REINHARDT, Circuit Judge:
The San Diego Committee Against Registration and the Draft (CARD) appeals the district court's denial of its request for a preliminary injunction enjoining the Governing Board of Grossmont Union High School District (the Board) from enforcing certain policies, rules and regulations, pursuant to which the Board has rejected an anti-draft advertisement submitted by CARD for placement in a number of the district's student newspapers.
CARD is a non-profit organization located in San Diego County, California that is actively involved in counseling young men on alternatives to compulsory military service. CARD's membership consists of both students and non-students. The Board is the governing body of the Grossmont Union School District and retains ultimate responsibility for the adoption and enforcement of policies, rules and regulations relating to administration of the district's schools, including policies affecting the student newspapers.
In October, 1982, CARD sought to purchase advertising space from five student newspapers published by high schools within the district. According to CARD, its advertisement was directed toward providing information and counseling to male students regarding alternatives to military service. CARD's requests were referred to faculty advisors for review and subsequently submitted to the principals of the five high schools. The principals, in turn, requested Robert Pyle, Superintendent of the school district, to issue a policy guideline.
On November 8, 1982, Bob King, Acting Assistant Superintendent, issued a directive
On March 16, 1983, CARD brought suit against the Board pursuant to 42 U.S.C. § 1983 (1982), alleging that the Board's actions and policies had deprived CARD of its rights under the First and Fourteenth Amendments. CARD sought, inter alia, to enjoin the Board from enforcing those policies, rules and regulations that had resulted in the rejection of CARD's advertisements. CARD argued, as it does here, that because the Board permitted military service advertising, including various military recruitment advertisements, to be published in the five high school newspapers, it could not constitutionally exclude CARD's proffered advertisement.
The district court found that "[t]he student newspapers in the Grossmont High School District are limited in nature as a public forum." The district court also found that the military service advertisements that had appeared in the student newspapers were "non-political and offer[ed] vocational opportunities to the students." Finally, the district court found that the Grossmont Union High School District policies permitting publication of political speech by students only and restricting newspaper access by non-students to commercial speech were "reasonable in light of the purpose of school publications." The district court concluded that CARD had failed to show either probable success on the merits of its claim or that it had raised a question that was sufficiently serious to warrant issuance of a preliminary injunction. In this appeal, CARD contends that the district court erred in concluding that it had failed to meet the higher standard — the probability of success on the merits. We agree, although we do not intend to suggest that meeting the lower standard — the raising of a serious question — would not have been sufficient to warrant the relief sought.
As a threshold matter, we address the Board's contention that we lack jurisdiction to hear this appeal as a result of CARD's failure to file its formal notice of appeal within the period of time prescribed by Fed.R.App.P. 4(a). In relevant part, Rule 4(a) provides that
The provisions of Rule 4(a) are both mandatory and jurisdictional. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978).
The district court entered an order denying CARD's request for a preliminary injunction on June 14, 1983. On June 24, 1983 rather than filing a notice of appeal pursuant to Rule 4(a), as it should have, CARD filed a motion for permission to appeal the order under Fed.R.App.P. 5(a). The latter rule provides that a district judge may certify an appeal from an order not otherwise appealable. The district court denied this motion on July 11, 1983. On July 19, 1983, CARD filed a Rule 4(a) notice of appeal.
Because CARD's formal Rule 4(a) notice of appeal was not filed within the period of time required by the rule, its appeal is timely only if we construe its Rule 5(a) motion as a notice of appeal. Fed.R.App. 3(c) requires us to construe CARD's Rule 5(a) motion in that manner. Rule 3(c) provides that "[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal." Pursuant to this rule, we are required to broadly construe the notice of appeal provisions of Rule 4(a). See Cel-A-Pak v. California Agricultural Labor Relations Board, 680 F.2d 664, 667 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982) (Rule 3(c) mandates liberality in determining compliance with Rule 4(a)). Moreover, we have discretion, where the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal. Id.
In Cel-A-Pak, we recognized that documents not formally denominated notices of appeal have nevertheless been treated as such "as long as they clearly evince the party's intent to appeal and provide notice to both the opposing party and the court." Id. (citations omitted). See also Cobb v. Lewis, 488 F.2d 41, 44 (5th Cir.1974). Here, CARD's Rule 5(a) motion, filed ten days after entry of the district court's order, provided clear notice to both the court and the Board that CARD intended to appeal the order. Accordingly, we construe this motion as a Rule 4(a) notice of appeal which we find to have been timely filed.
