Case Information
*4
BEA, Circuit Judge:
We are called upon to decide whether the University of
Montana may impose a dollar limit on what a student may
spend on his campaign for student office. The University’s
limit did not affect
how
the money could be spent; rather, it
directly told a student
how much
he could spend to get
elected. The Federal Election Campaign Act of 1971 could
not tell James Buckley how much of his money he could
spend to be elected a United States Senator.
Buckley v. Valeo
,
When Aaron Flint was a student at the University of Mon- tana, he twice exceeded the $100 campaign expenditure limit imposed on student candidates for positions in the Associated Students of the University of Montana (“ASUM”). Following the second violation, Flint was denied a seat as ASUM Sena- tor. Flint sued ASUM, the University, and ASUM officers, claiming the spending limit, as applied, violated his First Amendment right to freedom of speech. Flint now appeals the district court’s order of summary judgment in favor of defen- dants. The precise question before us is this: Does the Speech Clause of the First Amendment to the United States Constitu- tion prohibit a public university from imposing a $100 expen- diture limit on candidates running for a position in student government? U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”). We conclude that it does not.
I.
A. The University of Montana is a public university under the Montana Constitution; it is administered through a Board of Regents. Mont. Const. art. X, § 2. The Board of Regents requires that the University’s student government organiza- tion meet certain requirements. For instance, the student gov- ernment must follow all Board policies, and the student government’s constitution must be approved by the president of the University.
ASUM is the student government at the University of Mon- tana. ASUM is a “representative body of the members of the Association, organized exclusively for educational and non- profit purposes.” ASUM Const. art. 2, § 1, available at http:// www.umt.edu/asum/government/constitution.htm. Under its constitution, ASUM’s “primary responsibility . . . is to serve as an advocate for the general welfare of the students.” Id. ASUM “government and activities” must “comply with Mon- tana State law and the policies of the Montana Board of Regents on Higher Education.” Id. § 4. All students at the University registered for seven or more credits during the Fall and Spring semesters are assessed an activity fee, and each student who pays this fee is a member of ASUM. art. 1, § 2.
ASUM not only serves to represent the students at the Uni- versity but also provides hands-on, practical educational opportunities for University students. As explained by ASUM’s senior faculty advisor,
ASUM offers students experience in many forms of leadership, through which they develop a variety of skills to handle the responsibilities that arise in stu- dent government. ASUM senators and executives learn how to address conflicting interests of diverse constituencies, how to make recommendations about the allocation of budgetary resources, how to negoti- ate with administrators over matters such as tuition and fee increases, and how to draft policies and pri- orities for numerous student programs.
Since ASUM’s inception in 1906, the University has viewed ASUM as an invaluable educational tool for students of the University. ASUM exists, according to its senior faculty advi- sor, for “essentially educational purposes.”
Consistent with its goals of representing the students at the University and providing students with leadership opportuni- ties, ASUM allows for the election of three student executives and twenty student senators. ASUM Const. art. 4, § 1(a) Arti- cle 7 of the ASUM Constitution and Article 4 of the ASUM Bylaws impose several procedures and restrictions on the stu- dent election process. For example, only ASUM members, i.e., Student Activity Fee-paying students of the University, who maintain at least a 2.0 cumulative grade point average are eligible to run for elected office. Id. art. 7, § 1. Students must be registered for at least one credit to vote in any ASUM election. Id.
The ASUM Bylaws broadly regulate campaigning, which is defined as “any activity which directly or indirectly pro- motes the candidacy of one or more individuals for office.” ASUM Bylaws art. V, § 2.A, available at http:// www.umt.edu/asum/government/bylaws.htm. The Bylaws provide that on campus campaign materials may be displayed only after the official campaigning period begins and only in certain areas. §§ 2.B-C, 2.F.2-4. The Bylaws further pro- hibit any door-to-door campaigning in University residence halls or family housing and condition campaigning in a class- room on the permission of the professor. Id. § 2.E. At issue in the case at bar is the Bylaws’ campaign expen- diture limitation: $100 for individual candidates for office. Id. § 2.G.1-3. The Bylaws require each student candidate to doc- ument and make public his expenditures two days prior to the general election. Id. § 2.H. ASUM reimburses candidates for a portion of their expenditures. § 2.G.4. The Bylaws pre- scribe that all contributions to campaigns come from students; corporate and political action committee contributions are prohibited, as are contributions from ASUM-sponsored orga- nizations. Id. § 2.G.5, I. As a means of enforcing these cam- paign regulations, the Bylaws provide that any candidate who violates the election rules may be barred from candidacy or denied office.
