Osu Student Alliance v. Ed Ray , 699 F.3d 1053 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSU STUDENT ALLIANCE; WILLIAM 
ROGERS,
Plaintiffs-Appellants, No. 10-35555
v.
 DC No.
6:09 cv-6269 AA
ED RAY; MARK MCCAMBRIDGE;
LARRY ROPER; VINCENT OPINION
MARTORELLO,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted
May 2, 2011—Portland, Oregon
Filed October 23, 2012
Before: A. Wallace Tashima, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Ikuta
12757
12762 OSU STUDENT ALLIANCE v. RAY
COUNSEL
Heather Gebelin Hacker, Alliance Defense Fund, Folsom,
California, for the plaintiffs-appellants.
Karla H. Ferrall, Assistant Attorney General, State of Oregon,
Salem, Oregon, for the defendants-appellees.
Steven W. Fitschen, Virginia Beach, Virginia, for amicus
curiae The National Legal Foundation.
James J. Manning, Jr., Reid & Hellyer, Riverside, California,
and Frank D. LoMonte, Arlington, Virginia, for amicus curiae
Student Press Law Center.
OSU STUDENT ALLIANCE v. RAY 12763
OPINION
TASHIMA, Circuit Judge:
The complaint alleges that employees in Oregon State Uni-
versity’s Facilities Department gathered up the outdoor news-
bins belonging to the Liberty, a conservative student monthly,
and threw them in a heap by a dumpster in a storage yard. The
employees acted pursuant to an unwritten and previously
unenforced policy governing newsbins on campus. They did
not notify anyone at the Liberty before confiscating the news-
bins. After the confiscation, University officials denied the
paper permission to replace the bins anywhere but in two des-
ignated campus areas — limited areas to which the Universi-
ty’s traditional student paper, the Daily Barometer, was not
confined.
Plaintiffs, the Liberty’s student editors and student publish-
ers, sue under 42 U.S.C. § 1983. We have little trouble find-
ing constitutional violations. The real issue is whether the
complaint properly ties the violations to the four individual
defendants, who are senior University officials. Plaintiffs con-
front a familiar problem: they do not know the identities of
the employees who threw the newsbins into the trash heap,
and they do not know which University official devised the
unwritten policy or which official gave the order to confiscate
the bins. Plaintiffs do know, however, that three of the four
defendants participated in the decision to deny them permis-
sion to place bins outside of the designated areas after the
confiscation. We conclude that the complaint states claims
against those three defendants based on this post-confiscation
decision. We also hold that the complaint states a claim
against one defendant — the Director of Facilities Services —
based on the confiscation itself.
I
We accept as true the well-pleaded facts in the complaint.
Starr v. Baca, 652 F.3d 1202, 1220 (9th Cir. 2011). Plaintiff-
12764 OSU STUDENT ALLIANCE v. RAY
appellant OSU Students Alliance is a registered student orga-
nization at Oregon State University (“OSU” or the “Universi-
ty”). Its members are all OSU students. OSU Students
Alliance publishes the Liberty, an independent student news-
paper distributed to students on OSU’s campus in Corvallis,
Oregon. The Liberty is a conservative student newspaper that
styles itself as an alternative to the University’s official stu-
dent paper, the Daily Barometer. The Liberty is funded
through private donations and advertising revenue. OSU Stu-
dents Alliance may apply for and receive student fees to fund
the Liberty, but has chosen not to apply for those funds to
maintain its independence. The Daily Barometer is funded
through student fees and advertising revenue.
In 2002, OSU Students Alliance began distributing the Lib-
erty on campus via newsbins. The OSU Facilities Services
gave OSU Students Alliance permission to place these bins
around campus, including in dining halls and the Memorial
Union.
In 2005, OSU Students Alliance placed eight new bins
around campus. OSU Students Alliance placed the bins in the
areas of campus with the heaviest student traffic — near the
bookstore, dorms, football stadium, and other locations. Most
of these locations already had the Barometer bins, and OSU
Students Alliance’s goal was to place bins next to the Barom-
eter so that students would pick up a copy of both student
newspapers. After one bin was stolen, OSU Students Alliance
used wire bicycle chains to secure the remaining seven bins
to nearby light or sign poles. In total, the Liberty had seven
outdoor distribution bins.
At the time of the complaint, the Barometer had 24 distri-
bution bins, which were located throughout campus. Off-
campus newspapers, including the Corvallis Gazette-Times,
Eugene Weekly, and USA Today also had distribution bins on
campus. Each of these newspapers had bins chained to fix-
tures such as light posts or building columns.
OSU STUDENT ALLIANCE v. RAY 12765
During the 2008-09 winter term, all seven of the Liberty’s
outdoor distribution bins disappeared from campus.1 The bins
of the other papers, including the other off-campus papers,
were left untouched. Because OSU had given the Liberty per-
mission to place its bins at specific locations throughout cam-
pus, and had not revoked that permission, the Liberty’s editors
had no reason to suspect their bins had been confiscated by
the University. Thus, they called the police. Only through the
police investigation did they learn of the University’s involve-
ment. After contacting the Facilities Department, the student
editors recovered the seven newsbins from the storage yard,
where they had been left “heaped on the ground.” One bin
was cracked and others had spilled open, resulting in the loss
of 150 copies of the Liberty to water damage. The wire bicy-
cle locks that the editors used to secure the bins against theft
had been cut.
The Facilities Department’s customer service manager told
plaintiff William Rogers, the Liberty’s executive editor, that
the Department had removed the bins because it was “catch-
ing up” on its enforcement of a 2006 University policy that
prohibited newsbins in all but two designated campus loca-
tions, one near the bookstore and another by the student
union. The customer service manager told Rogers that, going
forward, the Liberty could not place newsbins anywhere but
in the designated areas.
Rogers complained by email to defendant Ed Ray, Presi-
dent of OSU, who responded that the events surrounding the
Liberty were “news to him.” Ray copied defendant Mark
McCambridge, Vice President of Finance and Administration,
and defendant Larry Roper, Vice Provost for Student Affairs,
on the email and indicated that these individuals would con-
tact Rogers about the incident. Several days later, defendant
Vincent Martorello, the Director of Facilities Services, called
1
The Liberty also had a few indoor distribution bins, but the record does
not state whether the indoor bins were removed as well.
12766 OSU STUDENT ALLIANCE v. RAY
Rogers and explained, much like the customer service man-
ager had, that the University’s newsbin policy prohibited the
Liberty from placing bins anywhere but in the two designated
locations. Martorello said the purpose of the 2006 policy was
to keep the campus clean by regulating newsbins belonging to
“off-campus” publications. Martorello also said that the pol-
icy did not allow bins to be chained to school property
Martorello’s explanation perplexed Rogers. He did not con-
sider the Liberty an “off-campus” paper, because it was writ-
ten and edited entirely by OSU students and published by the
OSU Student Alliance, a Registered Student Organization
(“RSO”).2 Also, OSU had not applied the policy against the
Daily Barometer, the traditional school paper, nor against the
other off-campus newspapers such as the Corvallis Gazette-
Times, Eugene Weekly, and USA Today, which continued to
place their newsbins throughout the campus, not just in the
designated areas. The only apparent difference between the
two papers’ connection to the OSU community was that the
Barometer supplemented its advertising revenue by accepting
student fees from the University, whereas the Liberty received
private funding and advertising revenue but no student fees.3
Rogers challenged the application of the policy against the
Liberty. He wrote Martorello a long email explaining that the
Liberty was a student paper and requesting permission to
place newsbins outside of the designated areas, just as the
Barometer was allowed to do. Martorello initially agreed to
assess the “potential of adding additional [Liberty] bins on
campus. But two weeks later, Martorello tersely denied Rog-
ers’ request: “The Liberty is not in the same situation as the
2
The OSU Student Alliance had allowed its RSO status to lapse due to
an oversight sometime in 2007 or 2008, but it renewed its status in 2009.
Neither side argues that the temporary lapse is relevant.
3
Plaintiffs represent that the Liberty “may apply for and receive student
fees . . . but has chosen not to apply for those fees to maintain its indepen-
dence.”
OSU STUDENT ALLIANCE v. RAY 12767
Barometer and will need to be located at the approved loca-
tions . . . .”
In an earlier email to Rogers, Vice President McCambridge
had explained the more onerous restrictions on the Liberty, as
opposed to the Barometer, as follows: “As a newspaper that
is not funded by ASOSU [the Associated Students of OSU],
we don’t have the same communications availability between
your paper and the University . . . .” McCambridge also said
that OSU would work with Rogers on finding newsbin loca-
tions for the Liberty, but that those locations would “be
agreed to within the parameters that the University deter-
mines.” McCambridge left ultimate resolution of the matter in
Martorello’s hands, writing that Martorello would keep both
him and President Ray informed about the progress of the
Liberty’s request for better campus access.
After Martorello definitively denied the request, the Liber-
ty’s editors asked him for a copy of the policy governing
newsbins. In response, they received an email from Charles
Fletcher, Esq., Associate General Counsel of OSU, who
explained that the 2006 policy was unwritten:
There is no specific written policy that governs the
placement of publication bins, and none is required.
OSU’s control over its grounds, buildings, and facili-
ties . . . is plenary under ORS Chapters 351 and 352
. . . subject only to limited exceptions that do not
apply here. I hope this helps.
