A free-speech lesson.
Appeals Court Judge A. Wallace Tashima's opinion goes on for 41 pages, but Oregon State University officials could tell they were in trouble from the first paragraph. At issue was whether OSU President Ed Ray and others had violated the rights of a conservative monthly newspaper, The Liberty, by restricting its distribution in ways that did not apply to other publications such as the student paper, The Daily Barometer.
"The policy that OSU enforced against plaintiffs," Tashima wrote for the majority, "was not merely unwritten. It was also unannounced and had no history of enforcement. It materialized like a bolt out of the blue to smite The Liberty's, but not The Daily Barometer's, newsbins onto the trash heap. ... The policy's enforcement against plaintiffs therefore violated the First Amendment."
The opinion by a panel of the 9th U.S. Circuit Court of Appeals goes on from there, maintaining a similarly stern tone throughout. The court overturned U.S. District Judge Ann Aiken's dismissal of The Liberty's case against OSU officials, and remanded the case to the lower court for trial. After Tashima's ruling, the officials will have a hard time defending their actions.
Tashima's opinion sets forth a damning series of events: During winter term of 2008-09, all seven of The Liberty's newspaper bins disappeared from the OSU campus. The editors suspected theft, because their permission to place bins at certain locations had not been revoked. The police found the bins in a storage yard, with many of the newspapers spilling out into the rain.
Next came a runaround. The Liberty's editors were told that the university was enforcing a policy limiting the distribution of off-campus publications to a few locations. But The Liberty is published by a student group - and off-campus newspapers were available at many locations around campus. OSU officials' attempts to draw distinctions between The Liberty and other publications were unconvincing, and then they muddled matters further by saying that the policy they were enforcing was unwritten.
OSU's motives remain a mystery. The university has characterized the bins' removal as the action of a low-level administrator whose aim was to keep the Corvallis campus tidy. But newspapers like The Liberty tend to be provocative, even offensive to some. The Liberty was clearly singled out for special treatment, and it's easy to understand why the editors believed it was because of the content of their publication.
By the time the dispute reached Aiken's courtroom, OSU had backed down, adopted a written policy on newspaper distribution sites and approved more locations for The Liberty's bins. Aiken dismissed the case as moot partly because those steps had been taken, and partly because Ray and other top OSU officials named in The Liberty's lawsuit had not removed the newspaper bins themselves. But the appeals court found clear violations of First Amendment and 14th Amendment rights that are not so easily swept aside.
Institutions such as universities can regulate the location of newspaper racks and bins. Those regulations, however, must be content-neutral. OSU's explanations of its reasons for removing The Liberty's bins, Tashima wrote, amounted to "post-hoc rationalizations." He labeled one of those rationalizations - that OSU policy favored The Daily Barometer as a means of improving campus communications - "Orwellian." The disparate treatment of The Liberty also violated the editors' right to equal protection under the law.
University administrators shouldn't need to be reminded that they are in the business of promoting inquiry, and that free speech is essential to that enterprise. Their policies on the distribution of student publications should be generally encouraging, and strictly even-handed in terms of content. Any policy that falls short of that standard - or worse, any arbitrary action taken in the absence of a clear policy - invites a stern lecture from a judge.