B.
With this general background in place, we turn to the facts of this case. Flint ran for and won election on a joint ticket with Gale Price as ASUM President and Vice-President, respectively, for the 2003-2004 academic year. Flint and Price combined to spend about $300 on their campaign and failed fully to disclose these expenditures as required by the ASUM Bylaws. The ASUM Senate censured both Flint and Price for exceeding the campaign expenditure limit but allowed them to retain their offices as ASUM President and Vice-President.
The following year, Flint ran for a term as ASUM Senator and again exceeded ASUM’s spending limit. Upon submitting his campaign expenditure form on April 26, 2004, in which Flint reported expenditures of $214.69, Flint was informed by ASUM Elections Chairman Kyle Engelson that Flint’s name would be removed from the ballot for the upcoming election. Flint, then ASUM President, responded to Engelson’s letter with an email in which he noted ASUM procedures require a two-thirds vote of the Senate approving Engelson’s recom- mendation, which would not be possible until the election was already underway. Flint suggested that Engelson recommend to the Senate that candidates who violated ASUM election laws not be allowed to take office. After the election was underway, the ASUM Senate voted to remove Flint from his Senate seat should he win. Accordingly, after Flint received enough votes to be elected ASUM Senator, he was denied office.
Flint filed a complaint in United States District Court on May 5, 2004, under 42 U.S.C. § 1983 and the First and Four- teenth Amendments to the United States Constitution, claim- ing that the ASUM Bylaws’s $100 spending cap on campaign expenditures was an unconstitutional abridgment of free speech. Flint sued George Dennison, in his official capacity as the University president; ASUM; Kyle Engelson, in his official capacity as ASUM Elections Committee Chair; and seven ASUM Elections Committee Members in their official capacities. Flint later filed an amended verified complaint adding Gale Price, then ASUM President, two ASUM Execu- tive Officers in their official capacities, and twenty ASUM Senators in their official capacities (collectively referred to hereinafter as “defendants”).
Flint also filed a motion for a temporary restraining order,
a motion for a preliminary injunction, and a motion to consol-
idate the preliminary injunction hearing with the trial on the
merits. The district court denied Flint’s motions. Before the
court rendered its judgment as to Flint’s motion for prelimi-
nary injunction, defendants filed a motion to dismiss the com-
plaint under Federal Rules of Civil Procedure 12(b)(1),
12(b)(6) and 12(b)(7). Following the court’s denial of a pre-
liminary injunction, Flint then filed an amended verified com-
plaint to which the defendants again filed a 12(b)(1) and
12(b)(6) motion to dismiss. Thereupon, the district court
issued an order to show cause regarding additional briefing
and argument. Flint requested further briefing and argument
to resolve the issue as to whether strict scrutiny
[1]
or rational rela-
Under a strict scrutiny analysis, government is required to show that its
regulation of speech “is necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end.”
Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n
,
Flint timely appealed that order. He claims that the district court applied the wrong legal standard in determining the con- stitutionality of ASUM’s regulations. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
II.
Before turning to the merits of Flint’s appeal, we first con- sider two threshold issues: whether Flint’s claims are moot as a result of Flint’s graduation from the University of Montana and whether the Eleventh Amendment immunizes defendants from Flint’s suit.
A.
“Article III of the Constitution limits federal-court jurisdic-
tion to ‘Cases’ and ‘Controversies.’ ”
Massachusetts v. EPA
,
127 S. Ct. 1438, 1452 (2007);
see also DaimlerChrysler
Corp. v. Cuno
,
so.”). A case that “has lost its character as a present, live con-
troversy” is moot and no longer presents a case or controversy
amenable to federal court adjudication.
Am. Rivers v. Nat’l
Marine Fisheries Serv.