Fletcher also suggested that the policy did not apply to the
Barometer because it had been “the campus newspaper since
1896” and because it was funded by ASOSU. In another mes-
sage, Fletcher explained:
The mere fact that The Liberty has students on staff
does not mean that it is entitled to the same bin loca-
tions as the Daily Barometer. The Daily Barometer
12768 OSU STUDENT ALLIANCE v. RAY
was established over 100 years ago as the OSU stu-
dent newspaper. It’s published by the OSU Student
Media Committee on behalf of ASOSU. The Lib-
erty, on the other hand, is not published by OSU and
receives almost all of its funding from outside
sources.
Arguing that the unwritten policy arbitrarily distinguished
between the Liberty and the Barometer, the Liberty’s editors
drafted a proposed alternative policy under which both publi-
cations would receive equal campus access. The administra-
tion refused to consider the proposal. In a final email
reaffirming the University’s commitment to the policy,
Fletcher wrote that he had “been in communication with Pres-
ident Ray and Vice President McCambridge” about plaintiffs’
objections to the policy, but asserted that the policy was con-
stitutional.
Plaintiffs filed an action under 42 U.S.C. § 1983 alleging
violations of their constitutional rights to free speech, due pro-
cess, and equal protection. They sought injunctive and declar-
atory relief and damages. Soon thereafter, OSU adopted a
written policy on newspaper bins which, in contrast to its
unwritten predecessor, does not distinguish between “on-
campus” and “off-campus” publications. Rather, the written
policy allows any person to obtain permission to place a
newsbin on campus by submitting a request form and comply-
ing with certain physical requirements, such as that bins “shall
be placed on a level surface and kept in an upright position.”
In light of the new policy, the district court dismissed as
moot the claims for injunctive and declaratory relief. As for
the damages claims, it held them deficient because the com-
plaint did not allege that any of the four defendants had par-
ticipated in the confiscation of the newsbins. The district court
did not consider the allegations about the aftermath of the
confiscation, when the University continued to apply the
unwritten policy against the Liberty. The court dismissed the
OSU STUDENT ALLIANCE v. RAY 12769
damages claims for failure to state a claim, and granted judg-
ment for defendants without leave to amend. See OSU Student
Alliance v. Ray, 692 F. Supp. 2d 1278 (D. Or. 2010). It also
denied plaintiffs’ post-judgment motion seeking leave to
amend. Plaintiffs appeal only the dismissal of the damages
claims and the denial of leave to amend.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the dismissal of a complaint for failure to
state a claim. Starr, 652 F.3d at 1205. To avoid dismissal
under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
must “allege ‘sufficient factual matter . . . to state a claim to
relief that is plausible on its face.’ ” Pinnacle Armor, Inc. v.
United States, 648 F.3d 708, 721 (9th Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949
(2009)); see also Starr, 652 F.3d at 1216 (“[T]he factual alle-
gations that are taken as true must plausibly suggest an enti-
tlement to relief, such that it is not unfair to require the
opposing party to be subjected to the expense of discovery
and continued litigation.”). In reviewing a dismissal under
Rule 12(b)(6), we accept the well-pleaded factual allegations
of the complaint as true and construe them in the light most
favorable to plaintiffs. Id.; Daniels-Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998 (9th Cir. 2010).
III
To state a claim under § 1983 against state officials in their
individual capacities, a plaintiff must plead that the officials,
“acting under color of state law, caused the deprivation of a
federal right.” Suever v. Connell, 579 F.3d 1047, 1060 (9th
Cir. 2009) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)).
No one disputes that the four defendants acted under color of
state law. Defendants argue that plaintiffs fail to plead the
other two elements: (1) the deprivation of a federal right; and
(2) causation. We begin our analysis with the first element.
12770 OSU STUDENT ALLIANCE v. RAY
The complaint asserts violations of three constitutional rights:
free speech, equal protection, and procedural due process.
A
[1] The circulation of newspapers is expressive conduct
protected by the First Amendment. See City of Lakewood v.
Plain Dealer Publ’g Co., 486 U.S. 750, 760 (1988); Honolulu
Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir. 2002)
(“[I]t is beyond dispute that the right to distribute newspapers
is protected under the First Amendment . . . .”) (citation omit-
ted). Therefore, if the government wishes to regulate the
placement of newsbins in a public forum, it must do so
according to established, content-neutral standards. See Plain
Dealer, 486 U.S. at 760. A city ordinance violates the First
Amendment if it allows the mayor to grant or deny applica-
tions for newsbin permits without creating standards to limit
the mayor’s discretion — beyond requiring that he “state the
reasons” for a denial — because the absence of established
decision-making criteria makes it “far too easy” for the mayor
to practice censorship by offering “post hoc rationalizations”
and “shifting or illegitimate” justifications. Id. at 758; see id.
at 763 (“[The] danger [of content and viewpoint censorship]
is at its zenith when the determination of who may speak and
who may not is left to the unbridled discretion of a govern-
ment official.”); see also G.K. Ltd. Travel v. City of Lake
Oswego, 436 F.3d 1064, 1082 (9th Cir. 2006) (“To avoid
impermissible discretion, the challenged ordinance should
‘contain adequate standards to guide the official’s decision
and render it subject to effective judicial review.’ ”) (quoting
Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002)). On the
other hand, a city ordinance that seeks to reduce sidewalk
clutter by establishing a content-neutral lottery to award a
limited number of newsbin permits does not violate the First
Amendment, because the lottery establishes a clear basis for
distinguishing between permit applicants. See Honolulu
Weekly, 298 F.3d at 1044.
OSU STUDENT ALLIANCE v. RAY 12771
1
[2] To decide whether the complaint adequately pleads a
First Amendment violation under these principles, we must
first determine the nature of the relevant forum — namely, the
OSU campus. Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956,
968 (9th Cir. 2008) (“The first step in assessing a First
Amendment claim relating to private speech on government
property is to identify the nature of the forum, because the
extent to which the Government may limit access depends on
whether the forum is public or nonpublic.”) (internal quota-
tion marks omitted). “Forum analysis has traditionally divided
government property into three categories: public fora, desig-
nated public fora, and nonpublic fora.” Flint v. Dennison, 488
F.3d 816, 830 (9th Cir. 2007) (internal quotation marks omit-
ted). The traditional public forum is a place “which by long
tradition . . . ha[s] been devoted to assembly and debate.” Id.(internal quotation marks omitted). The designated public
forum “exists when the government intentionally dedicates its
property to expressive conduct.” Id. (internal quotation marks
omitted). The non-public forum is “any public property that
is not by tradition or designation a forum for public communi-
cation.” Id. (internal quotation marks omitted).
There is also a fourth category, the limited public forum,
which is a partially designated public forum:
The government is not left with only the two options
of maintaining a non-public forum or creating a des-
ignated public forum; if the government chooses to
open a non-public forum, the First Amendment
allows the government to open the non-public forum
for limited purposes. The limited public forum is a
sub-category of a designated public forum that refers
to a type of nonpublic forum that the government has
intentionally opened to certain groups or to certain
topics.
12772 OSU STUDENT ALLIANCE v. RAY
Id. at 830-31 (internal quotation marks omitted).
In traditional and designated public fora, content-based
restrictions on speech draw strict scrutiny. Id. at 830. But in
a limited public forum, speech restrictions are constitutional
so long as they: (1) comport with the definition of the forum
(for example, the government cannot exclude election speech
from a forum that it has opened specifically for election
speech); (2) are reasonable in light of the purpose of the
forum; and (3) do not discriminate by viewpoint. Id. at 831.
[3] OSU’s campus is at least a designated public forum.
Section 576-005-0015(1) of the Oregon Administrative Rules,
which governs public areas at OSU, states that “University
grounds are open to the public and the University community
for speech activities except any grounds designated for autho-
rized access only.” Through this rule, the state has “intention-
ally dedicate[d] [campus] property to expressive conduct,”
thereby creating a designated public forum. Flint, 488 F.3d at
830 (internal quotation marks omitted); see Hays Cnty.
Guardian v. Supple, 969 F.2d 111, 116-17 (5th Cir. 1992)
(holding that public university campus was a designated pub-
lic forum because a university rule opened the campus to
speech activities).4
[4] Defendants argue that OSU’s adoption of the unwritten
newsbin policy converted the campus from a designated pub-
4
Because traditional and designated public fora are subject to the same
constitutional restrictions, we need not decide whether the campus is a tra-
ditional public forum. See Flint, 488 F.3d at 830. In the past, we have sug-
gested that college campuses may be traditional public fora for students,
id. at 831, but we have also noted that a university retains “the power to
foster an atmosphere and conditions in which its educational mission can
be carried out . . . .” Souders v. Lucero, 196 F.3d 1040, 1045 (9th Cir.
1999); see also Desyllas v. Bernstine, 351 F.3d 934 (9th Cir. 2003) (hold-
ing that a university could limit fliers to designated bulletin boards
because the bulletin boards were designated public fora while other hall-
way walls were nonpublic fora).
OSU STUDENT ALLIANCE v. RAY 12773
lic forum into a limited public forum that excluded noncompl-
iant newsbins from the scope of permissible speech activities.