III. THE PUBLIC FORUM DOCTRINE AND THE FIRST AMENDMENT
CARD contends, in essence, that because others' advertisements relating to military service were published in several Grossmont high school newspapers, the Board could not exclude CARD's advertisement, particularly since CARD's advertisement presented an opposing viewpoint to the position taken in the previous ads.
The values embodied in the First Amendment require the state, under certain circumstances, to provide members of the public with access to its facilities for purposes of speech. Certain state facilities, which may be appropriately used for communication, enjoy special constitutional status as "public forums." See generally Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Education
In Perry and Cornelius, the Supreme Court identified three types of forums to which the public's right of access varies, as does the type of limitations the state may impose upon the right. The Court first focused on "places which by long tradition or by government fiat have been devoted to assembly and debate," such as streets and parks, where "the rights of the state to limit expressive activity are sharply circumscribed." Perry, 460 U.S. at 45, 103 S.Ct. at 954; accord Cornelius, 105 S.Ct. at 3449. The Court stated that
Perry, 460 U.S. at 45, 103 S.Ct. at 955 (citations omitted); accord Cornelius, 105 S.Ct. at 3448-49.
The second type of public forum on which the Court focused consists of "public property which the State has opened for use by the public as a place for expressive activity." Perry, 460 U.S. at 45, 103 S.Ct. at 955; accord Cornelius, 105 S.Ct. at 3449. The courts have come to call this type of public forum a "limited public forum" or a "public forum by designation." In such a forum, "[t]he Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place." Perry, 460 U.S. at 45, 103 S.Ct. at 955; accord Cornelius, 105 S.Ct. at 3449. A limited public forum may, depending on its nature and the nature of the state's actions, be open to the general public for the discussion of all topics, or there may be limitations on the groups allowed to use the forums or the topics that can be discussed. Thus, a limited public forum may be open to certain groups for the discussion of any topic, Perry, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7 (citing Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)), or to the entire public for the discussion of certain topics, Perry, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7 (citing City of Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976)), or some combination of the two.
Once the state has created a limited public forum, its ability to impose further constraints on the type of speech permitted in that forum is quite restricted:
Perry, 460 U.S. at 46, 103 S.Ct. at 955 (citations omitted). "Thus the identical broad free speech rights attach to the first and second types of public forums," Cinevision Corp. v. City of Burbank, 745 F.2d 560,
The third type of forum is "[p]ublic property ... which is not by tradition or designation a forum for public communication," Cinevision, 745 F.2d at 569 n. 8 (quoting Perry, 460 U.S. at 46, 103 S.Ct. at 955), such as a military base or jail. The Court recognized that this type of forum is governed by standards different from those applicable to the first two. The Court stated that
Perry, 460 U.S. at 46, 103 S.Ct. at 955 (emphasis added); accord Cornelius, 105 S.Ct. at 3448. "The existence of reasonable grounds for limiting access to a nonpublic forum, however, will not save a regulation that is in reality a facade for view-point-based discrimination." Cornelius, 105 S.Ct. at 3454.
IV. SCHOOL NEWSPAPERS AS A LIMITED PUBLIC FORUM
The Board first contends that the school newspapers fall into the third category of forums, non-public forums. We disagree, and hold that the newspapers fall into the second category, limited public forums. In deciding whether a particular forum is a limited public forum or a nonpublic forum, we must determine what type of forum the government intended to create. Cornelius, 105 S.Ct. at 3449. The government's intent is evidenced by "[its] policy and practice ... [as well as] the nature of the property and its compatibility with expressive activity." Id.
In the case before us, the evidence clearly indicates an intent to create a limited public forum. Newspapers, including the Board's, are devoted entirely to expressive activity. Everything that appears in a newspaper is speech, whether commercial, political, artistic, or some other type. It is difficult to think of any other kind of property that is more compatible with expressive activity. In addition, the admitted policy and practice of the Board is to allow a particular group — the students — to discuss any topic in the newspapers, subject only to certain conditions not relevant to the issues before us. Thus, under the test enumerated in Cornelius, the Board's newspapers, like most other school papers, constitute, at a minimum, a limited public forum of the type found in Widmar. See supra pp. 1475-76.
