VICTORY: Ninth Circuit affirms Clovis Community College flyer policy is unconstitutional

SAN FRANCISCO, Aug. 4, 2023 — On Thursday, the United States Court of Appeals for the Ninth Circuit deemed Clovis Community College a poster child for student censorship, ruling that the college must abandon the unconstitutional flyer policy it used to silence conservative students. 

In October 2022, the Foundation for Individual Rights and Expression secured a preliminary injunction on behalf of the Clovis student chapter of Young Americans for Freedom and its student board members who wanted to post conservative flyers on the college’s bulletin boards. Clovis asked the Ninth Circuit to overturn the preliminary injunction — and yesterday, the Ninth Circuit resoundingly rejected Clovis’ appeal.

“Clovis tried again to justify its censorship, but the court saw through its flawed arguments,” said FIRE attorney Daniel Ortner. “The panel’s decision shows what we’ve argued all along: Clovis’ flyer policy is overbroad, vague, and indefensible in a court of law.” 

Clovis’ flyer policy prohibited students from posting flyers that contained “inappropriate” or “offensive” language, effectively giving Clovis administrators free reign to remove any flyers they disliked. As the court wrote, “What is ‘inappropriate’ or ‘offensive’ is a subjective determination, which would vary based on a college administrator's personal beliefs.”

In November 2021, YAF-Clovis founder Alejandro Flores and fellow club members Daniel Flores and Juliette Colunga received permission from administrators to hang three flyers on bulletin boards inside Clovis’ academic buildings. The flyers advocated for freedom and listed the death tolls of communist regimes. 

Emails obtained via a public records request revealed that soon after the flyers went up, a Clovis administrator wrote that he would “gladly” take the flyers down, following complaints about their content. The administrator also wrote that approving the flyers in the first place may have been a “mistake,” and that Clovis instead should have censored them under a policy that states, “Posters with inappropriate or offense [sic] language or themes are not permitted and will not be approved.” 

On Nov. 12, Clovis President Lori Bennett personally ordered the flyers removed. After doing so, she searched for a reason to justify the viewpoint discrimination, inventing a brand new rule requiring flyers to double as club announcements.

“If you need a reason, you can let them know that [we] agreed they aren’t club announcements,” Bennett wrote to Clovis staff. Clovis does not have a policy on the books that requires flyers to be club announcements. But with this excuse in hand, Clovis employees told student workers to remove the flyers.

Administrators later used that pretextual justification to stop the students from hanging a new set of five pro-life flyers — which the students submitted for approval in December — on the bulletin boards inside heavily trafficked campus buildings. Instead, administrators banished the flyers to a rotting “free speech kiosk” in a desolate part of campus. 

FIRE filed the lawsuit on Aug. 11, 2022, aiming to hold the college president and three other administrators responsible. After FIRE secured a preliminary injunction halting enforcement of the policy last October, Clovis appealed the ruling to the Ninth Circuit. 

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In yesterday’s ruling, the Ninth Circuit held that Clovis’ policy violated the First Amendment by suppressing protected speech and giving college administrators unbridled discretion to block speech they disliked. The court noted, “Political speech, for example, has a high propensity to be viewed as ‘offensive,’ and the First Amendment ‘affords the broadest protection’ to political expression.” 

The unanimous panel also noted that Clovis’ vague policy violated student speech rights because it “invites ‘arbitrary and discriminatory enforcement.’” The preliminary injunction will now remain in effect, meaning that Clovis administrators cannot bring back the unlawful policy while the lawsuit proceeds. 

“The news from the Ninth Circuit is a huge victory for free speech,” said Alejandro Flores, lead plaintiff and former president of the YAF-Clovis club. “But this isn’t the end of our legal battle against the school. We’re ready to keep fighting so that we can hold the college accountable for censoring speech they disagree with. I’m thrilled to have FIRE standing by our side in our fight to preserve free speech on our college campus.” 

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE recognizes that colleges and universities play a vital role in preserving free thought within a free society. To this end, we place a special emphasis on defending the individual rights of students and faculty members on our nation’s campuses, including freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.

CONTACT:

Katie Kortepeter, Communications Campaign Manager, FIRE: 215-717-3473; media@thefire.org