Volokh Conspiracy: Court rejects colleges attempt to exclude anti-gay leafleting

The college argued among other things that it could (indeed must) exclude the anti-gay message precisely because of its viewpoint: the message, the college reasoned (Lela v. Board of Trustees (N.D. Ill. Jan. 27, 2015)),

is in direct conflict with and disruptive of the Colleges mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational enforcement, free of unlawful hostility.

This is the standard rationale used in many campus speech codes aimed at restricting supposed hate speech. But the federal district court rejected the colleges position, and concluded that there was a high likelihood that exclusion of the leaflets violated the First Amendment; indeed, the judges reasoning shows that he was persuaded that the First Amendment was actually violated. Heres a summary of the facts (some paragraph breaks added):

Plaintiffs contend that on or about January 16, 2014, plaintiff [Wayne] Lela contacted WCC [Waubonsee Community College] requesting to distribute flyers on the schools Sugar Grove campus. Lela was referred to WCC employee Debby Wilhelmi, who asked to see copies of the leaflets plaintiffs intended to distribute.

Plaintiffs provided Wilhelmi with two flyers: The Uncensored Truth About Homosexuality; and Gay Activism and Freedom of Speech and Religion. Both flyers promote an anti-homosexuality message. Both flyers promote an anti-homosexuality message. The flyers were sponsored by Heterosexuals Organized for a Moral Environment (H.O.M.E.), an organization founded by Lela.

On January 21, 2014, Lela received a letter from WCCs Executive Vice President of Finance and Operations, David Quillen, denying Lelas request to distribute flyers at the college. Quillens letter stated that WCC is not an open public forum and that [t]he college consistently limits campus activities to events that are not disruptive of the colleges educational mission.

The letter also [stated that the colleges] Facilities Policy provides that [c]ollege facilities may be made available to college and non-college sponsored programs, provided the use does not interfere or conflict with the normal operations or educational programs of the college; the use is consistent with the philosophy, goals and mission of the college; and the use conforms to federal, state, local laws and ordinances. The schools Solicitation Policy states that any type of solicitation, including but not limited to, commercial, charitable, political, using college buildings, equipment, services or grounds is prohibited unless there is written approval from the president or a designated representative of the president.

[In response to a letter from plaintiffs lawyer (at the Rutherford Institute), the Boards lawyer wrote] that H.O.M.E. will not be granted access to utilize campus property to pass out solicitation flyers because, pursuant to the schools policy, solicitation of any kind is prohibited on campus. The letter also explained that H.O.M.E.s message is in direct conflict with and disruptive of the Colleges mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational environment, free of unlawful hostility.

Heres the courts legal analysis, which strikes me as generally quite right. First, the court essentially concludes that the exclusion was viewpoint-based, and that such a viewpoint-based exclusion from a public college campus is unconstitutional:

It is undisputed that WCC permits outside groups, including four-year colleges, to engage in speech activities on its campus. While this does not make the college an open public forum, it does require that WCC not discriminate against outside groups based on the content of their speech. See, e.g., Gilles v. Blanchard, 477 F.3d 466, 470 (7th Cir.2007) ( a university that decide[s] to permit its open spaces to be used by some outsiders [can]not exclude others just because it disapprove[s] of their message[]).

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Volokh Conspiracy: Court rejects colleges attempt to exclude anti-gay leafleting