Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-8168

HAYS COUNTY GUARDIAN, ET AL.,
Plaintiffs-Appellants,
versus
JEROME K. SUPPLE, ET AL.,
Defendants-Appellees.

Appeals from the United States District Court
for the Western District of Texas

(August 10, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Hays County Guardian, a newspaper, and students currently
enrolled at Southwest Texas State University contend that
University regulations unconstitutionally restrict distribution of
the Guardian on campus. Plaintiffs also contend that the
University has granted an inadequately fettered license to its
officials to regulate activity protected under the First Amendment
and that the University's use of mandatory student fees to finance
a student-run newspaper violates the First Amendment.
We find that plaintiffs' objections to official discretion and
university funding of the university paper are meritless, but we
conclude that the University's regulations against on-campus

solicitation unconstitutionally restrict the distribution of the
Guardian. We affirm the remand to state court of state-law claims.
Finally, we find that defendants in their individual capacity enjoy
qualified immunity to any damages or attorney's fees that might be
awarded in the federal suit.
I.
The Hays County Guardian and students filed this action in
Texas state court against various officials of Southwest Texas
State University and the Board of Regents of the Texas State
University System in their official and individual capacities.1
Plaintiffs alleged that defendants violated their right to equal
protection of the laws and to free speech under both the Texas and
U.S. Constitutions, later adding claims under the Sherman Anti-
Trust Act, 15 U.S.C. § 1, the Texas Constitution, the Texas Free
Enterprise and Anti-Trust Act of 1983, and the Texas Civil Practice
and Remedies Code, § 104.002-003. Plaintiffs sought monetary,
injunctive, and declaratory relief.
Defendants removed the case to federal district court. In its
final amended judgment following a bench trial, the district court
remanded all state-law claims to Texas state court and held that
plaintiffs should take nothing on all remaining claims. Plaintiffs
argue here that the district court erred in dismissing the
1The original defendants included the Texas State University
System Board of Regents and Southwest Texas State University. On
the plaintiffs' motion, the federal district court remanded all
claims against these two defendants to Texas state court.
Appellants do not seek a reversal of dismissal.
2

constitutional claims and in remanding the state-law claims to
state court.
The Hays County Guardian is a small local newspaper, founded
in 1989, concentrating on "environmental, peace, and social justice
issues." Distributed free of charge throughout Hays County, its
publication expense was covered by donations and revenue from
advertising by local businesses.
Southwest Texas State University is a Texas state university
located in San Marcos, Texas with approximately 22,000 students.
5,000 students live on campus.
The University allows students to participate in a broad range
of expressive activities on campus. Board of Regents rules provide
that "[a]ny group or person . . . may assemble and engage in free
speech activities on the grounds of the campus." The University's
Operating Letter Number 9.06 also allows students to "publicly
distribute outdoors, on grounds owned or controlled by the
University, . . . pieces of literature that are not obscene,
vulgar, or libelous, or that do not contain impermissible
solicitation." One part of the campus, a plaza between several
University buildings known as the Quad, has been designated by the
University as a "free expression area" and can be reserved by
students for demonstrations and "symbolic structures." Students
may hand out pamphlets, newspapers, and any other literature
without advertisements throughout the outdoor areas of the campus.
This general policy of openness to expressive activity is
qualified by the University's limits on commercial solicitation.
3

Both the written regulations of the Board of Regents and the
University's
Operating
Letter
9.05
generally
prohibit
"solicitation" on campus. "Solicitation" is defined as "the sale
or offer for sale of any property or service" or "receipt on
request for any gift or contribution." Before August 31, 1989, the
University did not apply its solicitation restrictions to
newspapers that were distributed free of charge, even if those
newspapers contained advertisements. On August 31, the Dean of
Students instructed the University's counsel to revise the
University's "Operating Letter 9.05" concerning solicitation so
that free newspapers containing advertisements would be treated as
prohibited solicitation.
Board of Regents policy prohibiting solicitation has three
relevant exceptions. First, the University permits the sale of
"any newspaper, magazine, or other publications by means of a
vending machine or distribution stand in an area designated in
advance by the President [of the University]." At the time of
trial, there were a total of 48 newsstands at five locations on
campus.
Second, the University permits "activities . . . sponsored by
a registered student organization . . . which are authorized and
scheduled in accordance with the facilities use regulations . . .
as long as all aspects of the activity clearly identify the
organization sponsoring the event on all signs, tickets, or
literature." According to trial testimony, a registered student
organization could distribute a newspaper containing advertisements
4