This reasoning is circular: the contention is that the policy
placed a limitation on the forum, and that the limitation on the
forum in turn justified the policy. If speech restrictions in a
designated public forum automatically constituted limitations
on the scope of the forum itself, then the concept of the “des-
ignated public forum” would merge entirely with that of the
limited public forum: in either type of forum, the government
would be able to exclude speech subject only to the limita-
tions of reasonableness and viewpoint neutrality. To destroy
the designation of a public forum, the government must do
more. It must consistently apply a policy specifically designed
to maintain a forum as non-public. See Hopper v. City of
Pasco, 241 F.3d 1067, 1075-76 (9th Cir. 2001). “[A] general
policy of open access does not vanish when the government
adopts a specific restriction on speech, because the govern-
ment’s policy is indicated by its consistent practice, not each
exceptional regulation that departs from the consistent prac-
tice.” Hays Cnty. Guardian, 969 F.2d at 117-18. Accepting as
true the allegations in the complaint, OSU’s newsbin policy
was unwritten and, prior to its application against the Liberty,
entirely unenforced. Therefore, the policy did not establish a
consistent practice aimed at partially closing the campus to
speech activities and, accordingly, did not vitiate the codified
designation of OSU’s campus as a public forum.
2
[5] Having concluded that the OSU campus is a public
forum, we now consider whether enforcement of the unwrit-
ten policy against the Liberty violated the rule of Plain
Dealer: restrictions on newspaper circulation in public fora
are unconstitutional unless enforced according to established,
content-neutral standards. Plaintiffs expressly decline to argue
that the unwritten nature of OSU’s policy alone demonstrates
an unconstitutional lack of standards. They cite no law on this
issue, but their concession is probably correct. If OSU had
12774 OSU STUDENT ALLIANCE v. RAY
announced and consistently applied a straightforward but
unwritten rule about newsbins — for example, that newsbins
could not be chained to lampposts — the University’s failure
to codify the rule might not be fatal. See Thomas, 534 U.S. at
322-32 (approving of licensing standards that are “limited by
[their] terms, or by nondiscriminatory practice, to [content-
neutral] considerations . . . .”) (emphasis added) (internal quo-
tation marks omitted).
[6] The policy that OSU enforced against plaintiffs, how-
ever, was not merely unwritten. It was also unannounced and
had no history of enforcement. It materialized like a bolt out
of the blue to smite the Liberty’s, but not the Daily Barome-
ter’s, newsbins onto the trash heap. The policy created no
standards to cabin discretion through content or history of
enforcement, and it set no fixed standard for a distinction
between the Barometer and the Liberty. The policy’s enforce-
ment against plaintiffs therefore violated the First Amend-
ment. See Plain Dealer, 486 U.S. at 769.
Of course, after the initial confiscation, while plaintiffs
sought permission to replace their newsbins throughout cam-
pus, defendants did try to explain the line they drew between
the two student newspapers. Fletcher, the Associate General
Counsel, emphasized the Barometer’s status as OSU’s tradi-
tional, flagship paper: “The Daily Barometer was established
over 100 years ago as the OSU student newspaper. It’s pub-
lished by the OSU Student Media Committee . . . .” Marto-
rello and McCambridge invoked the concept of “off-campus”
versus “on-campus” publications and reasoned that the Lib-
erty was off-campus because it received outside funding,
which, in turn, somehow impeded communication with the
University.
These explanations have clear constitutional flaws. Fletch-
er’s explanation raises the ominous specter of viewpoint dis-
crimination. See Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th
Cir. 2001) (“‘[V]iewpoint discrimination’ occurs when the
OSU STUDENT ALLIANCE v. RAY 12775
government prohibits ‘speech by particular speakers,’ thereby
suppressing a particular view about a subject.”) (quoting
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 59 (1983)); see also Hays Cnty. Guardian, 969 F.2d at
121 (holding that a university could not favor its official stu-
dent paper over competing papers). And both explanations
invoke criteria — established versus unestablished publica-
tions; on-campus versus off-campus funding — that bear no
relationship to the University’s purported interests in reducing
clutter and maintaining the aesthetic beauty of campus. See
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
424-25 (1993) (holding that a city ban of only commercial
newsracks was not narrowly tailored, and was therefore
unconstitutional, because “the distinction [between commer-
cial and noncommercial racks] [bore] no relationship whatso-
ever to the particular interests [in aesthetics] that the city [ ]
asserted”).
The explanations’ most obvious flaw, however, and the
flaw that guides our decision here, is their timing. Because
defendants offered the explanations only after the confisca-
tion, in an effort to justify the University’s application of an
unannounced and unenforced policy, the explanations cannot
be distinguished from post hoc rationalizations. See Plain
Dealer, 486 U.S. at 760. Maybe the unwritten policy sought
from its inception to differentiate papers based on their
sources of funding, or maybe OSU officials seized upon this
criterion after the Liberty published something that infuriated
them. The “policy’s” lack of established standards muddles
the provenance of defendants’ explanations in a manner that
is unconstitutional under Plain Dealer. The fact that the “poli-
cy” was not written or otherwise established by practice
meant there were no standards by which the officials could be
limited. It left them with unbridled discretion.5
5
By “standard” we mean a set of requirements for use as a rule or basis
of comparison established in advance to judge the acceptability of a partic-
ular object.
12776 OSU STUDENT ALLIANCE v. RAY
In recent years, courts have limited the rule against just
such unbridled discretion. In Thomas, which concerned a per-
mitting ordinance for events in a public park, the Supreme
Court rejected the contention that the ordinance’s thirteen
enumerated grounds for denial of a permit were “insuffi-
ciently precise because they [we]re described as grounds on
which the Park District ‘may’ deny a permit, rather than
grounds on which it must do so.” 534 U.S. at 324.6 Similarly,
we have determined that a permitting scheme is not unconsti-
tutional simply because it contains “somewhat elastic” provi-
sions that allow “reasonable discretion to be exercised by the
permitting authority.” Desert Outdoor Adver. v. Oakland, 506
F.3d 798, 807 (9th Cir. 2007) (internal quotation marks omit-
ted). So long as the ordinance contains standards that are “sig-
nificantly . . . concrete,” it does not confer unconstitutionally
broad discretion. Id.Those holdings, however, do not aid defendants. Although
courts have qualified Plain Dealer and earlier unbridled dis-
cretion cases by finding that a certain degree of flexibility in
a permitting scheme does not make it unconstitutional, no
court has held that a standardless policy passes muster. OSU’s
unwritten policy provided that newsbins of all newspapers
were limited to two locations, except for the Barometer’s
newsbins, which could be placed anywhere on campus. But
even that policy was not enforced evenly. Only the newsbins
of the Liberty were removed, not the newsbins of other papers
the University did not control, such as the Corvallis Gazette-
Times, Eugene Weekly, and USA Today. Thus, we conclude
that this “standard” that the University voiced after the Lib-
erty filed suit was really no standard at all. Its application to
the Liberty’s newbins therefore violated the First Amendment.
6
“Granting waivers to favored speakers (or, more precisely, denying
them to disfavored speakers) would of course be unconstitutional, but we
think that this abuse must be dealt with if and when a pattern of unlawful
favoritism appears, rather than by insisting upon a degree of rigidity that
is found in few legal arrangements.” Thomas, 534 U.S. at 325.
OSU STUDENT ALLIANCE v. RAY 12777
See Thomas, 534 U.S. at 323 (“[A] time, place, and manner
regulation [must] contain adequate standards to guide the offi-
cial’s decision and render it subject to effective judicial
review.”).7
[7] Defendants do not cite Plain Dealer or make any argu-
ment about the policy’s lack of standards. Instead, they
defend the policy as a valid time, place, manner restriction.
But a speech restriction cannot satisfy the time, place, manner
test if the restriction does not contain clear standards. To iden-
tify just one problem, the time, place, and manner test
requires content neutrality. Klein v. City of San Clemente, 584
F.3d 1196, 1200-01 (9th Cir. 2009) (quoting Kuba v. 1-A
Agric. Ass’n, 387 F.3d 850, 856 (9th Cir. 2004) (time, place,
and manner restrictions “must be content-neutral, be narrowly
tailored to serve an important government interest, and leave
open ample alternative channels for the communication of the
message”)). One cannot tell if OSU’s unwritten policy was
content-neutral, because the policy did not disclose the basis
7
In Hays County Guardian, the Fifth Circuit struck down a university
regulation that prohibited the handing out of newspapers on campus unless
the papers contained no advertising or were sponsored by a student organi-
zation. 969 F.2d at 120-21. However, Hays also rejected an “unbridled
discretion” challenge to a different university regulation that limited news-
bins to areas “designated in advance by the Dean of Students.” Id. at 121-
22. Although the regulation included no criteria to guide the Dean’s deci-
sions, the court found that Plain Dealer’s holding on unbridled discretion
did not apply because the regulation gave the Dean discretion to distin-
guish only between locations, not between the publications that sought to
use those locations. Id. at 122. Yet, the Hays opinion makes clear that the
university allowed its official student paper to place newsbins throughout
campus, not just in the “designated areas” to which other papers were con-
fined. Id. at 115. Perhaps the terms of the regulation contemplated distinc-
tions only between locations, but the administrators nonetheless
distinguished between publications by determining which publications fell
under the policy and which did not. The Hays court’s attempt to distin-
guish Plain Dealer is thus unpersuasive. In any event, in this case, there
is no dispute that OSU applied its newsbin policy to distinguish between
publications, not merely locations. Accordingly, even under the Fifth Cir-
cuit’s reasoning, Plain Dealer applies.