The Board also allows non-students to use the forum it has created in the newspapers. The Board's admitted policy and practice is to allow members of the general public to avail themselves of the forum as long as their speech consists of advertisements offering goods, services, or vocational opportunities to students. Because the newspapers are open to the entire public for the discussion of these limited topics, the Board has also created a limited public forum of the type found in City of Madison. See supra pp. 1475-76.
As a result, the dispute between the Board and CARD reduces itself to a debate over the precise limitations on the topics that may be discussed by non-students in the limited public forum the Board has created. The Board argues that it permits
We agree with the first part of the district court's finding but disagree with the second. The advertisements regarding military service career opportunities are different from most career ads in several important respects. First, most career ads are commercial in nature. They involve the advertiser's "economic interests." Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557, 561, 100 S.Ct. 2343, 2348, 65 L.Ed.2d 341 (1980). The "commercial speech" doctrine "rests heavily on the `common sense' distinction between speech proposing a commercial transaction and other varieties of speech." Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985) (quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978)). Here, the government's interest in promoting military service is not an economic one; it is essentially political or governmental. Nor is any commercial transaction being proposed.
Second, it has long been recognized that the subject of military service is controversial and political in nature. There has been opposition to military service, both compulsory and voluntary, throughout our nation's history. See, e.g., United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (discussing history of conscientious objection). Opposition to compulsory service — the draft — is often simply a manifestation of a more deeply rooted opposition to military service in any form. See, e.g., Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955). The controversy over military service led to student protests in the late 1960's and early 1970's. Many of our nation's finest universities and colleges barred military recruiters from their campuses and terminated the Reserve Officer Training Corps programs they had previously offered. For other manifestations of the controversy over voluntary and involuntary military service, see, e.g., In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) (attorney could properly be denied admission to state bar because of his opposition to military service); United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (alien could properly be denied citizenship due to opposition to military service); United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931) (same); United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319 (1931) (same); Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946) (overruling Schwimmer, Macintosh, and Bland).
One need not agree with those opposed to military service in order to recognize the fact that there is indeed a well-established and continuing controversy surrounding the subject. The ads sponsored by the military advanced the position taken by the proponents of one side to that political dispute. Accordingly, the district court erred when it found that the military recruitment advertisements were non-political.
CARD's advertisement comes within the boundaries of the limited public forum the Board has created. Having established a limited public forum, the Board cannot, absent a compelling governmental interest, exclude speech otherwise within the boundaries of the forum. See supra pp. 1475-1476. In particular, the Board cannot allow the presentation of one side of an issue, but prohibit the presentation of the other side. City of Madison, 429 U.S. at 175-76, 97 S.Ct. at 426-27. Here, the Board permitted mixed political and commercial speech advocating military service, but attempted to bar the same type of speech opposing such service.
V. NONPUBLIC FORUMS
In the alternative, we hold that even if the Board is correct in its assertion that the school newspapers are a nonpublic forum, its conduct still violated the First Amendment because its refusal to accept CARD's ads was unreasonable and constitutes viewpoint-based discrimination.
A. Reasonableness Test
The Board claims that its exclusion of CARD from the newspapers was reasonable and therefore constitutional, and offers three arguments in support of this conclusion. First, the Board claims that pursuant to the District's Publications Code, the Board may, in its discretion, restrict publication of ads proffered by non-student entities to non-political advertisements offering goods, services or vocational
2. Political Nature of the Ads
We have already demonstrated the fallacy in the Board's first argument. As discussed above, p. 1477, the military recruitment advertisements were of a mixed political and commercial character. CARD's ad pertained to the same topic, and like the recruitment ads, offered goods, services, or vocational opportunities to students. See supra note 8. Because CARD's ad dealt with the same politically controversial topic as previously-published ads, the political character of the ad did not provide a reasonable basis for excluding it from the newspapers.
3. The Threat of Illegal Conduct
The Board urges the prospect of illegal conduct as a reason not to publish CARD's advertisement. In the Board's view, its publication would amount to advocacy of non-registration — an illegal act.
We agree, of course, that the Board has a strong interest in promoting law abiding conduct among its students. But we are unable to conclude that its prohibiting the publication of CARD's advertisement serves this interest. The Board bases its argument on the fact that the organization has styled itself "The Committee Against Registration and the Draft." The Board further contends that the advertisement, when viewed in its entirety, advocates non-registration.