by setting up a table in the Quad manned at all times by a student.
The student must remain behind the table and may not approach
others to distribute the paper. Finally, the University permits
students to subscribe to periodicals, which may either be sent
through the mails or directly delivered to the student on campus.
Newspapers containing commercials may be distributed on campus
only through these three methods of distribution. The University
Star, a University-owned newspaper run by the students in the
Journalism Department, is not subject to any of the University's
otherwise applicable restrictions, despite the fact that it
contains advertisements. Most of the Star's budget derives from
advertising revenues, but the Star is also funded in part by
mandatory student fees. The Star's method of distribution is
determined by the Star's staff and the Journalism Department
Faculty, who distribute the paper at about forty drop-off sites and
newsracks throughout the campus.
The Guardian was notified of this new policy on October 10,
1989, when Tom Burdenski, an assistant director of the student
center, wrote to the Guardian to warn the paper that it had
improperly distributed copies of the Guardian in "academic
departments, inside the student center, and the Quad Area." The
letter informed the Guardian that "[n]ewspapers may be circulated
on campus in one of two ways"--through the covered newsstands at
designated locations and through subscriptions "arranged by the
university department in advance" that are either directly
delivered or sent through the mail. Similar letters were sent to
5

seven other periodicals that had apparently violated the
University's newspaper distribution policy.
The Guardian published Burdenski's letter in their paper.
Despite Burdenski's warning, the Guardian continued to deliver its
paper on campus. Burdenski sent a second letter repeating the
University's restrictions on newspaper distribution and threatening
to refer "further violations . . . to the University Attorney for
appropriate action." The Guardian's advertising revenue dried up,
and the newspaper ceased publication.
II.
The district court found that the rules contained in the Board
of Regents' regulations and the University's Operating Letter
Number 9.05 did not violate the Guardian's and students' rights
under the First Amendment. This conclusion is a mixed question of
fact and law that we review de novo. International Society for
Krishna Consciousness v. Baton Rouge, 876 F.2d 494, 496 (5th Cir.
1989).
It is undisputed that the speech in question--distribution of
a newspaper containing political and social commentary and
reportage--is protected speech. Heffron v. International Society
for Krishna Consciousness, Inc., 452 U.S. 640 (1981). There is
also no contention that the government must hold open all
government-owned or government-controlled property to all forms of
speech. See Cornelius v. NAACP Legal Defense & Educ. Fund, 105
S.Ct. 3439, 3447 (1985). The parties concede, as they must, that
a speaker's right to access government property is determined by
6

the nature of the property or "forum." Perry Educ. Ass'n v. Perry
Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948 (1983).
The right of access to government-owned property for
expressive activity is greatest when the property is a "public
forum." Government property is a "traditional public forum" if the
property has traditionally been used by the public for purposes of
assembly and debate. Perry Educ. Ass'n, 103 S.Ct. at 955. See
also United States v. Kokinda, 110 S.Ct. 3115, 3119 (1990). The
government may also create public fora on property not
traditionally used for public expression by intentionally opening
it for public discourse. International Soc'y for Krishna
Consciousness, Inc. v. Lee, 60 U.S.L.W. 4749, ____ (June 26, 1992).
The government may designate a forum for the public at-large
or only for certain speakers or for the discussion of only certain
subjects. Cornelius, 105 S.Ct. at 3449; Perry Educ. Ass'n, 103
S.Ct. at 955 n.7. In each case, speech for which the forum is
designated is afforded protection identical to the protection
provided to speakers in a traditional public forum. Kokinda, 110
S.Ct. at 3119.
Regulation of expressive activity on property that has been
made available for public expression is limited. Content-based
restrictions must be necessary to serve a compelling state interest
and be narrowly drawn to achieve that end. Significantly, even
content-neutral restrictions must be narrowly tailored to serve a
significant government interest and leave open ample alternative
channels of communication. Frisby v. Schultz, 108 S.Ct. 2495,
7

2499-501 (1988); International Society for Krishna Consciousness,
876 F.2d at 497.
The government may reasonably limit speech in a non-public
forum as long as the limitation is "not an effort to suppress
expression because public officials oppose the speaker's view."
International Soc'y for Krishna Consciousness, 879 F.2d at 494.
Even a complete prohibition on speech is permissible if the
prohibition is reasonable and content-neutral. Id.
A.
The district court found that the campus of Southwest Texas
State University is not a public forum by either tradition or
government design. We disagree. The undisputed facts show that
the outdoor grounds of the campus such as the sidewalks and plazas
are designated public fora for the speech of university students.
The Supreme Court has noted that the "campus of a public
university, at least for its students, possesses many
characteristics of a public forum." Widmar v. Vincent, 454 U.S.
263, 267 n.5 (1981). See also Healy v. James, 408 U.S. 169, 180
(1972). Roughly 5,000 students live and work on the campus, making
the campus, in the words of the University's own promotional
booklet, a "town" of which the resident student will be a
"contributing citizen" and "voting member." The campus's function
as the site of a community of full-time residents makes it "a place
where people may enjoy the open air or the company of friends and
neighbors in a relaxed environment," Heffron v. International Soc'y
for Krishna Consciousness, 101 S.Ct. 2559, 2566 (1981), and
8