12778 OSU STUDENT ALLIANCE v. RAY
on which it distinguished between publications. As Plain
Dealer explains:
[T]he absence of express standards makes it difficult
to distinguish, “as applied,” between a licensor’s
legitimate denial of a permit and its illegitimate
abuse of censorial power. Standards provide the
guideposts that check the licensor and allow courts
quickly and easily to determine whether the licensor
is discriminating against disfavored speech.
486 U.S. at 758. OSU’s standardless policy cannot qualify as
a valid time, place, and manner restriction. Id; see also
Thomas, 534 U.S. at 323; Kaahumanu v. Hawaii, 682 F.3d
780, 805-07 (9th Cir. 2012).
[8] Plaintiffs also correctly pleaded that the University
applied its “policy” to discriminate against the Liberty
because of its viewpoint. That the University did not apply its
“policy” as articulated by attorney Fletcher equally across all
the newspapers with bins on campus adequately alleges that
the policy was really just an ad hoc attempt to rationalize
viewpoint discrimination — and a poor one at that.8 Once one
applies reasonable construction principles to the complaint’s
allegations which incorporate Fletcher’s explanation, and
translates the Orwellian euphemism of better “communica-
tions” based on University funding, the words mean the Uni-
versity has control over the Barometer through its funding,
control which it doesn’t have over Liberty and that is the rea-
son for the application of its news bin “policy” to limit Liber-
ty’s access to the student body. The complaint alleges that
8
Similarly, when a Batson challenge is brought in a criminal case and
we evaluate a prosecutor’s race-neutral explanation for striking a potential
juror, we analyze whether the prosecutor applied that same rationale
across the entire venire of similarly-situated potential jurors, or just as a
post hoc rationalization for striking that one juror. See Green v. LaMar-
que, 532 F.3d 1028, 1030 (9th Cir. 2008).
OSU STUDENT ALLIANCE v. RAY 12779
OSU officials removed and restricted the newsbins because
the officials disliked the Liberty’s viewpoints. In other words,
leaving the policy’s defects aside, plaintiffs assert that OSU
violated the First Amendment by enforcing the policy in a
viewpoint-discriminatory fashion. See Thomas, 534 U.S. at
325 (noting that even if an ordinance is facially valid, it vio-
lates the constitution if applied in a content- or viewpoint-
discriminatory fashion); Moss v. U.S. Secret Serv., 572 F.3d
962, 970 (9th Cir. 2009). Under this theory, the complaint
plausibly alleges that OSU officials applied the policy to
quash the Liberty’s viewpoint, rather than on the basis of
some unarticulated, content- and viewpoint-neutral criterion.
Hence, the allegations of the complaint sufficiently state a
non-neutral viewpoint restriction to speech in a designated
public forum.
[9] Thus, the complaint adequately pleads a First Amend-
ment violation on two grounds by applying a standardless pol-
icy to draw a distinction between the Liberty and the
Barometer and by engaging in viewpoint discrimination.
B
Plaintiffs press equal protection claims on the theory that
the University treated them differently than similarly situated
persons by restricting the Liberty’s newsbins but not the
newsbins of other publications.
The equal protection claims rise and fall with the First
Amendment claims. Plaintiffs do not allege membership in a
protected class or contend that the University’s conduct bur-
dened any fundamental right other than their speech rights.
Therefore, the University’s differential treatment of plaintiffs
will draw strict scrutiny (as opposed to rational basis review)
under the Equal Protection Clause only if it impinged plain-
tiffs’ First Amendment rights. See ACLU of Nev. v. City of
Las Vegas, 466 F.3d 784, 797-98 (9th Cir. 2006); Monterey
Cnty. Democratic Cent. Comm. v. U.S. Postal Serv., 812 F.2d
12780 OSU STUDENT ALLIANCE v. RAY
1194, 1200 (9th Cir. 1987) (noting, with regard to “equal pro-
tection claims relating to expressive conduct,” that “[o]nly
when rights of access associated with a public forum are
improperly limited may we conclude that a fundamental right
is impinged”).
[10] As we have already explained, the complaint properly
alleges that the University infringed plaintiffs’ speech rights
by employing a standardless policy to draw a distinction
between the Liberty and the Barometer and by engaging in
viewpoint discrimination. Therefore, the complaint also states
equal protection claims for differential treatment that trenched
upon a fundamental right. See ACLU of Nev., 466 F.3d at 798.
Defendants argue that the equal protection claims’ depen-
dence on the First Amendment claims requires dismissal of
the equal protection claims. There is no authority for this
proposition. At least twice, the Supreme Court has analyzed
speech-based equal protection claims that were coupled with
First Amendment claims without suggesting that the claims’
common analytical predicate foreclosed one claim or the
other. See Perry, 460 U.S. at 54; Police Dep’t of Chi. v. Mos-
ley, 408 U.S. 92, 94-95 (1972); see also Hill v. Colorado, 530
U.S. 703, 709 (2000). Although the Court has noted that one
analysis will often control both claims, see Perry, 460 U.S. at
54, it has never invoked the concept of duplicity or redun-
dance to find preclusion of a speech-based equal protection
claim. Defendants rely on a footnote in a Ninth Circuit deci-
sion which, after noting that the plaintiff had “made only
passing reference to [his speech-based] Equal Protection [the-
ory] in his Complaint and dedicated to it only one sentence in
his opening brief on appeal,” quoted a treatise for the proposi-
tion that “[i]t is generally unnecessary to analyze laws which
burden the exercise of First Amendment rights . . . under the
equal protection guarantee.” Orin v. Barclay, 272 F.3d 1207,
1213 n.3 (9th Cir. 2001). This footnote recognizes that the
two types of claims share a common analytical foundation,
but it stops well short of barring a plaintiff from bringing a
OSU STUDENT ALLIANCE v. RAY 12781
§ 1983 claim for violation of a constitutional right simply
because that violation mirrors the violation of a different
right.
[11] The complaint adequately pleads an equal protection
violation.
C
Plaintiffs contend that the University violated their due pro-
cess rights by confiscating the newsbins without notice.
[12] Due process generally requires that the government
give notice before seizing property. Clement v. City of Glen-
dale, 518 F.3d 1090, 1093 (9th Cir. 2008) (“[T]he govern-
ment may not take property like a thief in the night; rather, it
must announce its intentions and give the property owner a
chance to argue against the taking.”). This general rule has
exceptions. “The government need not give notice in an emer-
gency, nor if notice would defeat the entire point of the sei-
zure, nor when the interest at stake is small relative to the
burden that giving notice would impose.” Id. at 1093-94.
Defendants invoke the final exception.
The Clement plaintiff had parked her car in the lot of the
hotel where she resided, in violation of the car’s “non-
operational” registration, which barred the vehicle from
accessible parking lots. Id. at 1092. Rather than issue her a
ticket or notify her of the violation, the defendant police offi-
cer had the car towed. Id. The court found a due process vio-
lation because giving notice would not have imposed a burden
on the officer. The car was parked in the lot with the hotel’s
permission, not in “the path of traffic,” and the officer easily
could have provided notice by leaving a ticket or informing
the hotel clerk that plaintiff had to move the car. Id. at 1094-
95. The court also noted that even though the vehicle was
non-operational, the plaintiff had an appreciable interest in
receiving notice before the tow. Id. at 1094 (“[T]he [typical
12782 OSU STUDENT ALLIANCE v. RAY
car] owner suffers some anxiety when he discovers that [his]
vehicle has mysteriously disappeared from its parking spot
. . . . [Also,] the owner will normally have to travel to the tow-
ing garage . . . which may involve significant cost . . . .”).
[13] The complaint adequately pleads a due process viola-
tion under Clement. If the allegations are true, then OSU con-
fiscated property without notice even though providing notice
would have imposed, at most, only a minimal burden on
OSU. After adopting the unwritten newsbin policy in 2006,
the University waited more than two years to enforce it
against the Liberty. Clearly there was no urgency and no rea-
son to junk the bins instead of directing plaintiffs to remove
them. Moreover, contact information for the paper’s editorial
board appeared inside the first page of every copy of the Lib-
erty. Providing notice would have been as simple as flipping
a page and making a phone call or sending an email. The
Facilities Department’s decision to forego this procedure in
favor of summarily confiscating the newsbins — more like a
“thief in the night” than a “conscientious public servant” —
violated due process. Id. at 1093, 1095.
Defendants seek to distinguish Clement on the ground that
plaintiffs here had only a small interest in receiving notice
before the confiscation. Whereas the car owner in Clement
was presumed to have suffered inconvenience, cost, and anxi-
ety in locating and recovering her car after the tow, the argu-
ment goes, plaintiffs recovered their newsbins “with little
effort or cost.” Problematically, this argument ignores the
“burden” prong of the Clement analysis: even if it were true
that plaintiffs’ interest in avoiding confiscation of the news-
bins was small in some absolute sense, that interest certainly
was not small “relative to the burden that giving notice would
[have] impose[d],” because giving notice would not have
imposed any burden at all. Id. at 1093-94. Moreover, the argu-
ment that plaintiffs weathered the confiscation with “little
effort or cost” contravenes the factual allegations. Like the
plaintiff in Clement, plaintiffs had no idea what had happened
OSU STUDENT ALLIANCE v. RAY 12783
to their newsbins after the confiscation; they had to call the
police just to learn of OSU’s involvement. And once plaintiffs
located the bins in a heap by the dumpster, they had to clean
them of mud and debris and then load and transport them out
of the storage yard “over several trips.” They lost 150 copies
of the paper due to water damage. They had to arrange for the
Facilities Department to repair one damaged bin. Because the
Facilities Department took all seven of the Liberty’s outdoor
newsbins, the confiscation likely hobbled the paper’s circula-
tion for a period. Plaintiffs had as much interest in avoiding
this ordeal as the Clement plaintiff had in avoiding the tow of
her non-operational vehicle, which she could not use for
transportation in any event. See id. at 1094.
