492 U.S. 469 (1989), 87-2013, Board of Trustees of State University of New York v. Fox

Docket NºNo. 87-2013
Citation492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388, 57 U.S.L.W. 5015
Party NameBoard of Trustees of State University of New York v. Fox
Case DateJune 29, 1989
CourtUnited States Supreme Court

Page 469

492 U.S. 469 (1989)

109 S.Ct. 3028, 106 L.Ed.2d 388, 57 U.S.L.W. 5015

Board of Trustees of State University of New York

v.

Fox

No. 87-2013

United States Supreme Court

June 29, 1989

Argued February 22, 1989

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Syllabus

Resolution 66-156 of the State University of New York (SUNY) prohibits private commercial enterprises from operating in SUNY facilities. After the resolution was applied by campus police to bar American Future Systems, Inc. (AFS), from demonstrating and selling its housewares at a party hosted in a student dormitory, respondent Fox and other students sued for a declaratory judgment that such action violated the First Amendment. The District Court preliminarily enjoined enforcement of the resolution but, after a trial, found for SUNY on the ground that its dormitories did not constitute a public forum for purposes of commercial activity, and that the restrictions on speech were reasonable in light of the dormitories' purpose. Viewing the challenged application of the resolution [109 S.Ct. 3029] as a restriction on commercial speech, and therefore applying the test articulated in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, the Court of Appeals concluded that it was unclear whether the resolution directly advanced the State's asserted interests and whether, if it did, it was the least restrictive means to that end. The court therefore reversed and remanded to the trial court.

Held:

1. The Court of Appeals erred in requiring the District Court to apply a least restrictive means test to Resolution 66-156. Pp. 473-481.

(a) The AFS parties the students seek to hold propose a commercial transaction, and therefore constitute commercial speech. Although they also touch upon other subjects, such as how to be financially responsible and run an efficient home, this does not render them noncommercial in their entirety on the theory that fully protected, educational speech and commercial speech are "inextricably intertwined." Riley v. National Federation of Blind of North Carolina Inc., 487 U.S. 781, distinguished. Pp. 473-475

(b) Although Central Hudson and other decisions have occasionally contained statements suggesting that government restrictions on commercial speech must constitute the least restrictive means of achieving the governmental interests asserted, those decisions have never required that the restriction be absolutely the least severe that will

Page 470

achieve the desired end. Rather, the decisions require only a reasonable "fit" between the government's ends and the means chosen to accomplish those ends. See, e.g., Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 341; In re R. M.J., 455 U.S. 191, 203. So long as the means are narrowly tailored to achieve the desired objective, it is for governmental decisionmakers to judge what manner of regulation may be employed. Pp. 475-481.

2. Respondents' overbreadth claim -- which is based on the assertion that Resolution 66-156 impermissibly prohibits their fully protected, noncommercial speech -- is not ripe for resolution in this Court. Pp. 481-486.

(a) Although overbreadth analysis does not normally apply to commercial speech, Resolution 66-156 must be deemed to reach some noncommercial speech in light of evidence that it prohibits for-profit job counseling, tutoring, legal advice, and medical consultation in students' dormitory rooms. While such conduct consists of speech for profit, it does not satisfy the definition of commercial speech, since it does not propose a commercial transaction. Pp. 481-482.

(b) The overbreadth doctrine was designed as a departure from traditional rules of standing, enabling persons who are themselves unharmed by a statute to challenge it facially on the ground that it may be applied unconstitutionally to others, in situations not before the Court. Broadrick v. Oklahoma, 413 U.S. 601, 610, 613. Respondents' invocation of the doctrine is unusual because the asserted extensions of Resolution 66-156 beyond commercial speech that are the basis for their challenge are not hypothetical applications to third parties, but applications to respondents themselves, which were part of the subject of the complaint and the testimony adduced at trial. Nevertheless, there is no reason why the doctrine cannot be invoked in this situation. Pp. 482-484.