suggests an intended role more akin to a public street or park than
a non-public forum. See Hague v. CIO, 307 U.S. 496, 515 (1939).
Southwest Texas State University's written policies further
support the conclusion that the University intended the campus to
serve as a public forum for its students. The Board of Regents'
Rules state that:
"Any group or person, whether or not a student or
employee, and whether or not invited by a registered
student, faculty, or staff organization, may assemble and
engage in free speech activities on the grounds of the
campus. However, the University President or an
authorized designee may adopt reasonable
nondiscriminatory regulations as to time, place, and
manner of such activities. The President, or the
authorized designee, may prohibit such activities if it
is determined, after proper inquiry, that the proposed
speech constitutes a clear and present danger to the
University's orderly operation as defined in Subsection
4.4 below."
Interpreting this general policy of protecting "free speech
activities" on campus, Southwest Texas State University's Operating
Letter 9.06, § 2.02 allows any "student or an organization [to]
publicly distribute outdoors, on grounds owned or controlled by the
University, petitions, handbills, or pieces of literature that are
not obscene, vulgar, or libelous, or that do not contain
impermissible solicitation." (Emphasis added). The University
requires only that the literature being distributed "identify the
student or organization distributing it" and that the distribution
not interfere with "free and unimpeded flow of pedestrian and
vehicular traffic or disturb . . . academic, institutional, or
other approved activities." The clear implication of the Operating
9

Letter is that the University intends its outdoor grounds to be a
forum for student distribution of literature.
Finally, we note that the University authorizes the widespread
distribution on campus of the University Star, the newspaper owned
by Texas Southwest State University and controlled by student
editors. The Star, like the Guardian, carries editorials, news
stories, and advertisements.
All of this evidence compels the conclusion that the
University deliberately fosters an environment in which students
may freely distribute newspapers, pamphlets, and other literature
concerning public affairs "outdoors, on grounds owned or controlled
by the University," subject to the limits necessary to preserve the
academic mission and to maintain order.
Defendants argue that the outdoor grounds of the University
cannot be a designated public forum, because the University has not
allowed unrestricted access to the campus, even by students.
Government property, however, does not automatically cease to be a
designated public forum because the government restricts some
speech on the property. Otherwise, the restriction of speech on
government property would be self-justifying. The restriction
would disprove any intent to create a designated public forum, and
the failure to create a public forum would justify the restriction
of speech.
The Supreme Court has not adopted such circular reasoning.
See Estiverne v. Louisiana State Bar Ass'n, 863 F.2d 371, 378 n.9
(5th Cir. 1989). Rather, the Court looks to whether the government
10

was motivated by "an affirmative desire," Cornelius, 105 S.Ct. at
3450, or "express policy," Id. at 3449, of allowing public
discourse on the property in question. Such a general policy of
open access does not vanish when the government adopts a specific
restriction on speech, because the government's policy is indicated
by its consistent practice, not each exceptional regulation that
departs from the consistent practice. Stewart v. District of
Columbia Armory Bd., 863 F.2d 1013, 1017 (D.C. Cir. 1988).
The University authorizes students to distribute by hand
literature on matters of public concern on the outdoor parts of the
campus. Restricting distribution of newspapers with commercials
was an anomalous departure from the general policy of protecting
speech such as the political reportage and commentary in the
Guardian. This departure did not alone redefine the forum. We
conclude that the district court erred in finding that the
university is not a limited public forum, designated for the speech
of students.
B.
Having found that the University's outdoor premises are a
designated public forum, we must ascertain whether the regulations
impermissibly restrain free expression. We will assume arguendo
that prohibiting the handing out of newspapers containing
advertisements on campus does not discriminate on the basis of
content. Even so, we find that the anti-solicitation regulations
cannot be applied to forbid an individual student from handing out
a newspaper solely because that paper contains advertisements.
11

Even a content-neutral regulation of speech on a public forum
must be narrowly tailored to serve a significant government
interest and must leave open ample alternative channels of
communication. Ward v. Rock Against Racism, 109 S.Ct. 2746, 2753
(1989); Clark v. Community for Creative Non-Violence, 104 S.Ct.
3065, 3069 (1984). A regulation is "narrowly tailored" when it
does not "burden substantially more speech than is necessary to
further the government's legitimate interests." Ward, 109 S.Ct. at
2758. At a minimum, a regulation cannot be narrowly tailored
unless the cost to speech is "carefully calculated" and the fit
between the burden and the state interest is "reasonable." Bd. of
Trustees of State University of New York v. Fox, 109 S.Ct. 3028,
3035 (1989). The government bears the burden of establishing that
the regulations are reasonable. Id. Even a legitimate government
interest cannot justify a restriction if the restriction
accomplishes that goal at an inordinate cost to speech.
The University's anti-solicitation provision contained in the
University's Operating Letter 9.05 prohibits a student from handing
out a free newspaper with advertising on campus unless that student
belongs to a registered student group that has agreed to "sponsor"
the paper. Even then, the student group sponsoring the paper must
distribute the paper only from a manned table and may not hand the
paper to passing students. These restrictions do not apply to the
Star or to any publication without advertising.2
2The Dean of Students, Dr. Garrison, agreed at trial that,
"if I've got a newspaper that does not contain any advertising in
it and I'm a student, I can distribute it anywhere on campus."
12