The complaint adequately pleads a due process violation.
IV
More difficult is the question of individual causation —
whether the complaint ties the constitutional violations to the
individual defendants.
[14] Section 1983 suits, like Bivens suits, do not support
vicarious liability.9 “[E]ach government official, his or her
title notwithstanding, is only liable for his or her own miscon-
duct.” Iqbal, 129 S. Ct. at 1949. The Attorney General’s
senior position does not by itself make him liable for racial
and religious discrimination perpetrated by subordinates;
rather, he must have engaged in culpable action or inaction
himself. Id. at 1948. To state a valid § 1983 claim, “a plaintiff
9
“[A] Bivens action is the federal analog to an action against state or
local officials under § 1983.” Starr, 652 F.3d at 1202. It is an action
brought against federal employees for violations of a plaintiff’s federal
constitutional rights. Minneci v. Pollard, ___U.S.___, 132 S. Ct. 617, 602
(2012); see generally Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 389 (1971) ( “[V]iolation of [the
Fourth Amendment] by a federal agent . . . gives rise to a cause of action
for damages” against a Federal Government employee.”).
12784 OSU STUDENT ALLIANCE v. RAY
must plead that each government-official defendant, through
the official’s own individual actions, had violated the Consti-
tution.” Id.A. First Amendment and Equal Protection Claims
Against Martorello
[15] Some of plaintiffs’ claims raise thorny questions
under Iqbal, but the First Amendment and equal protection
claims against Martorello, the Director of Facilities Services,
are more straightforward. The complaint straightforwardly
ties Martorello to violations of both constitutional provisions.
After unknown Facilities Department employees threw the
newsbins into the trash heap, the Liberty’s editors pleaded
with Martorello for permission to replace the bins in locations
beyond the “designated areas.” The Liberty is an on-campus
paper just like the Barometer, they said, and should enjoy the
same access to campus. Martorello rejected these pleas
directly. He told the editors that “[t]he Liberty is not in the
same situation as the Barometer and [its bins] will need to be
located at the approved locations by the Memorial Union.” In
other words, relying on a standardless and unwritten policy,
Martorello denied plaintiffs permission to place their news-
bins in locations where the Barometer was permitted to place
its bins. He did so directly, not through subordinates, and
therefore violated the First Amendment under Plain Dealer
through his “own individual actions.” Iqbal, 129 S. Ct. 1948.
For the same reasons, he violated equal protection by discrim-
inating against the Liberty in a way that impinged plaintiffs’
speech rights. See ACLU of Nev., 466 F.3d at 797-98.
As we shall see, Iqbal emphasizes that a constitutional tort
plaintiff must allege that every government defendant —
supervisor or subordinate — acted with the state of mind
required by the underlying constitutional provision. 129 S. Ct.
at 1948-49. Invidious discrimination claims require specific
intent; accordingly, to state invidious discrimination claims
against the Attorney General, Javaid Iqbal had to allege that
OSU STUDENT ALLIANCE v. RAY 12785
the Attorney General acted with the purpose of discriminating
by race, religion, or national origin. Id. The First and Four-
teenth Amendment free speech claims against Martorello,
however, do not implicate this requirement, because the alle-
gations show specific intent. After deliberating over plaintiffs’
request, Martorello purposefully denied them the same cam-
pus access that the Barometer enjoyed. Even if free speech
claims require specific intent (which they do not, as we con-
clude below), the complaint states claims against Martorello.
[16] The district court erred by considering only Martorel-
lo’s involvement vel non in the confiscation of the bins, with-
out considering his personal participation in continuing to
enforce the unconstitutional policy against the Liberty after
the confiscation. The court dismissed the claims against Mar-
torello (and the other defendants) because it found that “plain-
tiffs do not allege that any individual defendants were
involved in the bin removal process.” This analysis is incom-
plete. Whether or not the complaint plausibly alleges that
Martorello had a hand in the confiscation, it states valid
§ 1983 claims for First Amendment and equal protection vio-
lations because it pleads that he personally applied the policy
against plaintiffs after the confiscation.
B. First Amendment and Equal Protection Claims
Against Ray and McCambridge
[17] The claims against President Ray and Vice President
McCambridge require closer examination. According to the
complaint, neither defendant actually made the decision to
deny plaintiffs permission to place their newsbins throughout
campus; Martorello did that. Both Ray and McCambridge,
however, oversaw Martorello’s decision-making process and
knowingly acquiesced in his ultimate decision. Multiple
emails excerpted in the complaint (one by McCambridge him-
self)10 state that Martorello and Fletcher kept the President
10
McCambridge’s email to Rogers, the Liberty’s executive editor, indi-
cates that McCambridge agreed with Martorello’s eventual decision to
12786 OSU STUDENT ALLIANCE v. RAY
and Vice President informed about the status of the Liberty
controversy — both before and after Martorello definitively
decided that the unwritten policy required that the Liberty
newsbins remain confined to the designated areas. According
to the complaint, then, Ray and McCambridge knew that their
subordinate, Martorello, was applying the previously unan-
nounced and unenforced policy against the Liberty, but not
against any of the other off-campus newspaper, and they did
nothing to stop him. The question is whether allegations of
supervisory knowledge and acquiescence suffice to state
claims for speech-based First Amendment and equal protec-
tion violations.
[18] Iqbal does not answer this question. That case holds
that a plaintiff does not state invidious racial discrimination
claims against supervisory defendants by pleading that the
supervisors knowingly acquiesced in discrimination perpe-
trated by subordinates, but this holding was based on the ele-
ments of invidious discrimination in particular, not on some
blanket requirement that applies equally to all constitutional
tort claims. Iqbal makes crystal clear that constitutional tort
claims against supervisory defendants turn on the require-
deny plaintiffs the same campus access given the Barometer. The
McCambridge email, however, did not actually impose that decision.
Rather, the email left the ultimate decision to Martorello, whom it indi-
cated would “follow up” on plaintiffs’ request and would “keep [Ray and
McCambridge] informed.” Unlike Martorello, then, McCambridge did not
directly deny plaintiffs’ request. The email does serve as evidence that
McCambridge harbored an intent to deny plaintiffs expanded campus
access when he ultimately acquiesced in Martorello’s unconstitutional
decision. And McCambridge’s e-mail to Fletcher can be read to express
the reason the University was intentionally limiting the Liberty’s freedom
of speech when he stated, “we don’t have the same communications avail-
ability between your paper and the University”, i.e., the University did not
have control over the content of the Liberty. However, because we con-
clude that knowledge and acquiescence suffices to state a First Amend-
ment claim against a supervisor, we do not decide whether the complaint
plausibly alleges that McCambridge acted with specific intent.
OSU STUDENT ALLIANCE v. RAY 12787
ments of the particular claim — and, more specifically, on the
state of mind required by the particular claim — not on a gen-
erally applicable concept of supervisory liability. “The factors
necessary to establish a Bivens violation will vary with the
constitutional provision at issue.” 129 S. Ct. at 1948. Allega-
tions that the Attorney General (Ashcroft) and the director of
the FBI (Mueller) knowingly acquiesced in their subordi-
nates’ discrimination did not suffice to state invidious racial
discrimination claims against them, because such claims
require specific intent — something that knowing acquies-
cence does not establish. Id. at 1949; see Starr, 652 F.3d at
1207 (“Holding [ ] Ashcroft and [ ] Mueller personally liable
for unconstitutional discrimination if they did not themselves
have a discriminatory purpose would be equivalent to finding
them vicariously liable for their subordinates’ violation
. . . .”). On the other hand, because Eighth Amendment claims
for cruel and unusual punishment generally require only
deliberate indifference (not specific intent), a Sheriff is liable
for prisoner abuse perpetrated by his subordinates if he know-
ingly turns a blind eye to the abuse. See id. at 1205. The Sher-
iff need not act with the purpose that the prisoner be abused.
See id. at 1206-07 (“A showing that a supervisor acted, or
failed to act, in a manner that was deliberately indifferent to
an inmate’s Eighth Amendment rights is sufficient to demon-
strate the involvement — and the liability — of that supervi-
sor.”). Put simply, constitutional tort liability after Iqbal
depends primarily on the requisite mental state for the viola-
tion alleged.
Section 1983 “contains no state-of-mind requirement inde-
pendent of that necessary to state a violation of the underlying
constitutional right;” therefore, the requisite mental state for
individual liability will change with the constitutional provi-
sion at issue.11 Daniels v. Williams, 474 U.S. 327, 330 (1986).
