by Jamie Hale
There’s no decision just yet, but federal Judge B. Lynn Winmill heard arguments Friday from lawyers representing the Idaho State University administration and a group of faculty in their First Amendment suit against the university.
Judge Winmill said he would release a decision “in due time” over whether or not ISU must allow the group, The Idaho State Faculty Association of the First Amendment, to use the “facultymemos” email listserv (technically it’s a Mailman), until the full case is decided later.
But the debate at the U.S. District Court in Pocatello turned from ISU and faculty into Pickering and Perry, two previous cases that each side is trying to use to determine who is in the right.
The Pickering test, ISU lawyer John Bailey argued, involves employer vs. employee speech rights, and should be applied. Pickering was used as recently as 2011 in a case that ruled in favor of a high school that pressured a teacher to remove religious banners from his classroom. If used, it could mean a win for ISU.
But Ron Coulter, the lawyer for the faculty group, argued that the Perry test should be used, as it dealt directly with a school district disallowing speech in what the courts decided were “non-public forums,” similar to the listserv in question. If used, it could be an advantage for the faculty group.
Judge Winmill seemed to lean more to the side of Pickering, as it was used most recently in a similar case, he said, but that doesn’t mean he has made any kind of decision in the matter.
Winmill asked a lot of Coulter and his legal team during the nearly hour-and-a-half-long hearing. Most notably, Winmill wanted to know why the group couldn’t—and still can’t—use alternate methods of communication, other than the university-sanctioned facultymemos listserv.
Coulter argued that the issue is not about whether or not they could create another system of communication, but about the fact that access was revoked to the system of communication they had already been using.
“Even if you have school-sponsored speech, it cannot be prohibited based on viewpoint, it just can’t,” said Coulter.
Bailey countered that the group could have created their own listserv, despite the admittedly “antiquated” university policy of discouraging email groups of more than 100 addresses.
He argued that ISU had the right to censor the emails because sending them over a university-sanctioned listserv implied the content was university-sanctioned, which it was not.
“Everybody knows [facultymemos] is monitored by the administration,” said Bailey. “At least that risk is there.”
But one of the most basic necessities for this so-called “temporary restraining order” motion against ISU is that the issue is in the public’s interest. Judge Winmill seemed to side more with the faculty group on the issue, as a public university has more public interest than, say, an environmental quality agency, he said.
Bailey begged to differ. “It is uniquely an internal debate, it is uniquely an internal issue,” he said. “An individual off the street could not walk in and participate in a faculty Senate meeting.”
But if Coulter and the group of ISU faculty can’t prove that the issue is of public interest, or that ISU might have violated the First Amendment rights of the Provisional Faculty Senate, they won’t get the temporary restraining order.
For now, Judge Winmill has called a recess, and is giving Coulter and his team a chance to give a sur-reply, or a chance to offer arguments after the initial hearing. Winmill asked Coulter to consider another case, 1994’s United States v. National Treasury Employees Union, a case neither side addressed, but one that Winmill said could be important here. He is also allowing Bailey’s team a chance to sur-sur-reply to give their input.
We probably won’t hear the decision for about a week, so the issue of the listserv will remain up in the air for now. Pickering, Perry and public interest will all play into the judge’s ultimate ruling.
Since this initial hearing considers some of the most basic details of the whole case, Judge Winmill’s decision could say a lot about how this suit will be decided in the end. No matter which way he rules, it’s important to remember that this hearing is just the beginning of a long road ahead.
Contact Jamie at JHaleTBA@gmail.com.