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

PETITIONER:Board of Trustees of State University of New York
RESPONDENT:Fox
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

ADVOCATES:
Henry T. Reath – on behalf of the Respondents
O. Peter Sherwood – on behalf of the Petitioners

Facts of the case

Question

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.

O. Peter Sherwood:

None of the students, in their complaint, or otherwise, indicated that they, in fact, wanted to put on… wanted to have doctors in their rooms, or to–

Sandra Day O’Connor:

Well, we may have an overbreadth problem.

O. Peter Sherwood:

–Excuse me?

Sandra Day O’Connor:

We may have an overbreadth problem, of course, and it depends on the meaning of the regulation, and how are we to know what it means?

The testimony below, certainly gave it a very broad interpretation.

And, the district court appeared to give it a rather broad interpretation.

What are we to make of that regulation?

O. Peter Sherwood:

Well, I believe overbroad… overbreadth is not here, Justice O’Connor.

And there are at least four reasons why overbreadth is not here.

First of all, it wasn’t raised below in any… in any sense.

Sandra Day O’Connor:

Well, it can certainly be offered in defense of the judgment below, can’t it?

O. Peter Sherwood:

I believe that you have to have preserved that claim, beyond that.

Sandra Day O’Connor:

I didn’t understand that.

Do you want to cite something to us?

O. Peter Sherwood:

The cases that we’ve cited in our applied brief, I, I admit, are Circuit Court cases.

We have not cited any Supreme Court cases that address that beyond that.

Byron R. White:

This is commercial speech… this is commercial speech.

The doctrine of overbreadth doesn’t apply at all, does it?

O. Peter Sherwood:

I agree.

As I said, there are at least four reasons why overbreadth wouldn’t apply here.

Byron R. White:

And one of them is that?

O. Peter Sherwood:

The first had to do with non-preservation.

The second has to do with the fact that it doesn’t apply… overbreadth doesn’t apply to commercial speech.

The third has to do with the fact that this… the challenge regulation here involves conduct, not simply speech.

And, in Oklahoma and Broderick, that was a… where you got that kind of circumstance, overbreadth does not apply.

And beyond that, the regulation here could be invalidated as overbreadth only on a… upon a showing that it was substantially overbroad.

And then, this Court said, just last term, in the New York State Club Association’s case, you would have to have a showing from the text of the regulations an actual fact of a substantial number of instances existing, in which the regulation cannot be applied constitutionally.

I don’t think that we have that here.

Otherwise, what this Court would do, and what courts are obliged to do, is to solve those potential, extended applications of a regulation on a case-by-case basis.

The students in this case… that challenged this regulation, never once, asserted any other interest here, other than the fact that they wanted to host, or listen to, demonstrations by American Future Systems.

O. Peter Sherwood:

And so, we believe that this is not a case in which the overbreadth doctrine would apply.

The focus of this case has been on AFS’ demonstration.

The case that was tried in the district court focused on that.

Yes, there were a number of hypothetical questions made of witnesses for the University, in which they were asked, “what about doctors”, “what about tutors”?

In one instance, there was a question asked,

“What about the sale of a bicycle, from one student to another student? “

And, you got conflicting testimony there.

Byron R. White:

But the case or controversy… the issue here is product demonstrations?

O. Peter Sherwood:

That’s absolutely correct.

Byron R. White:

That’s the application we’re talking about?

O. Peter Sherwood:

Absolutely.

And, that’s all that’s before this Court, quite frankly.

John Paul Stevens:

Mr. Sherwood, can I ask you a question about the procedure in the case?

After the Second Circuit decision, the case went back and was tried, and then you lost it.

Was the district court’s decision on remand ever reviewed by the Court of Appeals for the Second Circuit?

O. Peter Sherwood:

No.

It was not.

You’re talking about the October 8th, 1988 decision?

John Paul Stevens:

Yes.

O. Peter Sherwood:

That… no.

We did not take an appeal there.

We moved in the district court for a stay, because this Court had, on the very day that the district court decided the case and granted cert, and to my knowledge, the district court hasn’t acted on that motion yet.

So, that’s the posture that we’re in here.

Byron R. White:

What did you lose in the district court?

O. Peter Sherwood:

After the Second Circuit decided the case, the district court then applied the commercial speech standard, as it was defined by the Second Circuit, the Second Circuit having said that, with respect to the fourth prong of the Central Hudson test, that that involved a, a least restrictive means test.

The district court said given our justifications for having this regulation that we could not meet that standard, and therefore, struck down the regulation.

John Paul Stevens:

May I ask you, if in your view, the record that we’re permitted to look at in deciding this case, includes what happened on remand, as well as what was before the Second Circuit?

O. Peter Sherwood:

I believe you could.

John Paul Stevens:

When we’re reviewing the Second Circuit decision, we can rely on matter that that court had never even seen at the time of its decision?

O. Peter Sherwood:

Well, the only thing that exists beyond, in the district court, at this point, beyond what the Second Circuit concerned was the decision.

John Paul Stevens:

Wasn’t there another evidentiary hearing?

O. Peter Sherwood:

There was not a hearing.

John Paul Stevens:

Oh.

O. Peter Sherwood:

No.

The district court here simply decided that it would… undertook to… it got back the mandate, and undertook to enter a decision resolving the case.

John Paul Stevens:

But was there oral argument and briefing at that time or–

O. Peter Sherwood:

None of those.

John Paul Stevens:

–You mean, you just got the remand?

O. Peter Sherwood:

Got the remand and made a decision.

Byron R. White:

What happens if you win here?

If your case is over in the–

O. Peter Sherwood:

If we win here, we believe that the case is over.

We believe that we’re entitled to, or should receive, a reversal.

Byron R. White:

–Well, no, but, what happens to the judgment against you in the district court?

It never was appealed.

O. Peter Sherwood:

I would imagine that we would go back to the district court in that circumstance, and seek to have the judgment vacated, in view of the decision in this Court.

Byron R. White:

And if you lost?

O. Peter Sherwood:

We would then seek to appeal from the denial of our–

Byron R. White:

But what if you lost on the ground that it had become final a long time ago, and it’s too late to redo it?

O. Peter Sherwood:

–Well, the district court does have before it, a motion in our Part 4 stay, and we assume that you would–

John Paul Stevens:

Which, it just hasn’t acted on?

Is the injunction in effect now?

O. Peter Sherwood:

–I assume that it is in effect, given that the Court has yet to act on our application for the stay.

Thurgood Marshall:

I see.

