On Tuesday, two national legal organizations filed amicus briefs in the Ninth Circuit supporting The Liberty’s case against Oregon State University. The Student Press Law Center and the National Legal Foundationboth filed amicus briefs arguing that a federal district court should not have dismissed The Liberty’s case.
The Liberty is an independent student newspaper at OSU that suffered a year of censorship pursuant to an unwritten, standardless “policy” concerning newspaper distribution bin placement at OSU. In the winter of 2009, The Liberty discovered that all of its distribution bins on campus were missing.
Oregon State Police investigated and determined that OSU’s Facilities Services department removed the bins because it was “catching up” with a unwritten “policy” that allegedly governed the placement of newspaper bins on campus. After contacting OSU, The Liberty found its bins thrown in a trash heap in a locked storage yard. The bins were damaged and about 150 copies of the newspapers recent run were destroyed. OSU claimed it removed the bins to preserve campus aesthetics and maintain accessibility, but it did not remove the distribution bins for The Daily Barometer, OSU’s daily student newspaper, nor the bins of other off-campus publications. For more of the facts, read the previous posts by my esteemed colleague, Heather Gebelin Hacker, who is lead counsel for ADF on the case.
The Liberty tried to negotiate replacement of its bins on campus for nearly a year before it realized OSU would not budge. So it filed suit in federal district court. Upon receiving the lawsuit, OSU immediately abolished its unwritten policy, and created a new policy that allowed all newspapers the same distribution locations. The federal district court found that the policy change mooted The Liberty’s claims for injunctive relief against the old unwritten policy and also found that The Liberty allegedly had not pleaded enough facts to show that a constitutional violation occurred under the old policy. Thus, OSU got off scot-free after a year’s worth of censorship. The Liberty appealed the ruling to protect its First Amendment rights.
Both of the amicus briefs filed this week are worth a read for their exceptional discussion of the lower court’s errors. Briefing will continue through December and oral argument is expected sometime next year.