The U.S. Court of Appeals for the Ninth Circuit has ruled that Clovis Community College officials violated the free speech rights of three now-former students and their conservative group, Young Americans for Freedom, by preventing them from using interior bulletin boards to post flyers.
The seven-page decision, which was released Thursday, affirms the decision of a lower federal court that the college had violated the students’ First and 14th Amendment rights when establishing a “Flyer Policy” that college officials relied upon to ban the students from posting their flyers on interior bulletin boards.
In October 2022 U.S. District Judge Jennifer Thurston issued a preliminary injunction barring college officials from enforcing the portion of its flyer policy that requires preapproval of flyer content from college administrators or staff and prohibiting language or themes they deemed inappropriate or offensive.
College officials had maintained that the Young Americans for Freedom posters with anti-communist and anti-big government themes were offensive to some people and determined that the group could put up their flyers only at a kiosk in a parking lot far removed from campus buildings with interior bulletin boards.
State Center officials could not be immediately reached for comment Thursday.
Later Thursday afternoon, the district’s General Counsel Office released the following statement: “Today’s opinion issued by the 9th Circuit Court of Appeals addressed a singular issue: a posting procedure that had been changed months ago by Clovis Community College (CCC). The ruling specifically addressed one sentence from CCC’s prior procedure. Concerns about that policy were resolved when CCC changed the procedure. The campus continues to respect the Free Speech rights of all students. Nothing in the opinion addresses any of the allegations against the District employees.
“The District will continue to defend its position as deemed necessary, given the allegations presented by the Plaintiffs.”
The students are being represented in the federal case by the Foundation for Individual Rights and Expression (FIRE).
The college administrators’ legal representation is through the Alliance of Schools for Cooperative Insurance Program, of which State Center is a member, the district said Monday.
Constitutional Rights Violated
The now-former students, Alejandro Flores, Daniel Flores, and Juliette Colunga, sued then-President Lori Bennett, Marco De La Garza, the vice president of student services, Gurdeep Hebert, the dean of student services, and senior program adviser Patrick Stumpf for their roles in establishing and enforcing the college’s flyer policy.
The federal appellate court affirmed the lower court’s decision that the flyer policy was “facially overbroad” under the First Amendment and unconstitutionally vague under the 14th Amendment.
The appeals court also found that the case did not become moot when the college rescinded its original policy and replaced it with one that did not contain the provision barring offensive or inappropriate content, citing a court case that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”
In the ruling, the appeals court noted that the defendants “could easily reinsert the challenged provision into Clovis’s flyer policy absent the preliminary injunction. Indeed, Defendants have refused to disavow the old Flyer Policy and ‘vigorously defend[ed] its legality.'”
The appeals court ruling also found that political speech “has a high propensity to be viewed as ‘offensive,’ ” and the First Amendment provides broad protection to political expression.