Jones v. Board of Regents of University of Arizona

• Decision Date: 21 December 1970
• Docket Number: No. 24732.,24732.
• Citation: 436 F.2d 618
• Parties: Ashton JONES, Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF ARIZONA et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

436 F.2d 618 (1970)

Ashton JONES, Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF ARIZONA et al., Appellee.

No. 24732.

United States Court of Appeals, Ninth Circuit.

December 21, 1970.

S. Leonard Scheff, Atty., Tucson, Ariz., for appellant.

Gary K. Nelson, Atty. Gen., Phoenix, Ariz., Paul F. Newell of May, Dees & Newell, Tucson, Ariz., for appellee.

Before JERTBERG, BROWNING, and ELY, Circuit Judges.

ELY, Circuit Judge:

Jones appeals from a judgment of the District Court dismissing a complaint alleging that certain of Jones' civil rights, conferred by the First and Fourteenth Amendments of the Constitution, were violated. 42 U.S.C. § 1983.

In November of 1965, Jones stationed himself near the Student Union building on the University of Arizona campus, at Tucson, donned a sandwich board sign which read "Help Stop Viet Nam war now. For Peace and Freedom," and began to distribute handbills, critical of the Viet Nam engagement, to those passers-by who would accept them. He was observed by two campus police officers who informed him of a university regulation prohibiting the distribution of all handbills not officially related to an authorized campus event and requested that he desist. Upon his refusal to do so, the officers forcibly removed him from the campus. Jones immediately returned, put on his signs, and began, once again, to pass out leaflets. A crowd of six to ten people then gathered round, and conversation concerning the Viet Nam war ensued. Later, two bystanders approached Jones, tore his signs from his back and chest, and destroyed them. By this time the crowd had reached twenty-five to thirty persons, the police had arrived, and Jones, having passed out all his leaflets, departed the area. That afternoon and evening the campus police received several phone calls informing them that if they, the police, could not remove Jones from the campus, the callers would do so. On the following day Jones twice appeared on the campus and, on each occasion, was removed by the campus police. He then instituted this suit.

In a part of his amended complaint Jones sought an injunction pendente lite, directing the Board of Regents of the University to cease interfering with the exercise of his right to speak and enjoining the Board to afford him the protection reasonably necessary to insure that he could exercise that right while on the campus. From the District Court's denial of that prayer, Jones pursued an interlocutory appeal to our court. We affirmed the court's denial of temporary relief but remanded with the suggestion that consideration be given to the applicability of the provisions of 28 U.S.C. § 2281. Jones v. Board of Regents, 397 F.2d 259 (9th Cir. 1968). On remand, and after oral argument, the parties submitted the general preliminary questions of the liability of appellees for damages and of Jones' right to a permanent injunction for decision. Because the university regulation in question was limited in scope only to the University of Arizona campus at Tucson, the court concluded that 28 U.S.C. § 2281 was inapplicable. Upon the basis of the determination that the regulation was not of general statewide application, we agree with that conclusion of the District Court. Moody v. Flowers, 387 U.S. 97, 101-102, 87 S. Ct. 1544, 18 L.Ed.2d 643 (1967). Cf. Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968), cert. denied, 393 U.S. 1092, 89 S. Ct. 854, 21 L.Ed.2d 783 (1969). The court then dismissed the complaint, finding that the regulation was valid and that Jones was properly and lawfully removed from the campus for having violated the regulation's terms.

The regulation on which the police based their eviction of Jones constitutes, in effect, a complete prohibition of handbilling on the campus grounds, even the portions thereof which, according to the District Court, are open to the public generally. The regulation reads, in pertinent part:

"No hand-out items, including handbills, may be distributed on the campus grounds or in campus buildings at any time, except programs and other informational items which are officially related to authorized meetings, and which are distributed in the room or rooms assigned to the event in question."

The question we thus face is whether a state university can constitutionally prohibit the distribution of all handbills on that part of its campus grounds which are open to the public generally.

We begin with the proposition that once a State has made public property generally available to the public, it may not arbitrarily restrict the freedom of individuals, lawfully on that property, to exercise their First Amendment rights. Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); Henry v. Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964); Fields v. South Carolina, 375 U.S. 44, 84 S.Ct. 149, 11 L.Ed.2d 107 (1963); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274 (1946); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L. Ed. 155 (1939); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). In Jamison v. Texas, supra, for example, the Court invalidated a municipal ordinance barring the dissemination of information by handbills and recognized that "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature as well as by the spoken word." Id., 318 U.S. at 416, 63 S.Ct. at 672. Of course, it is clear that the right to free speech is not so broad as to guarantee that anyone may address a group at any public place, at any time, and in all circumstances. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed. 2d 471 (1965).

"Where municipal or state property is open to the public generally, the exercise of First Amendment rights may be regulated so as to prevent interference with the use to which the property is ordinarily put by the State. * * *

"In addition, the exercise of First Amendment rights may be regulated where such exercise will unduly interfere with the normal use of the public property by other members of the public with an equal right of access to it."

Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U. S. 308, 320-321, 88 S.Ct. 1601, 1609, 20 L.Ed.2d 603 (1968).

The regulation before us now, however, is neither designed, by its terms, only to prevent the disruption of the ordinary educational activities of the campus nor to insure that those seeking to occupy the public campus grounds for communicating ideas will not interfere with those seeking to occupy the public grounds for other legitimate purposes. These ends could be accomplished by the imposition of reasonable rules regulating the time, place, and manner of the exercise of First Amendment rights. See, e. g., Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L.Ed. 513 (1949); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). But the challenged regulation completely prohibits the distribution of any handbills, at any time, in places open to the public generally. Such a blanket prohibition is clearly unrelated to any valid regulatory purpose when applied to public property generally open to the public at large. Jamison v. Texas, supra; Schneider v. State, supra; Hague v. CIO, supra; Lovell v. City of Griffin, supra.

We reject the appellees' contention that a complete prohibition is necessary because disputes might arise if handbilling were allowed. The Supreme Court dealt with just such an argument in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L.Ed.2d 731 (1969), wherein it rejected the District Court's conclusion that the action of certain high school authorities in banning the wearing of armbands was reasonable because it was based upon the authorities' fear of possible disturbances. The Court there stated:

"In our system, undifferentiated

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