Could the district court overrule us?

O. Peter Sherwood:

I doubt it.

[Laughter]

Well, it could overrule you, instead by a vote–

They had the same case.

Don’t they have the same case?

O. Peter Sherwood:

–Excuse me?

Thurgood Marshall:

Don’t they have the same case we have?

O. Peter Sherwood:

It is certainly the same case.

Byron R. White:

Well, you might have kept your… you might have appealed this adverse judgment and kept your case alive.

O. Peter Sherwood:

We thought that we certainly might have done that, but we thought the appropriate way to approach the matter was to request to the District Board, a stay, pending a determination by this Court.

After all, the court had… this Court had granted cert, and we’re here now arguing the case upon that grant of cert. So, we thought that it was appropriate, simply at the district court to hold everything in abeyance.

Byron R. White:

But he hasn’t?

O. Peter Sherwood:

Rather than… pardon?

Byron R. White:

But it… the district court hasn’t done that?

O. Peter Sherwood:

He doesn’t anything one way or the other.

Byron R. White:

Well, there’s an injunction outstanding, isn’t there?

O. Peter Sherwood:

There is an injunction outstanding, yes.

But our motion has not been acted on.

We do have… and that motion is… we do have motions also pending pursuant to Rule 59, I’ve been reminded, and I believe that we don’t have a need to take an appeal while our motion is pending.

As applied to the underlying controversy in this case, Resolution No. 66-156 of the Trustee, does prohibit the holding of Tupperware parties in students’ dormitory rooms, and it is not, in any sense, a reflection of any animus on the part of the University against American Future Systems, or Mary Kay, or the Fuller Brush Company, or any of the other hundreds, or even thousands of direct marketing companies that operate in the United States.

Rather, the regulation is intended to preserve the educational character of SUNY campuses, and to respond to the safety and security concerns on campus.

The Second Circuit recognized that these were substantial interests.

Now, even though the Second Circuit correctly saw this case as involving commercial speech, and not pure speech, it held that the regulation would not be sustained, as I said before, because… largely because the standard that it viewed to be appropriate is the least restrictive means test.

It also sent back the case, by the way, for the district court to make determinations with respect to whether or not the regulation directly advanced the state’s interests.

The Respondents here, interestingly, do not seek to make virtually no effort to defend that holding… that untenable holding of the district… of the Second Circuit.

They assert, instead, that SUNY hasn’t proved that the regulation isn’t more extensive than necessary.

For this reason, I want to focus largely on the fourth aspect of the Central Hudson test.

As I’ve already mentioned, the regulation is intended to promote the educational character of the University’s facilities, and to preserve the safety and security on campus.

To an extent, the regulation is a prophylactic measure, which is designed to forestall a perceived harm.

And these predictive judgments, we contend, made by University officials who have both the authority and responsibility for maintaining the campuses is entitled to some deference unless there is a showing that their actions here are unreasonable.

The only way that the University is going to preserve, we submit, the educational character of its campuses and avoid turning campuses into commercial bazaars is to prohibit the operation of commercial enterprises on campus.

AFS is just one of the many companies that seeks to market directly to college students.

Its demonstrations last two to three hours.

Each one of them lasts two to three hours.

The Federal Court in Philadelphia found that at Penn State, AFS managed to put on 51 product demonstrations in just a two-week period.

O. Peter Sherwood:

One can see, pretty readily, that the prospect of students seeking to earn incentives… putting the arm on their fellow students to… to attend presentations and purchase products, has a potential for creating tensions among students and can alter the character of the University.

In addition, the regulation is a way of dealing with security risks on campus.

A prohibition on the operation of commercial enterprises has the effect of limiting the number of strangers who come on to the campus.

Antonin Scalia:

That would justify almost any rule, wouldn’t it?

O. Peter Sherwood:

Security concerns?

Antonin Scalia:

Right.

I mean, limiting the number of people who come onto campus would justify almost any rule.

O. Peter Sherwood:

Well, this regulation now is… where it seems to me that it is… it is an appropriate… I guess it goes to the question as to whether or not that’s a substantial governmental interest.

It seems to me there is.

Antonin Scalia:

You’re telling me you let people come on campus for no reason, but you will not let them come on for this reason?

That helps your security?

O. Peter Sherwood:

We’re not attempting, Justice Scalia, to turn a campus into a high-security facility, by any means.

Antonin Scalia:

Well, I just don’t see how this furthers security at all.

If you had rules only, only the following categories of people are able to come on to campus, then I could see, excluding this category is for security reasons.

But, as far as I understand the state system, anybody can go on campus, so long as he goes there for no reason.

But, if he happens to come for this particular reason, he can’t go.

It doesn’t seem to me that furthers security at all.

O. Peter Sherwood:

Because… well, in our experience, at one of our campuses, there was a time, when, under a permit system, people were permitted to operate businesses in the campus quad.

The number of people coming on to campus, and actually functioning on campus increased dramatically, because of the ability of students to… of those individuals who are not students, to run businesses on campus.

When you have many, many more people on campus, it is more difficult for the University to monitor the campuses… to monitor the campuses.

And that’s particularly true where you’re talking about dormitories, where you have perfect strangers sort of coming and going in and out of the dormitories all the time.

It is very difficult for the University to provide security for on campus.

Thurgood Marshall:

Aren’t you being too general when you talk about campuses?

You know, it’s a little different between NYU and Columbia and Syracuse.

O. Peter Sherwood:

That’s… certainly their location makes a difference, Justice Marshall.

Thurgood Marshall:

I mean, the public just walks right through.

O. Peter Sherwood:

Well, if, if, if you view the quad at NYU to be Washington Square Park, I suppose that’s correct.

But, we’re talking here about… this is a University-wide regulation, and we’re talking about, for the most part, campuses that are in, in locations where there are… where there is a discrete area set aside as a campus.

While we don’t want to prevent students from having people come on to campus–

NYU has a campus, and Columbia has a campus.

O. Peter Sherwood:

–NYU–

Thurgood Marshall:

But it’s in the middle of the city.

O. Peter Sherwood:

–Well, it’s sort of around Washington Square.

Washington Square Park is a big park.

Thurgood Marshall:

Well, Columbia is right on the outskirts of Harlem, and I think that is not a, you know, way off country place.

O. Peter Sherwood:

That’s true.

But, even there–

–That’s your law school, isn’t it?

Excuse me?

Harry A. Blackmun:

I say that’s your law school?

