The First Amendment Prohibits Selective Removal of Announcements from Campus Bulletin Boards
 
June 18, 2001
 
Daniel K. "Dan" Hampton- Boston

The First Amendment to the United States Constitution prohibits selective removal of announcements from campus bulletin boards, according to the United States Court of Appeals for the Ninth Circuit. In the case of Giebel v. Sylvester (Apr. 12, 2001), the Ninth Circuit ruled that a professor, Sylvester, who had allegedly removed notices of the upcoming speech of another professor, Giebel, may have violated that professor's First Amendment rights. In an ironic twist, Giebel had been scheduled to speak at a conference on intellectual freedom.

Professor Giebel's First Amendment claim apparently grew from a prior dispute between the professors. In 1995, Giebel was denied a tenure-track position at Montana State University-Northern. In an unsuccessful lawsuit, he accused Sylvester, his former department head, of blocking his bid for the job. When Giebel was invited back to campus in 1996 to give a speech at a conference about intellectual freedom, he posted handbills announcing his speech around the campus.

Giebel claims that former colleagues told him that Sylvester admitted at a department meeting that he had torn the notices down. Giebel then brought another lawsuit alleging that Sylvester had violated his First Amendment rights.

The trial court refused to dismiss the claims against Sylvester without a trial. Sylvester had argued that, even if he did tear down the handbills, his conduct did not violate the First Amendment because the handbills were not protected speech and because the university had provided another forum - the conference - in which Giebel could present his ideas. The trial court rejected both arguments, and the Ninth Circuit affirmed the trial court's determination that Sylvester was not entitled to these defenses.

The Ninth Circuit held that Giebel's handbills constituted speech entitled to First Amendment protection even though they were "merely informative" and did not "convey a position on the subject matter." The Ninth Circuit also held that the university's bulletin boards constituted a public forum to which Giebel was entitled to have access. The court found it irrelevant for its analysis that Giebel was also being given a chance to speak at the conference.

This case illustrates two important lessons for educational institutions. First, even apparently private disputes between faculty members can escalate to full-blown litigation that drags the institution along with it. In this case, Sylvester was named as a defendant in his capacity as chairman of his department.

Second, providing a forum in which to post notices can come at a cost. If the institution does not consistently enforce restrictions on the use of the forum, it becomes a public forum in which everyone is entitled to use subject to broad First Amendment protection. Even if the institution controls the forum, content or viewpoint limitations may run afoul of the First Amendment.

For more information, contact Daniel Hampton at 617-573-5886 or by e-mail at dhampton@hklaw.com.