OSU Student Alliance v. Ray

699 F.3d 1053 (9th Cir. 2012)

During the winter term of the 2008-09 school year, students at Oregon State University who ran a conservative alternative newspaper, the Liberty, noticed that their distribution bins had been removed. After searching, they found that the boxes had been thrown away in a garbage pile. They complained to the campus authorities who said garbage personnel threw them away because they were blocking traffic. Liberty staff then asked for an alternative place to put the newspapers and were told they could put boxes in only two locations on campus. This was in contrast to the treatment of the official student newspaper, which was allowed to distribute throughout campus.

After negotiations with the school failed, the students editors sued, alleging that their First Amendment rights had been violated by the seizure of their boxes and the limits placed on their newspaper distribution. In addition, the editors alleged the university was deliberately favoring its preferred paper since there were no limits placed on the official student paper’s distribution. In February 2010, a federal district judge ruled that since there was no written policy to discriminate against the newspaper, there was no violation of the students’ First Amendment rights. The charges were dismissed, and the editors appealed to the U.S. Ninth Circuit Court of Appeals.

The SPLC’s brief, filed before the appeals court, took issue with the idea that since there was no written record of a school policy, then there was no proof of a First Amendment violation. Under this approach, colleges would be able to suppress unpopular views by simply not committing their policies to writing and instead giving verbal orders that do not create a paper trail. The brief also argued that limiting the paper’s distribution was violation of the First Amendment. If colleges can give students with unpopular viewpoints inadequate places to promote their ideas, then the views are essentially suppressed, since they will not be able to reach a large audience as compared to the more acceptable viewpoints.

The Ninth Circuit Court of Appeals found that the university's conduct violated the First Amendment, as the 'policy' of limiting distribution did not apply to any other publications besides Liberty. The court also noted that the university was clearly discriminating based on content because the policy was only created after Liberty's distribution bins were confiscated.