Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges. Judge Adams dissents from the denial of rehearing, and makes the following statement. Judges Aldisert, Hunter, Weis and Garth join in this statement.
SUR PETITION FOR REHEARING
The petition for rehearing filed by appellees, The Pennsylvania State University, Board of Trustees of The Pennsylvania State University, John W. Oswald and M. Lee Upcraft, in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Opinion SUR PETITION FOR REHEARING
Under ordinary circumstances, the petition for rehearing and for rehearing in banc filed by appellees ("Penn State") which raises issues previously raised and rejected by an undivided panel of this court in its decision would not warrant any comment in conjunction with the order denying said petition. However, because five members of this court have joined in a statement which does not suggest that the panel's statement of the applicable law is incorrect, and have nonetheless voted for rehearing in banc notwithstanding our general policy to the contrary, see Internal Operating Procedures of the Third Circuit, Ch. VIII. B (1980), this may create some confusion when the case is remanded to the district court. Therefore a reiteration of the issues raised in the appeal, addressed in the opinion and decided by the court is called for.
The statement of Judge Adams that the opinion in this case may cause state universities to "lose a significant portion of their control over commercial activity on their campuses" overstates the issue, the record and the opinion in this case. Neither in AFS I nor AFS II was this court presented with the issue of the scope of a state university's power to close its residence halls to all commercial activity.
The issue decided by the court in AFS I was the validity of the distinction made by Penn State between the group demonstration and the consummation of sales. All of the parties, including counsel for Penn State, agreed at oral argument before this court that the issue of Penn State's restriction on the content of the group demonstration had not been raised or decided in AFS I. In AFS II, the court was faced with that issue, the right of the University to review the material which AFS would present in the group demonstration and to prevent AFS from including material referring to price, guarantee and payment plans in its group demonstration. Since the restriction which Penn State has placed on AFS is a content-based restriction on the material that it may include in its group demonstration, Judge Adams' statement that "The primary restriction [placed on plaintiff] appears to be that sales may not be consummated in the common areas of a dormitory" is surprising. Furthermore, a content-based restriction can hardly be characterized as a "minimal limit".
The suggestion implicit in Judge Adams' statement that the opinion in AFS II may narrow the range of options open to a state university interested in resisting use of the school premises to promote sales of merchandise overlooks the significant fact that Penn State, for whatever reason, has not resisted such sales. The record and the opinion in this case show that Penn State permits group demonstrations in common areas and consummation of the commercial transaction in the individual students' rooms. The district court granted summary judgment for Penn State on the challenge by AFS to Penn State's actions in restricting the content of the group demonstrations in common areas and on the students' challenge to the prohibition of group demonstrations in their dormitory rooms. AFS II held the summary judgment as to the AFS claim could not be upheld because Penn State had "failed to show a substantial state interest, much less a plausible explanation, for its policy differentiating between the nature of the information contained in the AFS demonstration." American Future Systems, Inc. v. The Pennsylvania State University, 688 F.2d 907, 913 (3d Cir. 1982). It also held that there was no evidence in the record to justify the restriction with regard to the dormitory rooms because Penn State had not introduced any relevant evidence in this case in that regard. Id. slip op. at 15.
The opinion can hardly be considered to have enunciated either a new or disputed legal principle by requiring that a state university desirous of regulating commercial speech must show that such regulation furthers substantial state interests. In the most recent Supreme Court decision omitted from the series of cases referred to by Judge Adams, the Court cautioned that although a state may regulate commercial speech, "the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests." The Court stated that states retain the authority to regulate advertising that "is inherently misleading or that has proven to be misleading in practice" and to promulgate "carefully drawn restrictions" which further other substantial state interest. In re R- M. J-, 455 U.S. 191, 207, 71 L. Ed. 2d 64, 102 S. Ct. 929, 939 (1982). See also Ad World, Inc. v. Township of Doylestown, 672 F.2d 1136, 1139 n.6 (3d Cir.), cert. denied, 456 U.S. 975, 102 S. Ct. 2240, 72 L. Ed. 2d 850 (1982).
The decision in this case leaves open to Penn State the opportunity on remand to produce evidence to show a substantial state interest to support its policy. In light of the incomplete record in this case and the preliminary stage at which this issue reached the court, it would hardly promote judicial economy and efficiency to have in banc consideration of the abstract issue alluded to by Judge Adams with respect to a state university's power to resist commercial activity.
JUDGE ADAMS dissents from the denial of rehearing, and makes the following statement:
Prior to 1975, commercial speech had no sanctuary in the First Amendment. Then in Bigelow v. Virginia, 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222 (1975), the Supreme Court held that the First Amendment protected the right of a Virginia newspaper to run advertisements which announced that abortions were legal in New York and offered the services of a New York referral agency. The statute in question banned all publications that prompted the procuring of an abortion. The court emphasized the great public interest in the subject matter. A year later, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976), the Court relied on Bigelow to hold that a Virginia statute that completely barred pharmacists from advertising the sale of prescription drugs was unconstitutional. A primary reason for this result was the Court's concern that "the ...