Nothing funny about what happened to this forum; 2nd Circuit tramples legal precedent to rule against censored students

It’s tempting to say that a federal appeals court’s ill-considered decision in dismissing the First Amendment claims of censored journalists from New York’s Ithaca High School is a fluke, a one-of-a-kind happenstance that carries no larger meaning for the well-being of journalists elsewhere.

After all, last week’s ruling by the 2nd U.S. Circuit Court of Appeals was based on the quote-unquote “lewd” content of the censored material — a cartoon depicting stick figures in sexual poses, spoofing what the cartoonist believed was the school’s unrealistic way of teaching sex education. The content of a student news publication rarely can be classified as “lewd,” so one view is that the decision in Ochshorn v. Ithaca City School District will have no practical importance.

But in absolving Principal Joseph Wilson and Superintendent Judith Pastel of violating the constitutional rights of Ithaca student editors, the court plowed a shortcut through the law of the First Amendment that is potentially damaging beyond even the school context. To understand why requires a little background on the way courts evaluate the legality of restricting speech on public property.

Recognizing that some venues are more suitable for communicative use than others — picketing is fine on the courthouse plaza but not inside the judge’s private chambers — the Supreme Court came up with the concept of the “forum.” All government property (and this can include the pages of a newspaper as well as geographic space) is classified somewhere along a scale of forums, with differing levels of First Amendment protection for each.

Speech is most protected in a “traditional public forum” such as a public sidewalk, where the government essentially can never regulate content except in the narrow range of speech that is recognized as falling beyond the First Amendment, such as true threats to do violence.

Speech is least protected in a “nonforum,” where the government can even regulate on the basis of content so long as it does not discriminate based on the speaker’s viewpoint (i.e., if anti-death-penalty protests are banned, then pro-death-penalty protests must be as well).

Somewhere in between these extremes is supposed to reside the “limited public forum.” This is a venue where the government has sanctioned speech by only a certain class of speakers or addressing only a certain range of subjects. A classic example would be a bulletin board on a college campus that is set aside exclusively for student clubs to post their announcements. It would be fine for college employees to remove flyers advertising an off-campus sub shop, but not to pick-and-choose among clubs and tear down the flyers for the clubs they don’t like.

The Second Circuit well-explained the significance of a limited public forum in a 2002 case called Hotel Employees & Restaurant Employees Union, Local 100 v. City of New York Department of Parks & Recreation. (That’s a mouthful, so we’ll just call it Hotel Employees Union from now on.)

In Hotel Employees Union, a labor group challenged Lincoln Center’s policy of restricting expressive activity on its plaza to “artistic” presentations only, which prevented the union from staging political demonstrations and leafletting there. The trial court decided that the plaza area was a limited public forum, which meant that speakers’ rights would vary based on whether their speech fell within, or outside of, the category of speech for which the forum was opened.

As the Second Circuit explained in Hotel Employees Union:

In limited public fora, strict scrutiny is accorded only to restrictions on speech that falls within the designated category for which the forum has been opened. … As to expressive uses not falling within the limited category for which the forum has been opened, restrictions need only be viewpoint neutral and reasonable.

In other words, the government must meet a heavy burden if it seeks to regulate the very type of speech for which the forum exists, and it faces a greatly relaxed burden if the speech falls outside the limited purpose of the forum.

This is where the circuit went astray in last week’s Ochshorn decision.

The court — while heavily citing the Hotel Employees Union case and purporting to follow it — in fact applied only half of it. Judge Jose Cabranes’ opinion entirely skipped the first part of the limited public forum standard — the part that says if the speech “falls within the designated category for which the forum has been opened” then it is entitled to heightened protection. Instead, here is how Judge Cabranes (mis-)described what Hotel Employees Union said about limited public forums:

In a limited public forum, the government may restrict speech in a way that is viewpoint-neutral and reasonable in light of the forum’s purpose.

That cannot possibly be all that it means for property to be a limited public forum, because “viewpoint-neutral and reasonable” is exactly the standard that applies to property that is a nonforum. And the Second Circuit has repeatedly, including in the Hotel Employees Union case, described “limited public forum” as a more protective category than “nonforum.”

It is almost inconceivable that the school could have prevailed had the court properly applied the forum doctrine to Ithaca’s student newspaper, The Tattler. It is undeniable that the student editors of The Tattler were the class of speakers for whom the forum was opened. And it is undeniable that speech commenting on the sex education program was within the categories of speech permitted in the forum — because an article about that very subject, accompanying the cartoon, was allowed to run.

The only way that Wilson’s and Pastel’s censorship could pass constitutional scrutiny in a limited public forum is if the forum is defined as being limited to “speech the government decides on a case-by-case basis is appropriate for a school audience.” And the scope of the forum can’t be defined by the censorship itself — a “forum” where the standard is “we protect the speech that we decide not to censor” is, of course, no forum at all.

This is such a glaring misapplication of the law that it’s possible the Ochshorn decision truly means nothing, at least as far as its application of the forum doctrine is concerned. One panel of a circuit court cannot silently overrule prior legal precedent set by another panel. To the extent that Ochshorn defines the meaning of “limited public forum” in a way that cannot be squared with Hotel Employees Union, future courts should apply the earlier case and treat the later one as void.

Because of this inconsistency, the Ochshorn case ought to be heard, and reversed, by the full Second Circuit. It is rare that a case is afforded “en banc” consideration by the full complement of a circuit’s judges — but then, it is rare that judges misstate binding legal precedent quite this obviously.