Board of Trustees of State University of New York v. Fox

PETITIONER: Board of Trustees of State University of New York
LOCATION: Highway 395, Inyo County, California

DOCKET NO.: 87-2013
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 492 US 469 (1989)
ARGUED: Feb 22, 1989
DECIDED: Jun 29, 1989

Henry T. Reath - on behalf of the Respondents
O. Peter Sherwood - on behalf of the Petitioners

Facts of the case


Media for Board of Trustees of State University of New York v. Fox

Audio Transcription for Oral Argument - February 22, 1989 in Board of Trustees of State University of New York v. Fox

William H. Rehnquist:

We'll hear argument now, No. 87-2013, Board of Trustees of the State University of New York v. Todd Fox.

Mr. Sherwood, you may proceed whenever you're ready.

O. Peter Sherwood:

Mr. Chief Justice, and may it please the Court:

To paraphrase the district court, the gravamen of a complaint in this case, is that the State University of New York, we call it SUNY, has refused to permit American Future Systems, a company that markets pots, pans, cutlery, and dishes, to conduct product demonstrations in campus dormitory rooms.

The Respondents have a radically different view of the case.

They argue that this case concerns the pure speech rights of students.

But the Second Circuit, like the district court, concluded that the only speech involved in this case, is constitutionally subordinate commercial speech.

However, in evaluating the commercial speech involved here, the Second Circuit made a critically important error.

Today, I want to spend a minute, laying out our position, and then, I plan to discuss why the Second Circuit decision must be reversed.

We maintain that the challenge regulations, designated SUNY Resolution 66-156, does nothing more than prohibit the operation of... for-profit commercial enterprise on SUNY campuses and that it is constitutional.

We believe, that if the Second Circuit had simply, properly applied the standards of review for restrictions on commercial speech, it would have sustained the regulations.

And, even if it was disinclined to sustain the regulation, on that basis, it should have sustained it as a permissible time, place, and manner restriction.

We, of course, adhere to the other reasons set forth in our brief, for sustaining the regulations.

Harry A. Blackmun:

Would your position proscribe an attorney visiting a student in his dormitory room?

O. Peter Sherwood:

If an attorney wished to visit, where he's not yet been retained--

Harry A. Blackmun:

No, he's been retained, and it would be... his time would be charged.

O. Peter Sherwood:

--There is testimony in the record from, I believe Norman Hofstaeder, in which he says no, that that would not be permitted, believing that there would be more appropriate places for those kinds of communications.

Harry A. Blackmun:

What about a physician attending a sick student in his dormitory room, for pay?

O. Peter Sherwood:

I think under those... there's no testimony in the record, with respect to that example.

Harry A. Blackmun:

Well, what does your regulation say?

O. Peter Sherwood:

The regulation doesn't speak to it directly.

The regulations... the terms of the regulations simply are that, for-profit commercial... no authorization shall be given for the operation of for profit commercial enterprises.

It would seem to me, that given the example that you just gave me, Justice Blackmun, that that would not be conducting... that would not be operating a business on the campus.

Byron R. White:

Well, what about the lawyer?

O. Peter Sherwood:

I'm simply referring to the testimony that was given.

I would say that that testimony is rather ambiguous.

Thurgood Marshall:

What about a tutor?

O. Peter Sherwood:

What about... that question was asked, too.

A tutor, according to the testimony, as I recalled it... Dr. Pogue, I believe, suggested that in his interpretation, or maybe it was Murabito, that that would not be permitted.

I should say though, that with respect to these examples, the case here involved and focused on, simply, efforts by American Future Systems to put on product demonstrations in dormitory rooms.