9th Circuit Notes Split Re Constitutionality of Campaign Expenditure Limitation on a University Campus

Per Flint v. Dennison, 488 F.3d 816, 07 Cal. Daily Op. Serv. 6274, 2007 Daily Journal D.A.R. 8268 (9th Cir.(Mont.) Jun 01, 2007) (NO. 05-35441):

In sum, we conclude that the constitutionality of the campaign expenditure limitation depends on the nature of the forum and whether the limitation on speech is a legitimate exercise of government power in preserving the character of the forum. FN9

FN9. Given that the speech at issue in this case is not "school-sponsored," we need not consider whether the principles of Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), apply with full force in a university setting--a question neither we, see Brown v. Li, 308 F.3d 939, 957 (9th Cir.2002) (Reinhardt, J., concurring in part and dissenting in part), nor the Supreme Court, Hazelwood, 484 U.S. at 273 n. 7, 108 S.Ct. 562, have definitively answered. Our sister circuits are split on the question. Compare Kincaid v. Gibson, 236 F.3d 342, 352 (6th Cir.2001) (en banc), and Student Gov't Ass'n v. Bd. of Trs. of Univ. of Mass., 868 F.2d 473, 480 n. 6 (1st Cir.1989) (" Hazelwood ... is not applicable to college newspapers."), with Hosty v. Carter, 412 F.3d 731, 734-38 (7th Cir.2005) (en banc) (applying Hazelwood to university context), and Ala. Student Party v. Student Gov't Ass'n of the Univ. of Ala., 867 F.2d 1344, 1346-47 (11th Cir.1989) (same). Hazelwood addressed whether a high school was required affirmatively to promote particular speech by allowing the speech's inclusion in a school newspaper. 484 U.S. at 266-74, 108 S.Ct. 562. Here, we are presented with student campaign speech in a forum opened by the University. This is a scenario in which the University is not sponsoring, as in Hazelwood, any of the candidates' speech but is allowing the campaign-related speech.