,
of expungement. Flint sued for (1) a declaration that ASUM’s limitation on campaign expenditures violated his free speech rights, (2) an injunction preventing ASUM from removing him from his elected position on the ASUM Senate, and (3) an injunction ordering ASUM to remove from his record “all findings, proceedings, recommendations, and actions taken as a result of” the election code violations. Consequently, despite Flint’s graduation from the University in 2004, his contro- versy remains “live” because of his third claim for relief. Given that mootness, unlike standing, is a flexible justicia- bility doctrine, see Jacobus , 338 F.3d at 1104, we retain the ability to grant relief in a legally significant way—to wit, ordering the expungement from Flint’s record all evidence of his 2003 censure and the 2004 denial of his ASUM Senate seat. Such expungement is certainly a “ ‘form of meaningful relief.’ ” Dream Palace , 384 F.3d at 1000 (quoting Pattullo , 271 F.3d at 901). If we were to determine that Flint’s First Amendment rights were violated, declaratory relief would require the University to expunge any and all records of Flint’s censure and Senate seat denial; therefore, we hold that Flint’s case is not rendered moot by his graduation. [3] This case is distinguishable from Students for a Conservative America v. Greenwood , 378 F.3d 1129 (9th Cir. 2004). There, we found the expungement exception inapplicable despite the students’ request for expungement because the university did not keep records of election code violations. at 1131. There was also no evidence in that case that the students were censured. In contrast, Flint was censured by ASUM, a B.
[3] Having determined that Flint’s claims are not moot, we now consider whether defendants are entitled to immunity under the Eleventh Amendment. The Eleventh Amendment limits § 1983 claims such as Flint’s. In Will v. Michigan Department of State Police, 491 U.S. 58, 70 (1989), the Supreme Court held that “States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes” are not “persons” under § 1983. Moreover, Will clarified that “a suit against a state official in his or her offi- cial capacity . . . . is no different from a suit against the State itself.” at 71. We have held that a state university is an arm of the state entitled to Eleventh Amendment immunity. See, e.g. , Armstrong v. Meyers , 964 F.2d 948, 949-50 (9th Cir. 1992) (per curiam). Therefore, state officials sued in their official capacities, including university officials, are not “per- sons” within the meaning of § 1983 and are therefore gener- ally entitled to Eleventh Amendment immunity. Will recognized one vital exception to this general rule:
When sued for prospective injunctive relief, a state official in
his official capacity
is
considered a “person” for § 1983 pur-
poses.
Will
,
injunctive relief provides a narrow, but well-established,
exception to Eleventh Amendment immunity.
See Rounds v.
Or. State Bd. of Higher Educ.
,
past violations, namely, ASUM’s allegedly unconstitutional infringement of his right to freedom of speech. However, as in Doe v. Lawrence Livermore National Laboratory , the relief Flint seeks is not so limited. In Doe , a contract university employee sought damages and reinstatement for breach of contract and a § 1983 violation after an alleged wrongful dis- charge. Id. at 837. The district court dismissed both claims as barred by the Eleventh Amendment, but we reversed the dis- missal of the § 1983 claim, holding that reinstatement consti- tutes prospective injunctive relief because a wrongful discharge is a continuing violation. at 841. Here, the injunctions Flint seeks as related to past violations serve to expunge from University records the 2003 censure and 2004 denial of his Senate seat, which actions may cause Flint harm. Thus, the injunctions sought are not limited merely to past violations: they serve the purpose of preventing present and future harm to Flint. Therefore, they cannot be characterized solely as retroactive injunctive relief and are not barred by the Eleventh Amendment. [4]
Because we ultimately hold that ASUM’s campaign expenditure limi- tations do not violate the First Amendment and therefore affirm the district court’s grant of summary judgment to all defendants, we need not consider defendants’ argument that the student defendants are not state actors. III.
Satisfied that this case presents a live legal controversy and
that the Eleventh Amendment does not bar Flint’s suit against
defendants, we turn to the merits of Flint’s claims. Because
Flint appeals from the district court’s order granting summary
judgment in favor of defendants, we review de novo, viewing
the facts in a light most favorable to Flint and drawing all rea-
sonable inferences in his favor.
Scheuring v. Traylor Bros.
,
A.