O. Peter Sherwood:

Actually, NYU is, Justice Blackmun.

That’s right.

O. Peter Sherwood:

But even if… at a place like Columbia, having people operate businesses there increases pretty dramatically the number of people who are strangers, unknown to the University or University officials, coming on to campus.

xxx.

Anthony M. Kennedy:

You gave us the first reason.

I’d like to go back.

You gave us your first reason for this regulation that it reduces the problem of one student contacting another student for a commercial transaction–

Could you prohibit that directly?

O. Peter Sherwood:

Could we prohibit directly–

Anthony M. Kennedy:

You say it shall be unlawful for one student to contact another student with reference to a commercial transaction.

O. Peter Sherwood:

With respect to–

In other words to simply talk to another student about having a commercial transaction.

Anthony M. Kennedy:

Yes.

O. Peter Sherwood:

I don’t think that’s covered by this regulation, it says that you can’t operate a business–

Anthony M. Kennedy:

I’m asking you whether you could prohibit that directly.

O. Peter Sherwood:

Could we prohibit directly–

Anthony M. Kennedy:

One student from contacting a second student about a commercial transaction.

O. Peter Sherwood:

I believe we could not and do not wish to.

Anthony M. Kennedy:

Well, then if you can’t do it directly how can you argue that it’s legitimate for this ordinance to do it indirectly?

O. Peter Sherwood:

Because the justification… because the justification for this regulation really isn’t aimed at the speech itself.

O. Peter Sherwood:

I took your question to be can you prohibit speech where your purpose is to, is to prevent the speech in order, because of the content or some related purpose… something related to the context of the speech?

Anthony M. Kennedy:

–You began by defending the rule as saying that it prevents or diminishes the instances in which one student contacts another student for a commercial transaction.

And then, I asked you, could you do that directly, and you indicated that you can’t do that directly.

Well, if you can’t do it directly, then how can you justify this ordinance for that objective?

O. Peter Sherwood:

Because if you have, as I understand, this… I took your question to be the Linmark situation, in which, could one, for example, prohibit “for sale” signs on the lawn?

And, I believe, you can’t do that.

You certainly cannot do that directly, where the purpose is to affect what is contained on the sign here.

What we are seeking to do in this circumstance is… our purposes, our justification for this program, for this regulation, has to do with the secondary effects that it associated with that kind of conduct.

We’re not aimed at… we’re not aiming this regulation at the speech itself.

We are really quite unconcerned with whether a student wants to sell something to another student or not.

What we are concerned with is speech, plus in person, and in person present on the campus, operating a business.

That’s what we–

Anthony M. Kennedy:

So, then you’re not concerned with one student soliciting another?

O. Peter Sherwood:

–We’re not concerned with a direct solicitation between one student or another.

Byron R. White:

xxx you make sure there’s enough time that students have to study?

O. Peter Sherwood:

Well, we would certainly that… that’s so as well, and that is a concern of ours, and there is some testimony in the record with respect to that.

However, where we are not, in any sense, seeking to regiment the students… how the students conduct their out-of-class time.

William H. Rehnquist:

Well, if they don’t have a Tupperware party, they could go to the movie.

It isn’t as if they were going to study for sure, if they didn’t have a Tupperware party?

O. Peter Sherwood:

That’s true.

They could go to the movie if they want, or they could watch television, or they could do many other things.

But, again, the purpose of this regulation really isn’t aimed at suppressing speech, as such.

We’re aiming at some of its secondary effects, which have to do with security concerns that we have, and also the concern for preserving the educational character of the… of the campus.

Antonin Scalia:

Which includes eliminating commercialism, in and of itself?

You want to retain the ivy-hall character of the place, right?

O. Peter Sherwood:

We would like to retain–

Antonin Scalia:

You want to have the campus a place not where business is done, but where academic pursuits are pursued.

O. Peter Sherwood:

–That’s correct.

Which goes to our, I suppose, to the second issue that I wanted to discuss this afternoon, and that is, the justification of this regulation as a time, place and manner restriction.

Because here, I think it’s important to remember that we’re not seeking to ban commercial activity.

O. Peter Sherwood:

Students and AFS can contact students in their dorm rooms… by telephone if they wish.

They can use campus newspapers; they can use radio; they can use mass media.

But if they insist on “in-person” sales and presentations, that is banned, and if they want to have that kind of marketing, then they can do that at locations right off the campus.

It is the… it’s the combination of both speech with the physical presence that is our concern.

Speech alone is not the concern that we have.

Anthony M. Kennedy:

I’m not clear that a time, place and manner regulation is… can be sustained if it’s not content neutral.

I may be incorrect.

Do we have any cases where we sustained a regulation on a time, base… time, place and manner in a regulation and it’s not content neutral?

O. Peter Sherwood:

I believe one of the requirements that this Court has imposed, with respect to time, place and manner restrictions, is precisely that.

That it be content neutral, and I would submit–

Anthony M. Kennedy:

But, this isn’t content neutral.

O. Peter Sherwood:

–Oh, it certainly is content neutral, because defining what… whether a particular regulation is content neutral or not really goes to the justification that’s given for the regulation.

Our justification here is not aimed at the speech itself, but rather at secondary effects that may be associated with that speech, and so we are not here… we don’t have the Linmark situation, as I mentioned before.

Byron R. White:

Well, you are just aiming at commercial speech–

O. Peter Sherwood:

Excuse me?

Byron R. White:

–You are just aiming at commercial speech?

That’s content oriented, isn’t it?

O. Peter Sherwood:

Well, the fact–

Antonin Scalia:

And, not even all commercial speech?

You make exceptions for cultural events, for dry cleaning, for laundry, for banking, barber, beautician?

I think you have to say there’s some content discrimination here?

O. Peter Sherwood:

–Well, again, as I understand this Court’s decisions, having to do with content neutrality, you really look to whether or not the justification given for the restriction is aimed at the speech itself or whether it’s aimed at some other concern, having nothing to do with speech.

Sandra Day O’Connor:

I thought you looked at what it did.

You have to look at what it says to determine if it’s content neutral.

What does it prohibit, and what does it not?

How else could you interpret it?

O. Peter Sherwood:

Well, one can, for example, prohibit, prohibit camping, I suppose, in Lafayette Park, where, and what was prohibited there is people seeking to make… to symbolically protest the plight of the homeless.

There is some reference to the content of that kind of conduct.

But, certainly, the Court, this Court did not thereby say that one could not… that that kind of regulation is one that’s not content neutral, as I understand the Court’s cases.