That the organization's name implies opposition to a particular law is not, in our view, sufficient to support a conclusion that the organization advocates unlawful conduct. Moreover, there is nothing in the text of the advertisement suggesting that CARD encourages non-registration. See supra, note 1. In fact, the record discloses that according to Superintendent Pyle the Board had no evidence that the purpose of the advertisement was to stop students from registering, and that the Board had derived such intent solely from a reading of the organization's name.
It is true that a state may act to prohibit individuals from advocating violations of the law when such advocacy is directed toward inciting or producing imminent lawless action and is likely to accomplish that objective. See Brandenberg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). "But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). Mere speculation on the part of the state that individuals might at some time engage in illegal activity is insufficient to justify regulation. Gay Students Organization v. Bonner, 509 F.2d 652, 662 (1st Cir.1974).
The Board's conclusion that publication of CARD's advertisement would result in unlawful conduct was, at best, speculative. The record is devoid of any evidence that CARD advocated illegal conduct or that publication of the advertisement was likely to give rise to such conduct. To the contrary, the record indicates that CARD, through its advertisement, sought to apprise eligible students of legitimate and lawful alternatives to the draft, such as the availability of student deferments. Accordingly, we conclude that the Board's fear of illegal advocacy did not provide a reasonable basis for excluding CARD from the newspapers.
4. Reduction of Opportunities
Finally, the Board contends that its refusal to publish CARD's advertisement is justified by its interest, reflected in its Publications Code, in providing its students with a forum for free expression. The
The Board has failed to advance any reasonable grounds for excluding CARD's advertisement from the newspapers.
B. Viewpoint-Based Discrimination
Furthermore, it appears that the Board was engaging in viewpoint-based discrimination. By allowing the publication of the military recruitment advertisements, the Board allowed the presentation of one side of a highly controversial issue. The Board provided a forum to those who advocate military service. The Board then refused, without a valid reason, to allow those who oppose military service to use the same forum. The only reasonable inference is that the Board was engaging in viewpoint discrimination. As the Supreme Court has stated, "[t]o permit one side of a debatable public question to have a monopoly in expressing its views ... is the antithesis of constitutional guarantees." City of Madison, 429 U.S. at 175-76, 97 S.Ct. at 426-27. In other words, "the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469 (1983) (quoting Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972)). Viewpoint-based discrimination is not permitted even in a non-public forum. Cornelius, 105 S.Ct. at 3554. Accordingly, the Board's viewpoint discrimination provides a second ground for holding that even if the school newspapers do not constitute a public forum, the Board violated the First Amendment in excluding CARD's advertisement.
Because CARD has shown a substantial likelihood that it will prevail on the merits of its claim, we conclude that the district court abused its discretion in denying CARD's request for a preliminary injunction. We remand the matter and, pending trial on the merits, instruct the district court to enter a preliminary injunction in favor of CARD.
REVERSED AND REMANDED.
WALLACE, Circuit Judge, dissenting:
I first address a preliminary problem with the majority disposition. I believe the majority is far too generous in considering a document which does not purport to be a notice of appeal as complying with Fed.R.App.P. 4(a). I cannot distinguish Selph v. Council of the City of Los Angeles, 593 F.2d 881 (9th Cir.1979), from this case and, therefore, conclude we have no jurisdiction to hear this appeal.
If this were the only vice of the majority disposition, my separate opinion would be brief. But the majority has run afoul of Supreme Court precedent on a fundamental issue. Last Term, in Cornelius v. NAACP Legal Defense & Educational Fund, Inc., ___ U.S. ___, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (Cornelius), the Court presented its most thorough elaboration of the public forum doctrine. See id. at 3446-55. Unfortunately, the majority misreads or disregards Cornelius and manufactures an analysis that is patently inconsistent with the analysis of the Court.
In Cornelius, the Court addressed a claim that the federal government violated the first amendment by excluding legal defense and political advocacy organizations from participation in the Combined Federal Campaign (the campaign), a charity drive conducted in the federal workplace. An executive order limited participation in the campaign to "voluntary, charitable, health
The Court determined that the campaign was a nonpublic forum, rather than a public forum created by government designation. The key to distinguishing between these two categories, the Court ruled, is the government's intent:
Id. (citation omitted). Thus, the Court observed, the internal mail system in Perry was a nonpublic forum since "school board policy did not grant general access to the school mail system." Id. at 3450; see Perry, 460 U.S. at 47, 103 S.Ct. at 956 (forum is nonpublic if there is no policy or practice of "indiscriminate use by the general public"). Similarly, the advertising space on city transit buses in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), was a nonpublic forum because the city's policy of allowing only commercial and not political advertisements showed that it intended to limit access. Cornelius, 105 S.Ct. at 3450.
