Tearing fliers off campus bulletin boards violates free speech, panel rules

Monday, April 16, 2001

Tearing down handbills from a university bulletin board is a flagrant First Amendment violation, a federal appeals court panel has ruled.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Professor Stephen Sylvester of Montana State University-Northern violated the free-speech rights of ex-professor Douglas Giebel if he removed Giebel’s handbills from campus bulletin boards. (The question of whether Sylvester did remove Giebel’s fliers must be decided by a trial court.)

Sylvester and Giebel had a history of dispute after the university declined to renew Giebel’s contract. Giebel had been a professor of theater and speech communication in the humanities and social sciences department, which was chaired by Sylvester.

In spring 1996, the university sponsored a conference on intellectual freedom and arranged for 25 speakers. Among the scheduled speakers was Giebel, who had been terminated from the university more than a year earlier.

To publicize the event, Giebel posted on the campus bulletin boards his own handbills, which read:

Former MSU-Northern Faculty Member
Will Speak on the topic, The Regents: The Plan and Academic Responsibility.
The Second Annual Conference on Intellectual Freedom
Donaldson Commons
Friday, April 19 9:00 a.m.

Giebel alleges that Sylvester tore down his handbills. After this incident, Giebel declined to participate in the conference, saying he feared further retaliatory actions.

Giebel then sued Sylvester in federal court, alleging Sylvester violated his First Amendment rights by removing the handbills. Giebel alleged that the campus bulletin boards had been “set aside for common use by both university-related persons and the general public.”

Sylvester responded by filing a motion for summary judgment. He claimed that Giebel failed to allege a First Amendment violation. He further claimed that even if Giebel did allege a violation, he would be entitled to qualified immunity because there was no clearly established right to post handbills on university bulletin boards.

A federal district court denied Sylvester’s motion. On appeal, the three-judge panel of the 9th Circuit agreed in Giebel v. Sylvester.

Sylvester argued that Giebel failed to allege a First Amendment violation for two reasons: (1) the handbill did not convey any ideas and was purely informational; and (2) the university provided Giebel the opportunity to speak at another forum — the conference.

“The argument that handbills announcing a subsequent speech are not, in and of themselves, speech protected by the First Amendment [is] patently wrong,” Judge Stephen Reinhardt wrote for the panel in an April 12 opinion.

“Instead, we conclude that, because Giebel’s handbill was designed to convey information, it constitutes a form of speech protected by the First Amendment,” the panel wrote.

The panel also rejected the argument that Giebel’s rights were not violated because he had access to the conference itself.

“The fact that another forum was made available to Giebel simply has no relevance to the First Amendment issue posed here,” the panel wrote.

“We conclude that Sylvester’s alleged actions are most appropriately treated as viewpoint discrimination, because Sylvester sought only to silence speech by a particular speaker — Giebel — rather than speech by all non-university speakers or by all speakers promoting the conference and its participants,” the panel wrote.

Finding Sylvester’s alleged actions to be viewpoint-discriminatory, the panel said it was “axiomatic” that there was a First Amendment violation.

The panel next addressed Sylvester’s argument that even if his alleged actions violated the First Amendment, he was still entitled to qualified immunity. In civil rights cases, defendants are entitled to qualified immunity if the right at issue was not clearly established at the time of the event.

“Both common sense and closely analogous case law lead us to conclude that it was clearly established long before 1996 that Giebel’s handbills were a form of speech protected by the First Amendment,” the panel concluded. “Since the earliest days of the Republic, it has been understood that information conveyed in handbills on matters of public interest is speech within the ambit of First Amendment protection.”

Giebel, who represented himself in his lawsuit, praised the panel’s decision. “This opinion is like an anthem to the First Amendment to post handbills,” he said. “As Judge Reinhardt notes more than once, ‘common sense’ says tearing down somebody’s posters is wrong.”

Calls to the assistant attorney general who represented Sylvester before the 9th Circuit were not returned.

The attorney general’s office will have an opportunity to appeal the decision. If it does not appeal, the case goes back to the district court for further proceedings.

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