Arrested for handing out pro-vegetarian leaflets, CUNY protester will get his day in court

A federal court has declined to dismiss the bulk of a civil-rights lawsuit brought by a vegetarian activist arrested while distributing leaflets outside the front gate of a City University of New York campus in the Bronx.

Richard Hershey, a St. Louis resident who is not a CUNY student, was arrested by campus police from CUNY’s Lehman College in May 2011 after a confrontation over his refusal to stop leafleting.

Hershey complied with police instructions to leave Lehman College property. But when campus police also tried to stop him from distributing flyers on a public walkway outside campus, he refused — and was handcuffed, arrested and charged with trespassing (a charge thrown out in court when the college failed to pursue it).

Hershey sued CUNY Chancellor Matthew Goldstein, four Lehman College administrators and four college police officers, alleging violation of his First Amendment rights as well as false arrest, unlawful search, excessive force and multiple other claims.

The college moved to dismiss all counts of the complaint, but in an April 9 order, U.S. District Judge Paul A. Engelmayer largely declined to do so.

For First Amendment purposes, perhaps most significant was the claim that the judge did dismiss — Hershey’s contention that kicking him off the campus violated his First Amendment rights.

Courts have not spoken with optimal clarity on the right to use the public areas of college campuses for expressive activity. Just a year ago, a federal appeals court ruled that a Tennessee college violated the First Amendment by enforcing onerous permit requirements against a visiting preacher, finding that the sidewalks of a public university campus are a “public forum” wide-open for expressive use by anyone.

But in Hershey v. Goldstein, the federal court found that Lehman College acted lawfully in completely banning Hershey from distributing flyers on a campus sidewalk.

The court did not even require the college to identify any particular justification for its blanket prohibition on leafleting by campus outsiders. The judge simply assumed that a reasonable justification must exist:

There are many possible justifications for such a policy—e.g., reducing campus congestion, maintaining a quiet environment for study, or giving students more space to hand out flyers for their student groups—but the Court need not inquire as to Lehman’s specific reasons for it: The manner in which Lehman decides to limit outsider access to campus areas deserves appropriate deference.

This is an exceptionally deferential review of an exceptionally broad prohibition — a broader ban than the permitting system struck down as unconstitutional by the Sixth Circuit U.S. Court of Appeals last year.

The judge did, however, allow Hershey to proceed with most of his legal theories, including a First Amendment claim based on his subsequent arrest when he relocated his leafleting from the campus to an adjoining public sidewalk. The judge found sufficient indication of selective enforcement — other pedestrians were allowed to freely traverse the driveway where Hershey was arrested for “trespassing” — to allow Hershey’s claim to go forward.

Significantly, the judge also allowed Hershey to proceed with a claim for individual liability against Lehman College’s director of public safety, although not against higher-level administrators.

Evidence that a police officer told Hershey he was “just complying with his supervisor’s directives” was enough to sustain a claim of supervisory liability for violation of Hershey’s constitutional rights — but only against the officer’s direct-line supervisor, not against upper-level administrators with no personal involvement in the decision to arrest.