PORTLAND (AP) — A federal appeals court has revived a complaint by the creators of a conservative-leaning student newspaper who say Oregon State University officials arbitrarily restricted the paper’s distribution.
The 9th U.S. Circuit Court of Appeals said Tuesday it had “little trouble” finding constitutional violations on the part of university officials. It reversed a lower-court decision to dismiss the case.
Supporters of The Liberty filed the lawsuit in 2009, alleging university President Ed Ray and other school officials granted the official campus newspaper numerous distribution bins while arbitrarily limiting The Liberty’s reach.
According to court records, The Liberty’s seven outdoor bins disappeared from campus during the winter of 2008-09. When editors contacted police about what they believed to be a theft, they learned the university had confiscated the bins and dumped them in a storage yard, resulting in the loss of 150 newspapers to water damage.
Executive editor William Rogers complained to Ray in an email, and the president responded that the action was “news to him,” court documents said. Ray copied three university officials on the email and said one of them would get back to Rogers.
Director of facilities services Vincent Martorello called Rogers and explained that the university was enforcing an existing, unwritten policy that restricts where off-campus newspaper bins could be placed. The purpose of the policy was to keep the campus clean, according to court records.
Rogers countered that The Liberty, which dates to 2002, is not an off-campus publication because it is written by Oregon State students and published by the OSU Students Alliance, a registered student organization. It should therefore be granted the same treatment as The Daily Barometer, the university’s student newspaper since 1896.
“The policy that OSU enforced against plaintiffs, however, was not merely unwritten. It was also unannounced and had no history of enforcement,” Judge A. Wallace Tashima wrote in the 9th Circuit opinion. “It materialized like a bolt of out of the blue to smite The Liberty’s, but not the Daily Barometer’s, newsbins onto the trash heap.”
After the plaintiffs filed the lawsuit alleging violations of their right to free speech, the university adopted a written policy on newspaper bins which does not distinguish between on-campus and off-campus publications.
Because of the new policy, District Court Judge Ann Aiken dismissed claims for injunctive relief as moot. Moreover, she denied claims for damages because the plaintiffs did not allege that any of the campus officials named in the complaint had confiscated the bins.
Meg Reeves, Oregon State’s general counsel, said Tuesday she was still studying the 45-page appeals court opinion and was not ready to comment.
Attorney Heather Gebelin Hacker, representing the plaintiffs, praised the decision, even though it comes after Rogers and other staff members from 2008-09 have graduated.
“Universities should encourage, not shut down, the free exchange of ideas,” she said in a statement. “Students don’t deserve censorship for having viewpoints that university officials don’t happen to favor. The argument that the independent student paper’s bins were confiscated to ‘clean up’ the campus was simply not believable.”