11
Municipalities, in contrast, are subject to a generally applicable state
of mind requirement that is independent of the underlying constitutional
12788 OSU STUDENT ALLIANCE v. RAY
Here, where President Ray and Vice President McCambridge
are alleged to have knowingly acquiesced in their subordinate
Martorello’s violation of plaintiffs’ free speech rights under
the First and Fourteenth Amendments, we must decide
whether knowledge (as opposed to purpose) satisfies the men-
tal state requirement for free speech violations.12
provision. See City of Canton v. Harris, 489 U.S. 378, 389 n.8 (1989)
(“[T]he proper standard for determining when a municipality will be liable
under § 1983 for constitutional wrongs does not turn on any underlying
culpability test that determines when such wrongs have occurred.”); see
also Sheldon Nahmod, Constitutional Torts, Over-deterrence, and Super-
visory Liability after Iqbal, 14 Lewis & Clark L. Rev. 279, 305-06 (2010)
(arguing that Iqbal and the Canton v. Harris doctrine of municipal liability
are inconsistent).
12
The idea that constitutional tort claims impose state of mind require-
ments comes from the tort concept of “duty.” See Monroe v. Pape, 365
U.S. 167, 187 (1961) (“[Section 1983] should be read against the back-
ground of tort liability . . . .”). To state a § 1983 claim against a govern-
ment defendant, the plaintiff must allege that the defendant acted with
sufficient culpability to breach a duty imposed by the relevant provision
of federal law. See Starr, 652 F.3d at 1207. The Equal Protection Clause,
for example, imposes a duty not to purposefully discriminate on the basis
of race, religion, or national origin. Iqbal, 129 S. Ct. at 1948-49. The
Eighth Amendment imposes a duty not to act with deliberate indifference
towards the imposition of cruel and unusual punishment. Starr, 652 F.3d
at 1206-07. After Iqbal, the first question in a § 1983 case, like a common
law tort case, is whether the defendant’s conduct breached a duty to the
plaintiff.
Also like common law torts, constitutional torts require proximate
cause. Even if the defendant breached a duty to the injured party, the
defendant is only liable if his conduct foreseeably caused the injury. See
Stoot v. City of Everett, 582 F.3d 910, 926 (9th Cir. 2009). Proximate
cause is an objective requirement. It does not require a separate mental
state; the element of duty requires a mental state. See Bryan County v.
Brown, 520 U.S. 397, 404 (1997) (noting in the municipal liability context
that “a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.”)
(emphasis added). Of course, duty often eclipses proximate cause in the
arena of intentional torts. An action taken with the purpose of violating a
OSU STUDENT ALLIANCE v. RAY 12789
If the inquiry sounds misplaced — if it strikes one as
wrongheaded to speak of free speech violations and mental
state requirements in the same breath — it is because the law
has had scant occasion to address it. With some notable
exceptions, courts before Iqbal generally did not have to
determine the required mental state for constitutional viola-
tions, particularly not free speech violations. A uniform men-
tal state requirement applied to supervisors: so long as they
acted with deliberate indifference, they were liable, regardless
of the specific constitutional right at issue. See Preschooler II
v. Clark Cnty. Sch. Bd. of Trs. 479 F.3d 1175, 1182 (9th Cir.
2007) (“[A] supervisor is liable for the acts of his subordi-
nates if the supervisor . . . knew of the violations of subordi-
nates and failed to act to prevent them.”) (internal quotations
and alterations omitted); see also Kit Kinports, Iqbal and
Supervisory Immunity, 114 Penn St. L. Rev. 1291, 1294-95
(2010) (noting that before Iqbal, the circuits had adopted
generally-applicable mental state standards for § 1983 super-
visory liability).13 As for the subordinate officials who violate
constitutional rights directly — the officer who shoots the
suspect, the Facilities Department employee who junks the
newsbins — they act intentionally in most cases. Perhaps they
do not always know that their actions are unconstitutional
constitutional right, or the knowledge that such a violation will occur, will
typically be the foreseeable cause of the ensuing violation, absent perhaps
an intervening cause. See, e.g., Beck v. City of Upland, 527 F.3d 853, 862
(9th Cir. 2008). Still, confusing the two elements portends analytical mis-
hap, particularly in the § 1983 context. Whereas proximate cause is a fixed
requirement — it imposes the same hurdle upon on all § 1983 claims for
individual liability regardless of the specific provision of federal law on
which the claims are premised, see Monroe, 365 U.S. at 187 (“[§ 1983]
makes a man responsible for the natural consequences of his actions”)
(emphasis added) — the duty requirement changes with the underlying
claim.
13
Not every circuit used the deliberate indifference standard for supervi-
sory liability — at least one circuit found that gross negligence sufficed
— but each circuit applied a uniform standard that did not depend on the
particular constitutional right at issue. Kinports, supra, at 1295.
12790 OSU STUDENT ALLIANCE v. RAY
(hence, the qualified immunity defense), but they do intend to
take the violative action. Thus, before Iqbal, fixing the mental
state requirement for a particular constitutional provision was
most often unnecessary. The line officers generally satisfied
every mental state because they acted intentionally, and
supervisors were subject to a uniform mental state require-
ment divorced from the underlying claim.14 By abrogating the
second half of this framework, however, Iqbal places new
weight on the state of mind requirement for constitutional
torts. Now claims against supervisors present problems that
claims against subordinates typically do not: must the supervi-
sor have harbored the specific intent to subject the plaintiff to
the injury-causing act, or does knowledge or some lesser men-
tal state suffice?15
14
The constitutional tort claims that did require mental state analysis
pre-Iqbal concerned injuries that resulted from inaction or inadvertence,
e.g., Daniels v. Williams, 474 U.S. 327 (1986) (procedural due process
claim for injuries caused when deputy sheriff inadvertently left pillow on
jail stairs); Estelle v. Gamble, 429 U.S. 97 (1976) (Eighth Amendment
claim for failure to provide adequate medical care), and claims for invidi-
ous discrimination. E.g., Washington v. Davis, 426 U.S. 229, 239 (1976).
15
We understand Iqbal’s language eliminating the doctrine of “supervi-
sory liability” to overrule circuit case law that, following City of Canton
v. Harris, had applied a uniform test for supervisory liability across the
spectrum of constitutional claims. See 129 S. Ct. at 1949 (“[The doctrine
of] ‘supervisory liability’ is inconsistent with [the rule] the petitioners may
not be held accountable for the misdeeds of their agents. In a § 1983 suit
or a Bivens action . . . the term ‘supervisory liability’ is a misnomer.”);
Kinports, supra, at 1295 (summarizing circuit case law). Iqbal means that
constitutional claims against supervisors must satisfy the elements of the
underlying claim, including the mental state element, and not merely a
threshold supervisory test that is divorced from the underlying claim.
Iqbal does not stand for the absurd proposition that government officials
are never liable under § 1983 and Bivens for actions that they take as
supervisors. Nobody would argue, for example, that a supervisor who
orders subordinates to violate constitutional rights escapes liability under
Iqbal. As we held in Starr, even a supervisor’s knowledge and acquies-
cence will suffice for liability in some circumstances. 652 F.3d at
1206-07; see also Ammons v. Wash. Dep’t of Soc. & Health Servs., 648
F.3d 1020, 1026, 1031 (9th Cir. 2011) (holding that involuntarily commit-
OSU STUDENT ALLIANCE v. RAY 12791
[19] For two reasons, we conclude that knowledge suffices
for free speech violations under the First and Fourteenth Amend-
ments.16 First, it is black-letter law that government need not
target speech in order to violate the Free Speech Clause.
United States v. O’Brien, 391 U.S. 367 (1968), sets forth a
framework for analyzing the constitutionality of laws that
inhibit expressive conduct without aiming to do so:
[A] government regulation [of expressive conduct] is
sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important
or substantial governmental interest; if the govern-
mental interest is unrelated to the suppression of free
expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest.
Id. at 377.17 The requirement that the governmental interest be
“unrelated to the suppression of free expression” is but one
prong in O’Brien’s four-pronged test. Even if a law has purely
speech-neutral purposes — such as, for example, preservation
of the orderly functioning of the draft system — its incidental
effects on free expression still might violate the First Amend-
ted psychiatric patient stated due process claim against hospital adminis-
trator for failing to provide safe conditions through knowledge and
acquiescence). Iqbal holds simply that a supervisor’s liability, like any
government official’s liability, depends first on whether he or she
breached the duty imposed by the relevant constitutional provision.
16
Because the facts alleged do not require us to do so, we do not decide
whether anything less than knowledge, such as recklessness or gross negli-
gence, suffices.
17
In O’Brien, the Supreme Court held that because of the government’s
substantial interest in assuring the continuing availability of draft cards,
the statute making it a criminal offense to knowing destroy or mutilate a
draft card was an appropriately narrow means of protecting the govern-
ment’s interest. The statute condemned only the independent noncom-
municative impact of the conduct and was therefore not a violation of the
defendant’s right to freedom of speech.
12792 OSU STUDENT ALLIANCE v. RAY
ment if those effects are “greater than is essential” to further
the speech-neutral interest. Id.; see also Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 298 (1984) (applying
intermediate scrutiny under the First Amendment to regula-
tion prohibiting camping on national parks in Washington,
D.C.). In other words, the government may violate the speech
clause even if it acts without the purpose of curtailing speech.
Free speech claims do not require specific intent.
