Door-to-Door Policy Violates First Amendment Rights
Rob Corry, Attorney-at-Law, tells University to change policy or face consequences
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February 13, 2006
Dear President Hennessy:
This law firm represents a diverse group of Stanford students led by the Stanford Review, the alternative student newspaper at Stanford. University officials threatened my clients with official discipline for allegedly violating Stanford’s policy banning door-to-door distribution of publications or leaflets in student housing. In no way do my clients concede the specific charges against them, and they demand they be accorded all due process, notice, hearing, assistance of counsel, right to cross-examine, right of subpoena, etc. Please be advised that Stanford’s prior restraint against door-to-door distribution violates California Education Code section 94367, popularly known as the “Leonard Law.” This statute affords students at private postsecondary educational institutions the same free speech rights under the U.S. and California constitutions they would otherwise enjoy off campus or if Stanford were a governmental entity.
Stanford’s leafleting ban is invalid on its face, without even considering Stanford’s practice of discriminatory enforcement against publications such as the Review, which occasionally espouse viewpoints disfavored by the administration. Stanford’s distribution policy is an “opt-in” policy whereby door-to-door leafleting is presumptively banned unless a majority of individual dormitory residents vote to permit door-to-door leafleting in that dorm. Thus, a 51% majority can infringe on the other 49% minority’s right to receive literature and publications in each particular dormitory.
Over two hundred years of First Amendment jurisprudence shows that “politically incorrect” speech disfavored by those in power needs protection, because that is the viewpoint most often censored. “Politically correct” speech needs no protection, because in this case it has the seal of approval of Stanford, a powerful multibillion dollar entity that is one of the world’s top educational institutions. Of course, Stanford’s viewpoint-discriminatory enforcement of its speech ban only compounds Stanford’s legal problem.
As a 1994 graduate of Stanford Law School, I have personal experience with the Leonard Law vis-à-vis Stanford. In 1994, while a third-year law student, I sent then-Stanford President Gerhard Casper a letter very similar to this one, asking Stanford to rescind its former “Speech Code” and advising that litigation was imminent if the Speech Code remained. Threatening to sue our beloved alma mater was a difficult decision taken only after every effort to rescind the Speech Code through reason, persuasion, a non-binding student referendum, and even a bill I introduced as an ASSU Senator.
Stanford ignored my letter. Ultimately, our diverse group of nine students was left with no alternative but litigation against the Speech Code. In Corry v. Stanford, we prevailed, with widespread support from students and alumni of all political stripes at Stanford and other universities across the nation, public interest groups such as the American Civil Liberties Union, the California First Amendment Coalition, the California Society of Newspaper Editors, local and national news media, and interested citizens and the general public. We prevailed even though I was a third-year law student against some of the top litigators in the nation. Stanford is a much better school now without the Speech Code, and it will be an even better school if the present ban on door-to-door leafleting is eliminated. Stanford made the right choice in declining to appeal the Court’s well-reasoned decision in Corry v. Stanford, but Stanford could have avoided the fight altogether, and earned congratulations for its open-mindedness, willingness to evolve with the times, and respect for free speech, if it had even responded to my letter over a decade ago.
This letter is Stanford’s chance to avoid once again being on the wrong side of free speech. Although there are never any guarantees in litigation, it seems more likely than not that the Santa Clara Superior Court will once again rule in favor of student speech and against University speech restrictions. Door-to-door leafleting enjoys a long tradition in American jurisprudence, and it is the only way for the Stanford Review and other alternative publications to effectively disseminate their message. Ever since the 1960’s Free Speech movement that began across the Bay at Berkeley, student freedoms have expanded while university efforts to restrict free speech have waned. The historical trend (and student, faculty, and public opinion) favors my clients in this instance.