(c) However, an as-applied challenge should ordinarily be decided before an overbreadth claim, for reasons relating both to the proper functioning of courts and to their efficiency. Here, neither of the courts below ever considered respondents' as-applied challenge under the proper legal standards, nor apparently even recognized [109 S.Ct. 3030] that the case involves both commercial and noncommercial speech. On remand, the question whether Resolution 66-156's alleged substantial overbreadth makes it unenforceable should be addressed only if it is first determined that its application to speech in either category is valid. Pp. 484-486.

841 F.2d 1207, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, O'CONNOR, and KENNEDY, JJ., joined.

Page 471

BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 486.

SCALIA, J., lead opinion

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether governmental restrictions upon commercial speech are invalid if they go beyond the least restrictive means to achieve the desired end.

I

The State University of New York (SUNY) has promulgated regulations governing the use of school property, including dormitories. One of these, Resolution 66-156 (1979), states:

No authorization will be given to private commercial enterprises to operate on State University campuses or

Page 472

in facilities furnished by the University other than to provide for food, legal beverages, campus bookstore, vending, linen supply, laundry, dry cleaning, banking, barber and beautician services and cultural events.

American Future Systems, Inc. (AFS), is a company that sells housewares, such as china, crystal, and silverware, to college students; it markets its products exclusively by the technique popularly called (after the company that pioneered it) "Tupperware parties." This consists of demonstrating and offering products for sale to groups of 10 or more prospective buyers at gatherings assembled and hosted by one of those prospective buyers (for which the host or hostess stands to receive some bonus or reward).

In October, 1982, an AFS representative was conducting a demonstration of the company's products in a student's dormitory room at SUNY's Cortland campus. Campus police asked her to leave because she was violating Resolution 66-156. When she refused, they arrested her and charged her with trespass, soliciting without a permit, and loitering. Respondent Fox, along with several fellow students at SUNY/Cortland, sued for declaratory judgment that, in prohibiting their hosting and attending AFS demonstrations, and preventing their discussions with other "commercial invitees" in their rooms, Resolution 66-156 violated the First Amendment. AFS joined the students as a plaintiff. The District Court granted a preliminary injunction, American Future Systems, Inc. v. State University of New York College at Cortland, 565 F.Supp. 754 (NDNY 1983), but, after a trial, found for the university on the ground that the SUNY dormitories did not constitute a public forum for the purpose of commercial activity and that the restrictions on speech were reasonable in light of the dormitories' purpose, 649 F.Supp. 1393 (1986).

A divided panel of the Court of Appeals for the Second Circuit reversed and remanded. 841 F.2d 1207 (1988). Because

Page 473

AFS had dropped out of the suit as a party, the only remaining issue was the students' claim that their First Amendment rights had been infringed. Viewing the challenged application of Resolution 66-156 as a restriction on commercial speech, and therefore applying the test articulated in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980), the Court of Appeals concluded that it was unclear whether Resolution 66-156 directly advanced the State's asserted interests and whether, if it did, it was the least restrictive means to that end. The Court of Appeals therefore reversed the judgment and remanded to the trial court for "a suitable order" based upon "appropriate findings" on these points.1 We granted certiorari, 488 U.S. 815 (1988).

II

In reviewing the reasoning the Court of Appeals used to decide this case,2 the first question we confront is whether the principal type of expression at issue is commercial speech. There is no doubt that the AFS "Tupperware" parties the students seek to hold "propose a commercial transaction," Virginia Pharmacy Board v. Virginia Citizens Consumer Council Inc., 425 U.S. 748, 762 (1976), which is the

Page 474

test for identifying commercial speech, see Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 340 (1986). They also touch on other subjects, however, such as how to be financially responsible and how to run an efficient home. Relying on Riley v. National Federation of Blind of North Carolina Inc., 487 U.S. 781, 796 (1988), respondents contend that here pure speech and commercial speech are "inextricably intertwined," and that the entirety must therefore be classified as noncommercial. We disagree.

Riley involved a state law requirement that, in conducting fundraising for charitable organizations (which we have held to be fully protected speech) professional fundraisers must insert in their presentations a statement setting forth the percentage of charitable...

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