This restriction on the distribution of newspapers is not de
minimis. It forecloses one medium of distribution for newspapers
with commercials--individual students' distribution of unsponsored
papers by hand. Registered student groups could "sponsor" papers,
a service for which the group would generally demand a fee.
However, an individual student volunteer, lacking a student group's
sponsorship, is prohibited from handing out free copies of the
Guardian to other students while on campus.
Moreover,
the
anti-solicitation
policy
restricts
an
individual's ability to hand out political commentary to the
passing public. This medium of communication is traditionally
afforded great protection under the First Amendment because of its
value to "poorly financed causes of little people." Martin v.
Struthers, 319 U.S. 141, 146 (1943). See also Lovell v. City of
Griffin, 303 U.S. 444, 454 (1938) (pamphlets and leaflets "have
been historic weapons in the defense of liberty, as the pamphlets
of Thomas Paine and others in our own history attest"). The
undisputed testimony was that handing out the Guardian on campus
was a more effective medium of delivery than distribution through
newsstands. Even a content-neutral restriction on such a basic and
traditional medium of distribution cannot be justified by trivial
gains in convenience or insignificant reductions of litter.
Schneider v. State, 308 U.S. 147, 164 (1939). See also Geoffrey
Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 95
(1987). Of course, the Guardian could avoid these restrictions by
13

not printing commercials. Without commercials, however, the
Guardian could not meet expenses.
The district court found that the restrictions on the
Guardian's distribution advanced several interests including
preserving the academic environment and security, protecting
privacy, traffic control, preserving the campus's appearance,
preventing fraud and deception, and eliminating unnecessary
expenses.
There is no substantial evidence that a student's handing out
of a free student newspaper would affect the University's academic
mission or the rate of crime on campus. The handing out of a
political newspaper filled with editorials and reportage about
matters of public concern is compatible with the University's
academic mission.
The University has a legitimate interest in preventing litter,
congestion, and invasions of privacy on campus. Handing out a
newspaper on campus might increase the risk of litter, cause more
congestion, and lead to students approaching other students who do
not wish to be approached. However, the burden is on defendants to
show affirmatively that their restriction is narrowly tailored to
protect the identified interests. Fox, 109 S.Ct. at 3035;
Multimedia Publications v. Greenville-Spartanburg Airport, 774
F.Supp. 977, 985 (D.S.C. 1991).
Defendants failed to carry this burden. They darkly warn in
their brief that, because "approximately fifty papers are
distributed [from newsstands on campus]," allowing newspapers to be
14

distributed free of charge on the campus would "seriously impact
access to buildings, create an excessive litter problem, and create
a bazaar-like atmosphere on campus." This statement about "fifty
newspapers," misrepresents the record. There were forty-eight
newsstands--not newspapers--on the campus at five different
locations. Each had newsstands containing the same major Texas and
national papers--USA Today, The New York Times, Wall Street
Journal, The Houston Post, San Antonio Light, Dallas Morning News.
There was no evidence that these papers are handed out on campus.
Assuming that the University faced some marginal increase of
litter, congestion, and unwelcome advances by over-zealous,
newspaper-wielding students, there is no substantial evidence that
the anti-solicitation regulations were reasonably well fitted to
preventing these ills. If the University wishes to prevent litter,
it should prohibit littering. Schneider v. State, 308 U.S. 147,
162 (1939). If it wishes to prevent overcrowding, then the
University should regulate the time and place of students who hand
out papers on the campus to prevent congestion. Cf. Lee, 60
U.S.L.W. at ____ (O'Connor, J., concurring). If the University
wants to prevent obstreperous distribution of the papers, then it
should forbid students from pressing their publications on
unwilling recipients. Martin v. Struther, 318 U.S. 141, 148
(1943). Prohibiting students from handing out free "unsponsored"
newspapers on the grounds that the newspapers include an
advertisement, no matter how willing the recipient or how neat and
15

circumspect the distributor, is not a narrow tailoring to protect
identified interests.
The speculative nature of the threat from litter and
congestion is illustrated by the fact that the University freely
allows distribution of publications that do not contain
"solicitation," defined as an "offer for sale of any property or
service" or "receipt of or request for any gift or contribution."
Students may, in the University's judgment, pass out pamphlets,
announcements, artwork, or any other literature not containing
commercials without overwhelming the campus with litter or
congestion. Allowing the same students to include a single
advertisement in identical literature to defray the printing
expense would, it is said, impede "access to buildings, create an
excessive litter problem, and create a bazaar-like atmosphere on
campus." There is no record evidence that publications with
commercials create significantly more litter and congestion than
publications without. We do not find such a conclusion intuitively
obvious.
The University places no restriction on the University Star,
a paper that contains a greater number and density of
advertisements than the Guardian.3 12,000 copies of each issue of
the Star were distributed on the campus. This underinclusiveness
3The Guardian generally contained less than fifteen
advertisements of local businesses per eight-page issue. By
contrast, the Star ran full pages of advertisements containing
well over twenty ads from local businesses, not to mention a page
of classified advertisements. In addition, the Star sometimes
included a separate national, full-color insert containing
advertisements targeted toward University students.
16

