Clovis Community College students who belonged to the Young Americans for Freedom (YAF) were ordered to remove a set of flyers from campus bulletin boards after college officials decided that the content violated the school’s Student Flyer policy by containing “inappropriate or offensive language or themes.” YAF was ordered to take down its flyers after the Freedom Week pro-life events it had been promoting came to an end.

The club sought a permanent injunction to prevent enforcement of the campus Flyer Policy. YAF won in the United States District Court for the Eastern District of California in October 2022 when the court found the campus policy to be vague and overbroad and that the plaintiffs were “likely to succeed on the merits of their claims,” which included violations of the First and Fourteenth Amendments.

Defendants claimed the District Court abused its discretion when it sided with the YAF, but on August 3, a unanimous, unpublished memorandum opinion by the Ninth Circuit Court of Appeal ruled that this was not the case. The Ninth Circuit affirmed the district court’s overbreadth and vagueness determinations but declined to rule on the Plaintiffs’ prior restraint and viewpoint discrimination claims. Circuit Justices Milan D. Smith, Jr. and Kim Wardlaw were joined in the unanimous decision by District Circuit Judge Douglas L. Rayes of the District of Arizona.

The original campus Flyer Policy required students to get all flyers preapproved before they could be displayed on bulletin boards. Plaintiff Alexandro Flores submitted his flyers to the College’s Student Center and initially received permission to post them. A few days later, other students began to complain that the pro-life flyers made them “uncomfortable,” which means they violated the campus rule against flyers with “inappropriate or offensive language or themes.”

The allegedly offensive content related to the U.S. Supreme Court’s upcoming decision in Dobbs v. Jackson Women’s Health Organization that would overturn Roe v. Wade by banning most abortions after 15 weeks. The campus ruled that YAF’s flyers in favor of Dobbs would not be allowed on campus bulletin boards, but they would be permitted “in a remote part of campus that gets little visibility by students.” Plaintiffs challenged the College Flyer Policy, claiming it violates the First Amendment and is “facially viewpoint discriminatory and incapable of reasoned application.” In addition, they argued that the policy itself was vague and overbroad.

Defendants, Dr. Lori Bennett, the President (now retired) of Clovis Community College in Fresno, et. al., responded by saying that campus bulletin boards are not “public forums,” making them not protected under the First Amendment. She also argued that a permanent injunction was inappropriate because the school’s action failed to “irreparably harm” plaintiffs.

Nonetheless, the campus decided to rescind the original Flyer Policy and replace it with a new one that does not contain prohibitions on language considered “inappropriate or offensive.” Since the original policy was voluntarily replaced, the Ninth Circuit wrote, a federal court can legally challenge it, making the appeal “not mooted,” as defendants had argued.

The Memorandum stated that the District Court did not abuse its discretion when it found the campus Flyer Policy to be overbroad and determined that YAF was likely to succeed on the merits of the claim. Cited U.S Supreme Court precedent stressed that “speech may not be banned on the ground that it expresses ideas that offend.” Thus, the court ruled that not only were the terms “inappropriate” and “offensive” subjective, but “a substantial amount of protected speech…would be potentially chilled by the Flyer Policy.”

The Ninth Circuit’s ruling also said the court did not have to decide whether the campus bulletin boards were public forums when determining that the policy is constitutionally overbroad. In addition, they found that the “school-sponsored speech doctrine,” which would give the campus total discretion about what could be posted, was not appropriate to be used in a university context. This doctrine says that schools do not offend the First Amendment when they “exercise editorial control” over the content and style of student speech as long as their actions are “reasonably related to legitimate pedagogical concerns.”

The Fourteenth Amendment was also violated due to the Flyer Policy’s vagueness because it did not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”

In 1906, English author Evelyn Beatrice Hall eloquently summed up what she considered the Voltairian principle of free speech, “I disapprove of what you say, but I will defend to the death your right to say it.” Hall’s words live on.