The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
After a protracted course of litigation, including review by
the Supreme Court of the United States, this case is before
the court for the fourth time. The court assumes familiarity
with this case and will summarize only those facts and
proceedings necessary to an understanding of the issues raised
on this remand.
In 1982 American Future Systems, Inc. ("AFS")*fn1 and a
student at the State University of New York at Cortland
("SUNY" or "the University")*fn2 commenced the present action
challenging the constitutionality of SUNY Resolution No.
66-156 ("the Resolution"). The Resolution reads as follows:
No authorization will be given to private
commercial enterprises to operate on State
University campuses or in facilities furnished by
the University other than to provide for food,
legal beverages, campus bookstore, vending, linen
supply, laundry, dry cleaning, banking, barber
and beautician services and cultural events.
Claiming, inter alia, that the Resolution interfered with their
first amendment free speech rights, plaintiffs sought a
preliminary injunction permitting AFS to conduct group
demonstrations in plaintiffs' dormitory rooms without
interference.
This action first came before the court on plaintiffs'
motion for a preliminary injunction. After making the initial
determination that plaintiffs' activities constituted
commercial speech, the court then engaged in the four-step
analysis enunciated by the Supreme Court in Central Hudson Gas
& Electric Corp. v. Public Service Com. of New York,
447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).*fn3 This court
first found that the conduct of AFS was lawful and not
misleading.*fn4 The court went on to find that the interests
defined by the University in "(1) preventing disruption; (2)
protecting the safety and security of the students; (3) and
protecting students from commercial exploitation . . ." were
substantial.*fn5 The court concluded, though, that the
Resolution did not satisfy the final two requirements
of Central Hudson, in that it did not directly advance the
governmental interests asserted, and it was more extensive than
necessary to serve those interests.*fn6 In reaching that
conclusion, the court remarked, "[t]here appears to be only an
indirect link between the restriction of commercial speech . .
.," and the University's interests allegedly advanced by
enforcement of the Resolution.*fn7
In light of the foregoing, the court granted preliminary
relief to plaintiffs. SUNY-Cortland then promulgated "interim"
regulations, and the complaint was amended to include a
challenge to those regulations as well.*fn8 Following a
non-jury trial, this court held that the SUNY dormitories are
non-public forums for purposes of commercial speech
activity.*fn9 The court further held that the Resolution was
reasonable in relation to the forum's purpose.*fn10
Accordingly, the court dismissed plaintiffs' complaint and
granted judgment in defendants' favor.
Pending appeal to the Second Circuit, AFS was dropped as a
party and proceeded strictly as an amicus, leaving only the
student plaintiffs as appellants. The Second Circuit deemed
that change in parties significant, explaining:
Since this case no longer involves the rights of
third persons to gain access to state-owned
property to give or receive speech, but rather
the free speech rights of students who, as
dormitory residents, have an undisputed right of
access to their rooms as well as certain privacy
rights, the public forum cases thought applicable
by the district court are inapposite.*fn11
The Second Circuit went on to apply the Central Hudson factors,
deciding, in the words of Justice Scalia, "[t]hat it was
unclear whether Resolution 66-156 directly advanced the State's
asserted interests and whether, if it did, it was the least
restrictive means to that end."*fn12 The Second Circuit
therefore reversed this court's judgment and remanded for "a
suitable order" based upon "appropriate findings."*fn13
On remand, this court applied the Central Hudson test in a
manner consistent with the Second Circuit's instructions in Fox
II, finding that even if the Resolution directly advanced the
University's asserted interests, it was not the least
restrictive means for advancing those interests.*fn14 The
court reached the same conclusion with respect to the interim
regulations, and thus declared both the Resolution and the
interim regulations to be "unconstitutional
infringements."*fn15 On October 3, 1988, the same day that the
decision was issued, the Supreme Court granted
certiorari.*fn16 Consequently the proceedings were stayed,
including enforcement of the court's order and judgment on
remand, pending a decision by the Supreme Court.*fn17
After engaging in a comprehensive analysis of Supreme Court
decisions involving government restrictions upon commercial
speech, the Supreme Court explained:
What our decisions require is a `"fit" between
the legislature's ends and the means chosen to
accomplish those ends,' . . . — a fit that is not
necessarily perfect, but reasonable; that
represents not necessarily the single best
disposition but one whose scope is `in proportion
to the interest served,' . . .; that employs not
necessarily the least restrictive means but, . . .,
a means narrowly tailored to achieve the desired
objective.*fn20
The Court therefore reversed the judgment of the Second
Circuit and remanded:
[f]or determination, pursuant to the standards
described above, of the validity of this law's
application to the commercial and noncommercial
speech that is the subject of the complaint; and,
if its application to speech in either such
category is found to be valid, for determination
whether its substantial overbreadth nonetheless
makes it unenforceable.*fn21
Incorporating that language, on September 26, 1989, the
Second Circuit then issued a mandate remanding the action to
this court. By direction of this court, the parties filed
memorandums of law with the court setting forth their
respective positions on the remand issues.
Before undertaking a constitutional analysis of the
Resolution, there is one critical issue which the court must
first address and that is whether this action is now
moot.*fn22 Defendants make a convincing argument that because
the ten plaintiffs are no longer residents of SUNY
dormitories, and in fact are no longer SUNY students, they
have no "legally cognizable interest in the outcome," and thus
the issues raised on this remand are no longer justiciable,
rendering the case moot. Plaintiffs, without providing much
analysis, proffer four reasons, which will be fully discussed
herein, as to why this case is not moot, despite the fact that
they have moved from the SUNY dormitories and
graduated. Plaintiffs further respond that, at a minimum, they
should be allowed to file an amended complaint to join as
plaintiffs a number of current students who, at ...