A registered student organization of Oregon State University published a conservative monthly newspaper, the Liberty, as an alternative to the well-established, traditional paper, the Daily Barometer. Asserting enforcement of an unwritten policy governing placement of newsbins on campus, OSU officials removed the Liberty’s distribution bins from seven campus locations—but left the Daily Barometer bins and the newsbins of other papers undisturbed.

The Liberty’s student editors and publishers brought a Section 1983 claim against University officials, alleging violations of their free speech, equal protection, and procedural due process rights. The complaint was dismissed in the District Court of Oregon for failure to state a claim.

In an opinion by Judge Tashima, the Ninth Circuit reversed, holding that the complaint had adequately pleaded a First Amendment violation, because the University had applied a “standardless policy” and had engaged in impermissible viewpoint discrimination. Accordingly, the complaint also adequately alleged an equal protection violation, because the Liberty was subjected to “differential treatment that trenched upon a fundamental right.” Finally, because the University could easily have notified the Liberty’s personnel before confiscating the newsbins “like a ‘thief in the night,’” but failed to do so, the plaintiffs’ also stated a claim for a due process violation.

Judge Tashima resolved the more difficult question of whether the complaint adequately connected the constitutional violations to the actions of the four named defendants: Martorello, the OSU facilities services director; Ray, the University president; McCambridge, the vice president of finance and administration; and Roper, the vice provost for student affairs. The opinion concludes that all three constitutional claims were properly stated against Martorello, but that only the First Amendment and Equal Protection Clause claims could stand against Ray and McCambridge. The complaint did not state any claim against Roper.

Significantly the court held that First Amendment violations carry no requirement of specific intent—for Ray and McCambridge, knowledge of Martorello’s behavior was sufficient.

In this analysis of causation, Judge Ikuta dissented as to the free speech claims against Ray and McCambridge, accusing the majority of “smuggl[ing] respondeat superior back into our § 1983 jurisprudence.”

The Ninth Circuit held that the district court had abused its discretion in dismissing plaintiffs’ complaint with prejudice and without leave to amend; the case is reversed and remanded with instructions to allow such amendment.