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FOX v. BD. OF TR. OF STATE UNIV. OF N.Y.

May 24, 1991

TODD FOX, EDWARD R. DETWEILER, STEPHANIE VAIANO, JAMES B. CULLEN, CHRISTINE MARIE ODELL, STEVEN GAWLEY, DANIEL ALTMAN, PHILIP JAY BOTWINIK, JEFFREY S. ZELLAN AND JACLYN BERNSTEIN, 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 AT BINGHAMTON, AND CLIFFORD D. CLARK, INDIVIDUALLY AND AS PRESIDENT OF THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, 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, 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

When the case eventually reached the Supreme Court, that Court agreed that the primary attack upon the Resolution pertained to its application to commercial speech, and that Central Hudson provides the appropriate analytical framework. The Court observed, however, that the Resolution also reached some non-commercial speech — a factor which neither this court nor the Circuit Court had considered.*fn18 While agreeing that the governmental interests advanced as justification for the Resolution were substantial,*fn19 the Supreme Court disagreed with the terms of the Second Circuit's remand. In particular, the Supreme Court differed with the Second Circuit's interpretation of the last element of the Central Hudson test.

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.

DISCUSSION

I. Mootness

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 ...


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