Osu Student Alliance v. Ed Ray
699 F.3d 1053
| 9th Cir. | 2012Background
- OSU allowed Liberty newsbins around campus under an unwritten, unenforced policy.
- In 2006 OSU confiscated Liberty bins and barred replacement outside two designated locations; Barometer remained unrestricted.
- Liberty editors could not notify OSU before confiscation and later learned of policy enforcement.
- After confiscation, OSU asserted the unwritten policy restricted bins to two areas; Barometer continued to have broader access.
- Plaintiffs filed §1983 suit alleging First Amendment, equal protection, and due process violations; district court dismissed after new written policy was issued.
- The court reversed and remanded to address individual defendants’ liability and post-confiscation policy application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum classification and access | Liberty was in a designated/public forum; policy violated access. | Policy balanced campus aesthetics; enforced neutrally. | OSU campus is a designated public forum; policy failed plain-dealer standards. |
| First Amendment standards for policy | Unwritten policy lacked standards and was applied discriminatorily. | Policy legitimate time/place/manner restriction. | Policy lacked standards and was viewpoint-discriminatory; violated First Amendment. |
| Equal protection linkage to First Amendment | Differential treatment burdened fundamental speech rights. | Claims depend on First Amendment analysis; not separate standard. | Equal protection claims arise from speech rights violations. |
| Due process and notice before seizure | Bins taken without notice; notice feasible. | Emergency or minor public interest justify seizure. | Confiscation without notice pleads due process violation. |
| Supervisory liability under Iqbal | Ray and McCambridge knowingly acquiesced in policy enforcement. | Supervisors must show personal involvement or direct action. | Knowledge/acquiescence suffices for First Amendment/speech claims against Ray and McCambridge; Martorello liable for due process; Roper improperly pleaded. |
Key Cases Cited
- City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (newsracks/public forum limits require standards for licensing decisions)
- Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037 (9th Cir. 2002) (designated public forum; content-neutral standards essential)
- Hays Cnty. Guardian v. Supple, 969 F.2d 111 (5th Cir. 1992) (designates forums; open access doctrine evaluated for standards)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (elastic permitting standards may be permissible if concrete)
- Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001) (viewpoint discrimination concerns in campus speech)