The “speech” at issue in this case takes the form of a stu-
dent candidate’s spending during the election cycle for
ASUM office. Because campaign expenditures implicate a
student candidate’s ability to convey his or her message to the
University student body, the expenditures necessarily consti-
tute “speech” and thus qualify for First Amendment protec-
tion.
See Austin v. Mich. Chamber of Commerce
, 494 U.S.
652, 657 (1990) (“Certainly, the use of funds to support a
political candidate is ‘speech’ . . . .”);
Buckley v. Valeo
, 424
U.S. 1, 19-20 (1976) (per curiam). There is no dispute in this
case that
Buckley
and its progeny apply to the limited extent
that they classify the student campaign expenditures as
“speech” worthy of First Amendment protection.
That ASUM campaign expenditures constitute speech is
not, however, the end of the matter. The speech at issue
occurred in the University of Montana student election sys-
tem, and, subject to constitutional limitations, government has
the power to control speech in its school election system to
preserve the character of that system.
Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc.
, 473 U.S. 788, 800 (1985).
“The existence of a right of access to public property and the
standard by which limitations upon such a right must be eval-
uated differ depending on the character of the property at
issue.”
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n
,
Here, both parties eschew forum analysis as the proper
framework within which to analyze Flint’s claim that the
campaign expenditure limitation violates the First Amend-
ment: Flint points to
Buckley
while defendants point to
Wid-
mar v. Vincent
,
B.
1.
On the one hand, Flint vigorously asserts that student
That the ASUM student election system “is a forum more in a meta-
physical than in a spatial or geographic sense” does not affect our analysis
because the Supreme Court has made clear that forum analysis is equally
applicable to both spatial and metaphysical fora.
Rosenberger v. Rector &
Visitors of Univ. of Va.
,
spending as part of the ASUM election is “political speech” that may be regulated only subject to strict scrutiny. Flint equates the ASUM student government to state and national government: “The role of the ASUM officers is no less impor- tant to society than is that of the Montana state government.” Based on his equation of ASUM student leaders to elected political officials, Flint contends that Buckley is controlling and mandates that the ASUM campaign expenditure limita- tions be struck down as an unconstitutional limitation on speech. [6]
Flint’s arguments are unpersuasive. 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 univer- sity campus . The educational context of a university, the spe- cific educational purpose of ASUM student government, and the numerous other limits placed upon student campaigning distinguish the campaign expenditure limitations in this case from those in cases such as Buckley , which involved cam- paigns for national political office. Furthermore, while ASUM undoubtedly has an impact on students at the University and has certain powers to distribute funds among student groups, it simply does not follow that ASUM is akin to a political government or that the ASUM election is the equivalent of a congressional race. The ubiquity with which political govern- ment is present to control facets of our lives is not—thank Heavens!—replicated by student government in students’ lives.
In Buckley , the Supreme Court struck down portions of the Federal Election Campaign Act of 1971 that limited campaign expenditures on behalf of candidates in federal election campaigns on the ground that such limitations violated the First Amendment. 424 U.S. at 58-59. The Court held that the governmental interests advanced in support of expenditure limitations would need to satisfy strict scrutiny, and did not do so. See id. at 44-45.”
The University uses ASUM primarily as an educational tool—a means to educate students on principles of representa- tive government, parliamentary procedure, political compro- mise, and leadership. In contrast to participation in state or national politics, participation in ASUM student elections is limited to ASUM-enrolled University students—students must maintain at least a 2.0 grade point average to run for office and only students are allowed to vote in the election. Unlike state and national governments, ASUM is a creature of the Board of Regents, whose policy calls for ASUM’s Con- stitution and conditions the validity of the constitution on the University president’s approval. Indeed, ASUM’s entire oper- ation is subject to the Board of Regents’ policies and campus policies.
Thus, given the nature of this student organization and the
environment in which it exists and operates, ASUM student
officeholders are not the equivalent of elected political office-
holders. As the Eleventh Circuit explained in a case dealing
with similar campaign limitations for student government,
“this is a university, whose primary purpose is
education
, not
electioneering. Constitutional protections must be analyzed
with due regard to that educational purpose, an approach that
has been consistently adopted by the courts.”
Ala. Student
Party v. Student Gov’t Ass’n of the Univ. of Ala.
