9th Circuit Expands Liability in Free Speech Dispute

9th Circuit CourthouseOregon State University’s destruction of a conservative student monthly’s news bins violated free speech, equal protection and due process rights as a “non-neutral viewpoint restriction”, says the 9th U.S. Circuit Court of Appeals.

The appeals court, in 2-1 vote, also expanded potential liability for officials by holding that school leaders did not have to order the destruction, simple acquiescence to the misconduct of underlings is enough to be held to account.

The alleged violations may be put at the feet of three top university officials if the student monthly is allowed to amend its complaint, according to the court, which sent the case back to the trial court in Portland.

Although the free speech violation was easy to see, the potential liability of school president and vice president were trickier for the court, according to the majority.

The U.S. Supreme Court has said that discrimination claims require specific intent to prevail (Iqbal).  But free speech violation claims don’t require specific intent by the officials, said Judge Wallace Tashima.  The school officials acquiesced to the violation by doing nothing while they were kept informed of the controversy through emails.

Knowledge of the violations suffices for officials to be held to account for First and Fourteenth Amendment violations, he said.

The OSU confiscation of the Liberty newspaper bins violated due process rights because the paper’s staff was not notified and provided an opportunity to challenge the move.

OSU officials gathered up outdoor news bins for the Liberty and threw them near a dumpster in a storage yard, according to the court.  The school acted on an “unwritten and previously unenforced” policy governing news bins on school grounds, said   Tashima.

Although the Liberty staff was told it was limited to placing bins on two designated campus sites, the school’s traditional student paper, the Daily Barometer, had no such limit.

Tashima said the policy that OSU enforced against Liberty 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 news bins onto the trash heap,” he said.

The Liberty styles itself an alternative to the Daily Barometer and is funded through private donations and advertising, as the OSU Student Alliance.  The Alliance has chosen not to apply for student fees to fund the Liberty, according to the opinion.

“We have little touble finding constitutional violations,” Tashima wrote.  “The real issue is whether the complaint properly ties the violations to the four individual defendants, who are senior university officials,” he wrote.

The paper may not know who approved the unwritten policy or who approved dumping of their bins, but they know three of the four officials participated in a decision to deny them permission to distribute Liberty outside two designated spots.

“We conclude that the complaint states claims against those three defendants based on this post-confiscation decision,” he said.  In addition, the Director of Facilities Services is potentially liable for the actual confiscation, the court said.

The Barometer had 24 distribution bins throughout campus in Corvallis, Ore. while the Liberty had eight in high traffic areas and beside the Barometer bins.  The school also allows distribution of the Corvallis Gazette-Times, Eugene Weekly and USA Today.

When the bins disappeared in 2008, the Liberty editor had no reason to believe the campus facilities crew had taken them and the loss was reported to police.

Officials said the school was catching up on enforcement of the unwritten rule limiting distribution to two sites.

The court found the complaint alleges free speech and equal protection claims against the school president, vice president and facilities manager. A due process claim against the facilities manager also survives.

The paper should be allowed to amend its complaint to add due process claims against the president and vice-president.

Judge Sandra Ikuta dissented saying it isn’t sufficient for the president and vice-president to know about the alleged violations to be held liable for the acts of lower ranking employee misconduct.

Judge Carlos Bea joined Tashima in the majority.

Case: OSU Student Alliance v. Ray, No. 10-35555


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