I would like to–

Thurgood Marshall:

How about the Encyclopedia Britannica salesman?

O. Peter Sherwood:

–Could a Encyclopedia Britannica salesman come on campus and sell?

Thurgood Marshall:

Uh-hum.

O. Peter Sherwood:

I believe the answer to that is no.

And there, you’re, you are talking about the conduct of–

Thurgood Marshall:

His job… he’s advancing education.

xxx allow him to do this.

O. Peter Sherwood:

–One can argue that he is advancing education.

That’s true.

But what he is doing, in that circumstance, is selling his wares on campus, and this rule applies to solicitations.

I should say, with respect to that, again, that none of the Plaintiffs in this case have standing to raise that kind of claim, because it is not addressed to.

The only thing… the only harm that these students have complained about, is the refusal of the University to permit them to either host or to listen to AFS presentations.

I’d like to reserve the rest of my time.

William H. Rehnquist:

Thank you, Mr. Sherwood.

Mr. Reath, we’ll hear now from you.

Henry T. Reath:

Mr. Chief Justice, members of the Court:

I don’t… I have the benefit, I guess, because I was trial counsel and I’ve been with this case ever since it started… that, in that sense, I know a good bit more about the case than Mr. Sherwood.

Unfortunately, Mr. Sherwood has made several statements to this Court, as to the underlying facts, that just are not correct.

And, I will correct them in due order.

The one that I want to address immediately, however, is his contention, that the students in this case… none of the students, at any time, he said, raised the other issues such as the questions asked by Justice Blackmun and others, about the right to have an attorney, the right to have a tutor, and such things as that.

Your Honors, at page 10 in my brief, I quote from the testimony of Edward K. Detweller, a student government representative at SUNY-Cortland.

10…

“I became interested in this case, because of the infringement upon my rights, my constitutional rights of assembly and speech. “

“It bothered me to know I couldn’t invite somebody such as an attorney or some commercial person to my dorm. “

And, then the same thing was said [inaudible]–

John Paul Stevens:

But, Mr. Reath, did he ever… is there any testimony that he ever did invite an attorney to his dorm?

Henry T. Reath:

–No, sir, there was not, but again Your Honor–

It was just a hypothetical concern,–

Henry T. Reath:

–Your Honor, understanding issues, Justice Stevens, there are a bulk of cases this Court has said you do not have to run the risk of being arrested or being held in contempt, or your rights at the University being in jeopardy.

John Paul Stevens:

–Are any of those commercial speech cases?

Henry T. Reath:

Excuse me, sir?

John Paul Stevens:

Are any of those cases commercial speech cases?

Henry T. Reath:

I can’t… I can’t answer that.

John Paul Stevens:

So, I mean, there really isn’t… there is not an issue as to somebody trying to get a lawyer, who was frustrated, is there?

Henry T. Reath:

Well, Your Honor, there is an issue.

Because what we have, and I’ll come to that in just a moment.

What we have here, is the way in which the University took a regulation, which on its face said you can’t have commercial enterprises on campus, and then totally distorted and turned it around against the students, because if there’s one thing that must be made clear, and I think it makes this case so different in terms of the legal impact of this case in Court’s earlier case, and otherwise, is this case, Your Honors, is a right to listen case.

It involves the students’ rights to listen and to invite whoever they want to come into their room.

Whether it’s a lawyer, whether it’s a Tupperware party, whether it’s Christmas cards–

William H. Rehnquist:

Mr. Reath.

Henry T. Reath:

–Yes, Your Honor.

William H. Rehnquist:

Does that take it out of the commercial speech category?

Henry T. Reath:

Well, I think you could say it does.

Because I think that when we have argued… we have argued that in our brief, sir, that–

William H. Rehnquist:

And, that is your position here, that this is not a commercial?

Henry T. Reath:

–No.

I say that the Court doesn’t have to come to that.

Because, either under the commercial speech standard, or under core speech standard, and following the four part test of Commercial Hudson, which is what the Second Circuit did; which is what the lower court did.

We prevail entirely under Commercial Hudson.

But, to answer your question, specifically, Your Honor, we suggest in the brief an alternate argument, which is… that if you are looking at the right to listen, and that is the right that is involved, as the counterpoint to the right to speak, then the motivation of the listener makes no difference, because–

William H. Rehnquist:

Well, that would… that would totally obliterate the difference between commercial speech and what you refer to as core speech–

Henry T. Reath:

–I don’t think so, Your Honor.

William H. Rehnquist:

–I haven’t finished.

Henry T. Reath:

Excuse me.

Excuse me, sir, I apologize.

William H. Rehnquist:

There’s always going to be a listener for any commercial speech.

Henry T. Reath:

And, Your Honor, what we’re saying is, that the right to listen, as a right, is a one on one.

If I, as a student, want to have somebody come to my room to tell me about law, about medicine, or whatever subject I want, I, as a student, have that right, which is the counterpart of the right to free speech.

William H. Rehnquist:

But, why should it be limited to one on one?

Why can’t it be a right to listen to a sound truck along with thousands of other people?

Henry T. Reath:

Well, because that, Your Honor, immediately conflicts with the right of everybody else on the street.

And, you can’t argue… I mean, I agree with Your Honor, that if you carried that right to listen that far.

But, what we’re saying is, the right to listen is in a one-on-one setting.

Byron R. White:

Well, who brought this suit?

Henry T. Reath:

Your Honor, this suit was brought, initially by one student, Kathleen Rapp, who was the person who was involved in the proceeding.

Byron R. White:

And, who wanted to do what?

Henry T. Reath:

He wanted the right to invite and have a Tupperware party in his room.

Byron R. White:

So, is that the issue?

That’s the application of this regulation that we’re talking about here?

Henry T. Reath:

Yes, sir.

Now, what happened, Your Honor, is that after we had extensive discovery, and it came out, and in answer to one of the questions about… Mr. Sherwood said that there’s nothing that prohibits people from selling books and bicycles.

Absolutely wrong.

The senior person for SUNY–

Byron R. White:

Yes, but was there… were there some intervening Plaintiffs?

Henry T. Reath:

–Yes, sir.

Byron R. White:

Who?

Henry T. Reath:

A whole number of intervening plaintiffs.

The president of the Student Council, Steven Gawley.

Another member of the Student Council.

Several people who are very active in campus life, and they all intervened, and SUNY objected to their intervention.

Byron R. White:

So, what did they… and these other people had other interests, besides having Tupperware parties?

