PRESS RELEASE: SPLC Joins College Journalists’ Appeal of OSU Newsrack Ban


Contact: Frank D. LoMonte, Esq.director@splc.org703.807.1904

The Student Press Law Center filed a friend-of-the-court brief October 19 urging a federal appeals court to reinstate the First Amendment challenge brought by the editors of an independent campus newspaper at Oregon State University whose newsracks were confiscated by the university.

The law firm of Reid & Hellyer LLP in Riverside, Calif., filed the brief on behalf of the SPLC Tuesday in the case of OSU Students Alliance v. Ray. The brief urges the 9th U.S. Circuit Court of Appeals to overturn a U.S. district court ruling throwing out all claims against four Oregon State University administrators over restrictions selectively imposed on a conservative campus newspaper, The Liberty.

During the spring of 2009, all seven of The Liberty‘s distribution bins were confiscated by campus employees and dumped in a storage yard, destroying some 150 copies of the newspaper. The university told editors of The Liberty — an alternative newspaper published without university financial support by the conservative Students Alliance — that the racks were removed under an unwritten, three-year-old policy to promote pedestrian safety and beautification. But Liberty editors documented that other publications were allowed to keep racks in similar locations — including a competing student paper with far more racks.

For about eight months, until the university replaced the unwritten policy with a more permissive written one, The Liberty was confined to one distribution location on campus, while the “official” university-funded student newspaper, The Barometer, was not similarly restricted.

The students brought suit alleging violation of the First Amendment, Due Process and Equal Protection rights. But in February 2010, U.S. District Judge Ann Aiken dismissed all claims. The judge ruled that most of the students’ claims were moot because the university had changed its distribution policy and there was no indication that the challenged policy would be reinstated. The judge threw out the remaining claims on the grounds that the students failed to present evidence that any of the four named OSU administrator defendants personally participated in violating their rights.

Attorney Frank D. LoMonte, executive director of the Student Press Law Center, said it was important for the SPLC to support the OSU students’ case because the district court set an unreasonably high barrier for students to obtain relief for the violation of their First Amendment rights. As the SPLC argued in its brief, “A ruling in favor of the University would send the noxious message to all universities that courts will perfunctorily dismiss student journalists’ censorship claims at the earliest opportunity, unless the students show up at the courthouse filing counter with a smoking gun, a signed confession, and a DNA swab from each defendant.”

“It is unreasonable to require, at the earliest stage of a case, that students victimized by an ‘unwritten’ university policy be able to prove exactly which university official did what,” LoMonte said. “The reason we make government agencies put their policies in writing is so people understand what is being regulated and why. The university can’t keep its publication policy secret and then blame the students for not knowing who made the policy.”

One of the most worrisome aspects of the district court’s ruling, LoMonte said, is that the court threw out even the students’ claims for “nominal” damages, which are symbolic damages (normally one dollar) that are supposed to be awarded automatically if a person proves that his constitutional rights were violated but he cannot qualify for other forms of compensation. Nominal damages are essential because they put future government actors on notice of what behavior is illegal, LoMonte said, and because a person who wins nominal damages can qualify for an award of attorney fees and, in severe cases, punitive damages.

The SPLC brief supports the OSU Students Alliance brief previously filed by the Alliance Defense Fund, a nonprofit legal-services organization representing the students. The brief was prepared with the assistance of SPLC Legal Fellows Laura Napoli and Adam Schulman.

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.

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