Applying this intent test, the Court explicitly rejected the contention that the campaign was a limited public forum open to all charitable organizations. The Court stated that the government's policy and practice of limiting access to the campaign precluded the conclusion that the campaign had been purposefully designated for public use. The Court also observed that the nature of the government property involved is relevant to determining intent and that the government has the right to control access to the workplace to avoid disruption. Consequently, the selective access granted to certain charitable organizations did not convert the campaign into a public forum. Id. at 3450-51.
Because the campaign was a nonpublic forum, the Court subjected its restrictions to limited scrutiny: "Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Id. at 3451; see Perry, 460 U.S. at 46, 49, 103 S.Ct. at 954, 957. The Court found the restrictions on access reasonable since they were intended to avoid "the appearance of political favoritism" and to limit disruption of the forum. Cornelius, 105 S.Ct. at 3453-54. The Court remanded the case, however, because the lower courts had not made a finding on whether the restrictions were "in reality a facade for viewpoint-based discrimination." Id. at 3454-55.
The proper application of Cornelius is well illustrated by Student Coalition for Peace v. Lower Merion School District Board of School Directors, 776 F.2d 431 (3d Cir.1985) (Student Coalition). In Student Coalition, the Third Circuit encountered a fact situation closely analogous to this case. Indeed, the few differences that exist make ours an even stronger case for the application of Cornelius. Student Coalition for Peace (SCP), a nonschool-sponsored
The Third Circuit, adhering closely to the guidance provided by the Supreme Court in Cornelius, determined that the field was a nonpublic forum:
Id. at 436. The court then concluded that limiting the field to non-political events was reasonable in light of the "desire to avoid potentially disruptive political controversy and to maintain the appearance of neutrality." Id. at 437. Significantly, the court recognized that while other activities permitted on the field
Id. Accepting the district court's finding of no viewpoint discrimination, the court denied SCP's first amendment claim. Id. at 437-38.
The majority concludes that the appearance of vocational military advertisements in the five student newspapers published by high schools governed by the Board created limited public fora from which CARD's advertisement could not be excluded. I believe that the majority, while purporting to apply Cornelius, ignores its teachings.
As I read Cornelius, the Board's acceptance of the vocational military advertisements in the five high school newspapers did not create limited public fora from which CARD's advertisement could not be excluded. The fora that we must address consist of the advertising spaces in the five papers. See Cornelius, 105 S.Ct. at 3449 (defining forum according to access sought by speaker). These fora are public only if the Board has purposefully designated them for public discourse. See id.; see also Calash v. City of Bridgeport, 788 F.2d 80, 83 (2d Cir.1986) ("not every possible vehicle for communication is a public forum"). "[S]elective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum." Cornelius, 105 S.Ct. at 3451.
I see no indication that the Board intended to designate the advertising spaces in the five high school newspapers as public fora. As in Perry, Lehman, and Cornelius, the Board's policy and practice do not demonstrate an intention to grant general access to the newspapers' advertising space. On the contrary, the Board's policy states, in part, that "paid advertisements by nonstudents ... shall not be published
The nature of the government property involved in this case bolsters the conclusion that the Board did not intend to designate the newspapers' advertising spaces as public fora. I believe that the advertising spaces in the five high school newspapers exist not to promote the expressive activity of nonstudents but rather to teach students journalistic management skills and to help finance the publication of the newspapers. See Nicholson v. Board of Education Torrance Unified School District, 682 F.2d 858, 863-64 (9th Cir.1982) (Nicholson). This enterprise is inconsistent with an intent to designate the advertising space as a public forum. See Cornelius, 105 S.Ct. at 3450 (discussing Lehman). Moreover, our obligation to apply first amendment rights "in light of the special characteristics of the school environment," Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), requires that we accept "school policies that are reasonably designed to adjust those rights to the needs of the school environment." Nicholson, 682 F.2d at 863. The Board has the right to control access to the newspapers' advertising spaces in order to avoid disruption of the educational process. See Cornelius, 105 S.Ct. at 3451; Student Coalition, 776 F.2d at 436-37. Cornelius therefore requires the conclusion that the newspapers' advertising spaces are nonpublic fora.