Henry T. Reath:

Absolutely.

And, that’s the whole point.

And, Your Honor, that’s all spelled out in our brief at pages 9 through 11.

Sandra Day O’Connor:

Well, wasn’t the AFS a party?

Henry T. Reath:

Excuse me, Justice O’Connor?

Sandra Day O’Connor:

Wasn’t the company a party at one time?

AFS?

Henry T. Reath:

They were, originally, Your Honor.

And then, what happened–

Sandra Day O’Connor:

And, you represented the company originally?

Henry T. Reath:

–I did represent the company.

Sandra Day O’Connor:

And they dropped out?

Henry T. Reath:

And they’ve dropped out.

That’s correct.

And then, what happened was, that when the students saw the breadth and the scope of the application of this regulation and saw how it applied to an attorney coming into the room, to a medical doctor, to a tutor–

Antonin Scalia:

Once they saw how it applied, did any of these intervening Plaintiffs… was any of them turned down in their attempt to get a lawyer?

Henry T. Reath:

–Yes.

Antonin Scalia:

In their attempt to get a doctor, or anything like that?

Henry T. Reath:

Yes.

Mr. Fox was turned down.

What do you mean was turned down?

Henry T. Reath:

He was the original Plaintiff.

The others?

Antonin Scalia:

Yeah, Yeah, I’m talking about the other ones.

Henry T. Reath:

No, sir.

Antonin Scalia:

So, the only actual… the only actual application of this regulation that we have before us, is preventing the Tupperware part?

Henry T. Reath:

That is correct.

But, on the other hand, Your Honor… may I just briefly refer to the Court how this incident started, because, I think, that when Your Honor sees how the incident started, you will understand why the students would be very reluctant to test and challenge the University in the way it interpreted its regulation.

Sandra Day O’Connor:

Could I just inquire, first of all though, whether the student host was going to earn something by virtue of hosting it?

Henry T. Reath:

No, Your Honor.

The student host–

Sandra Day O’Connor:

No credits, or no Florida trip or something?

Henry T. Reath:

–There was an offer, Your Honor, of a free Florida vacation.

That was involved in the case… the testimony also shows that that–

Sandra Day O’Connor:

And, some kind of $50 discount?

Henry T. Reath:

–No, sir.

No, Your Honor.

Excuse me.

Sandra Day O’Connor:

No?

Sandra Day O’Connor:

The record doesn’t support that?

Henry T. Reath:

There were no discounts, no credits.

The only… only for someone who had already been a purchaser.

If someone had already been a purchaser, and then they hosted a party, they would get a credit.

Sandra Day O’Connor:

And, the student host earns nothing?

Henry T. Reath:

Nothing, Your Honor.

Sandra Day O’Connor:

Nothing?

Henry T. Reath:

Except the free Florida vacation.

Sandra Day O’Connor:

Well, that’s something, isn’t it?

Henry T. Reath:

Well, well–

Sandra Day O’Connor:

I thought that was something.

Now, do you think, do you think the University can prohibit students from conducting commercial enterprises in their rooms?

Henry T. Reath:

–I think they can, but that’s not what is involved here.

Sandra Day O’Connor:

Well, why isn’t that a commercial enterprise?

Henry T. Reath:

This is not a commercial enterprise, because the student is a host… the student is a bonafide host–

Sandra Day O’Connor:

Well, the student’s earning something for it.

Henry T. Reath:

–Well, Your Honor, you can say that.

Sandra Day O’Connor:

Yes.

Henry T. Reath:

But, that is only one of many instances that is involved in the issues before this Court.

William H. Rehnquist:

Well, what other instances are involved?

I thought your answer to Justice Scalia was that the only area in which this regulation was actually applied was to prevent this Tupperware party?

Henry T. Reath:

Well, Your Honor, what happened–

William H. Rehnquist:

Is that correct?

Henry T. Reath:

–Yes, Your Honor, but if I can explain that what happened here was, that after the case got started, we tried to find out what was the regulation, how it was interpreted, how it was applied, and who it would apply to.

And, the senior person for SUNY, who was presented by SUNY to explain and justify and show what the amendment was and how it worked, was a Mr. Hofstaeder.

And, he was questioned.

And, I asked him these questions:

“Have you ever issued any clarifying bulletins, explaining the interpretations of the words in this regulation? “

“No, I have not”.

“Well, what would be your definition of a private commercial enterprise? “

Henry T. Reath:

Answer.

“It would be an organization that deals in a product, which the end result would be the making of a profit for that group. “

William H. Rehnquist:

Who is this… you’re seeking to give legal content to this regulation by the trial testimony of whom?

Henry T. Reath:

This is the pretrial testimony, Justice Scalia, of the senior representative of SUNY, who was produced by SUNY as that person who was authorized to speak for and explain the application, and how that regulation was filed.

Antonin Scalia:

What was his title?

Henry T. Reath:

Excuse me, sir?

Antonin Scalia:

What was his title?

Henry T. Reath:

His title was Assistant Vice Chancellor for Educational Services, and also… he also had charge of security.

And he was tendered under Rule 30(b) as the officer who was authorized to speak for SUNY as to how this regulation applied.

Now, here’s what went on:

“What about a service… would a service be included within that definition. “

Answer:

“If it is a service, outside services we already provide for, yes. “

Question:

“Supposing there was person who had a private job counseling service, who, for a fee, would counsel students regarding appropriate jobs and job opportunities on graduation, would they be permitted to come on campus, at the invitation of the student to meet with one or more students in the privacy of the student’s room to learn about that service? “

“No, they would not”.

“Why is that”?

The Answer: “This is already provided”.

Similarly, I asked this question:

“If there was a student, who had been given a small inheritance by an aunt or some family representative, and that student wanted to consult with a lawyer, as to his or her legal rights, and wanted to use his or her dorm room as the place for the meeting…. “

Byron R. White:

What has this got to do with the issue before us?

Henry T. Reath:

Excuse me, sir?

Byron R. White:

What has this got to do with the issue before us?

We’re trying to find out if this regulation may validly be applied to preventing a Tupperware party?

Henry T. Reath:

Because, Your Honor, the way the interpret… the way the regulation is applied and interpreted, and they went on to say that it includes any person who seeks to provide information for a profit.

Byron R. White:

Well, it sounds to me like you’re disagreeing with the court of appeals.

I thought the Court of Appeals said this was a commercial speech case.

Henry T. Reath:

The court of appeals did, Your Honor, and we–

Byron R. White:

And you’re saying, you’re trying to say that it isn’t at all.

