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Professor faces discrimination suit for stifling speech

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    NMU         NINTH CIRCUIT         Newsgathering         Apr 20, 2001    

Professor faces discrimination suit for stifling speech

  • A flier announcing an event is protected by the First Amendment as much as the speech at the event, according to a federal appeals court.

The announcement of an upcoming event printed on handbills constitutes speech worthy of First Amendment protection, a three-judge panel of the U.S. Court of Appeals in Seattle (9th Cir.) ruled on April 12. Now, a former college professor accused of tearing down handbills must justify his actions in court.

In its ruling, the appellate court found that Stephen Sylvester’s alleged confiscation of the handbills constituted “viewpoint discrimination” because he singled out Douglas Giebel. Giebel posted handbills on campus billboards at Montana State University announcing his speech at an intellectual freedom conference. The two men were professors at Montana State and when Giebel was denied tenure he blamed Sylvester.

The court said Giebel’s speech, regardless of its content, was protected in much the same way advertising is protected and because the location of the speech, campus billboards, were designated public fora.

“The purpose of the notices was to attract an audience for Giebel’s speech. Of course, speech can only have an effect if it is heard. Suppression of notices announcing an upcoming speech is suppression of the view to be communicated through the speech, because a speech to an empty auditorium, no matter how brilliant it may be or how persuasive its delivery, does not convey any message to anyone,” Judge Stephen R. Reinhardt wrote for the court.

In his defense, Sylvester sought qualified immunity, arguing that the handbills conveyed only information and not expressive content that warranted First Amendment protection. He also argued that if such protection existed, it was not clearly established in 1996 when the incident occurred.

However, the court flatly disagreed. “Since the earliest days of the Republic, it has been understood that information conveyed in hand-bills on matters of public interest is speech within the ambit of First Amendment protection,” the court said.

Giebel sued Sylvester, then chairman of the humanities department, in 1998 and the federal district court denied Sylvester’s motion for summary judgment. The Ninth Circuit upheld that ruling.

Giebel, currently artistic director of a San Francisco State University theater, is representing himself in the lawsuit. Sylvester is currently the director of a branch campus of Alaska State University.

(Giebel v. Sylvester) ML

© 2001 The Reporters Committee for Freedom of the Press

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