, 867 F.2d
1344, 1346 (11th Cir. 1989). We should not apply the princi-
ples of
Buckley
without first considering whether the univer-
sity setting affects our First Amendment analysis.
See
Widmar
, 454 U.S. at 267 n.5.
[7]
In
Welker v. Cicerone
,
2.
We likewise disagree with defendants’ position, and that of the district court, that the university setting dictates that we must defer to all reasonable decisions imposed on student speech during the election process rather than first engaging in a forum analysis. Relying on passages in Widmar that pub- lic universities have the right to determine “who may teach, what may be taught, how it shall be taught, and who may be admitted to study” and the right to “make academic judg- ments as to how best to allocate scarce resources,” defendants assert that absent a showing of unreasonableness, the spend- ing limits are per se constitutional because ASUM is an edu- cational tool, and the University desires that leadership opportunities be available to as many students as possible. 454 U.S. at 276 (internal quotation marks omitted). We should defer, defendants contend, to their judgment in reason- ably regulating speech regardless whether the regulation advances the purpose of the forum the University has pro- vided for the speech.
We do not read the Supreme Court’s cases to require such
deference without first scrutinizing more carefully the nature
of the student election forum and the government’s interest in
limiting speech within that forum. Although the Supreme
Court in
Widmar
discussed the unique setting of a university
campus, it also stressed that its “cases leave no doubt that the
First Amendment rights of speech and association extend to
the campuses of state universities.”
The Supreme Court has applied forum analysis in other,
similar cases involving speech limitations on a university
campus. In
Rosenberger v. Rector & Visitors of University of
Virginia
, 515 U.S. 819, 828-30 (1995), the Supreme Court
characterized a university student fund responsible for mone-
tary reimbursements to student groups as a limited public
forum. The Court then analyzed the student fund’s denial of
distributions to a university student religious group as view-
point discrimination and subjected the denial to traditional
First Amendment scrutiny. at 830-37.
[8]
Likewise, in
Board
of Regents of University of Wisconsin System v. Southworth
,
[In Widmar ], in the course of striking down a public university’s exclusion of religious groups from use of school facilities made available to all other student groups, we stated: “Nor do we ques- tion the right of the University to make academic judgments as to how best to allocate scarce resources.” 454 U.S. at 270. The quoted language in Widmar was but a proper recognition of the principle that when the State is the speaker, it may make content- based choices . . . .
It does not follow, however, and we did not suggest in Wid- mar , that viewpoint-based restrictions are proper when the Uni- versity does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.
515 U.S. at 833-34 (emphasis added). We are presented in this case not with the speech of the University of Montana but with the speech of stu- dents involved in campaigning for student government. Here, it is Flint’s spending of his own money that was regulated, not University funds or subsidies to Flint. Thus, contrary to defendants’ assertions, Widmar ’s ref- erence to broad deference is not determinative.
so long as the university’s funding support was viewpoint neutral. In sum, we conclude that the constitutionality of the
campaign expenditure limitation depends on the nature of the forum and whether the limitation on speech is a legitimate exercise of government power in preserving the character of the forum. [9]
Given that the speech at issue in this case is not “school-sponsored,”
see supra
note 8, we need not consider whether the principles of
Hazel-
wood School District v. Kuhlmeier
,
We note that Hazelwood reinforces the conclusion that we must analyze the ASUM expenditure limitations within the confines of traditional forum analysis. In Hazelwood , the Supreme Court first determined that the high school student newspaper at issue was not a public forum for expression and concluded that in the specific setting of a high school, the school could “exercis[e] editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” at 273. Here, the University seeks to avoid the threshold question—namely, what type of forum is the ASUM election—and asks us to defer to its reason- able, educational related regulations. As shown, neither the Supreme Court’s nor this court’s precedents permit such avoidance. IV.
A. Although the student campaign expenditures constitute
speech protected by the First Amendment, “[e]ven protected speech is not equally permissible in all places and at all times.” Cornelius , 473 U.S. at 799. Indeed, the Supreme Court has made clear:
Nothing in the Constitution requires the Government
freely to grant access to all who wish to exercise
their right to free speech on every type of Govern-
ment property without regard to the nature of the
property or to the disruption that might be caused by
the speaker’s activities. . . . [T]he Government “no
less than a private owner of property, has power to
preserve the property under its control for the use to
which it is lawfully dedicated . . . .”
at 799-800 (citation omitted) (quoting
Greer v. Spock
, 424
U.S. 828, 836 (1976);
see also Faith Ctr. Church Evangelistic
Ministries v. Glover
, 480 F.3d 891, 906-07 (9th Cir. 2007).
