George Will condemns the Ninth Circuit's decision in Flint v. Dennison:
Perhaps the [University of Montana] noticed the praise that speech rationers in Washington receive when, in the name of combating corruption or the appearance thereof, they regulate, as with the McCain-Feingold campaign finance law, the timing, quantity and content of political speech. In any case, the university has a rule that limits candidates for student government offices to spending a maximum of $100 when campaigning among the university's 10,000 students....
[T]he reliably liberal and frequently reversed U.S. Court of Appeals for the 9th Circuit ... ruled against [a student who was challenging the rule], arguing that the university's limits on political speech are reasonably related to two permissible institutional objectives — providing "student candidates a valuable educational experience" and maintaining the election process "as an educational tool, rather than an ordinary political exercise." Two things were unexplained: What is the nifty educational value of an election process that is not an ordinary political process? And: How does severely limiting political speech serve "a valuable educational experience"?
Anyway, last summer the Supreme Court, while upholding the right of a high school to restrict speech advocating the use of illegal drugs, stressed that students' rights are greatest with respect to political speech and ideological speech. And Justice Sam Alito, joined by Justice Anthony Kennedy, stressed that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."
Courts have spun a complex tangle of law distinguishing degrees of permissible regulation of speech depending on which kind of "forum" it occurs in — a "limited public forum," a "designated public forum," even a "metaphysical" forum (it is not physical). In this case, the forum is neither mysterious nor small nor the university's property: The $100 limit covered an individual's political advocacy not just on campus but on public sidewalks and streets throughout Missoula, where many students live.
If the Supreme Court takes [the student's] appeal [which is the news hook for the op-ed -EV], it will see that the University of Montana is indeed teaching students a lesson about politics — the pernicious lesson that politics should be conducted under tight restrictions on advocacy. The university is preventing students from learning such essential civic skills as how to raise and allocate political money for advertising and organizing. Thus do the grossly anti-constitutional premises of McCain-Feingold seep through society, poisoning the practice of democracy at all levels.
Will's argument strikes me as unsound, for reasons I mentioned when the case came out. The Ninth Circuit was right to hold that, because student government and student elections are university functions — whether or not the campaign posters are put up outside the university, the election itself is a university function — they should be treated as limited fora. The test is therefore viewpoint-neutrality (clear here) plus reasonableness, and the rules are reasonable, for the reasons the court gives:
The evidence before us clearly shows that the University views the spending limitation as vital to maintain the character of ASUM and its election process as an educational tool, rather than an ordinary political exercise....
We find that the spending limits reasonably serve this pedagogical aim. ASUM exists to teach students responsible leadership and behavior. Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one's potential constituents. Students are forced to campaign personally, wearing out their [shoe]-leather rather than wearing out a parent's — or an activist organization's — pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:
Unlimited spending in ASUM elections also would change the nature of the election process as a learning experience. The spending limits mean that students have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these constraints or make these kinds of decisions in the course of running for ASUM.
Will's mistake, I think, lies in treating student government as tantamount to ordinary government for First Amendment purposes. In fact, a university may indeed treat student government and student government campaigns as an educational project, and may constrain students' activities within educational projects in order to make such projects fairer, or more focused on those skills that the university is trying to teach. A law school may set up a moot court program that limits the time students spend drafting or researching, or that limits outside research students may do for their briefs. A university-run debate contest may limit the debaters' ability to lobby the audience outside the context of the debate, so the debaters focus more on their in-debate performance. Likewise, a university-run election campaign may be aimed at teaching students campaign skills that involve less money rather than teaching campaign skills that involve more money.
In all these situations, the students should of course remain free to persuade classmates of whatever they please. But if they are to take part in a university-run contest, the university may properly insist that they follow the university's viewpoint-neutral rules or be ejected from the contest. Where true self-government is involved, the government may be highly limited in what speech-restrictive rules it may impose. But the First Amendment doesn't command a similar rule for educational projects, even ones that take the form of student government.
Incidentally, the author of the unanimous opinion from what Will calls the "reliably liberal" Ninth Circuit was Judge Carlos Bea, who's a quite conservative George W. Bush appointee. The other judges were Clinton appointees (Graber and Paez), but Judge Bea went along fully with them, and wrote the opinion.