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American Future Systems Inc. v. Pennsylvania State University

decided as amended august 13 1982: August 9, 1982.

AMERICAN FUTURE SYSTEMS, INC., STEVEN BRUBAKER, RICHARD J. WINGERT, W. BRUCE DEL VALLE, JOAN D. VARSICS, DENNIS C. HABECKER, KEVIN GRAVES AND JOHN B. SPILLAR, APPELLANTS
v.
THE PENNSYLVANIA STATE UNIVERSITY, BOARD OF TRUSTEES OF THE PENNSYLVANIA STATE UNIVERSITY, JOHN W. OSWALD, AND M. LEE UPCRAFT, APPELLEES



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Gibbons, Sloviter and Becker, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

Plaintiff American Future Systems, Inc. (AFS) filed suit against Pennsylvania State University, its trustees and agents (jointly referred to as Penn State) alleging that Penn State's application of its policies relating to commercial activities in the common areas of its student residence halls violated its First and Fourteenth Amendment rights to free commercial speech as established by this court in an earlier opinion. Several students at Penn State also joined as plaintiffs alleging that Penn State's policies with regard to activities in the common areas and in the dormitory rooms violated, inter alia, their noncommercial free speech rights and right to privacy. Plaintiffs appeal the district court's grant of defendants' motion for summary judgment. We reverse and remand.

I.

BACKGROUND

AFS is a corporation which engages in the sale of cookware, crystal, and tableware through demonstrations of its merchandise at colleges throughout the United States. These demonstrations are attended by a student hostess, invited guests and a sales representative. Four of the student plaintiffs, Bruce Del Valle, Joan D. Varsics, Dennis C. Habecker and John B. Spillar, are current Penn State students who do not reside in the University residence halls. Plaintiff Kevin Graves is a Penn State student who currently resides in the residence halls. Plaintiffs Steven Brubaker and Richard J. Wingert were living in the University residence halls at the time the action was filed.*fn1 It is conceded that as long as one plaintiff is a student who resides in the residence halls to which the contested regulations apply, the issues are properly before us.

In the prior opinion rendered in the earlier action brought by AFS we described Penn State's policies and regulations covering commercial activities in its dormitories in detail. See American Future Systems, Inc. v. Pennsylvania State University, 618 F.2d 252 (3d Cir. 1980) (American Future Systems I). These regulations and policies have not changed to any significant extent. App. at 322a. In summary, the student housing contract provides "the conducting of any business enterprise for personal profit is prohibited in or around the university operated units." The student handbook states:

"The institution . . . has rights and responsibilities of its own. The rights and responsibilities of the institution include: . . . [the] right to prohibit individuals and groups who are not members of the University community from using its physical and operating facilities for commercial . . . activities."

"Lectures, concerts, demonstrations, displays, or exhibits may not be used in any manner as a means of promoting commercial companies, products, or services."

"The word 'commercial ' . . . means any activity or event which results in personal financial gain to the peddler or organization thereof, provided that contact between a peddler and a student shall not be deemed commercial if such contact was invited by the individual student involved."

"Persons who are not students or employees of the University, while on University property, are required to . . . abide by ...


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