The majority's contrary conclusion rests on its mistaken belief that if speech admitted in a forum relates to a "controversial and political" issue, the government has created a limited public forum that encompasses the issue. See maj. op. at 1477-1478. That the majority's test conflicts with the Supreme Court's government intent test in Cornelius is evident from applying the majority's test to the issues addressed in Cornelius and Student Coalition. If the majority's term "controversial and political" has any discernible fixed meaning, it surely encompasses the provision of health and welfare services (Cornelius) and the subject of war and peace (Student Coalition). Since charitable organizations soliciting in the campaign in Cornelius engage in speech on a controversial and political issue, an evenhanded application of the majority's test would determine that the campaign is a limited public forum from which legal defense and political advocacy organizations could not be excluded — a conclusion expressly rejected by the Supreme Court in Cornelius. Similarly, the majority's test would determine that the Memorial Day services in Student Coalition converted the field into a limited public forum from which SCP could not be excluded — a conclusion expressly rejected by the Third Circuit faithfully adhering to Cornelius.
Restrictions on access to a nonpublic forum need only be reasonable in light of the purpose served by the forum and be not viewpoint-based. Cornelius, 105 S.Ct. at 3451. The majority states that even if the
I believe that the Board's exclusion of political advertisements is reasonably designed to avoid disruption.
It follows from the above discussion that I cannot agree with the majority that the only reasonable inference is that the Board's refusal of the CARD advertisement constituted viewpoint-based discrimination. None of the district court's findings, however, explicitly addresses whether the Board's rejection of CARD's advertisement was an attempt to suppress CARD's point of view. The district court found that CARD's advertisement was rejected because it was a political advertisement from a non-student source and because it was believed to advocate an illegal act. While these findings strongly suggest no viewpoint discrimination, it would be better if there were a specific finding on this issue. I would therefore remand to the district court for a determination of this issue.
Thus, I conclude that the Supreme Court's recent pronouncement in Cornelius forecloses the contention that the Board's acceptance of the vocational military advertisements created a limited public forum from which CARD's advertisement could not be excluded. Instead, the forum is nonpublic, and the Board's restrictions are reasonable. Only if the Board sought to suppress CARD's point of view — an issue that should be determined on remand — have CARD's first amendment rights been violated. I cannot join the majority in instructing the district court to enter a preliminary injunction in favor of CARD because, on the present record, CARD has not shown a probability that it would succeed on the merits of its first amendment claim.
This ad also relates to a political and controversial question, but we cannot rest our holding on it here because, while CARD is seeking an injunction against all five of the student newspapers, the ad appeared in only one.
In Student Coalition, the Third Circuit held that a school district could properly exclude a "peace fair" from school grounds, even though it had in the past permitted memorial services for war dead, as well as certain activities for disabled and mentally retarded children, to take place on those grounds. The court held that the school board could reasonably conclude that the "peace fair" would be highly political and controversial, and that the memorial services and other charitable events were not. Similarly, the court found that any political implications relating to activities benefitting the disabled and mentally retarded were minimal at most. This is consistent with the Supreme Court's view of the federal charity drive in Cornelius. Thus, the Third Circuit held, no prior political activities had been conducted on the school grounds and, in order to avoid permitting the use of school facilities for political purposes, the school district could properly exclude the "peace fair." The court stated that the school board was "not required to delineate with absolute clarity the distinction between the political and the nonpolitical, as long as the line [drawn] is reasonable and not a subterfuge for viewpoint discrimination." 776 F.2d at 437.
The school board's line-drawing in Student Coalition was more than reasonable. A memorial service, like a charity drive or activities for the disabled and mentally retarded, is normally not political or controversial; even persons who oppose war are willing to mourn those who have died in our nation's service. While it is true that in unique circumstances a particular memorial service for war dead may be political and controversial, viz the visit of President Reagan to Bitburg where members of the Nazi S.S. are interred, Student Coalition did not involve services that were political or controversial in any respect.
In the case before us, the Board's actions cannot be described as reasonable. The fact that absolute clarity in line-drawing is not required does not mean that all line-drawing is per se permissible. The Board has permitted the newspapers to carry politically controversial ads. Therefore, as discussed above, it cannot exclude other ads merely because their content is political.