5th Circuit sides with anti-abortion group in leafleting dispute
A University of Texas-Austin policy prohibiting anonymous distribution of leaflets and other literature on campus violates the First Amendment, a federal appeals court has ruled.
A unanimous three-judge panel of the 5th U.S. Circuit Court of Appeals ruled on May 27 that Justice for All, an anti-abortion group, should have been allowed to hand out leaflets on the Austin campus even though they did not bear the group’s name.
The ruling in Justice for All v. Faulkner marked another legal victory for the national anti-abortion group and its lawyers at the Alliance Defense Fund, an organization that defends religious freedom, the sanctity of life and the traditional family. U.S. District Judge Andrew Austin had sided with the groups in his February 2004 ruling.
Justice for All’s challenge of the university's “literature policy” began in 2001 when administrators on the Austin campus denied the group's requests to erect a 5,600-square-foot display on the school’s Main Plaza but allowed the group to put up its display in another location. Justice for All members claimed that the university allowed hecklers to interfere with their presentation and prevented them from distributing leaflets reading “Life is Beautiful — Choose Life” because the leaflets did not identify Justice for All as the source.
The display, which can be viewed on Justice for All’s Web site, contains gruesome images of bloody, aborted fetuses, some alongside pictures of African-Americans being lynched and photographs of bodies of Jewish victims of the Holocaust.
Justice for All filed suit, claiming several university policies violated First Amendment free-speech rights. The district court dismissed the challenge to the university’s policies regarding the erection of displays on campus but agreed that the literature policy violated the First Amendment.
The university argued that the literature policy was “a reasonable, viewpoint-neutral regulation of speech within a limited public forum.” The school also said that the policy was intended to prevent off-campus groups from distributing material on campus, preserving the campus as a forum for students, faculty and staff.
But the 5th Circuit disagreed, citing the 1995 U.S. Supreme Court ruling in McIntyre v. Ohio Elections Commission, which found that “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent” that “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.”
Groups wanting to distribute literature must identify themselves to a university official, Judge E. Grady Jolly wrote for the 5th Circuit panel, but they do not have to identify themselves to each person receiving the literature.
Joshua Carden, an attorney with the Alliance Defense Fund, said he was “extremely pleased” with the ruling, which he said “restated unequivocally” the validity of his group’s position.
Donald A. Hale, UT-Austin's vice president for public affairs, said yesterday that the university had not yet decided whether it would appeal the 5th Circuit ruling. He said lawyers for the Austin campus must confer with the attorneys for the entire University of Texas system before making the decision.