Henry T. Reath:

–No, I’m saying it is more than a commercial speech case.

Byron R. White:

Well, yeah, but that isn’t–

Henry T. Reath:

It is a–

Byron R. White:

–The court of appeals that said it was only a commercial speech case.

Henry T. Reath:

–Well, we will accept that, Your Honor.

William H. Rehnquist:

Well then, there’s no overbreadth doctrine in commercial speech.

So, no matter what this regulation might have barred, that never actually happened.

If it can properly bar a Tupperware party, that’s the end of the case.

Henry T. Reath:

Well, Your Honors, I believe that this Court has the power to look at and take a practical view of what is the regulation, and how the regulation works.

Byron R. White:

But, you’re going to… if you want to, if you want to have the case decided on a ground that the Court of Appeals didn’t use, and if that’s going to… you can’t do that if it’s going to expand your relief, and I would think saying this isn’t a commercial speech case but some other kind of a speech case would give you a lot more than you won in the court of appeals.

Henry T. Reath:

Well, Your Honors, as I’ve said before–

Antonin Scalia:

I have even a greater problem than that.

I’m not even sure that if you call it a non-commercial speech case, by seeking to interpret the regulation that way, it makes it such.

I’m not sure that our commercial speech cases are doctrine… that you cannot raise overbreadth in commercial speech cases.

I think it looks to who the plaintiff is.

If the plaintiff is complaining about the restriction of his commercial speech, that kind of a plaintiff cannot use other hypothetical situations in justification of his claim.

And, you have here, a plaintiff who is clearly complaining about commercial speech.

Isn’t that right?

Henry T. Reath:

–That is right.

Antonin Scalia:

So, if that interpretation of our overbreadth doctrine is correct, you just don’t have any claim for all these other cases you’re worried about.

Henry T. Reath:

Well, Your Honor, there are others who have joined in the suit, who say that we want to exercise these rights.

And, what I was trying to say to the Court was, that what happened to the young lady who had appeared on this initial demonstration, and I was about to read that, and if I may take just a second to read what happened.

Because, what happened to her that day and the very next day, shows a hostile attitude by the University that is incredible, I think, when you think of what the rights of students are to use their own dorm rooms, within the privacy of their rooms, for whatever purposes they wish, as long it is lawful, peaceful conduct.

And here’s what happened.

She described how she’d come in.

She’d been invited by the girls to come to present the party.

She called up the night before, said,

“Do you still want the party? “

“Yes”, and she came.

And then, a dorm representative came, and said,

“You’re not allowed to do this; you have to leave. “

Henry T. Reath:

And she said,

“Well, I think that I do have a right, if the girls want me to stay. “

And here’s what’s said.

“So, I said to the girls. “

and I’m reading now form Joint Appendix 98,

“Would you like me to leave? “

“I would go gladly, but otherwise, I feel what you are doing is both wrong and illegal. “

And then, what happened was, that she had brought the campus policeman down… the campus policeman had come and he said,

“You are under arrest. “

“Hands against the wall. “

And then what happened?

What did he do?

“The girls were aghast, and my hands against the wall, and then he handcuffed me, and by this time, a crowd of students was gathering, and he marched me out of the dorm, leaving all my things behind, went down to the Public Safety Building and, still handcuffed, they put me in a chair, in the middle of a room, and he said to the one, another policeman, “watch her”. “

Now, the next day, Your Honor, the next day, Your Honors, she went back.

She was very disturbed by this incident.

She had been there.

The girls had asked her to come.

They wanted her to come.

They were interested in what she had to tell them about the information and the product that she was offering.

And, she said… so, she described what happened.

And, she met with one group, and then she said as she was going down the hallway, she said,

“They were very indignant about what had happened, and about being in a place where they were denied their constitutional rights. “

“And we were talking about it, and they were writing up a petition, when, all of a sudden, down the hall, came two SUNY policemen, marching down the hall, and came up to the door where I had been, knocked on the door, and said. “

We understand Katy Rapp is here.

“Then, the girls, not knowing what to do, said she wasn’t. “

And at that point, Kathy Rapp said,

“That’s not the way to handle this matter. “

She said, “And I said”, well, this is not the way to conduct this to the other girls in the room.

“So, I opened the door, and I said. “

You know, here I am,

Henry T. Reath:

“to the guards, to the policemen. “

“Are you looking for me? “

“And, he said. “

You are persona non grata on this campus.

“And, I was told if you were back here, you would be subject to arrest for criminal trespass. “

Antonin Scalia:

Which is what had happened the previous times?

Henry T. Reath:

Yes.

Now, the point that I think you have to agree, that that is an incredible way to treat a situation–

Antonin Scalia:

Well, she may have a tort action for that here.

Are you complaining about the excessive use of force?

About the handcuffs and all that?

That does seem excessive to me.

Henry T. Reath:

–No, I am not, Your Honor.

I’m explaining that under those circumstances–

Antonin Scalia:

But the issue is whether she should have left when she was asked to leave.

Isn’t that the only issue before us?

Not the handcuffs, or all of that?

Henry T. Reath:

–No, I think the issue, Your Honor, is–

Antonin Scalia:

Should she have left, when she was asked to leave, because there was a valid regulation?

That’s the only issue.

Henry T. Reath:

–And, or did that infringe the student’s rights to invite people to come to their room, to use their room as their private space in which to receive information?

Sandra Day O’Connor:

Mr. Reath, why isn’t the regulation somewhat akin to a zoning regulation that’s typical in a lot of communities that says you can’t conduct a commercial enterprise in your home?

Henry T. Reath:

I understand.

Yes, Your Honor.

Sandra Day O’Connor:

Now, why isn’t that similar?

Henry T. Reath:

Well, does that say, Your Honor, that if you, or anyone else decided they wanted to have Tupperware party in their one time, on one occasion, that constitutes the conduct of a commercial enterprise that violates the zoning?

Sandra Day O’Connor:

Well, conceivably, it might.

Henry T. Reath:

Excuse me?

Sandra Day O’Connor:

Conceivably, it might.

How many times does it take to make it a commercial [inaudible]–

Henry T. Reath:

Well, I think it certainly takes more than one.

I think it takes more than one.

And, here, you have the situation, and as a matter of fact, the record shows that this was a one-time invitation.