cuts against the assertion that restricting commercialism on campus
was an interest of paramount importance to the University--or at
least an interest that required a flat prohibition on an entire
medium of distribution. See The Florida Star v. B.J.F., 109 S.Ct.
2603, 2612-13 (1989) (Scalia, J., concurring) (prohibition on mass
media that is not applied to other forms of communication, cannot
be regarded as protecting interests of highest order, because "it
leaves appreciable damage to that supposedly vital interest
unprohibited"); United States v. Gilbert, 920 F.2d 878, 885 (11th
Cir. 1991) ("an injunction that prohibits [appellant] from engaging
in expressive conduct [on a public forum] that others are free to
engage in clearly cannot withstand strict scrutiny").
Aside from litter, congestion, and invasions of privacy,
defendants argue that "the restrictions of commercial materials is
[sic] necessary to maintain the academic environment," because
"unlimited distribution of newspapers, coupons, flyers, and the
like throughout campus would create a circus atmosphere, destroying
the unique quality of the University campus." We can assume
without deciding that the University may have interests sufficient
to justify restrictions on commercial speech, because speech that
does little more than propose a commercial transaction occupies a
subordinate position in the hierarchy of First Amendment values.
Fox, 109 S.Ct. at 3032.
However, little follows here from such an assumption, because
the Guardian is not commercial speech. It is speech about matters
of highest public concern--political and economic reform and the
17

local and international environment. The advertisements in the
Guardian were included to finance the publication. Under such
circumstances, commercial speech was inextricably linked to the
newspaper's non-commercial speech, making the whole paper non-
commercial. Riley v. National Federation of the Blind, 108 S.Ct.
2667, 2677 (1988). If the purpose of the University's regulation
is to limit commercial speech, then it is overbroad when applied to
newspapers like the Guardian. At the same time, commenting on
public issues in the context of a commercial transaction does not
elevate speech from commercial to political rank. See Bolger v.
Youngs Drug Products Corp., 103 S.Ct. 2875, 2881 (1983).
Defendants emphasize another interest. As the Dean of
Students testified, the anti-solicitation policy served to protect
the students from "unwarranted hawking [of] every Tupperware
salesperson, pots and pans salesman in . . . town."
We recognize that government may have an interest in
restricting commercial solicitation of passers-by to prevent
disruption of traffic and harassment by insistent hawkers. Soc'y
for Krishna Consciousness, 876 F.2d at 497 (citing Heffron, 101
S.Ct. at 2567). See also Lee, 60 U.S.L.W. at ____; ACORN v. City
of Philadelphia, 798 F.2d 1260, 1269 (9th Cir. 1986). Glover v.
Cole, 762 F.2d 1197, 1202 (4th Cir. 1985). Because solicitation
requires purchasers or contributors to stop, listen to a sales
pitch, and then produce a payment or contribution, it "can prove
more disruptive of order and crowd control" than simple
distribution of literature. International Soc'y for Krishna
18

Consciousness, 876 F.2d at 497. See also Kokinda, 110 S.Ct. at
3123. Moreover, face-to-face solicitation "presents risks of
duress that are an appropriate target of regulation." Lee, 60
U.S.L.W. at ____.
Neither of these concerns is implicated by the handing out of
a paper gratis. The passer-by's response to the distributor of a
newspaper is simply to take or reject the paper. She need not stop
and disrupt traffic. When the distributor does nothing more than
proffer a paper for which no compensation is asked, there is also
little risk of fraudulent over-reaching. The need to restrict
hawking and sales, therefore, does not justify the restrictions on
the Guardian. In fact, this court has found restrictions on
solicitation narrowly tailored precisely because they did not
restrict "oral advocacy, distribution of literature, or other forms
of communication and expression." Soc'y for Krishna Consciousness,
876 F.2d at 498 (emphasis added). See also Lee, 60 U.S.L.W. at
____ (O'Connor, J., concurring) (distinguishing solicitation from
distribution of literature).
Finally, defendants state that the University has a valid
educational interest in protecting the Star from competition from
other newspapers. According to defendants, this serves "a
legitimate state interest--education of the students enrolled in
the journalism program."
This argument rests on the assumption that a University may
enhance the popularity of its own publication by burdening the
distribution of other publications. "[T]he concept that government
19

may restrict the speech of some elements of our society in order to
enhance the relative voice of others is wholly foreign to the First
Amendment." Buckley v. Valeo, 424 U.S. 1, 48-49 (1976). Proper
time, place, and manner requirements "do not discriminate among
speakers or ideas" and "further an important governmental interest
unrelated to the restriction of communication." Id. at 18
(emphasis added). The restriction of newspapers other than the
Star cannot be justified by the University's desire to curtail the
restricted newspapers' popularity.
Defendants argue that the University need not give students
and non-students equal access to the University campus. This
assertion is true. Perry Educ. Ass'n, 103 S.Ct. at 954. However,
plaintiffs do not contest the University's exclusion of non-
students from campus. They challenge the anti-solicitation
regulation's application to students who wish to distribute the
Guardian to other students or, for that matter, wish to distribute
their own paper containing commercials.4
In sum, we hold that the University may not enforce its anti-
solicitation policy contained in either Operating Letter 9.05 or in
applicable rules of the Board of Regents to restrain the
distribution of the Guardian on the outdoor grounds of the campus.
The Guardian is entitled to the same access to the University
campus given to publications distributed without charge that do not
4Several University students have worked on the Guardian's
staff as writers.
20

contain commercials. We express no opinion about the
constitutionality of other time, place, and manner restrictions.
21