Second, only in limited situations has the Supreme Court
found constitutional torts to require specific intent. We know
of three examples: (1) due process claims for injuries caused
by a high-speed chase, Cnty. of Sacramento v. Lewis, 523
U.S. 833, 836 (1998); (2) Eighth Amendment claims for inju-
ries suffered during the response to a prison disturbance,
Whitley v. Albers, 475 U.S. 312, 320-21 (1986); and (3) invid-
ious discrimination under the Equal Protection Clause and the
First Amendment Free Exercise Clause. Iqbal, 129 S. Ct. at
1948. As for the first two examples, they turn on exigent cir-
cumstances not present in the free speech context. Because
prison riots and high-speed chases do not afford officers time
for “actual deliberation” before determining how best to carry
out their official responsibilities, deliberate indifference does
not suffice for liability in those contexts — the plaintiff must
show intent. Lewis, 523 U.S. at 851, 852-53 (“As the very
term ‘deliberate indifference’ implies, the standard is sensibly
employed only when actual deliberation is practical . . . .”).
The reasoning does not apply to officials who embark on a
course of conduct that curtails speech, because such officials
— like Ray and McCambridge, for example — do not face
similar exigencies. See Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 373 (9th Cir. 1998) (“[T]he critical ques-
tion in determining the appropriate standard of culpability is
whether the circumstances allowed the state actors time to
fully consider the potential consequences of their conduct.”).
As for invidious discrimination claims, the substance of the
constitutional right to which the claims correspond — the
OSU STUDENT ALLIANCE v. RAY 12793
right not to be singled out because of some protected charac-
teristic, like race or religion — calls for a specific intent
requirement. See Washington v. Davis, 426 U.S. at 239 (“The
central purpose of the Equal Protection Clause of the Four-
teenth Amendment is the prevention of official conduct dis-
criminating on the basis of race.”). But the First Amendment
Speech Clause is more absolute: a limitation on speech may
be unconstitutional even if it follows from a law that, like
many time, place, and manner restrictions, applies neutrally to
expressive and non-expressive conduct alike. See, e.g., Long
Beach Area Peace Network v. City of Long Beach, 574 F.3d
1011, 1035 (9th Cir. 2009) (striking down as not narrowly tai-
lored a parks regulation that required permits for activities
“likely to require the provision of city services”). Thus, while
a specific intent requirement inheres in claims for invidious
discrimination, the same requirement does not inhere in
claims for free speech violations.
[20] For these two reasons — because Supreme Court case
law indicates that free speech violations do not require spe-
cific intent, and because the rationales that have led the Court
to read specific intent requirements into certain other constitu-
tional tort claims do not apply in the free speech context —
we conclude that allegations of facts that demonstrate an
immediate supervisor knew about the subordinate violating
another’s federal constitutional right to free speech, and
acquiescence in that violation, suffice to state free speech vio-
lations under the First and Fourteenth Amendments. The com-
plaint alleges that Ray and McCambridge knowingly
acquiesced in Martorello’s decision to continue restricting the
Liberty’s circulation under the standardless, unwritten news-
bin policy. They stood superior to Martorello; they knew that
Martorello denied plaintiffs’ publication the same access to
the campus that the Barometer received; and they did nothing.
The complaint therefore states First Amendment and Equal
Protection claims against Ray and McCambridge.18
18
As we have already noted, see Part III.B, supra, the same analysis
controls the First Amendment and speech-based equal protection claims.
12794 OSU STUDENT ALLIANCE v. RAY
C. Process Claims
Unlike the free speech violation, the procedural due process
violation based on the University’s failure to notify the owner
of the newsbins prior to taking them did not endure beyond
the confiscation of the newsbins. The Facilities Department
threw the newsbins into the storage yard, without notice, but
then allowed plaintiffs to reclaim the bins. Plaintiffs’ task in
tying Martorello and the other defendants to the due process
violation is therefore more difficult than the free speech viola-
tion. To state a claim that defendants committed a procedural
due process violation through their “own individual actions,”
plaintiffs must tie the defendants to the confiscation itself.
Iqbal, 129 S. Ct. at 1949.
1. Martorello
The allegations portray Martorello as the University official
responsible for enforcing the unwritten newsbin policy. Thus,
the question on which plaintiffs’ due process claim against
Martorello turns is not whether knowledge and acquiescence,
deliberate indifference, or some lesser mental state meets the
state of mind requirement for the claim, but rather whether an
official’s administration and oversight of an unconstitutional
policy meets the required threshold. The Tenth Circuit con-
fronted this question in Dodds, where the issue was whether
the complaint stated a § 1983 claim against a Sheriff for a due
process violation that occurred when jail officials denied the
plaintiff the opportunity to post bail for several days after his
arrest. 614 F.3d at 1189-90. The violation occurred pursuant
Unlike equal protection claims for racial or religious discrimination,
speech-based equal protection claims do not require a showing that the
plaintiff was singled out because of a particular characteristic. Rather,
speech-based equal protection claims require only a showing that the
plaintiff was subjected to differential treatment that trenched upon a fun-
damental right. See ACLU of Nev., 466 F.3d at 797-98. Therefore, plain-
tiffs’ equal protection claims do not require specific intent.
OSU STUDENT ALLIANCE v. RAY 12795
to a county policy that prevented detainees charged with felo-
nies from posting bail before arraignment, even if bail had
been pre-set in the arrest warrant. Id. at 1190. The Sheriff was
in charge of the jail and therefore oversaw enforcement of the
policy, although there was no allegation that he was involved
in or aware of the policy’s application against the plaintiff in
particular. Id. at 1202-03. The court held that the complaint
stated a claim:
Whatever else can be said about Iqbal, and certainly
much can be said, we conclude the following basis
of § 1983 liability survived it and ultimately resolves
this case: § 1983 allows a plaintiff to impose liability
upon a defendant-supervisor who creates, promul-
gates, implements, or in some other way possesses
responsibility for the continued operation of a policy
the enforcement (by the defendant-supervisor or her
subordinates) of which “subjects, or causes to be
subjected” that plaintiff “to the deprivation of any
rights . . . secured by the Constitution . . . .”
Id. at 1199 (quoting 42 U.S.C. § 1983). Because the Sheriff
maintained the policy at the jail, and because the unconstitu-
tional denial of the opportunity for the plaintiff to post bail
followed directly from the policy, the Sheriff was held liable.
Id. at 1203-04.
[21] We agree with Dodds. When a supervisory official
advances or manages a policy that instructs its adherents to
violate constitutional rights, then the official specifically
intends for such violations to occur. Claims against such
supervisory officials, therefore, do not fail on the state of
mind requirement, be it intent, knowledge, or deliberate indif-
ference. Iqbal itself supports this holding. There, the Court
rejected the invidious discrimination claims against Ashcroft
and Mueller because the complaint failed to show that those
defendants advanced a policy of purposeful discrimination (as
opposed to a policy geared simply toward detaining individu-
12796 OSU STUDENT ALLIANCE v. RAY
als with a “suspected link to the [terrorist] attacks”), not
because it found that the complaint had to allege that the
supervisors intended to discriminate against Iqbal in particu-
lar. 129 S. Ct. at 1952 (concluding that Javaid Iqbal failed to
allege that the supervisory defendants created a policy that
directed subordinates to discriminate by race or religion).
Advancing a policy that requires subordinates to commit con-
stitutional violations is always enough for § 1983 liability, no
matter what the required mental state, so long as the policy
proximately causes the harm — that is, so long as the plain-
tiff’s constitutional injury in fact occurs pursuant to the pol-
icy.
Under these principles, the complaint states a due process
claim against Martorello if it plausibly alleges that: (1) “he
promulgate[d], implement[ed], or in some other way pos-
sesse[d] responsibility for the continued operation of” the
newsbin policy; and (2) the due process violation (i.e., the
confiscation of the newsbins without notice) occurred pursu-
ant to that policy.
[22] The complaint does not allege that Martorello devised
the newsbin policy; plaintiffs have no way of knowing, with-
out discovery, who at OSU devised the unwritten policy. But
the complaint does create a plausible inference that Martorello
was “responsib[le] for the continued operation of” the news-
bin policy. Dodds, 614 F.3d at 1199. It describes his job
responsibilities as “overseeing campus administration related
to Facilities and creating, implementing, and/or administering
university policies, including the policies and procedures
challenged herein.” Of course, the complaint also alleges that
the other three defendants were responsible for the “policies
and procedures” challenged in this action — viz., the newsbin
policy. But the allegation that Martorello bore responsibility
for the operation of the policy is plausible — not conclusory
— in light of other allegations in the complaint. Martorello
was head of the Facilities Department. The unwritten newsbin
policy governed use of OSU facilities and fell to the Facilities
OSU STUDENT ALLIANCE v. RAY 12797
Department for enforcement. The inference that Martorello
oversaw enforcement of the policy flows naturally from these
facts. Moreover, the allegations about the aftermath of the
confiscation make plain that Martorello was the policy’s stew-
ard. When plaintiffs complained about the unequal treatment
the Liberty received vis-a-vis the Barometer, University offi-
cials tapped Martorello to handle the issue. It was Martorello
who analyzed plaintiffs’ petition for recognition as an “on-
campus” publication under the policy, and it was Martorello
who ultimately denied that petition. The complaint need not
allege more plausibly to allege that Martorello bore responsi-
bility for administration of the newsbin policy.
