Board of Trustees of State University of New York v. Fox, No. 87-2013

CourtUnited States Supreme Court
Writing for the CourtSCALIA, J., delivered the opinion of the Court, in which REHNQUIST
PartiesBOARD OF TRUSTEES OF the STATE UNIVERSITY OF NEW YORK, et al., Petitioners v. Todd FOX et al
Decision Date29 June 1989
Docket NumberNo. 87-2013

492 U.S. 469
109 S.Ct. 3028
106 L.Ed.2d 388
BOARD OF TRUSTEES OF the STATE UNIVERSITY OF NEW YORK, et al., Petitioners

v.

Todd FOX et al.

No. 87-2013.
Argued Feb. 22, 1989.
Decided June 29, 1989.
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 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, 100 S.Ct. 2343, 65 L.Ed.2d 341, 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 re der 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, 108 S.Ct. 2667, 101 L.Ed.2d 669, 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, 106 S.Ct. 2968, 2976-2977, 92 L.Ed.2d 266; In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64. 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, 93 S.Ct. 2908, 2914, 2916, 37 L.Ed.2d 830. 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 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 (CA2 1988), 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.

O. Peter Sherwood, New York City, for petitioners.

Henry T. Reath, Philadelphia, Pa., for respondents.

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 ork (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). Be-

Page 473

cause 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, 100 S.Ct. 2343, 65 L.Ed.2d 341 (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, 109 S.Ct. 52, 102 L.Ed.2d 31 (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, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976), which is the

Page 474

test for ident fying commercial speech, see Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (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, 108 S.Ct. 2667, 2677, 101 L.Ed.2d 669 (1988), respondents contend that here pure speech and commercial speech are "inextricably intertwined," and that the entirety must therefore be classified as...

To continue reading

Request your trial
1007 practice notes
  • Food for human consumption: Food labeling— Dietary supplements; effect on structure or function of body; types of statements, definition,
    • United States
    • Federal Register January 06, 2000
    • January 6, 2000
    ...``a fit that is not necessarily perfect, but reasonable'' between means and ends (Board of Trustees of the State Univ. of N.Y. v.Fox, 109 S. Ct. 3028, 3032-35 (1989)). In subsequent decisions, the Court has also clarified that ``misleading'' in the first element of the test refers to speech......
  • Telemarketing Sales:
    • United States
    • Federal Register August 10, 2010
    • August 10, 2010
    ...487 U.S. at 788) as opposed to what is entirely commercial speech relating to the sale of debt relief services. See Bd. of Trs v. Fox, 492 U.S. 469, 474-75 (1989) (where speech proposing a commercial transaction touched on educational subjects, such speech was not converted into educational......
  • Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...statute is “narrowly tailored” to achieve the desired objective. See, e.g., Heller II, 670 F.3d at 1258 (citing Bd. of Trustees v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), and Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)); see also Marz......
  • Ims Health Inc. v. Ayotte, No. 06-cv-280-PB.
    • United States
    • U.S. District Court — District of New Hampshire
    • April 30, 2007
    ...is defined more narrowly to encompass only speech that "propose[s] a commercial transaction." Bd. of Trs. of State Univ. of N. Y. v. Fox, 492 U.S. 469, 473-74, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); see also Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implicatio......
  • Request a trial to view additional results
999 cases
  • Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...statute is “narrowly tailored” to achieve the desired objective. See, e.g., Heller II, 670 F.3d at 1258 (citing Bd. of Trustees v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), and Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)); see also Marz......
  • Ims Health Inc. v. Ayotte, No. 06-cv-280-PB.
    • United States
    • U.S. District Court — District of New Hampshire
    • April 30, 2007
    ...is defined more narrowly to encompass only speech that "propose[s] a commercial transaction." Bd. of Trs. of State Univ. of N. Y. v. Fox, 492 U.S. 469, 473-74, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); see also Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implicatio......
  • United States v. Lacey, No. CR-18-00422-001-PHX-SMB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • October 24, 2019
    ...v. Playboy Entm't Grp., Inc. , 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ; see Bd. of Trustees v. State Univ. of N.J. , 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) ("[T]he State bears the burden of justifying its restrictions[.]").Here, taking the allegations i......
  • Ross v. Early, No. 12–2547.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 5, 2014
    ...City bears the burden of showing the Policy satisfies the applicable level of scrutiny. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989).III. We first address Appellant's facial challenge to the Policy as an improper time, place, a......
  • Request a trial to view additional results
4 books & journal articles
  • Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State
    • United States
    • Political Research Quarterly Nbr. 44-4, December 1991
    • December 1, 1991
    ...Bergerson, 109 S.Ct. 939 (1989).Block v. Meese, 793 F.2d 1303 (D.C. Cir. 1986).Board of Trustees of State University of New York v. Fox, 109 S.Ct. 3028 (1989).Booth v. Maryland, 107 S.Ct. 2529 (1987).Bowen v. Georgetown University Hospital, 109 S.Ct. 468 (1988).Brock v. Cathedral Cry Shale ......
  • First Amendment Implications of Restricting Food and Beverage Marketing in Schools
    • United States
    • ANNALS of the American Academy of Political and Social Science, The Nbr. 615-1, January 2008
    • January 1, 2008
    ...562-63 (describing the commercial speech analysis as an intermediate standard of review).64. See, e.g., Bd. of Trs. of State Univ. v. Fox, 492 U.S. 469, 474 n.2 (1989) (considering a public uni-versity’s ban on Tupperware parties in student dorms and implying that the application of the com......
  • The First Amendment walks into a bar: trademark registration and free speech.
    • United States
    • Notre Dame Law Review Vol. 92 Nbr. 1, November - November 2016
    • November 1, 2016
    ...speech, allowing the commercial elements to be regulated under Central Hudson. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 474 (1989) ("No law of man or of nature makes it impossible to sell housewares without teaching home economics, or to teach home economics without sell......
  • Brands, morality and public policy: some reflections on the ban on registration of controversial trademarks.
    • United States
    • Marquette Intellectual Property Law Review Vol. 19 Nbr. 1, January 2015
    • January 1, 2015
    ...v. Brady, 944 F.2d 1543, 1547 (10th Cir. 1991) (quoting Central Hudson, 447 U.S. at 566). (91.) Kelber, supra note 56, at 560-61. (92.) 492 U.S. 469, 477, 480 (1989) (relaxing the proportionality principle established in Central Hudson). The test now no longer asks whether the governmental ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT