Texas Review Soc. v. Cunningham

• Decision Date: 03 April 1987
• Docket Number: Civ. No. A-86-CA-115.
• Parties: TEXAS REVIEW SOCIETY, et al. v. Dr. William H. CUNNINGHAM, et al.
• Court: U.S. District Court — Western District of Texas

659 F. Supp. 1239

TEXAS REVIEW SOCIETY, et al. v. Dr. William H. CUNNINGHAM, et al.

Civ. No. A-86-CA-115.

United States District Court, W.D. Texas, Austin Division.

April 3, 1987.

Susan Dasher, Austin, Tex., for plaintiffs.

Jim Mattox, Atty. Gen. of Texas, Mary Keller, Executive Asst. Atty. Gen., J. Patrick Wiseman, Chief, State and County Affairs, James C. Todd, Fernando C. Gomez, Asst. Attys. Gen., Office of the Atty. Gen., Austin, Tex., for defendants.

ORDER

NOWLIN, District Judge.

The above-styled case came on for trial before the Court on December 10, 1986. The Court, having considered the evidence and argument presented at the trial, the post-trial briefs submitted by the parties, as well as all of the pleadings on file in this case, enters the following findings of fact and conclusions of law.

I. INTRODUCTION

Plaintiffs are the publishers of a student newspaper at The University of Texas at Austin (UTA). They have brought suit against the President and Board of Regents of UTA, in their official capacities. The Plaintiffs seek a permanent injunction preventing the Defendants from enforcing a university rule that prohibits the Plaintiffs from personally distributing their newspaper on campus. The suit centers around one small portion of the UTA campus: an area known as the West Mall. Plaintiffs originally brought suit under both the First and Fourteenth Amendments of the U.S. Constitution (and parallel provisions of the Texas Constitution), arguing both that (1) the rule at issue is not a reasonable time, place and manner restriction, and (2) that UTA treats the Texas Review differently than it treats the Daily Texan, a competing student newspaper. At trial, the Plaintiffs abandoned the latter claim, and therefore this suit concerns only First Amendment issues (as well as issues under certain parallel provisions of the Texas Constitution). Thus, the sole question presented by this case is whether the First Amendment of the U.S. Constitution or Article 1, §§ 8 or 27 of the Texas Constitution prohibits UTA from enacting a rule disallowing "solicitation" on the West Mall of the UT campus.

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331, as the case arises under the Constitution of the United States. The case was tried to the Court, as no party demanded a jury.

II. FINDINGS OF FACT

A. The following facts are not in genuine dispute or are established by the pleadings or by stipulations or admissions of counsel:

1. The Texas Review Society is a registered student organization as that term is defined in the Institutional Rules on Student Services and Activities of the University of Texas at Austin, Texas.

2. UTA is a public educational institution organized under the laws of the State of Texas and is a part of the University of Texas System.

3. The Regents of the University of Texas are the duly appointed officers who govern the University of Texas System.

4. The Texas Review Society has a properly authorized organization table located on the West Mall of the University campus. The table is a location from which the Texas Review Society recruits new members and where organization members engage in debate and dialogue with other students.

5. The most popular distribution location (except during registration) for all student organizations at UTA is the West Mall of the UTA campus.

6. The West Mall is an area on the UTA campus bounded on the west by Guadalupe Street, on the north by the Texas Union and the Academic Center, on the east by the Main Building and on the south by Goldsmith Hall and Battle Hall. The West Mall is an area in which student organizations are permitted to maintain tables from which they can distribute literature and engage in dialogue with passersby. Here, students may partake of a genuine marketplace of ideas.

7. The Texas Review Society is a student organization which attempts, through its newspaper, to give expression to conservative political and social thought at the UTA campus. In its own words, the Review is "Texas' conservative student journal of opinion." The Texas Review is published, authored and edited by the student members of the Texas Review Society.

8. Student interactions fueled by dialogue with organization members and supported by distribution of The Texas Review at the West Mall organization table location are a source of new membership for the Texas Review Society.

B. From the evidence presented at trial, the Court makes the following additional findings of fact:

1. The Board of Regents of the University of Texas System has declared that

The campuses of the component institution of The University of Texas System are not open for assembly and expression of free speech as are the public streets, sidewalks and parks. The responsibility of the Board of Regents to operate and maintain an effective and efficient system of institutions of higher education requires that the time, place, and manner of the exercise of the right of assembly and free speech on the grounds and in the buildings and facilities of the various component institutions be regulated.

Regents' Rules, Part I, Chapter VI, Sec. 6.1. Pursuant to this decision, the Regents have enacted a rule prohibiting "solicitation" on campus. That rule defines "solicitation" as

the sale or offer for sale of any property or service, whether for immediate or future delivery; the receipt of or request for any gift or contribution; and the request that a vote be cast for or against a candidate, issue, or proposition appearing on the ballot at any election held pursuant to state or federal law.

Id. at Sec. 6.11. The rule goes on to state that certain activities are not solicitation. Among those is:

The sale or offer for sale of any newspaper, magazine, or other publications by means of a vending machine in an area designated in advance by the chief administrative officer or his delegate for the conduct of such activity.

Id. at Sec. 6.12(1). The rule does not prohibit a student organization from endorsing a candidate for political office, or from giving out information about a candidate.

2. Pursuant to these rules, the administration of UTA has enacted very similar policies regarding the UTA campus. The UTA rules define solicitation identically to the Regents' Rules, contain the same exception for newspapers set out above, and the same policies regarding political candidates. See Institutional Rules on Student Services and Activities, Appendix C, Sec. 10-501(b)(1). Based upon these rules, UTA officials have told the Texas Review Society that on campus, and specifically on the West Mall, its members may not personally hand out copies of the Texas Review which contain paid advertisements.

3. On the West Mall, distribution of periodicals or other literature containing advertising which solicits business for enterprises not affiliated with the University is limited to two areas: 1) the sidewalk beside Guadalupe Street bordering the mall on the west; and, 2) a space in the center of the south end of the Mall, between Goldsmith Hall and Battle Hall, opposite the Academic Center. In these areas, such literature containing solicitation for off-campus enterprises must be distributed from unmanned racks or vending machines.

4. Since at least the time this lawsuit was filed, the Review has contained advertisements. The ads range from solicitations for subscriptions for other conservative journals to ads that simply solicit patronage of a product (e.g., Cody's Nightclub and Coors Beer). The Review usually fills two pages of a twelve-page issue with ads.

5. It has been the Review Society's practice to distribute their newspaper on the West Mall by personally handing out copies of the Review to passersby. The Society does not charge for the paper. During the pendency of this case, the Society has continued to distribute the Review on the West Mall in this manner.¹

6. The University has interpreted its Rules to allow members of the Texas Review Society to have personal copies of its newspaper at its West Mall organization table. This copy may be shown to other students; but, the University's interpretation of the Rules will not permit the free-of-charge distribution of the Texas Review Society's newspaper from the West Mall organization table location because of the paid advertisements contained therein.

7. The Texas Review attempts to publish approximately six issues every school year. The Review has had a difficult time meeting its financial requirements. The two main sources of income to the Review are donations and advertising revenue. If the Review stopped running ads in order to comply with the solicitation rule, the decrease in income would limit the number of pages and frequency of issues the Review could afford to publish. The Review is free, and the managing editor of the Review testified that the free cost of the paper encourages some students to read the paper who might otherwise not read it.

8. Using the method of handing out the papers to students passing through the West Mall, the Review has been able to "get rid of" up to 100 issues per hour, the managing editor testified. The UTA administration has designated a rack on the West Mall from which the Review could be distributed in compliance with the solicitation rule. See Finding of Fact B.3., supra. The rack is adjacent to a rack currently used by the Daily Texan, UTA's other student newspaper. The Plaintiffs conducted a "test" of the effect of the University's rule by complying with the rule during two-hour periods on two separate days. On both days the Plaintiffs did not distribute the papers by handing them to passersby, but rather placed them in the designated rack, and referred students who asked for a Review to the rack. On the first day, a Wednesday, the test was run from 1:30 p.m. to 3:30 p.m. During that period, six issues were picked up from the rack. On the second day, a Friday, the test was run from 1:00 p.m....