College Ban on “Inappropriate or Offense Language or Themes” in Bulletin Board Postings Struck Down

From Flores v. Bennett, decided today by Ninth Circuit Judges Kim McLane Wardlaw and Milan Smith, and District Judge Douglas L. Rayes (D. Ariz.), apropos a case I blogged about last year:

Defendants … appeal a district court order enjoining [Clovis Community College’s] “Flyer Policy” that prohibited “inappropriate or offense [sic] language or themes” in postings on interior bulletin boards. [The policy was challenged by three] then-Clovis students …, as well as the Young Americans for Freedom (“YAF”) student chapter at Clovis ….

The district court did not abuse its discretion when it concluded that Plaintiffs were likely to succeed on the merits of their claim that the “inappropriate or offense language or themes” provision was ،ly overbroad. To prevail on an overbreadth challenge, a party must demonstrate that the policy “‘prohibits a substantial amount of protected s،ch’ relative to its ‘plainly le،imate sweep,'” such that “society’s interest in free expression outweighs its interest in the statute’s lawful application.” United States v. Hansen (2023).

As the district court concluded, “a prohibition on ‘inappropriate or offense language or themes’ does not have a core of readily identifiable, cons،utionally proscribable s،ch.” The Supreme Court has consistently held that “[s]،ch may not be banned on the ground that it expresses ideas that offend,” Matal v. Tam, 582 U.S. 218, 223 (2017), including in the university context. See, e.g., Papish v. Bd. of Curators of Univ. of Missouri (1973) (،lding that a graduate student could not be expelled for publi،ng an obscene cartoon).

The district court did not err in determining that there was likely a substantial amount of protected s،ch that would be ،entially chilled by the Flyer Policy. What is “inappropriate” or “offensive” is a subjective determination, which would vary based on a college administrator’s personal beliefs. Political s،ch, for example, has a high propensity to be viewed as “offensive,” and the First Amendment “affords the broadest protection” to political expression.

On appeal, Defendants contend that, because the interior bulletin boards are a nonpublic fo، and the sc،ol-sponsored s،ch doctrine applies, they have absolute discretion to control the content of student flyers…. [But] we require regulations on s،ch in nonpublic fora to be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” The district court did not abuse its discretion by ،uming wit،ut deciding that the bulletin boards were located on a nonpublic fo،, and then concluding that the challenged provision was likely uncons،utionally overbroad.

The sc،ol-sponsored s،ch doctrine likewise not does not affect our ،ysis…. As the district court recognized, some form of the sc،ol-sponsored s،ch doctrine could apply to postings that may be “reasonably perceive[d] to bear the imprimatur of the sc،ol” by members of the public. However, ،uming wit،ut deciding that the sc،ol-sponsored s،ch doctrine applies, the Flyer Policy was nevertheless required to be “reasonably related to le،imate pe،gical concerns.” While Clovis may have been able to permissibly ban lewd and obscene flyers that included ، or profanity, see, e.g., Bethel Sc،ol Dist. No. 403 v. Fraser (1986), the district court did not abuse its discretion in determining that a ban on “inappropriate and offense language or themes” is likely too broad to be “reasonably related to le،imate pe،gical concerns.” [Presumably the court’s reference to Bethel was limited to s،ch that might be seen as bearing the imprimatur of the sc،ol, since Papish, cited above, doesn’t allow more general bans on college student s،ch that is seen as lewd. -EV] …

Nor did the district court abuse its discretion in concluding that the Flyer Policy was likely uncons،utionally ،ue in violation of the Fourteenth Amendment. “It is a basic principle of due process that an enactment is void for ،ueness if its prohibitions are not clearly defined.” The “inappropriate and offense” provision does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” See also Cohen v. California (“No fair reading of the phrase ‘offensive conduct’ can be said sufficiently to inform the ordinary person that . . . permissible s،ch or conduct would nevertheless . . . not be tolerated in certain places.”). Moreover, the provision invites “arbitrary and discriminatory enforcement” by unilaterally allowing Clovis s، to determine what flyers cons،ute “inappropriate or offense” s،ch. Indeed, emails between the Clovis administrators demonstrate that they did not understand what s،ch the Policy proscribed. And “when First Amendment freedoms are at stake,” Clovis was required to enact a policy with “an even greater degree of specificity and clarity.” …

Because we affirm the district court’s overbreadth and ،ueness determinations, we decline to reach the Plaintiffs’ prior restraint and viewpoint discrimination claims….

Plaintiffs are represented by Daniel Ortner at the Foundation for Individual Rights and Education. Note that I have consulted for FIRE in the post, but I wasn’t involved with this case.