III.
Plaintiffs also contend that the University's regulations are
facially unconstitutional because they bestow unlimited discretion
on the Dean of Students to limit the distribution of newspapers on
campus. Plaintiffs point to Section 2.02(a) of Operating Letter
9.05, which provides for the "sale or offer for sale of any
newspaper, magazine, or other publication by means of a vending
machine or distribution stand in an area designated in advance by
the Dean of Students (or designee) for the conduct of such
activity."5 Plaintiffs contend that this discretion to designate
areas for newsstands violates the First Amendment. We disagree.
In challenging the discretion given to the Dean of Students in
designating newsstands, plaintiffs rely on City of Lakewood v.
Plain Dealer, 108 S.Ct. 2138 (1988). In Plain Dealer, a newspaper
challenged facially a municipal ordinance requiring the newspaper
5The plaintiffs also point to an internal 1977 memo from the
Dean of Student Life, Dr. Joseph Belvilaqua, to the Director of
Student Development. In this memo, Dr. Belvilaqua states that
"I will ultimately be responsible for making decisions
regarding the reasonableness, taste, decency, etc. of
such publications [i.e., publications covered by the
on-campus solicitation Operating Letter] for
distribution on-campus. As you well know, decisions
regarding such standards are usually based upon broadly
stated regulations; and I will depend on you and the
staff members in helping arrive at decisions in
approving or disapproving certain items from time to
time."
This internal memo, however, says little about the discretion to
restrict speech allowed by the University's regulations. The
plaintiffs presented no evidence that Dr. Belvilaqua's
interpretation of the regulations was ever promulgated or
enforced.
22

to obtain a license annually in order to place a newsstand on city-
owned sidewalks. The ordinance delegated to the mayor the decision
to grant or deny applications for newsstand permits, but provided
no standards to guide the mayor's discretion.
Justice Brennan, writing for four members of the Court, stated
that "a facial challenge lies whenever a licensing law gives a
government official or agency substantial power to discriminate
based on the content or viewpoint of speech by suppressing
disfavored speech or disliked speakers." Plain Dealer, 108 S.Ct.
at 2145. The Court held that the City ordinance was facially
unconstitutional, because it gave unbridled discretion to the mayor
to deny individual newspapers' applications for newsstand licenses.
The University regulation in this case is distinguishable from
the City ordinance in Plain Dealer. The City ordinance gave the
mayor discretion to "permit[] communication by some but not for
others": the mayor could grant or deny individual publications'
applications for a license to erect a newsstand on the sidewalk.
It was this ability to discriminate among different publications
that "raise[d] the specter of content and viewpoint censorship."
Plain Dealer, 108 S.Ct. at 2147.
By contrast, the Dean's discretion extends only to the initial
designation of areas of the campus reserved for newsstands. Once
such areas have been designated, the record suggests that any
newspaper could place its stand in the area without further
23

approval from the Dean.6 Because the University regulation
provides no opportunity to discriminate among different
publications, the Dean's discretion under the regulations does not
implicate Plain Dealer's concerns about content discrimination.7
Plaintiffs' facial attack on the Dean's discretion to designate
areas for newsstands is without merit.
IV.
Plaintiffs contend that the University's funding of the
University Star with student fees violated their First Amendment
right not to subsidize views with which they disagree. We
disagree.
It is well-established that the freedom of speech and
association protected by the First Amendment includes the freedom
to choose "both what to say and what not to say." Riley v.
National Federation for the Blind, 108 S.Ct. 2667, 2677 (1988)
(emphasis in original). See also Wooley v. Maynard, 430 U.S. 705
(1977). This right to refrain from speech is violated when the
government compels an individual to endorse a belief that she finds
repugnant. West Virginia State Bd. of Educ. v. Barnette, 319 U.S.
624, 633 (1943). It also may be violated when the government
6The letters sent to various newspapers warning them not to
distribute their papers by hand on campus, state without
qualification that "you may place newspaper dispensers in the
[designated areas]."
7Each approved location for newsstands was approved for a
limited number of stands. If the spaces for stands were exhausted
at the approved locations, then the Guardian would have to apply
for additional space on which to place a stand. However, there
is no evidence in this record that the space at the approved
locations was inadequate to accommodate the Guardian's stand.
24

