A federal appeals court has just ruled that a college can’t ban people from posting “inappropriate” or “offensive” fliers on its interior bulletin boards. The college used the ban against conservative fliers, such as those describing the high death toll of communist regimes.
On first glance, the ruling would seem to be important, since it was issued by the federal appeals court with jurisdiction over a fifth of the United States, the California-based Ninth Circuit Court of Appeals.
But oddly, that court issued its ruling as an “unpublished” decision. So its ruling won’t be binding precedent in any future case. “Unpublished” opinions by a federal appeals court bind only the parties in the case before it — in this case, college administrators at Clovis Community College, who were told to stop enforcing the ban on “inappropriate” or “offensive” fliers — and no one else is bound by the ruling: not other colleges, for example, or judges hearing other similar cases.
The ruling was in Flores v. Bennett, decided yesterday by Ninth Circuit Judges Kim McLane Wardlaw and Milan Smith, and District Judge Douglas Rayes, a trial judge temporarily sitting by designation on the Ninth Circuit:
Defendants … appeal a district court order enjoining [Clovis Community College’s] “Flyer Policy” that prohibited “inappropriate or offense [sic] language or themes” in postings on interior bulletin boards. [The policy was challenged by three] then-Clovis students …, as well as the Young Americans for Freedom (“YAF”) student chapter at Clovis ….
The district court did not abuse its discretion when it concluded that Plaintiffs were likely to succeed on the merits of their claim that the “inappropriate or offense language or themes” provision was facially overbroad. To prevail on an overbreadth challenge, a party must demonstrate that the policy “‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep,'” such that “society’s interest in free expression outweighs its interest in the statute’s lawful application.” United States v. Hansen (2023).
As the district court concluded, “a prohibition on ‘inappropriate or offense language or themes’ does not have a core of readily identifiable, constitutionally proscribable speech.” The Supreme Court has consistently held that “[s]peech may not be banned on the ground that it expresses ideas that offend,” Matal v. Tam, 582 U.S. 218, 223 (2017), including in the university context. See, e.g., Papish v. Bd. of Curators of Univ. of Missouri (1973) (holding that a graduate student could not be expelled for publishing an obscene cartoon).
The district court did not err in determining that there was likely a substantial amount of protected speech that would be potentially chilled by the Flyer Policy. What is “inappropriate” or “offensive” is a subjective determination, which would vary based on a college administrator’s personal beliefs. Political speech, for example, has a high propensity to be viewed as “offensive,” and the First Amendment “affords the broadest protection” to political expression.
On appeal, Defendants contend that, because the interior bulletin boards are a nonpublic forum and the school-sponsored speech doctrine applies, they have absolute discretion to control the content of student flyers…. [But] we require regulations on speech in nonpublic fora to be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” The district court did not abuse its discretion by assuming without deciding that the bulletin boards were located on a nonpublic forum, and then concluding that the challenged provision was likely unconstitutionally overbroad.
The school-sponsored speech doctrine likewise not does not affect our analysis…. As the district court recognized, some form of the school-sponsored speech doctrine could apply to postings that may be “reasonably perceive[d] to bear the imprimatur of the school” by members of the public. However, assuming without deciding that the school-sponsored speech doctrine applies, the Flyer Policy was nevertheless required to be “reasonably related to legitimate pedagogical concerns.” While Clovis may have been able to permissibly ban lewd and obscene flyers that included nudity or profanity, see, e.g., Bethel School Dist. No. 403 v. Fraser (1986), the district court did not abuse its discretion in determining that a ban on “inappropriate and offense language or themes” is likely too broad to be “reasonably related to legitimate pedagogical concerns.”
Nor did the district court abuse its discretion in concluding that the Flyer Policy was likely unconstitutionally vague in violation of the Fourteenth Amendment. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” The “inappropriate and offense” provision does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” See also Cohen v. California (“No fair reading of the phrase ‘offensive conduct’ can be said sufficiently to inform the ordinary person that . . . permissible speech or conduct would nevertheless . . . not be tolerated in certain places.”). Moreover, the provision invites “arbitrary and discriminatory enforcement” by unilaterally allowing Clovis staff to determine what flyers constitute “inappropriate or offense” speech. Indeed, emails between the Clovis administrators demonstrate that they did not understand what speech the Policy proscribed. And “when First Amendment freedoms are at stake,” Clovis was required to enact a policy with “an even greater degree of specificity and clarity.” …
Because we affirm the district court’s overbreadth and vagueness determinations, we decline to reach the Plaintiffs’ prior restraint and viewpoint discrimination claims….
The conservative students who prevailed are represented by Daniel Ortner at the Foundation for Individual Rights and Education (FIRE). Tthe lawsuit was filed by lawyers at FIRE and the Pacific Legal Foundation,.
The events giving rise to the lawsuit are described in the Foundation for Individual Rights and Expression’s press release, which links to relevant documents (including the Complaint):
Three conservative college students wanted to criticize authoritarianism. But when administrators deemed their opinions inappropriate and offensive, the students found themselves facing an oppressive regime right on campus.
Today, students from a campus chapter of Young Americans for Freedom, represented by the Foundation for Individual Rights and Expression, sued California’s Clovis Community College, delivering a simple message: Public colleges cannot ban students’ flyers because administrators subjectively deem their political viewpoints inappropriate or offensive….
In November 2021, Alejandro and fellow club members Daniel Flores and Juliette Colunga received permission from administrators to hang three flyers on bulletin boards inside Clovis’ academic buildings. The flyers advocated for freedom and listed the death tolls of communist regimes.
Emails obtained via a public records request reveal that soon after the flyers went up, a Clovis administrator wrote that he would “gladly” take the flyers down, following complaints about their content. The administrator also wrote that approving the flyers in the first place may have been a “mistake,” and that Clovis instead should have censored them under a policy that states: “Posters with inappropriate or offense [sic] language or themes are not permitted and will not be approved.”
On Nov. 12, Clovis President Lori Bennett personally ordered the flyers removed. After doing so, she searched for a reason to justify the viewpoint discrimination, inventing a brand new rule requiring flyers to double as club announcements.
“If you need a reason, you can let them know that [we] agreed they aren’t club announcements,” Bennett wrote. Clovis does not have a policy on the books that requires flyers to be club announcements. But with this excuse in hand, Clovis employees told student workers to remove the flyers.
Administrators later used that pretextual justification to stop the students from hanging a new set of five pro-life flyers — which the students submitted for approval in December — on the bulletin boards inside heavily trafficked campus buildings. Instead, administrators banished the flyers to a rotting “free speech kiosk” in a desolate part of campus. [The Complaint alleges that “Other students and clubs regularly post flyers with political and social commentary or themes on the indoor bulletin boards of the Academic Centers. Defendants do not require those students or groups to take their flyers down and only post them to the Free Speech Kiosk.”] …
Public colleges like Clovis are bound by the First Amendment, and it is unconstitutional to treat student groups differently based on their viewpoints. Clovis’ vague policy banning “inappropriate” or “offense [sic]” themes — terms that could apply to just about anything — puts protected expression in jeopardy by allowing administrators to arbitrarily decide which opinions are inappropriate or offensive and which deserve to be heard.
