Conservative Collegiates Can Sue for News Bias

(CN) - The 9th Circuit on Tuesday revived claims an unwritten policy at Oregon State University severely limited distribution of a student-run conservative newspaper.

OSU Students Alliance had published and widely distributed the Liberty, an independent student newspaper with a right-wing bent, across the university's Corvallis campus since 2002. Though eligible for some university funding, the Liberty remained independent with private donations and advertising revenue. During the 2008-09 winter term, however, the university's facilities department removed all of the alliance's distribution bins from campus and stacked them near a dumpster in a storage yard.

School officials told Liberty's executive editor William Rogers that the bins had been removed under an unwritten policy prohibiting newsbins for "off-campus" publications in all but two designated locations on campus. The department did not, however, remove bins containing the local Corvallis daily, USA Today and OSU's student-run daily.

Rogers and the alliance sued OSU President Ed Ray, Vice President Mark McCambridge, Vice Provost Larry Roper and Facilities Director Vincent Martorello for violations of their constitutional rights to free speech, due process and equal protection.

Shortly after plaintiffs filed the complaint, the university adopted a formal, written policy on newspaper bins that failed to distinguish between "on-campus" and "off-campus" publications, as the unwritten policy had.

The new policy prompted U.S. District Judge Ann Aiken, in Eugene, to dismiss the claims for injunctive and declaratory relief as moot. Aiken also criticized the complaint for failing to allege that the named officials had a direct hand in the incident. After finding for the university on all claims, Aiken denied the plaintiffs' request to amend their complaint.

On Tuesday, however, a divided appellate panel found that Aiken had ignored the officials' continued application of the unwritten policy against the Liberty after the confiscation.

The Portland-based majority found that the alliance's complaint properly alleged free-speech and equal-protection claims against Martorello, Ray and McCambridge, and a due-process claim against Martorello. The plaintiffs should also be allowed to amend their complaint to state due-process claims against Ray and McCambridge, according to the ruling.

"The fact that the 'policy' was not written or otherwise established by practice meant there were no standards by which the officials could be limited," according to the lead opinion authored by Judge A. Wallace Tashima. "It left them with unbridled discretion."

"Clearly there was no urgency and no reason to junk the bins instead of directing plaintiffs to remove them," Tashima added. "Moreover, contact information for the paper's editorial board appeared inside the first page of every copy of the Liberty. Providing notice would have been as simple as flipping a page and making a phone call or sending an email."

The complaint adequately implicates the officials because it alleges that "Ray and McCambridge knew that their subordinate, Martorello, was applying the previously unannounced and unenforced policy against the Liberty, but not against any of the other off-campus newspaper, and they did nothing to stop him," the ruling states.

"When a supervisory official advances or manages a policy that instructs its adherents to violate constitutional rights, then the official specifically intends for such violations to occur," Tashima wrote. "Claims against such supervisory officials, therefore, do not fail on the state of mind requirement, be it intent, knowledge, or deliberate indifference."

Writing in dissent, Judge Sandra Ikuta said that the majority had departed from precedent in reviving the plaintiffs' claims against Ray and McCambridge.

"Plaintiffs' complaint adequately alleges that Vincent Martorello, OSU's facilities services director, violated their First Amendment rights under § 1983 by personally and arbitrarily limiting The Liberty's distribution on campus," she wrote. "But their complaint nowhere indicates how OSU's president, Ed Ray, and the vice president of finance and administration, Mark McCambridge, also violated those rights through their 'own individual actions.' The majority considers it sufficient that Ray and McCambridge 'knowingly acquiesced' in Martorello's actions."

Citing precedent, Ikuta said "an official is not liable under § 1983 for simply knowing about a lower ranking employee's misconduct and failing to act."

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