compels an individual to subsidize "political and ideological
purposes," Lyng v. International Union, United Auto Workers, 108
S.Ct. 1184, 1191 (1988), with which she disagrees. Chicago
Teachers Union Local No. 1 v. Hudson, 106 S.Ct. 1066, 1073 (1986);
Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977).
The government does not, however, violate the First Amendment
whenever it forces an individual to subsidize speech. Any such
position would implicate many state subsidies for public
universities, for free speech is at the heart of teaching and
universities by definition support speech--often extremely
controversial speech. See Widmar, 454 U.S. at 278-79, 102 S.Ct. at
279 (Stevens, J., concurring). Rather, the First Amendment
prohibits the government from forcing an individual to contribute
to the ideological expression of other private citizens for the
purpose of advancing those citizens' ideological biases rather than
substantial public interests.
In Abood, for instance, the Court upheld state requirements
that teachers pay a fee to the union for the purpose of supporting
collective bargaining, even though such coerced contribution would
have "an impact on [the dissenting teachers'] First Amendment
interests." Abood, 431 U.S. at 222. The Court reasoned that the
interference with the employee's freedom to associate was
constitutionally justified by "the legislative assessment of the
important contribution of the union shop to the system of labor
relations established by Congress." Id.
25

The lesson of Abood, therefore, is that the government may
compel an individual to subsidize non-governmental speech when such
compulsion accomplishes the "government's vital policy interest."
Lehnert v. Ferris Faculty Ass'n., 111 S.Ct. 1950, 1959 (1991). See
Carroll v. Blinken, 957 F.2d 991, 997 (2d Cir. 1992) (citing
cases). The question here is whether a University-sponsored
newspaper advances an important educational purpose in a narrowly
tailored manner.
We find the University's educational goals sufficiently
weighty to justify the University's subsidy of a student-run
newspaper. Such a newspaper allows students to have first-hand
journalism experience difficult to obtain otherwise. It also
creates a forum for public discussion of University-related issues
that can "stimulate uninhibited and vigorous discussion on matters
of campus and public concern." Carroll, 957 F.2d at 1000. The
University Star "increases the overall exchange of information,
ideas, and opinions on the campus," Kania v. Fordham, 702 F.2d 475,
480 (4th Cit. 1983), and thus advances a central purpose of the
University. Carroll, 957 F.2d at 1001. See also Keyishan v. Bd.
of Regents, 385 U.S.589, 603 (1967) (noting importance of robust
debate to University).
We also find that the University's financial support for the
student-run newspaper is a narrowly tailored means of advancing
these interests. The record indicates that the University did not
attempt to control the viewpoints expressed by the newspaper and
that there were no ideological prerequisites for joining the
26

paper's staff. The University provided the students with the funds
needed for the students themselves to engage in debate and did not
force ideological conformity. This method of creating a forum for
student expression is a minimally restrictive means of advancing an
educational interest. Kania, 702 F.2d at 480 (upholding university
financing of student newspaper through mandatory fees); Veed v.
Schwartzkopf, 353 F. Supp. 149, 152 (D.Neb. 1973) (same).
Plaintiffs contend that the University "exercises considerable
control over the views expressed in the Star." We find no evidence
of such control in the record. On the contrary, the record shows
that the Star attacked the University's administration vigorously,
in one cartoon comparing that administration to the South African
government. The University appointed a faculty representative from
the Journalism Department to assist in the paper's publication, but
there is no evidence that the faculty adviser controlled the
newspaper's content.
Plaintiffs rely heavily on the Third Circuit's opinion in
Galda v. Rutgers University, 772 F.2d 1060 (3d Cir. 1985), in which
the court held that Rutgers University could not subsidize the New
Jersey Public Interest Research Group with mandatory student fees.
Galda has little relevance to this case. First, we note that the
Second Circuit has rejected Galda. Carroll v. Blinken, 957 F.2d
991, 1001 (2d Cir. 1992) (holding that State University of New York
can subsidize New York Public Interest Research Group's on-campus
activities with mandatory student fees).
27

Second, Galda is distinguishable from this case. Galda is
explicitly limited to mandatory fees used to finance "an
independent outside organization that espouses and actively
promotes a political and ideological philosophy." Galda, 772 F.2d
at 1064. The court noted that "there is a distinction between PIRG
and student organizations . . . funded through the student activity
fee" because the latter provided a forum for University students to
engage in "the expression of differing views." Id. (quotations
omitted). By contrast, PIRG's purpose was not to provide students
with a forum for expression but rather to advance a particular
political agenda both on and off campus.
V.
In its final judgment, the district court held that the
Eleventh Amendment, as interpreted by Pennhurst State School and
Hospital v. Halderman, 465 U.S. 88 (1988), barred it from
considering plaintiffs' state-law claims for monetary relief. The
district court was also "persuaded that these claims should be
remanded rather than dismissed to avoid any limitations problems."
The district court, therefore, remanded the state-law damages
claims to state court.
Plaintiffs urge that the district court erred in finding that
it lacked jurisdiction over the state-law claims. Defendants
respond that 28 U.S.C. § 1447(d) bars this court from reviewing the
district court's remand of plaintiffs' state-law claims. We find
that § 1447(d) presents no bar to our review of the district
court's final judgment, including its remand of the state-law
28

