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FOX v. BOARD OF TRUSTEES OF THE STATE UNIV. OF NEW

December 12, 1986

TODD FOX, EDWARD R. DETWEILER, STEPHANIE VAIANO, JAMES B. CULLEN, CHRISTINE MARIE ODELL, STEVEN GAWLEY, DANIEL ALTMAN, PHILIP HAY BOTWINIK, JEFFREY S. ZELLAN, JACLYN BERTSTEIN, and AMERICAN FUTURE SYSTEMS, INC., Plaintiffs,
v.
THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK and CLIFTON R. WHARTON, JR., Individually and as Chancellor of the Board of Trustees, and THE STATE UNIVERSITY OF NEW YORK COLLEGE AT CORTLAND, and JAMES M. CLARK, Individually and as President of the College at Cortland, and THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, and CLIFFORD D. CLARK, Individually and as President of the State University of New York at Binghamton, and THE STATE UNIVERSITY OF NEW YORK AT ALBANY, and VINCENT O'LEARY, Individually and as President of the State University of New York at Albany, and THE STATE UNIVERSITY OF NEW YORK COLLEGE OF ARTS AND SCIENCES AT POTSDAM, and HUMPHREY TOMKIN, Individually and as President of the College of Arts and Sciences at Potsdam, Defendants



The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, D.J.

MEMORANDUM DECISION AND ORDER

American Future Systems, Inc. (AFS) and several students of the State University of New York (SUNY) have brought this action for declarative and injunctive relief against the Board of Trustees of the State University of New York, the Chancellor of the State University, and several individual constituent colleges of the State University and their respective presidents. The gravamen of the complaint is that the defendants have refused to permit AFS to conduct product demonstrations in campus dormitory rooms, even when invited to do so by the students. The plaintiffs assert that such action by the defendants unconstitutionally deprives AFS and the students of their first amendment free speech rights.

 A non-jury trial on the merits was held by the court between September 24 and October 1, 1986. Following are the court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

 I. FINDINGS OF FACT

 AFS is a corporation engaged in selling cookware, china, crystal, and silverware to college students through group demonstrations. Such group demonstrations are arranged by personal contact with students. Personal contact is initiated in several ways. An AFS representative may obtain names and telephone numbers of students from student directories, bulletin boards, referrals by other students, or through a procedure called "chatterbooking". In "chatterbooking," an AFS representative invites students in common areas of the campus to register for a vacation drawing. Students are required to list their names and telephone numbers on the drawing cards. This information is in-turn used for the booking procedure.

 Once the student names and telephone numbers are obtained, the representative or one of the twenty AFS "booking agents" will make a telephone call in an attempt to arrange a demonstration. The student is encouraged to permit AFS to conduct a demonstration in the student's own living quarters before his or her friends. To encourage the student's participation, AFS informs the student that by hosting a show he or she can obtain a free vacation to Florida or another resort. AFS also informs the student of its policy of donating money to "Save the Children" for each attendee at the demonstration. If the student agrees, a group demonstration is arranged.

 The instant controversy arose because SUNY enforced a policy that prohibits AFS demonstrations from occurring in students' dormitory rooms. That policy, SUNY Resolution 66-156, as amended, provides:

 No authorization will be given to private commercial enterprises to operate on State University campuses or facilities furnished by the University other than to provide for food, campus bookstore, laundry, dry-cleaning, barber and beauty services, and cultural events. *fn1"

 The policy was enforced, with respect to AFS, when an AFS representative conducting a demonstration in a dormitory room at SUNY-Cortland on October 17, 1982 was told to leave by campus authorities. The following day, the AFS Regional Direction, Kathy Rapp, entered the dormitory to give a demonstration. The dormitory director came into the room when Rapp was consummating sales, and told Rapp to leave the premises. Rapp replied that she had a constitutional right to stay. The campus police arrived and again told Rapp to leave, and she again refused. The officers then arrested Rapp on charges of loitering and soliciting without a permit. A charge of trespass was later added. Subsequently, another student, Todd Fox, agreed to host an AFS presentation in his dormitory room. He first requested permission from defendant Raymond Franco, Director of Residential Life at SUNY-Cortland. Franco responded by letter denying Fox permission to host the demonstration and stating that legal action, other than arrests, would be taken if any such demonstration were held.

 In order to challenge the SUNY resolution and its enforcement at SUNY-Cortland, AFS, Kathy Rapp, and Todd Fox commenced this suit on December 2, 1982. In June of 1983, this court enjoined defendants from prohibiting AFS from demonstrating its products in the dormitory rooms of SUNY-Cortland students. American Future Systems, Inc. v. State University of New York, 565 F. Supp. 754 (N.D.N.Y. 1983). The court refused, however, to enjoin the defendants from prohibiting the actual sale of AFS products. Id. In addition, the court noted: "Nothing in this Order shall restrain defendants from promulgating and enforcing reasonable restrictions governing the time, place, and manner of such demonstrations." Id. at 771. In response, SUNY-Cortland promulgated the following regulations:

 COMMERCIAL PRESENTATIONS BY REPRESENTATIVES OF AMERICAN FUTURE SYSTEMS, INC.

 The following regulations are established in accordance with the June 3, 1983 preliminary injunction Order entered by the Honorable Neal P. McCurn, U.S. District Judge for the Northern District of New York pending final determination in the American Future Systems, Inc., et al. v. State University of New York College at Cortland, et al. case.

 Where a student residing in College housing elects to invite an American Future Systems, Inc. representative into his/her room to conduct, host or participate in a commercial presentation, such presentation will be allowed only in accordance with the regulations outlined below. No commercial activity involving the consummation of sales will be allowed on the College premises. CONSUMMATION OF SALE SHALL INCLUDE ACTIVITY SUCH AS THE TRANSFER OF CASH, CHECKS OR MONEY ORDERS IN EXCHANGE FOR PRODUCTS; THE USE OF CREDIT CARDS FOR THE PURCHASE, LEASE OR RENTAL OF PRODUCTS, AND/OR ENTERING INTO AGREEMENTS (EITHER WRITTEN OR ORAL) FOR THE PURCHASE, LEASE OR RENTAL OF PRODUCTS.

 If violations occur in relation to this sales prohibition and/or compliance with these regulations, the resident who issued the invitation and all other residents involved may be subject to appropriate disciplinary action. American Future System, Inc.'s representative(s) may be subject to ejectment and may also be excluded from further entry into College premises.

 TIME

 Commercial presentations given by invited American Future Systems, Inc. representatives will be limited to certain hours. During the year when residence halls are open to students, such presentations are permitted between 2:00 and 9:00 P.M. except during exam periods, when the conflict with ...


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