Commercial Speech at Public University

[azores]

Hi!

A local public state university has a law school which "guides" it's students to purchase their law school textbooks at the "official" school bookstore (located on campus, in the school student union). We own a local legal bookstore that wants to sell books to these law students as well. As such, we'd like to market to the law school students directly, to let them know we are here.

The law school allows different organizations (both school organizations and commercial businesses (i.e. companies selling bar exam study services, etc.)) to have tables set up for a few hours in the law school lobby, where individuals can market their message/goods/services to the law school's students. We would also like to get a table in the law school to pitch our book selling services to law students but, since we are considered a competitor to the law school's "official" bookstore, we're getting the sense from them that they school might deny our request, based on the fact that we are a competitor.

My question is: can a state public university deny us access to a table while simultaneously allowing other commercial enterprises access to these tables?

Any feedback would be appreciated!

[and yes, I get the irony that a law bookstore is looking for legal advice... ]

 

[azores]

whoa, whoa, whoa- don't all talk at once here. One at a time please.

 

[CdwJava]

I think the absence of replies indicates that this can be a very tricky issue - one that might also vary by state ... if you listed your state, I must have missed it.

In any event, while I can see the unfairness in it, there may be some commercial or contractual arrangements that prevent the university from allowing a competing textbook service on campus. Most campus bookstores out here are privately owned and operated, and if they have an exclusive license to make sales on campus, the school may not be able to allow you there. You CAN, however, advertise in the school paper, the web, etc.

Since you have not been denied, you have no recourse at this point. If you ARE denied, then you can appeal that denial through the administration, I imagine. But, at the moment, you fret over nothing.

- Carl

 

[azores]

thanks for the reply. I guess I was thinking about commercial speech rights as a Federal Constitutional issue, which I assume would trump any conflicting state precepts.

Regarding non-competition contracts, I can see that in the sense of not allowing a competing bookstore to sell books from the campus, but in terms of marketing, it would then beg the question- assuming one exists, can a commercial speech right of one party be quashed by virtue of contractual language between two other parties?

Finally, yes, I know that nothing has happened yet, but I'd rather not wait until the red engine light comes on before I top off the oil, if you know what I mean.

Thanks again, though.

 

[CdwJava]

thanks for the reply. I guess I was thinking about commercial speech rights as a Federal Constitutional issue, which I assume would trump any conflicting state precepts.

This is not about free speech as you are a commercial enterprise. Free speech concerns matters of public importance, not the opportunity to sell your wares. You may have an issue of fair and equal access, but certainly not free speech. It also depends on whether or not there are other limits placed on the commercial enterprises on campus ... are they there to recruit? Ask for internships? Or to sell stuff to students? All that might come in to play in any appeal you might have if you are denied.

Regarding non-competition contracts, I can see that in the sense of not allowing a competing bookstore to sell books from the campus, but in terms of marketing, it would then beg the question- assuming one exists, can a commercial speech right of one party be quashed by virtue of contractual language between two other parties?

Yes, it can.

Check the local mall or even shopping centers and strip malls. Very often you will find that a store will open up with a no competition type agreement stating that no business of a similar nature be allowed in there - or at least in that section of the property. Why would Bob's Coffee shop want to go into a strip mall with Starbuck's next door? Or Burger King next to McDonald's? Such non-competition contracts do exist. Whether one exists here or not is something you might have to inquire about *IF* you are denied a right to put up a table.

Right now you are being offended without actually having BEEN offended ... it's like being angry at a guy for calling you a foul name even before he has opened his mouth.


- Carl

 

[azores]

This is not about free speech as you are a commercial enterprise. Free speech concerns matters of public importance, not the opportunity to sell your wares. You may have an issue of fair and equal access, but certainly not free speech. It also depends on whether or not there are other limits placed on the commercial enterprises on campus ... are they there to recruit? Ask for internships? Or to sell stuff to students? All that might come in to play in any appeal you might have if you are denied.

Hoo boy, this knocked me back on my heels a bit. Your statement that "Free speech concerns matters of public importance, not the opportunity to sell your wares. You may have an issue of fair and equal access, but certainly not free speech." is frighteningly wrong.

"Commercial speech" (i.e. advertising, marketing) is most certainlyprotected by the First Amendment in a public forum (albeit it's protection is more limited than other types of speech, such as political speech). Check out http://www.firstamendmentcenter.org/Speech/advertising/overview.aspx
for a full and rich history of cases establishing this. Although I appreciate your reply, Carl, if you're making a fundamental con law mistake like this, it makes me seriously question your knowledge on this topic altogether.

Check the local mall or even shopping centers and strip malls. Very often you will find that a store will open up with a no competition type agreement stating that no business of a similar nature be allowed in there - or at least in that section of the property...Such non-competition contracts do exist.

I agree they do exist in the scenario you descibed. But a mall or shopping center is private property. You do not have a fundamental free speech right on private property, so, yes, you can contract a non-competition in that instance, because no free speech rights are in play to be effected. You do have free speech rights on state and federal public property- a state public university is public property, and thus free speech rights are in play. The [revised] question remains: on public property, can a commercial speech right of one party be quashed by virtue of contractual language between two other parties?

Right now you are being offended without actually having BEEN offended ... it's like being angry at a guy for calling you a foul name even before he has opened his mouth.

I understand what you are saying, but trust me, I'm not staying up at night typing up briefs and motions. I'm just trying to understand the legal lay of the land in advance, so I'll have some idea of the strengths/weaknesses of our position, if it has to come to that. If nothing comes of it, no one will be happier than me. So, I don't think being prepared is such a bad thing.

 

[CdwJava]

Hoo boy, this knocked me back on my heels a bit. Your statement that "Free speech concerns matters of public importance, not the opportunity to sell your wares. You may have an issue of fair and equal access, but certainly not free speech." is frighteningly wrong.

Not so. Note that your link primarily concerns ADVERTISING - which, you may recall, I suggested you can do even in the campus newspaper. It does not directly support your having a right to place a table on campus and compete with the local bookstore.

You might be able to make an argument that your table is advertising, but it may not be sufficiently strong enough to rise to a First Amendment argument.

Although I appreciate your reply, Carl, if you're making a fundamental con law mistake like this, it makes me seriously question your knowledge on this topic altogether.

I am NOT an expert on the topic. I do, however, have experience in the area and in private enterprise. You groaned that no one had replied, and I offered a possible reason why and some explanation for it. Your state's laws may also be different than mine.

The short answer is that you do NOT have an absolute "right" to place your table promoting a commercial venture where you wish to sell whatever you wish. In some cases you do - in others, no.

However, you have yet to be denied so your complaining is a tad premature.

The [revised] question remains: on public property, can a commercial speech right of one party be quashed by virtue of contractual language between two other parties?

Of course. But, you are not talking about simply speech, you are talking about setting up a table to promote competitive wares. I suspect the college also doesn't allow other universities to set up tables promoting competing programs, either.

But, you have no gripe yet as you have not been denied.

Why don't you just ASK if you can do it - that will at least give you some idea of what to prepare for ... if anything.

- Carl

 

[azores]

Carl, you are right. I was groaning about no responses, so I appreciate your input.