Hershey v. Jasinski

The U.S. Court of Appeals for the Eighth Circuit sided with Northwest Missouri State University, holding the school’s policy of requiring anyone handing out non-university-related publications on campus to have administrative permission didn’t violate the First Amendment.

The court ruled that the policy didn’t violate the First Amendment, vacating the district court’s decision, in Nov. 21 opinion, authored by Eight Circuit Judge David R. Stras.

Plaintiff Richard Hershey brought the action, after he was given a trespassing warning for distributing a stack of his own written materials on the university’s campus in 2015.

According to the court, the district court treated the two policies as materially indistinguishable from each other, deciding the main issue was that both policies didn’t require “a decision on the proposed speech within a reasonable period of time,” which could have the effect of silencing speakers indefinitely.

Therefore, the court awarded Hershey the majority of the relief he requested, including declaring the trespassing warning null and void, declaring the student handbook policy unconstitutional and overbroad, and requiring the defendants to amend the policies to conform to First Amendment principles.

The court instructed the defendants to do so by “enforcing  the Policies as a permitting scheme, as they have done in the past, but ensuring that a University administrator is available to promptly review and grant or deny permission each time speech is challenged,” or “enforcing the Policies as a true notice requirement, without requiring advance permission before speech occurs.”

On appeal the defendants questioned Hershey’s standing to bring a facial challenge against the university’s literature-distribution policy.

If Hershey lacked standing, he couldn’t sue in the federal court. Standing’s three requirements include an injury in fact, a casual connection between the injury and the challenged law, and a likelihood of redressability, said the court, holding that the first two standing elements didn’t pose a problem.

“After a Northwest Missouri State police officer ordered him to stop what he was doing when he visited, Hershey received a trespass warning that prevents him from returning in the future, even if he provides advance notice. Any attempt to do so would, according to the warning, result in his arrest,” Stras held. “The harm Hershey has already suffered, along with the chilling effect associated with the ‘credible threat … of present or future [arrest],’ are injuries-in-fact that are ‘fairly traceable’ to the advance-notice requirement.”

It also held that Hershey’s injuries are redressable, finding that the district court could, as it actually did, remedy his continued exclusion from campus by declaring the warning void.

However, it held that the prohibited-speech provision was more complicated.

“There are two versions: the one in effect when Hershey visited in 2015 and the current one. The parties and the district court treat them as ‘virtually’ the ‘same,’ but the addition of two new prohibited categories makes the one in effect today different from its predecessor,” Stras held.

“The harm Hershey has already suffered, along with the chilling effect associated with the ‘credible threat … of present or future [arrest],’ are injuries-in-fact that are ‘fairly traceable’ to the advance-notice requirement,” Stras said. “Hershey’s injuries are also redressable. The district court could—and actually did—remedy his continued exclusion from campus by declaring the trespass warning ‘null and void.'”

Turning to the merits of the First Amendment challenge, Stras concluded that Hershey failed to show that the advance-notice requirement had “a substantial number” of unconstitutional applications,” as it was “neither content based nor an impermissible prior restraint on speech, meaning it can remain in place.”

According to Stras, the location of the speech makes a difference, noting that the university’s campus “contains a variety of fora.”

“The advance-notice requirement applies everywhere ‘on the Northwest campus,’ from public sidewalks to classrooms and faculty offices. Given that the First Amendment allows greater restrictions on public speech the less an area resembles a traditional public forum, Hershey arguably loses his facial challenge because the plainly legitimate sweep of the policy predominates over the potentially unconstitutional applications,” Stras said. “There is, for example, little question that Northwest Missouri State could require advance notice if Hershey wanted to hand out literature in a limited public forum like a classroom or a nonpublic forum like a faculty office.”

Stras noted that the converse was also true, that if the requirement was consistent with the First Amendment in a traditional public forum, then the school could constitutionally apply it in areas less receptive to public speech, including classrooms and faculty offices.

“The point is that, if Hershey cannot establish that it is unconstitutional in the context of a campus sidewalk, which Missouri law designates as a public forum, see Mo. Rev. Stat. § 173.1550.2, then it will be impossible for Hershey to show that it violates the First Amendment at all, much less in ‘a substantial number’ of applications,” Stras said. “He will, in others words, lose his facial challenge.”

Stras also addressed Hershey’s note that only those distributing non-university publications needed to provide advanced notice.

According to Stras, there’s a different between a content-based restriction focusing on what a publication says and another focusing on where it is printed.

“It is the ‘what’ that matters in distinguishing content-based restrictions from content-neutral ones,” Stras said. “And here, individuals must provide advance notice regardless of ‘topic or subject matter.'”

Stras also shot down Hershey’s view that the advance-notice requirement is a form of censorship, and a prior restraint on speech.

According to Stras, the policy doesn’t impose a prior restraint, noting that the policy only requires speakers to notify the administration in advance, and that it doesn’t allow an administrator to deny permission.

“He urges us to treat the advance-notice requirement as a prior restraint, despite its clear language to the contrary, because a campus police officer told him he needed permission from an administrator before he could distribute anything. If this were an as-applied challenge, Hershey might have a point,” Stras said. “But in a facial challenge, only the text matters, meaning that what the officer thought or said at the time is irrelevant.

“The procedural safeguards that must accompany prior restraints do not apply to content-neutral time, place, and manner restrictions,” Stras said. “No matter the First Amendment theory, Hershey has not shown that the advance-notice requirement has ‘a substantial number’ of unconstitutional applications. It is neither content based nor an impermissible prior restraint on speech, meaning it can remain in place.”

The $68,572.48 in attorney fees and costs awarded to Hershey was reversed, as he was no longer the prevailing party.

-Taken from Law.com article.