The United States and California Supreme Courts, as well as California Courts of Appeal, have consistently held that governmental bans on door-to-door leafleting violate the free speech guarantees of the U.S. and California constitutions. See Martin v. City of Struthers (1943) 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313; Schaumberg v. Citizens for Better Environ. (1980) 444 U.S. 620, 626-632, 63 L.Ed.2d 73, 80-85, 100 S.Ct. 826; Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal. 3d 817, 97 Cal. Rptr. 777, 489 P.2d 809; Hillman v. Britton (1980) 111 Cal.App.3d 810, 816-817, 168 Cal.Rptr. 852; Alternatives for California Women, Inc. v. City of Contra Costa (1983) 145 Cal. App. 3d 436; 193 Cal. Rptr. 384; City of Fresno v. Press Communications, Inc. (1994) 31 Cal. App. 4th 32; 36 Cal. Rptr. 2d 456 (city ordinance prohibiting distribution of certain types of door-to-door leaflets even where resident has posted a sign prohibiting such distribution unconstitutional); Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal. App. 3d 816, 844, 182 Cal. Rptr 813 (discriminatory enforcement of ban on distributing commercial newspapers in a private, gated community unconstitutional); People v. Fogelson (1978) 21 Cal. 3d 158; 577 P.2d 677; 145 Cal. Rptr. 542 (ordinance prohibiting solicitation unless given permission by government unconstitutional on its face because it affords government officials unlimited discretion); Dulaney v. San Francisco Municipal Court (1974) 11 Cal. 3d 77; 520 P.2d 1; 112 Cal. Rptr. 777 (ordinance prohibiting affixing leaflets unconstitutional on its face because it affords government unfettered discretion); Belli v. State Bar of California (1974) 10 Cal. 3d 824; 519 P.2d 575; 112 Cal. Rptr. 527 (distinguishing bans on door-to-door leafleting for commercial and noncommercial speech; more protection entitled for noncommercial speech).
In Golden Gateway Center v. Golden Gateway Tenants Association (2001) 26 Cal. 4th 1013, 29 P.3d 797, 111 Cal. Rptr. 2d 336, the California Supreme Court suggested that “many statutes and ordinances [such as the Leonard Law] serve to protect tenants against unreasonable lease provisions and restrictions,” and “tenants [such as Stanford students] may always seek a legislative solution tailored to their particular concerns.”
Under the Leonard Law, Stanford is treated as if it were a governmental entity. A governmental entity cannot ban door-to-door leafleting on private property, and certainly not on public property owned by that same governmental entity. A governmental entity cannot permit 51% of the residents of a private apartment to infringe on the other 49% of the residents’ right to receive information that they desire to receive. Only individual occupants can opt out of distribution consistent with the constitution. My clients have no interest or desire in distributing their newspaper to individuals who do not want it. A sign on each individual door would easily accomplish this without infringing on anyone’s rights.
Even if we lose at the trial court, we would probably appeal to the California Court of Appeals, then the California Supreme Court, a legal process which could last years. Stanford would again be in the position of arguing, in courts of law and public opinion, against free speech for its students.
My clients and I wish to avoid litigation against Stanford. My clients are reasonable, intelligent students, and would consider any proposals from Stanford to settle this dispute. We all have better things to do than take this issue to Court. My clients are rightfully reluctant to sue their school that they love very much. However, without the ability to disseminate ideas door-to-door, far and away the most effective way to reach Stanford students where they live, my clients’ newspaper could wither and die. Ultimately, the student body as a whole would lose out, because there would be fewer ideas on campus. If Stanford does not eliminate the door-to-door ban or at least consider a compromise, we will have no choice but to pursue Court intervention.
My clients and I hope that Stanford will afford thoughtful consideration to the views expressed in this letter, avoid costly and time-consuming litigation, and remain true to its official motto, “The Winds of Freedom Blow.” Please contact me at 303-785-8585 to discuss this important issue. Thank you for your consideration and your attention to this matter.
Sincerely,
Robert J. Corry, Jr.
cc: Debra Zumwalt, Greg Boardman