Accordingly, we apply a forum analysis to determine when
the government has legitimate interests in restricting the use
of a forum to certain intended purposes that outweigh a speak-
er’s interest in using the forum for a different purposes.
Cor-
nelius
,
On one end of the fora spectrum lies the traditional public
forum, “places which by long tradition . . . have been devoted
to assembly and debate.”
Perry
,
At the opposite end of the fora spectrum is the non-public
forum. The non-public forum is “[a]ny public property that is
not by tradition or designation a forum for public communica-
tion.”
Faith Ctr.
,
of maintaining a non-public forum or creating a designated
public forum; if the government chooses to open a non-public
forum, the First Amendment allows the government to open
the non-public forum for limited purposes. The “limited pub-
lic forum is a sub-category of a designated public forum that
‘refer[s] to a type of nonpublic forum that the government has
intentionally opened to certain groups or to certain topics.’ ”
Hopper v. City of Pasco
,
B.
We conclude that the ASUM student election constitutes a limited public forum. While “the campus of a public univer- sity, at least for its students, possesses many of the character- istics of a public forum,” Widmar , 454 U.S. at 267 n.5, the forum in this case is not the University of Montana campus. Rather, because Flint challenges the limitations on speech within the confines of the ASUM election, whether the speech is delivered on campus or off, the relevant forum is the ASUM election itself, with its accompanying rules and regula- tions. [10] See Cornelius , 473 U.S. at 801 (“[I]n defining the forum we have focused on the access sought by the speak- er.”); DiLoreto , 196 F.3d at 965 (“The relevant forum is defined by the access sought by the speaker.”). Although the ASUM election “is a forum more in a metaphysical than in a While the spending limit is found in the ASUM Bylaws, the limitation is nonetheless one imposed by the government on the forum. The Univer- sity, as required by Board of Regents policy, has established ASUM as the associated student organization on the campus. Neither party disputes that the forum and the associated limitations are attributable to the University. spatial or geographic sense,” the forum analysis outlined above is equally applicable. Rosenberger , 515 U.S. at 830; see supra note 5.
The ASUM election is not a traditional public forum:
unlike parks and streets, it has not “by long tradition or by
government fiat” been “devoted to assembly and debate.”
Perry
,
The ASUM election also is not a designated public forum. “To create a forum of this type, the government must intend to make the property generally available to a class of speak- ers.” Forbes , 523 U.S. at 678 (internal quotation marks and citation omitted). “[G]overnment does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public dis- course.” Cornelius , 473 U.S. at 802 (emphasis added); s ee also Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist. , 941 F.2d 817, 822 & n.5 (9th Cir. 1991) (en banc).
Here, the ASUM election provides for the selection of stu-
dents to govern student affairs; the election does not provide
University installations for outsiders to showcase ideas in gener-
al.
[11]
Thus, the ASUM election exists to allow campaigns for
This is in contrast to
Widmar
, where the state university had “created
a forum generally open for use by student groups,” 454 U.S. at 267, by
“routinely provid[ing] University facilities for the meetings of registered
organizations,”
id.
at 265. The ASUM election is akin, rather, to the forum
in
Perry
. There, the Supreme Court rejected the contention that a school
mail system was a designated public forum because “there [was] no indi-
cation in the record that the school mailboxes and interschool delivery sys-
tem are open for use by the general public.” 460 U.S. at 47;
see also
Forbes
,
student office and to elect student representatives to ASUM leadership positions in order to provide student candidates a valuable educational experience. The ASUM Bylaws define campaigning “as any activity which directly or indirectly pro- motes the candidacy of one or more individuals for an office,” including a candidate’s personal appearances, the posting or publishing of advertisements, distribution of literature, lobby- ing voters, and the buying of votes with money, gifts, or alco- hol. ASUM Bylaws art. V, § 2.A. While the Bylaws do not limit the content of campaign speech, the Bylaws certainly do not permit students or the general public to use the ASUM election system indiscriminately. See Perry , 460 U.S. at 47.