We asked, in interpreting this regulation, said that,

“Supposing a student had a friend who, one of the girls and her daughter… her friend made sweaters. “

“And, she wanted to come, on one occasion, and sell those sweaters in the dorm room to other friends. “

“Would it be permitted? “

“Absolutely not, they said, because this constitutes the operation of a commercial operation, and I say that’s absurd. “

Byron R. White:

–Mr. Reath, I thought one of the issues… the major issue in this case was whether or not the least restrictive means test–

Henry T. Reath:

It is, Your Honor.

Byron R. White:

–is a proper and I can’t… I’ve hardly heard a word about it from either side.

Henry T. Reath:

All right.

May I address that right now, Your Honor?

Your Honor will recall that in Zauderer, you wrote the opinion, in which you tracked the four-part test of Commercial Hudson.

Commercial Hudson says that the truth… the speech must be truthful, it must be… it must advance the substantial interest, and we don’t dispute.

Number one, the truthfulness is not involved.

They’ve taken it out of the case.

As far as it advancing a legitimate, substantial interest, we concede that.

That’s not an issue.

The third question is–

Byron R. White:

What is the interest that you concede?

Henry T. Reath:

–Excuse me, sir?

Byron R. White:

What is the interest… that you concede?

Henry T. Reath:

We concede that preserving the academic atmosphere, or–

Byron R. White:

All right.

So, you accept that as a substantial interest?

Henry T. Reath:

–Of course.

No question about it.

Of course it is.

Byron R. White:

All right.

Byron R. White:

And, now what?

Henry T. Reath:

Now, the question, the question then comes as to prong 3 and prong 4.

Byron R. White:

All right, now, prong 3–

Henry T. Reath:

Prong… yes, Your Honor.

Byron R. White:

–You don’t contest that one, do you?

Henry T. Reath:

We do.

And, as a matter of fact–

Byron R. White:

Here?

You mean this regulation doesn’t further that substantial interest?

Henry T. Reath:

–And, as a matter of fact, Your Honor, the court below found that from the evidence.

The court below, the judge, Judge McCurn, found it, and also the Second Circuit averted to it.

I can direct Your Honors attention to that finding.

Because the one on preserving education atmosphere… Your Honor asked the question about studying.

And the testimony was that at SUNY, that there is little or no studying done in the dorm rooms.

Nor surprisingly.

And, here, Your Honor, and this is why the University has backed off that argument of academic atmosphere.

Here’s what the handbook says.

Here’s what the handbook that the University distributes to all the new students… it says, and it’s undisputed.

“Blaring televisions and bickering statements do not a happier student make. “

“Distraction is the most common problem when you study in your room. “

“And it is a safe bet that you will accomplish absolutely nothing in your dorm. “

Now, the point is… of course, there are ways to preserve educational atmosphere, but, Your Honors, the dorm room, the residential dorm room, is nothing more than a boarding room in a boarding house–

John Paul Stevens:

Mr. Reath, do you think the University could prohibit the students from having televisions sets in their dorm rooms?

Henry T. Reath:

–That’s a very interesting question, Your Honor, that I don’t think the Court has to meet.

But, I should think that if they could prohibit–

Henry T. Reath:

I can’t… I don’t believe the University–

Antonin Scalia:

–At least we found a question you don’t want us to reach, huh?

Henry T. Reath:

–No, I think, Your Honor, would agree with me that there wouldn’t be many universities existing if they had such a rule.

I suppose that if they wanted to, to turn their dorm room into a monastic cell, that they probably might have the power to do that.

Byron R. White:

Maybe they could even keep out Tupperware.

Henry T. Reath:

If they did everybody.

But the point is, that they cannot discriminate, Your Honor.

They cannot make a distinction here between social guests and business guests.

And, that’s what they do without any justification, and Justice White, if I may, that brings us to the fourth prong of the Commercial Hudson, which is what you wanted to hear about.

Byron R. White:

And, finally, we’re there.

Henry T. Reath:

And, we’re there.

Thurgood Marshall:

Before you get there–

[Laughter]

Henry T. Reath:

Yes, Your Honor.

Thurgood Marshall:

Do they cook in these dormitory rooms?

Henry T. Reath:

I don’t believe they can, sir.

Thurgood Marshall:

Well, what in the world are they using Tupperware for?

Henry T. Reath:

Your Honor, this is products that are sold on a hope chest concept, whereby the young people… the argument is made to them.

“Look, instead of wasting your money on pizzas and movies and junk food, save your money. “

“Now’s the time to buy… it’s not only cookware, it’s– “

Thurgood Marshall:

Any connection with education?

Henry T. Reath:

–Excuse me, sir?

Thurgood Marshall:

Any connection with education?

Any?

Henry T. Reath:

Well, it’s very remote, Your Honor.

Thurgood Marshall:

Miniscule.

Sir?

Henry T. Reath:

The evidence shows… the evidence shows, Your Honor, that in these sessions, there is a lot of informational… a lot of information given about nutrition, about cooking–

Thurgood Marshall:

About education?

Henry T. Reath:

–Excuse me, sir?

Thurgood Marshall:

Well, do they teach cooking in this university?

Henry T. Reath:

I’m sorry?

Thurgood Marshall:

Do they teach cooking in this university?

Henry T. Reath:

I do not know.

I would suspect that at some universities they do.

Thurgood Marshall:

Well, you said… well, is Tupperware anything else but cooking?

Henry T. Reath:

Well, Your Honor, it’s–

Thurgood Marshall:

Do you use Tupperware for anything other than cooking?

Henry T. Reath:

–Well, Your Honor, we are… we’re talking throughout here about what’s called a Tupperware type–

Thurgood Marshall:

Well, you’re going into everything under the sun.

Let me get in there, too.

Henry T. Reath:

–Yes, sir.

Your Honor, it’s referred to as a Tupperware type party.

In fact, the product that was sold here was cookware and china and tableware, the idea being to build up, whether it’s a trousseau, or a hope chest concept.

Antonin Scalia:

You’re talking big money.

We’re not just talking a pot or a pan.

What were the amounts that they were getting students committed to… $6,000, I forget the number?

Henry T. Reath:

They were fairly substantial, Your Honor, $500 to a $1,000.

Antonin Scalia:

Commercial enterprise… there’s no doubt about that.

Henry T. Reath:

Well, it… again, I–

Antonin Scalia:

xxx.

Justice White, he’ll vote against you if–

–[inaudible].

Henry T. Reath:

–Your Honor, the uncontradicted evidence in this case, and this, I’m directing to Justice Stevens, and the question of the least restrictive test of Central Hudson.