claims. We also find, however, no error in the district court's
remand of plaintiffs' state-law claims to state court.
28 U.S.C. § 1447(d) provides, in relevant part, that "[a]n
order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise. . . ." § 1447(d),
however, does preclude all review of remand orders. Rather,
§ 1447(d) only bars review of remand orders authorized by 28 U.S.C.
§ 1447(c). In Re Shell Oil Co., 932 F.2d 1518, 1521 (5th Cir.
1991). § 1447(c) provides that "[i]f at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded" (emphasis added).
By its terms, the district court's remand in this case did not
occur "before final judgment." Rather, the remand was part of the
final judgment on the merits. Therefore, the remand was not
authorized by § 1447(c) and is not covered by § 1447(d). In re
Carter, 618 F.2d 1093, 1098-99 (5th Cir. 1980), cert. denied sub
nom. Sheet Metal Workers' Int'l Ass'n v. Carter, 450 U.S. 949
(1981) (remand to state court after final judgment not authorized
by § 1447(c) and therefore not covered by § 1447(d)). See also
Joan Steinman, Removal, Remand, and Review in Pendent Claim and
Pendent Party Cases, 41 Vand. L. Rev. 923, 1000-1002 (1988).
§ 1447(d) presents no bar to our consideration of the district
court's remand order.
We also find no error in the remand of the state-law claims
against defendants in their official capacities. In Pennhurst, the
Supreme Court held that the Eleventh Amendment bars pendent state-
29

law claims from being brought in federal court against the state.
The district court thus lacked jurisdiction to hear the state-law
claims against defendants in their official capacity. It properly
remanded these claims. Carnegie-Mellon University v. Cohill, 108
S.Ct. 614 (1988).
The Eleventh Amendment does not bar state-law actions against
state officials in their individual capacity. Scheuer v. Rhodes,
416 U.S. 232, 237-38 (1974); Spruyette v. Walters, 753 F.2d 498,
512-13 (6th Cir. 1985), cert. denied, 474 U.S. 1054 (1986).
Nonetheless, once the state-law claims against defendants in their
official capacity had been remanded to state court, the district
court properly remanded the same state-law individual-capacity
claims as well. Under 28 U.S.C. § 1367(c)(4), the district court
may decline to exercise supplemental jurisdiction over a claim if,
"in exceptional circumstances, there are . . . compelling reasons
for declining jurisdiction."
We find such "exceptional circumstances" and "compelling
reasons" here. Adjudicating state-law claims in federal court
while identical claims are pending in state court would be a
pointless waste of judicial resources. The district court's
decision to dismiss the state-law claims entirely, rather than
retain jurisdiction over the individual-capacity claims while the
official-capacity claims were being adjudicated in state court, was
within the court's discretion under 28 U.S.C. § 1367(c)(4).
VI.
30

Although we agree with plaintiffs that the university's anti-
solicitation policy as applied to newspapers with commercials
violated plaintiffs' First Amendment right to free speech, we do
not agree that defendants are liable for monetary damages or
attorney's fees in their individual capacities. Defendants are
protected from such a remedy by their qualified immunity as
government officials.
A defense of qualified immunity can be overcome only if an
objectively reasonable officer would know that his conduct was
illegal given the facts available to him at the time of his action
and the law that was clearly established at the time of the alleged
illegal acts. Anderson v. Creighton, 107 S. Ct. 3034, 3039 (1987);
Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982). The
University's Operating Letter 9.05 became effective on January 15,
1988. Shortly before this date, similar University regulations had
been upheld by a district court in this circuit. Texas Review
Society v. Cunningham, 659 F.Supp. 1239 (1987).
The regulations upheld in Texas Review Society prohibited
students at the University of Texas at Austin from handing out
newspapers containing commercials in the area where student
organizations maintained tables for distribution of literature.
Such newspapers could be distributed only from unmanned newspaper
racks. The district court held that these regulations were a
narrowly tailored means of protecting the campus "from pollution by
commercial hawking and solicitation." Texas Review Society, 659
F.Supp. at 1245.
31

We express no opinion about whether Texas Review Society was
correctly decided. However, the regulations upheld in Texas Review
Society were sufficiently similar to the regulations at issue here
that it cannot be said that defendants violated clearly established
law at the time that they enforced the University's anti-
solicitation policy against the Guardian.
Therefore, defendants' defense of qualified immunity bars an
award of monetary damages or attorney's fees against defendants in
their individual capacity. McNamara v. Moody, 606 F.2d 621, 626-27
(5th Cir. 1979). Plaintiffs are entitled to prospective
declaratory and injunctive relief barring the enforcement of the
University's anti-solicitation policy to restrict the distribution
of the Guardian. They may also be entitled to an award of
attorneys' fees from the University. Jackson v. Galan, 868 F.2d
165, 168 (5th Cir. 1989).
AFFIRMED in part, REVERSED and REMANDED in part for further
proceedings consistent with this opinion.
32