Hays County Guardian v. Supple

• Decision Date: 10 August 1992
• Docket Number: No. 91-8168,91-8168
• Citation: 969 F.2d 111
• Parties: 76 Ed. Law Rep. 355, 20 Media L. Rep. 1681 HAYS COUNTY GUARDIAN, et al., Plaintiffs-Appellants, v. Jerome K. SUPPLE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 111

969 F.2d 111

76 Ed. Law Rep. 355, 20 Media L. Rep. 1681

HAYS COUNTY GUARDIAN, et al., Plaintiffs-Appellants, v. Jerome K. SUPPLE, et al., Defendants-Appellees.

No. 91-8168.

United States Court of Appeals Fifth Circuit.

Aug. 10, 1992.

Rehearing and Rehearing En Banc

Denied Sept. 4, 1992.

J. Patrick Wiseman, Richards, Wiseman & Durst, Austin, Tex., for plaintiffs-appellants.

David W. Williams, Asst. Atty. Gen., Gen. Lit. Div., Austin, Tex., for defendants-appellees.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Hays County Guardian, a newspaper, and students currently enrolled at Southwest Texas State University contend that University regulations unconstitutionally restrict distribution of the Guardian on campus. Plaintiffs also contend that the University has granted an inadequately fettered license to its officials to regulate activity protected under the First Amendment and that the University's use of mandatory student fees to finance a student-run newspaper violates the First Amendment.

We find that plaintiffs' objections to official discretion and university funding of the university paper are meritless, but we conclude that the University's regulations against on-campus solicitation unconstitutionally restrict the distribution of the Guardian. We affirm the remand to state court of state-law claims. Finally, we find that defendants in their individual capacity enjoy qualified immunity to any damages or attorney's fees that might be awarded in the federal suit.

I.

The Hays County Guardian and students filed this action in Texas state court against various officials of Southwest Texas State University and the Board of Regents of the Texas State University System in their official and individual capacities. ¹ Plaintiffs alleged that defendants violated their right to equal protection of the laws and to free speech under both the Texas and U.S. Constitutions, later adding claims under the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq., the Texas Constitution, the Texas Free Enterprise and Anti-Trust Act of 1983, and the Texas Civil Practice and Remedies Code, §§ 104.002-003. Plaintiffs sought monetary, injunctive, and declaratory relief.

Defendants removed the case to federal district court. In its final amended judgment following a bench trial, the district court remanded all state-law claims to Texas state court and held that plaintiffs should take nothing on all remaining claims. Plaintiffs argue here that the district court erred in dismissing the constitutional claims and in remanding the state-law claims to state court.

The Hays County Guardian is a small local newspaper, founded in 1989, concentrating on "environmental, peace, and social justice issues." Distributed free of charge throughout Hays County, its publication expense was covered by donations and revenue from advertising by local businesses.

Southwest Texas State University is a Texas state university located in San Marcos, Texas with approximately 22,000 students. 5,000 students live on campus.

The University allows students to participate in a broad range of expressive activities on campus. Board of Regents rules provide that "[a]ny group or person ... may assemble and engage in free speech activities on the grounds of the campus." The University's Operating Letter Number 9.06 also allows students to "publicly distribute outdoors, on grounds owned or controlled by the University, ... pieces of literature that are not obscene, vulgar, or libelous, or that do not contain impermissible solicitation." One part of the campus, a plaza between several University buildings known as the Quad, has been designated by the University as a "free expression area" and can be reserved by students for demonstrations and "symbolic structures." Students may hand out pamphlets, newspapers, and any other literature without advertisements throughout the outdoor areas of the campus.

This general policy of openness to expressive activity is qualified by the University's limits on commercial solicitation. Both the written regulations of the Board of Regents and the University's Operating Letter 9.05 generally prohibit "solicitation" on campus. "Solicitation" is defined as "the sale or offer for sale of any property or service" or "receipt on request for any gift or contribution." Before August 31, 1989, the University did not apply its solicitation restrictions to newspapers that were distributed free of charge, even if those newspapers contained advertisements. On August 31, the Dean of Students instructed the University's counsel to revise the University's "Operating Letter 9.05" concerning solicitation so that free newspapers containing advertisements would be treated as prohibited solicitation.

Board of Regents policy prohibiting solicitation has three relevant exceptions. First, the University permits the sale of "any newspaper, magazine, or other publications by means of a vending machine or distribution stand in an area designated in advance by the President [of the University]." At the time of trial, there were a total of 48 newsstands at five locations on campus.

Second, the University permits "activities ... sponsored by a registered student organization ... which are authorized and scheduled in accordance with the facilities use regulations ... as long as all aspects of the activity clearly identify the organization sponsoring the event on all signs, tickets, or literature." According to trial testimony, a registered student organization could distribute a newspaper containing advertisements by setting up a table in the Quad manned at all times by a student. The student must remain behind the table and may not approach others to distribute the paper. Finally, the University permits students to subscribe to periodicals, which may either be sent through the mails or directly delivered to the student on campus.

Newspapers containing commercials may be distributed on campus only through these three methods of distribution. The University Star, a University-owned newspaper run by the students in the Journalism Department, is not subject to any of the University's otherwise applicable restrictions, despite the fact that it contains advertisements. Most of the Star 's budget derives from advertising revenues, but the Star is also funded in part by mandatory student fees. The Star 's method of distribution is determined by the Star 's staff and the Journalism Department Faculty, who distribute the paper at about forty drop-off sites and newsracks throughout the campus.

The Guardian was notified of this new policy on October 10, 1989, when Tom Burdenski, an assistant director of the student center, wrote to the Guardian to warn the paper that it had improperly distributed copies of the Guardian in "academic departments, inside the student center, and the Quad Area." The letter informed the Guardian that "[n]ewspapers may be circulated on campus in one of two ways"--through the covered newsstands at designated locations and through subscriptions "arranged by the university department in advance" that are either directly delivered or sent through the mail. Similar letters were sent to seven other periodicals that had apparently violated the University's newspaper distribution policy.

The Guardian published Burdenski's letter in their paper. Despite Burdenski's warning, the Guardian continued to deliver its paper on campus. Burdenski sent a second letter repeating the University's restrictions on newspaper distribution and threatening to refer "further violations ... to the University Attorney for appropriate action." The Guardian 's advertising revenue dried up, and the newspaper ceased publication.

II.

The district court found that the rules contained in the Board of Regents' regulations and the University's Operating Letter Number 9.05 did not violate the Guardian 's and students' rights under the First Amendment. This conclusion is a mixed question of fact and law that we review de novo. International Society for Krishna Consciousness v. Baton Rouge, 876 F.2d 494, 496 (5th Cir.1989).

It is undisputed that the speech in question--distribution of a newspaper containing political and social commentary and reportage--is protected speech. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). There is also no contention that the government must hold open all government-owned or government-controlled property to all forms of speech. See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). The parties concede, as they must, that a speaker's right to access government property is determined by the nature of the property or "forum." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

The right of access to government-owned property for expressive activity is greatest when the property is a "public forum." Government property is a "traditional public forum" if the property has traditionally been used by the public for purposes of assembly and debate. Perry Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. at 955. See also United States v. Kokinda, 497 U.S. 720, ----, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571 (1990). The government may also create public fora on property not traditionally used for public expression by intentionally opening it for public discourse. International Soc'y for Krishna Consciousness, Inc. v. Lee, --- U.S. ----, ----, 112 S.Ct. 2701, 2706, 120 L.Ed.2d 541 (1992).

The government may designate a forum for the public at-large or only for certain speakers or for the discussion of only certain subjects. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Perry Educ. Ass'n, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7. In each case,...