Because, Your Honor, in Zaucerer, and I might point out–

Byron R. White:

Well, that isn’t what… that isn’t what Central Hudson said.

It didn’t say the “least restrictive”.

Henry T. Reath:

–Not Central Hudson didn’t, Your Honor, but the… you said it–

Byron R. White:

Let’s talk about Central Hudson.

Henry T. Reath:

–Well, I was talking about Zauderer.

Zauderer is… Central Hudson says the least restrictive.

Byron R. White:

But Central Hudson says “narrowly tailored”.

Henry T. Reath:

Excuse me, “narrowly tailored”, or that is not–

Byron R. White:

That isn’t the same thing.

Henry T. Reath:

–A less restrictive measure… a less restrictive measure will do.

Henry T. Reath:

Now, Your Honor–

Byron R. White:

Is that what Central Hudson said?

Henry T. Reath:

–Yes, sir.

Byron R. White:

I thought it said “narrowly tailored”?

Henry T. Reath:

“Narrowly tailored”, and it also talks about a lesser restriction.

Now, Your Honor, in Zaucerer–

Byron R. White:

Well, you don’t think that “narrowly tailored” means the same thing as “least restrictive”, do you?

Henry T. Reath:

–I think it does, Your Honor.

And, I would remind the Court that in the Central-Hudson test, Your Honor, was “no more extensive than necessary”.

And, if it’s to be no more extensive than necessary, the counterpoint to that, I submit is, the least restrictive, and that’s precisely what this Court said in Zauderer.

And, may I read, Your Honor, from the Court’s opinion, which, which Justice White, you wrote.

And there, they were talking about the ban of the state bar on commercial… on commercial illustrations, and what the Court said was,

“The burden is on the state to present a substantial government interest, justifying the restriction as applied to appellant, and to demonstrate that the restriction vindicates the interest through the least restrictive available means. “

Now, the evidence shows here, Your Honor, that the overwhelming majority of colleges and universities in the country solved this problem in a very simple way.

They say,

“we will let the students decide. “

and may I read to the Court from the rule that is followed in the University of Illinois, which is representative of the rules that are used in the mainstream of the universities throughout the country, and here’s what it says, and it’s so simple.

It’s easier to read than it is to try to summarize.

And it says this,… now, wait a minute, I’m sorry, where is it… where is the rule?

The essence of the rule is this:

“One, we will not allow any itinerant peddlers on to roam the halls. “

and we support that.

No peddling or uninvited solicitation, that is out.

Here it is.

I’m reading from the record at JA-93.

“Sales representatives of commercial activities are not allowed to go door to door. “

We support that.

That’s the right, we believe, the right way to handle it.

“Call your resident advisor, or area office if you see one in your area. “

“However, you may invite a sales representative to your room to see you, as your personal guest, if your roommate agrees. “

Henry T. Reath:

And then it goes on to say,

“University property cannot be used for commercial enterprises. “

Now–

Antonin Scalia:

Mr. Reath, that may be fine for some universities… maybe most of them prefer that.

But, maybe SUNY wants to have a stricter rule, just as some parents might want to send their children to universities that have no parietal restrictions, whatever… that allow visitors in dorms of male or female, at any hours.

Other colleges don’t.

Now, you made a statement, earlier, that the students were upset that this deprives of their right to have a visitor in their room.

Whatever visitor they want.

Are… doesn’t the college have any… have any power to establish in dormitories, in which it’s acting, in loco parentis, for minor students, for many of these colleges, certain reasonable rules?

Henry T. Reath:

–Absolutely.

Antonin Scalia:

And may that not vary from one college to another?

Henry T. Reath:

Absolutely, Your Honor.

And, we made that very clear in our brief, and I make it very clear to this Court.

We do not challenge the University’s right to have reasonable restrictions on dormitories in use.

What the University cannot do is to prohibit lawful speech.

They cannot prohibit lawful speech in the dormitory rooms.

If you think about it, a dormitory room is the student’s home.

It is the only place where the student can retire for the peace and privacy, and that is the place where the student says,

“I want to have the right to invite people of my choice, to speak on topics of my choice, without the University putting its ear to the keyhole and without saying,. “

“Oh yes, you can come, but the moment that you start talking anything other than social activities, the moment you start talking about commercal activities, out you go. “

And, that’s not right, Your Honor.

Thurgood Marshall:

Could they set up a securities and exchange office?

Henry T. Reath:

Excuse me, sir?

Thurgood Marshall:

Could they set up a securities office?

Henry T. Reath:

Absolutely.

Thurgood Marshall:

To sell securities?

Henry T. Reath:

Absolutely.

Thurgood Marshall:

You think so?

Henry T. Reath:

And in fact, Your Honor, the record–

Thurgood Marshall:

And that they couldn’t stop that?

Henry T. Reath:

–They have every right to do that.

They should do that.

Thurgood Marshall:

You think so?

Henry T. Reath:

The record shows, Your Honor, that in over half of the SUNY universities and colleges, they have a checkpoint system, but they still–

William H. Rehnquist:

No, Justice Marshall is asking about stock, securities–

Henry T. Reath:

–Excuse me, sir?

William H. Rehnquist:

–Stock, securities.

Not security… securities.

Stocks and bonds?

Henry T. Reath:

Oh, excuse me, sir, I’m sorry.

And, the question was, can… could they sell them?

Thurgood Marshall:

Yes.

Henry T. Reath:

Not at the state campus.

Thurgood Marshall:

Well, what do you say?

Henry T. Reath:

I think that if the state–

Thurgood Marshall:

Do they have a right to?

Henry T. Reath:

–I think they have a right to receive somebody.

To hear their proposition, whether they are selling Christmas cards, or silk stockings, or securities.

Thurgood Marshall:

xxx get to the end.

Horse race betting.

Henry T. Reath:

Well, I’m not sure how that would fit into this?

Thurgood Marshall:

Did you have any trouble with it?

Henry T. Reath:

Well, Your Honor, if it’s a lawful activity, they have a right to have speech relating to the lawful activity.

And, I think that’s the position we take.

William H. Rehnquist:

Thank you Mr. Reath.

Mr. Sherwood, you have one minute remaining.

O. Peter Sherwood:

I just wanted to say one thing.

This regulation has been around for over 20 years, and there’s no evidence anywhere in this record, that that regulation has ever been used, or applied to pure speech on any SUNY campus.

Thank you.

William H. Rehnquist:

Very well.

William H. Rehnquist:

The case is submitted.