Fox v. Bd. of Trustees of State Univ. of New York

• Decision Date: 03 October 1988
• Docket Number: No. 82-CV-1363.,82-CV-1363.
• Citation: 695 F. Supp. 1409
• Parties: Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gawley, Daniel Altman, Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bernstein, and American Future Systems, Inc., Plaintiffs, v. The BOARD OF TRUSTEES OF the STATE UNIVERSITY OF NEW YORK, and Clifton R. Wharton, Jr., Individually and as Chancellor of the Board of Trustees and the State University of New York College at Cortland, and James M. Clark, Individually and as President of the College at Cortland, and the State University of New York at Binghamton, and Clifford D. Clark, Individually and as President of the State University of New York at Binghamton, and the State University of New York at Albany, and Vincent O'Leary, Individually and as President of the State University of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Humphrey Tomkin, Individually and as President of the College of Arts and Sciences at Potsdam, Defendants.
• Court: U.S. District Court — Northern District of New York

695 F. Supp. 1409

Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gawley, Daniel Altman, Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bernstein, and American Future Systems, Inc., Plaintiffs, v. The BOARD OF TRUSTEES OF the STATE UNIVERSITY OF NEW YORK, and Clifton R. Wharton, Jr., Individually and as Chancellor of the Board of Trustees and the State University of New York College at Cortland, and James M. Clark, Individually and as President of the College at Cortland, and the State University of New York at Binghamton, and Clifford D. Clark, Individually and as President of the State University of New York at Binghamton, and the State University of New York at Albany, and Vincent O'Leary, Individually and as President of the State University of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Humphrey Tomkin, Individually and as President of the College of Arts and Sciences at Potsdam, Defendants.

No. 82-CV-1363.

United States District Court, N.D. New York.

October 3, 1988.

Ronald H. Sinzheimer, Albany, Duane Morris & Heckscher, Henry T. Heath, Wayne A. Mack, Jr., Philadelphia, Pa., for plaintiffs.

Robert Abrams, Atty. Gen. of the State of N.Y., Lawrence Doolittle, Asst. Atty. Gen., Albany, N.Y., for defendants.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

BACKGROUND

This is the third time this case has been before the court. Familiarity with the prior proceedings is presumed.¹ Nevertheless, a brief review of the background of the case is appropriate. American Future Systems, Inc. (AFS) sells cookware, china, crystal, and silverware to college students through group demonstrations. In 1982, one of AFS' representatives, Kathleen Rapp, was required by University officials to leave a dormitory room on the campus of the State University of New York (SUNY) at Cortland, even though she had been invited to give a demonstration by a student resident. Rapp's removal was due to the enforcement of SUNY Board of Trustees Resolution 66-156, as amended, which reads as follows:

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

In order to challenge the SUNY Resolution and its enforcement at SUNY-Cortland, AFS, Rapp, and Todd Fox, a student who wished to host an AFS demonstration, commenced this suit on December 2, 1982. AFS and Rapp asserted that the SUNY Resolution and its enforcement deprived them of their first amendment right to free speech. Fox claimed that the Resolution and its enforcement deprived him of his rights of privacy and association as well as free speech. Claims under the due process, equal protection and search and seizure clauses of the constitution were also asserted as were pendent claims under the constitution and laws of New York State.

Plaintiffs moved for an injunction permitting them to conduct their demonstrations at SUNY-Cortland without interference pendente lite. In a decision dated June 3, 1983, this court enjoined the University from prohibiting demonstrations in the dormitory rooms of a consenting SUNY-Cortland student. American Future Systems, Inc. v. State University of New York at Cortland, 565 F.Supp. 754 (N.D.N.Y.1983). The court presumed irreparable harm in that plaintiffs had alleged deprivation of their first amendment freedoms. Id. at 761. The court then concluded that plaintiffs were likely to prevail on their claim that the SUNY regulation and its enforcement unconstitutionally infringed on their first amendment freedoms. Id. at 761-67. In so doing, the court characterized the speech in question as commercial speech, and applied the commercial speech test of 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):

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than necessary to serve that interest.

Id. at 566, 100 S.Ct. at 2351.

