No Viewpoint-Based Exclusions from Ostensibly Open Event on College Property

From Yates v. Fithian (W.D. Wash. Sept. 23, 2010):

Plaintiffs allege in this action that defendants excluded them from the Bellevue College (“College”) gymnasium while a Maria Cantwell Campaign event was taking place. Plaintiff students claim that they were refused entry because they wore t-shirts bearing the name of Cantwell’s opponent [McGavick], and that as a result, their First Amendment rights were violated….

[W]hen Bellevue College contracted to rent the gymnasium to the Cantwell Campaign, it acted in a commercial, proprietary capacity…. [But t]he forum in question is a college campus — a place where the free exchange and communication of ideas is fundamental. Moreover, the prohibited expression at issue was political speech, “which occupies the highest, most protected position.” Therefore, the balance of interests favors the plaintiffs.

Moreover, … once a university creates an open forum, it cannot then proceed to enforce exclusions to an otherwise open forum. Despite the fact that Bellevue College entered into a private rental agreement, an e-mail sent by the Director of Public Safety conveyed to the College’s students that the Cantwell Campaign would permit all students, faculty, and staff to attend the event. Moreover, several professors at the College either assigned or encouraged students in their classes to attend the Campaign event. Plaintiffs were concerned that their attendance would be construed as support. The e-mail stating that all students are welcome to attend the event, along with assignments by professors requiring students to participate in the event both diminish the significance of the fact that the event was the product of a private rental agreement. Through the action of College faculty and administrators, the Cantwell Campaign event was converted into an open forum from which plaintiffs could not be excluded due to their expression of support for an opposing candidate.

Finally, despite the existence of the rental contract with the Cantwell Campaign, the College maintained the ability to exercise control over the event. The contract terms reveal that the College expressly reserved the right to cancel any event in progress if the event staff or participants refuse to cooperate with College staff. After plaintiffs were denied entry to the event by a campaign employee, [College Vice President Laura E. Saunders] attempted to persuade the employee to allow the plaintiffs to enter the event. When the campaign manager continued to refuse, Saunders decided not to allow the students to attend the event. Under the terms of the contract, Fithian and Saunders could have insisted that the students be admitted and had the authority to cancel the event in light of the Campaign manager’s continued refusal to permit plaintiffs to participate in the event. For the foregoing reasons, the exclusion of plaintiffs from the event constituted a violation of their First Amendment rights.

Generally speaking, government entities may lease out rooms, buildings, and even parks and streets to private entities for the entities’ exclusive use. If it does so, then those entities are free to exclude attendees (even based on the viewpoint of the speech expressed on the attendees’ T-shirts, bumper stickers, and so on). This is clearest when the group wants to control who is part of the officially recognized speakers, as when a parade organizer excludes floats from a parade that is going down a public street that is temporarily reserved for the parade. But it’s also true when the group wants to exclude audience members. When the group has rented the space for its exclusive use, the government has essentially temporarily privatized the forum.

But it seems like here the university rented the space out only for a nonexclusive event, to which students, faculty, and staff were invited. Once it has done so, the court concludes, the government cannot then enforce any viewpoint-based restrictions imposed by the renters.