Thus, a careful review of the ASUM Constitution and the
ASUM Bylaws shows the University’s purpose of opening a
limited public forum, in the form of the ASUM elections.
See
Faith Ctr.
,
Furthermore, unmistakably clear standards govern cam-
paigning within the forum. Under the ASUM Bylaws, cam-
paign materials may be displayed only after the official
campaigning period begins. § 2.B. The Bylaws prohibit
any door-to-door campaigning in University residence halls or
family housing. Campaign speech may occur in a classroom
only with the consent of the professor.
Id.
§ 2.E. Posters may
be placed in residence halls only with the approval of the resi-
dence hall office and in the University Center only with the
approval of the University Center office.
Id.
§ 2.F.2, 3. On the
University campus itself, campaign materials may be posted
only on kiosks. § 2.F.4. And, of course, student candidates
are not allowed to spend more than $100 promoting their
campaign. There is nothing in the ASUM Constitution or
Bylaws, or the record before us, to suggest that these limita-
tions, save the expenditure limitation, do not apply equally to
all who participate in a student campaign, candidates and non-
candidates alike. There is also no dispute that the University,
through ASUM, applies these policies consistently. The
spending limits have been in place since 1970, and Defendant
Gale Price, who ran on a ticket with Flint in the 2003 election,
was censured along with Flint for violating the spending lim-
its.
See Hopper
,
[11] In summary, the restrictions on who may participate as a candidate or voter, and the regulations of the manner in which the campaign is conducted, together demonstrate that the ASUM election constitutes a limited public forum. This forum exists solely to allow campaigns for ASUM student office and the election of student representatives, thereby pro- viding an educational experience for the student candidates and student voters.
C. We now apply this framework to analyze the constitu-
tionality of the campaign expenditure limitation. We must analyze whether the expenditure limitation is viewpoint neu- tral and reasonable given the purposes of the forum. Rosen- berger , 515 U.S. at 829; Faith Ctr. , 480 F.3d at 907; Cogswell , 347 F.3d at 814. Because government “must respect the lawful boundaries it has itself set” in opening a limited public forum, any restriction on speech which is not viewpoint neutral or is unreasonable, fails constitutional scru- tiny. Rosenberger , 515 U.S. at 829.
1.
Viewpoint neutrality is the requirement that government
not favor one speaker’s message over another’s regarding the
same topic. When “government has excluded perspectives on
a subject matter otherwise permitted by the forum,” the gov-
ernment is discriminating on the basis of viewpoint.
Faith
Ctr.
, 480 F.3d at 912. If certain speech “fall[s] within an
acceptable subject matter otherwise included in the forum, the
State may not legitimately exclude it from the forum based on
the viewpoint of the speaker.”
Cogswell
,
This case stands in contrast to
Rosenberger
and
Good News
Club v. Milford Central School
,
to limit student candidate spending results from a desire to suppress any student’s viewpoint or that the limitation in any way suppresses a particular candidate’s viewpoint. The $100 limit does not apply solely to vegetarians, pacifists and Marx- ists, but not to meat-eaters, bellicists and fascists. Neither does the limit apply to candidates who might wish to abolish student government or at least intercollegiate athletics, but not to servile apple-polishers of the status quo or “jocks.” Thus, the campaign expenditure limitation does not constitute view- point discrimination.
Flint’s contentions do not persuade us to hold otherwise. Flint argues that the campaign expenditure limitation consti- tutes viewpoint discrimination because the limitation “[a]llow[s] noncandidate students, student associations and outside groups . . . to speak with unlimited volume while lim- iting candidate speech.”
The candidate/non-candidate distinction, however, is based
on the
status
of the speaker, not on the speaker’s viewpoint.
The Supreme Court has held that in a non-public (or limited
public) forum the government may “make distinctions in
access on the basis of subject matter and
speaker identity
.”
Perry
,
2. We are also satisfied that the candidate spending limit
is reasonable. The reasonableness inquiry “focuses on
whether the limitation is consistent with preserving the prop-
erty [here the ASUM election] for the purpose to which it is
dedicated.”
