June 4, 2007

Limits on Free Speech

Public universities have the right to set limits on spending in student government elections, even though the U.S. Supreme Court has barred such limits in federal and state elections as infringements on free speech, a federal appeals court ruled Friday.

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A panel of the U.S. Court of Appeals for the Ninth Circuit issued the unanimous ruling in a case involving a challenge to a $100 spending limit set by the University of Montana. The court found that the university’s educational mission — and the relationship between the rules on election spending and that spending — gave the university the right to limit the speech encompassed by campaign spending.

The ruling could be important for several reasons. Many public universities have rules that limit spending on student elections — rules that sometimes center in election disputes — and a federal appeals court ruling throwing out such rules could have led to plenty of other legal challenges. And the lawyer for the student who challenged the Montana rules sees the decision posing a threat to student rights that involve freedom of expression.

“The court has given carte blanche to state universities to regulate political speech by students,” said James Bopp Jr., the lawyer. “The court has adopted the position that First Amendment protections do not apply to political speech at public universities.” Bopp said that he will be asking the full Ninth Circuit to reconsider the case, and that he would “seriously consider” an appeal to the U.S. Supreme Court.

Bopp’s client is Aaron Flint, who sued the university after he was denied the right to take his seat as a senator in the campus government after he won an election in 2004, but exceeded the spending limit. The spending limit offense was a second violation for Flint, who had been permitted to hold office the previous year despite spending too much.

The appeals court acknowledged that the University of Montana is a state institution, and that campaign spending limits of the sort used by the university would be illegal if attempted for Montana state or federal office. But the court said it was wrong to treat the university as another unit of state government. “We may not simply ignore the facts that the campaign expenditure limitations in this case involved election to student government and that the expenditures occurred mostly, if not exclusively, on a university campus,” the court found. In this “educational context,” different standards should apply, the judges said.

The ruling also offered some logic for applying different standards for state and federal government and student government that may not go over well with campus politicos. In essence, the court ruled that different rules can apply because student governments don’t have that much power. “The ubiquity with which political government is present to control facets of our lives is not — thank heavens! — replicated by student government in students’ lives,” the decision said.

Having determined that student government elections thus constitute a “limited public forum,” where more regulation is permitted than in a full public forum, the court said that the remaining question was whether the spending limit was “viewpoint neutral and reasonable.”

The court said that there was no evidence to suggest that the spending limit was intended to squelch any particular point of view.

As for the test of reasonableness, the court said that it accepted the university’s contention that educational issues motivated the spending limit. “Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one’s potential constituents,” the decision said. “Students are forced to campaign personally, wearing out their shoe-leather rather than wearing out a parent’s — or an activist organization’s pocketbook.”

Bopp, the lawyer for the student who spent more than he was allowed, said that much more is at stake then student government rules. Federal courts, he said, have typically required public colleges to provide wide First Amendment protections in extracurricular activities. “Now the court has said that all activities on campus fall under severely limited First Amendment protections,” he said.

Gary Pavela, a fellow of the National Association of College and University Attorneys who writes frequently on legal issues and student affairs, said Bopp was overstating the impact of the decision. Pavela said that the decision would have been much more dramatic if it had gone the other way, because Montana’s policies are similar to those at many institutions. And he said that the language in the decision could protect students.

“I think [Bopp is] going too far beyond the facts of this case,” Pavela said. “There’s no implication in the court’s decision that it would generate more authority to govern campus newspapers, for instance — there’s nothing to suggest that. And the court is stressing the importance of viewpoint neutrality,” Pavela said.

Because the First Amendment applies only to public institutions, the decision should not have a direct impact on private institutions. Appeals court decisions set law in their region and can be cited as precedent elsewhere. The Ninth Circuit includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington State.

— Scott Jaschik

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