# Board of Trustees of State University of New York v. Fox

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## Dissenting Opinion

    Blackmun
United States Supreme Court
492 U.S. 469
Board of Trustees of State University of New York v. Fox
No. 87-2013 Argued: Feb. 22, 1989. --- Decided: June 29, 1989
Syllabus
Resolution 66-156 of the State University of New York (SUNY) prohibits private commercial enterprises from operating in SUNY facilities. After the resolution was applied by campus police to bar American Future Systems, Inc. (AFS), from demonstrating and selling its housewares at a party hosted in a student dormitory, respondent Fox and other students sued for a declaratory judgment that such action violated the First Amendment. The District Court preliminarily enjoined enforcement of the resolution but, after a trial, found for SUNY on the ground that its dormitories did not constitute a public forum for purposes of commercial activity, and that the restrictions on speech were reasonable in light of the dormitories' purpose. Viewing the challenged application of the resolution as a restriction on commercial speech, and therefore applying the test articulated in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341, the Court of Appeals concluded that it was unclear whether the resolution directly advanced the State's asserted interests and whether, if it did, it was the least restrictive means to that end. The court therefore reversed and remanded to the trial court.
Held:
1. The Court of Appeals erred in requiring the District Court to apply a least-restrictive-means test to Resolution 66-156. Pp. 473-481.
(a) The AFS parties the students seek to hold propose a commercial transaction and therefore constitute commercial speech. Although they also touch upon other subjects, such as how to be financially responsible and run an efficient home, this does not re der them noncommercial in their entirety on the theory that fully protected, educational speech and commercial speech are "inextricably intertwined." Riley v. National Federation of Blind of North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669, distinguished. Pp. 473-475.
(b) Although Central Hudson and other decisions have occasionally contained statements suggesting that government restrictions on commercial speech must constitute the least restrictive means of achieving the governmental interests asserted, those decisions have never required that the restriction be absolutely the least severe that will achieve the desired end. Rather, the decisions require only a reasonable "fit" between the government's ends and the means chosen to accomplish those ends. See, e.g., Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 341, 106 S.Ct. 2968, 2976-2977, 92 L.Ed.2d 266; In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64. So long as the means are narrowly tailored to achieve the desired objective, it is for governmental decisionmakers to judge what manner of regulation may be employed. Pp. 475-481.
2. Respondents' overbreadth claim-which is based on the assertion that Resolution 66-156 impermissibly prohibits their fully protected, noncommercial speech-is not ripe for resolution in this Court. Pp. 481-486.
(a) Although overbreadth analysis does not normally apply to commercial speech, Resolution 66-156 must be deemed to reach some noncommercial speech in light of evidence that it prohibits for-profit job counseling, tutoring, legal advice, and medical consultation in students' dormitory rooms. While such conduct consists of speech for profit, it does not satisfy the definition of commercial speech since it does not propose a commercial transaction. Pp. 481-482.
(b) The overbreadth doctrine was designed as a departure from traditional rules of standing, enabling persons who are themselves unharmed by a statute to challenge it facially on the ground that it may be applied unconstitutionally to others, in situations not before the Court. Broadrick v. Oklahoma, 413 U.S. 601, 610, 613, 93 S.Ct. 2908, 2914, 2916, 37 L.Ed.2d 830. Respondents' invocation of the doctrine is unusual because the asserted extensions of Resolution 66-156 beyond commercial speech that are the basis for their challenge are not hypothetical applications to third parties, but applications to respondents themselves, which were part of the subject of the complaint and the testimony adduced at trial. Nevertheless, there is no reason why the doctrine cannot be invoked in this situation. Pp. 482-484.
(c) However, an as-applied challenge should ordinarily be decided before an overbreadth claim, for reasons relating both to the proper functioning of courts and to their efficiency. Here, neither of the courts below ever considered respondents' as-applied challenge under the proper legal standards, nor apparently even recognized that the case involves both commercial and noncommercial speech. On remand, the question whether Resolution 66-156's alleged substantial overbreadth makes it unenforceable should be addressed only if it is first determined that its application to speech in either category is valid. Pp. 484-486.
841 F.2d 1207 (CA2 1988), reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 486.
O. Peter Sherwood, New York City, for petitioners.
Henry T. Reath, Philadelphia, Pa., for respondents.
Justice SCALIA delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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