DiLoreto
, 196 F.3d at 967;
see also Perry
, 460
U.S. at 50-51. Reasonableness is not the legal equivalent of
narrow tailoring or least restrictive means; indeed, the govern-
ment’s chosen method to preserve the character of a limited
public forum “need not be the most reasonable or the only
reasonable limitation.”
Cornelius
, 473 U.S. at 808;
accord
Cogswell
,
University of Montana’s educational mission. ASUM’s fac- ulty advisor explained that ASUM exists for “essentially edu- cational purposes.” ASUM’s Constitution declares that ASUM is “organized exclusively for educational and non- profit purposes.” ASUM Const. art. II, § 1. The election of student representatives to ASUM leadership positions is designed to help further the educational purpose of ASUM. The evidence before us clearly shows that the University views the spending limitation as vital to maintain the charac- ter of ASUM and its election process as an educational tool, rather than an ordinary political exercise. ASUM’s senior fac- ulty advisor explained that the spending limit was adopted in the revised ASUM Constitution of 1969-1970 “as a measure intended to defend ASUM against being steered away from its properly educational goals.” The “primary intent” of the spending limits is “to prevent student government’s being diverted by interests other than ones educational.” It is thus obvious that the purpose of imposing the spending limit on student candidates is to serve pedagogical interests in educat- ing student leaders at the University.
We find that the spending limits reasonably serve this peda- gogical aim. ASUM exists to teach students responsible lead- ership and behavior. 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. Stu- dents are forced to campaign personally, wearing out their sho-leather rather than wearing out a parent’s—or an activist organization’s—pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:
Unlimited spending in ASUM elections also would change the nature of the election process as a learn- ing experience. The spending limits mean that stu- dents have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these con- straints or make these kinds of decisions in the course of running for ASUM.
The spending limitation is thus consistent with the purpose of
the limited public forum in providing student leaders an edu-
cational experience as they campaign for, and are elected to,
student government.
See DiLoreto
, 196 F.3d at 967.
[12]
Furthermore, it is reasonable for the University to con-
fine this spending limitation to student candidates. Because
the purpose of ASUM is to provide an educational experience
to those students who actively participate in the organization,
it is reasonable for the University to limit the campaign
expenditure limitation to student candidates. In
Perry
, where
several teacher unions received different levels of access to a
Flint contends that the expenditure limitation teaches students “that
the First Amendment doesn’t protect political speech [and] how not to
conduct elections in a free society.” Aside from its obvious hyperbole, this
argument is not persuasive. So long as the purported educational goal of
the expenditure limitation—here, a lesson in strategy, campaigning, and
leadership—is reasonably capable of fruition, any additional “lessons” that
students like Flint might learn do not affect the reasonableness, and thus
the constitutionality, of ASUM’s regulations. Furthermore, nothing in the
First Amendment requires universities to set up student elections to mimic
exactly political elections and political fund-raising. It is beyond dispute
that government may impose reasonable, viewpoint neutral restrictions
even on pure political speech in limited public forums.
See Ark. Educ.
Television Comm’n v. Forbes
, 523 U.S. 666, 678-83 (1998);
Cogswell
,
347 F.3d at 814-18 (finding voter pamphlets a limited public forum and
holding that a limitation on candidate’s statements in voter pamphlets is
viewpoint neutral and reasonable in light of the purpose of the forum).
limited public forum, the Supreme Court explained that “[t]he
differential access provided [the teacher unions] is reasonable
because it is wholly consistent with the district’s legitimate
interest in ‘preserv[ing] the property . . . for the use to which
it is lawfully dedicated.’ ” 460 U.S. at 50-51 (alterations in
original) (quoting
U.S. Postal Serv. v. Council of Greenburgh
Civic Ass’ns
,
V. By creating a student election process, the University
of Montana has opened a limited public forum dedicated to allow campaigning for and election to leadership positions in student government. The University’s purpose in opening such a forum is to provide student candidates and student vot- ers a certain type of educational experience. We hold that imposing an expenditure limitation on student candidates is viewpoint neutral and serves to effectuate the purpose of the ASUM elections. We therefore affirm the district court’s sum- mary judgment in favor of defendants.
AFFIRMED.