Defendants did not contend that the group demonstrations were unlawful or deceptive, so the court found the first step of Central Hudson to be satisfied. American Future Sys., 565 F.Supp. at 763-64. The court also found the defendants proffered interests of (1) preventing disruption; (2) protecting the safety and security of the students; and (3) protecting students from commercial exploitation to be substantial. Id. at 764-65. The court determined, however, that the complete ban only directly advanced interest numbered (3); and, in any event was more extensive than necessary to serve that interest. Id. at 765-67.

Although the court determined that under Central Hudson, the plaintiffs were likely to succeed on their claims that SUNY had violated their first amendment freedom to disseminate and receive commercial information, it determined that the consummation of commercial transaction was not so protected. Id. at 767-68. Moreover, the court determined that while the defendants could not bar group demonstrations completely, they could enforce reasonable restrictions governing the time, place and manner of such demonstrations. Id. at 771. Accordingly, the court's Order enjoined defendants from enforcing Resolution 66-156 to the extent that it barred the plaintiffs from disseminating and receiving information in the course of group product demonstrations conducted in the dormitory room of an inviting student at SUNY-Cortland. It did not, however, enjoin defendants from prohibiting consummation of sales, nor from enforcing reasonable time place and manner restrictions.

In response, SUNY-Cortland promulgated regulations which prohibited the consummation of all sales on campus; restricted AFS presentations to certain hours; confined the presentations to student rooms; limited the number of student participants to ten; and required a registration procedure, which called for, among other things, the unanimous consent of all residents assigned to the room.² Plaintiffs amended their complaint to challenge both 66-156 and the Cortland regulations.³

A non-jury trial was held in the Fall of 1986, and this court issued its findings of facts and conclusions of law on December 12, 1986. Fox v. Bd. of Trustees, 649 F.Supp. 1393 (N.D.N.Y.1986), rev'd 841 F.2d 1207 (2d Cir.1988). After reviewing the evidence, the court concluded that its preliminary determination that the speech involved was commercial speech and not pure speech was substantiated by the record. Id. at 1397-98. The court did not apply the Central Hudson test, however. Relying on several decisions that had been announced since the preliminary injunction motion in 1983, the court determined that the public forum analysis was appropriate. Id. at 1398-1400 (citing Cornelius v. NAACP Legal Defense & Educ. Fund., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Educ. Ass'n v. Perry Local Educators, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Calash v. City of Bridgeport, 788 F.2d 80 (2d Cir.1986); Glover v. Cole, 762 F.2d 1197 (4th Cir.1985); Chapman v. Thomas, 743 F.2d 1056 (4th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1866, 85 L.Ed.2d 160 (1985); American Future Systems, Inc. v. Pennsylvania State University, 752 F.2d 854, 870-71 (3d Cir.1984) (Adams, J., concurring), cert. denied, 473 U.S. 911, 105 S.Ct. 3537, 87 L.Ed.2d 660 (1985)). Because SUNY permitted social, cultural, and educational activities in dormitories while prohibiting commercial activities, the court concluded that dormitory rooms constituted public fora for social, cultural and educational activities, but non-public fora for commercial activities. Fox, 649 F.Supp. at 1400-1401. The court then determined that Resolution 66-156 was a reasonable, viewpoint neutral restriction on commercial speech in a limited public forum, and dismissed the complaint. Id. at 1401-1402. Since the court found the complete ban to be a constitutional restriction on speech, it declined to consider the claims in regard to the interim Cortland regulations. Id. at 1402.

The United States Court of Appeals for the Second Circuit has reversed and remanded. Fox v. Bd. of Trustees, 841 F.2d 1207 (2d Cir.1988). The Court of Appeals rejected this court's use of the public forum analysis noting that between trial and appeal "the focus of the case shifted" because AFS had dropped out as a party. Id. at 1208. The Court determined that:

"since this case no longer involves the rights of third persons to gain access to state-owned property to give or receive speech, but rather the free speech rights of students who, as dormitory residents, have an undisputed right of access to their rooms as well as certain privacy rights, the public forum cases thought applicable by the district court are inapposite."

Id. at 1212. The Court then determined that the appropriate test to apply was the commercial speech test of Central Hudson. Id. at 1213.

Although the Court remanded the case for application of the Central Hudson test, it did so with some guidance. First, the Court agreed with this court's preliminary determination that AFS demonstrations concerned lawful activity and were not misleading, and that the proffered state interests of SUNY were substantial. Fox, 841 F.2d at 1213. Second, the court determined that the real inquiry on remand was whether the regulation directly advanced the State's...