Giebel v. Sylvester
244 F.3d 1182, 2001 WL 360242 (2001)
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Rule of Law:
A state official who selectively removes handbills announcing a future speech from a designated public forum commits viewpoint discrimination in violation of a clearly established First Amendment right, and is therefore not entitled to qualified immunity.
Facts:
- Douglas Giebel was a former professor at Montana State University-Northern whose contract was not renewed in 1995 following a dispute.
- Stephen Sylvester was the chairman of Giebel's former department and had been an adversary in the contract renewal dispute.
- In the Spring of 1996, the university sponsored a conference on 'Intellectual Freedom' at which Giebel was scheduled to speak.
- Giebel posted handbills on various campus bulletin boards to announce his upcoming speech.
- The university's bulletin boards were generally set aside for common use by both university-related persons and the general public to communicate with the university community.
- Sylvester tore down Giebel's handbills from the bulletin boards.
- Sylvester's actions were directed exclusively against Giebel; materials posted by other persons were not removed.
- After his handbills were removed, Giebel withdrew from speaking at the conference, citing fear of further retaliation.
Procedural Posture:
- Douglas Giebel filed a 42 U.S.C. § 1983 action against Stephen Sylvester in federal district court, alleging a First Amendment violation.
- Sylvester filed a motion for summary judgment, asserting the defense of qualified immunity.
- The district court (trial court) denied Sylvester's motion for summary judgment.
- Sylvester (as appellant) filed an interlocutory appeal of the denial to the U.S. Court of Appeals for the Ninth Circuit, with Giebel as the appellee.
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Issue:
Is a state university professor entitled to qualified immunity for removing a former colleague's handbills, which announced an upcoming speech, from university bulletin boards that function as a designated public forum?
Opinions:
Majority - Reinhardt, J.
No. A state university professor is not entitled to qualified immunity because removing the handbills constituted a violation of a clearly established First Amendment right. First, tearing down Giebel's handbills violated the First Amendment. Handbills announcing a speech are a form of protected speech because they convey information, and the university bulletin boards were a 'designated public forum' due to their open-use policy. Sylvester's targeted removal of only Giebel's handbills constituted viewpoint discrimination, as it sought to silence a particular speaker and prevent an audience from hearing his views. Second, this First Amendment right was clearly established in 1996. A long line of Supreme Court precedent, including cases like Schneider v. State and Lovell v. City of Griffin, establishes that the distribution of leaflets is a core First Amendment activity. Furthermore, it was 'axiomatic' under cases like Rosenberger that viewpoint discrimination in a public forum is unconstitutional, meaning any reasonable official should have known the conduct was unlawful.
Analysis:
This decision reinforces that even seemingly minor acts of censorship by state actors, such as removing a flyer, can constitute a significant First Amendment violation subject to liability. The case clarifies that notices for future speech are themselves a form of protected speech and that selectively targeting such notices based on the speaker is a form of prohibited viewpoint discrimination. The denial of qualified immunity serves as a strong warning to public officials, particularly in academic settings, that they cannot use their authority to silence disfavored speakers when the underlying constitutional rights are fundamental and clearly established.
