. a non-public forum).
- Taxpayers, 466 U.S at 807 n.25. Still, under-inclusiveness of this sort may carry some weight against a finding that a statute is “narrowly tailored”.
- See e.g., id; The News and Observer Pub. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570 (4th Cir. 2010); Jacobsen v. City of Rapid City, 128 F.3d 660 (8th Cir. 1997); Gannett Satellite Information Network, Inc. v. Township of Pennsauken, 709 F.Supp. 530 (D.N.J. 1989).
- Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).
- Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 329 (7th Cir. 1991).
- Globe Newspaper Co. v. Beacon Hill Architectural Com’n, 100 F.3d 175, 190 (1st Cir. 1996).
- The “carefully calculated” language was first employed in a case dealing with commercial speech, a domain that also employs intermediate scrutiny review, Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989).
- Discovery Network, 507 U.S. at 417-18 (“The benefit to be derived from the removal of 62 newsracks while 1,500-2,000 remain in place was considered ‘minute’ by the District Court and ‘paltry’ by the Court of Appeals.”). This type of analysis appears akin to evaluating under-inclusiveness.
- Uhlfeder v. Weinshall, 845 N.Y.S.2d 41 (N.Y. App. Div. 2007).
- Gold Coast, 42 F.3d at 1346 (noting specifically that “the ordinance does not completely ban newsracks from public rights-of-way or prohibit the sale and distribution of newspapers”).
- Honolulu Weekly, 298 F.3d 1037.
- Chicago Observer, 929 F.2d 325.
- 512 U.S. 43, 54 (1994).
- Hop Publications, Inc. v. City of Boston, 334 F.Supp. 2d 35, 48 n.22 (D. Mass. 2004).
- Gold Coast, 42 F.3d 1336.
- Atlanta Journal and Constitution v. City of Atlanta Dep’t of Aviation, 277 F.3d 1322 (11th Cir. 2002), reversed on other grounds by Atlanta Journal Constitution v. City of Atlanta Dep’t of Aviation, 322 F.3d 1298 (11th Cir. 2003).