[23] As for proximate causation, the complaint pleads
forthrightly that the unknown Facilities Department employ-
ees confiscated the newsbins pursuant to the policy that Mar-
torello administered. According to the allegations, the
Department’s customer service manager told plaintiffs that
the confiscation occurred because the Department “was
finally ‘catching up’ with the policy.” Similarly, when Marto-
rello contacted plaintiffs after the confiscation, he “related the
existence of the policy” and explained that “the University
was trying to keep the campus clean and was therefore regu-
lating ‘off-campus’ newspaper bins.” Thus, because it alleges
that Martorello was in charge of the newsbin policy and that
the confiscation without notice was conducted pursuant to that
policy, the complaint pleads a due process claim against Mar-
torello.
We note two distinctions from the invidious discrimination
claims that Iqbal rejected. First, Javaid Iqbal’s complaint did
not “contain facts plausibly showing that [Ashcroft and Muel-
ler] purposefully adopted a policy of classifying post-
September-11 detainees as ‘of high interest’ because of their
race, religion, or national origin.” 129 S. Ct. at 1952. Simply
put, the complaint did not tie the alleged unconstitutional con-
duct — purposeful discrimination by race or religion — to
any policy that the supervisory defendants advanced. This
12798 OSU STUDENT ALLIANCE v. RAY
case is different. Through concrete allegations, the complaint
ties the unconstitutional confiscation of the newsbins to the
policy that Martorello administered.
Second, the small scope of Martorello’s operation matters.
It is one thing to allege that, because some low-level govern-
ment officers engaged in purposeful discrimination, a cabinet-
level official must also have engaged in purposeful discrimi-
nation. But it is another thing to say that the director of a uni-
versity facilities department had a hand in the unconstitutional
manner in which his employees enforced a department-wide
policy. The second claim is plausible. Like all claims at the
pleading stage, of course, it requires development. For exam-
ple, the complaint does not really clarify whether the policy
(or Martorello’s administration of the policy) directed
employees to confiscate the newsbins without notice, or
whether the employees improvised the failure to notify. To
ask plaintiffs to clarify this point at the pleading stage, how-
ever, asks too much. They have not yet had discovery on what
the unwritten policy required or on how Martorello told his
employees to enforce it.
To be sure, when a plaintiff presses an implausible claim,
lack of access to evidence does not save the complaint. See
Iqbal, 129 S. Ct. at 1950 (“Rule 8 . . . does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”). But where the claim is plausible —
meaning something more than “a sheer possibility,” but less
than a probability — the plaintiff’s failure to prove the case
on the pleadings does not warrant dismissal. Id. at 1949 (“The
plausibility standard is not akin to a probability requirement,
but it asks for more than a sheer possibility that a defendant
has acted unlawfully.”) (internal quotation marks omitted).
Discovery will reveal whether Martorello’s stewardship of the
policy in fact called for confiscation without notice. All that
matters at this stage is that the allegations nudge this inference
“across the line from conceivable to plausible.” Id. at 1951
(internal quotations omitted). Martorello was responsible for
OSU STUDENT ALLIANCE v. RAY 12799
the policy, Martorello’s subordinates confiscated the bins
without notice, and two people — including Martorello him-
self — said the subordinates had acted pursuant to the policy.
That is enough to get discovery. See Starr, 652 F.3d at 1216
(holding that allegations must be sufficiently plausible “such
that it is not unfair to require the opposing party to be sub-
jected to the expense of discovery and continued litigation”);
Pinnacle Armor, 648 F.3d at 721 (“[A plaintiff] is not
required to ‘demonstrate’ anything in order to survive a Rule
12(b)(6) motion to dismiss. Rather, it only needs to allege suf-
ficient factual matter, accepted as true, to state a [plausible]
claim to relief . . . .”) (some internal quotation marks omitted).
D. Due Process Claims Against Ray and
McCambridge
[24] The complaint does not tie President Ray and Vice
President McCambridge to the confiscation, through the pol-
icy or any other means. Unlike Martorello, these officials are
not alleged to have run the department that enforced the pol-
icy or to have had any familiarity with the policy’s require-
ments before the confiscation. (Recall Ray’s “its news to me”
response.) The averments thus do not support an inference
that deliberate action or even recklessness by Ray or McCam-
bridge caused the due process violation. Perhaps one could
infer that the President and Vice President acted carelessly in
presiding over subordinates who enforced an unconstitution-
ally standardless policy governing newspaper circulation, but
even this inference would be inadequate, because negligence
does not suffice for due process liability. See Daniels, 474
U.S. at 328 (“The Due Process Clause is simply not impli-
cated by a negligent act of an official causing unintended loss
of or injury to life, liberty, or property.”). Therefore, the com-
plaint does not state due process claims against these defen-
dants.
E. Defendant Larry Roper
[25] The complaint names a fourth defendant, Larry
Roper, against whom it makes only two factual averments. It
12800 OSU STUDENT ALLIANCE v. RAY
says that Roper was Vice Provost for Student Affairs, and that
President Ray forwarded to Roper, along with two other per-
sons, plaintiff Rogers’ first email message complaining about
the confiscation. That is the totality of the allegations against
Roper. These allegations do not suffice to state any claims
against Roper. One cannot infer that Roper knowingly acqui-
esced in the decision to continue applying the unconstitutional
newsbin policy against plaintiffs after the confiscation,
because nothing suggests that Roper knew about that deci-
sion. Rather, the complaint suggests that he was copied on
one email and then fell out of the loop. The complaint does
not even contain facts to suggest that the newsbin issue fell
within Roper’s purview or that he was derelict in not ensuring
that the University handled the matter appropriately. The First
Amendment and equal protection claims premised on the
post-confiscation application of the policy therefore fail
against Roper. As for the due process claim against him, it
fails for the same reason that it fails against Ray and McCam-
bridge: the allegations do not suggest that he had anything to
do with the confiscation itself or the unconstitutional policy
pursuant to which the confiscation occurred.
***
To summarize, we hold that the complaint states free
speech claims under the First Amendment and the Fourteenth
Amendment Equal Protection Clause against Martorello, Ray,
and McCambridge; and that it states a due process claim
against Martorello. We further hold that the complaint does
not state due process claims against Ray and McCambridge,
and that it does not state any claims against Roper.
V
[26] The district court dismissed the complaint and entered
judgment without granting plaintiffs an opportunity to amend.
Plaintiffs did not request leave to amend until after the judg-
ment issued, but the district court’s with-prejudice dismissal
OSU STUDENT ALLIANCE v. RAY 12801
was still an abuse of discretion. See Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (en banc) (“[W]e have repeatedly
held that ‘a district court should grant leave to amend even if
no request to amend the pleading was made, unless it deter-
mines that the pleading could not be cured by the allegation
of other facts.’ ”) (quoting Doe v. United States, 58 F.3d 494,
497 (9th Cir.1995)). Because plaintiffs might well be able to
remedy the deficiencies in the claims against Roper and in the
due process claims against Ray and McCambridge, we con-
clude that the district court abused its discretion in denying
plaintiffs leave to amend their complaint. See id. at 1131. On
remand, plaintiffs should be afforded that opportunity.
REVERSED and REMANDED.
IKUTA, Circuit Judge, dissenting in part:
Simply put, to state a claim under § 1983 against a govern-
ment official, a plaintiff must allege that the official’s “own
misconduct” violated the plaintiff’s constitutional rights. Ash-
croft v. Iqbal, 556 U.S. 662, 677 (2009). What the plaintiff
must plead and prove “will vary with the constitutional provi-
sion at issue,” based on the Supreme Court’s decisions regard-
ing what conduct violates that particular provision. Id. at 676.
But the Supreme Court is quite clear that “supervisory liabili-
ty” is a “misnomer” in § 1983 cases, and that officials “may
not be held accountable for the misdeeds of their agents.” Id.
at 677.
The majority muddles and obscures this simple principle.
Plaintiffs’ complaint adequately alleges that Vincent Marto-
rello, OSU’s facilities services director, violated their First
Amendment rights under § 1983 by personally and arbitrarily
limiting The Liberty’s distribution on campus. But their com-
plaint nowhere indicates how OSU’s president, Ed Ray, and
the vice president of finance and administration, Mark
12802 OSU STUDENT ALLIANCE v. RAY
McCambridge, also violated those rights through their “own
individual actions.” Id. at 676. The majority considers it suffi-
cient that Ray and McCambridge “knowingly acquiesced” in
Martorello’s actions. Maj. op. at 12793. Under Iqbal, how-
ever, an official is not liable under § 1983 for simply knowing
about a lower ranking employee’s misconduct and failing to
act. In holding otherwise, the majority resurrects the very kind
of supervisory liability that Iqbal interred. I disagree with this
departure from Iqbal.
I
Iqbal made it clear that a supervisor, like any other official,
“is only liable for his or her own misconduct,” id. at 677.
Since the Supreme Court clarified this point, we have not held
an official liable for inaction in the face of someone else’s
wrongdoing unless the official had a legal duty to act. Such
a duty arises under only two narrow exceptions. The first
exception applies when a statute expressly imposes the duty.
See Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011). In
Starr, the prison sheriff was “required by statute to take
charge of and keep the county jail and prisoners in it, and
[was] answerable for the prisoner’s safekeeping,” and there-
fore was liable under § 1983 for supervisory omissions that
would likely enable subordinates to commit a constitutional
injury. Id. (quoting Redman v. Cnty. of San Diego, 942 F.2d
1435, 1446 (9th Cir. 1991). The second exception applies
when the courts have recognized a legal duty arising “by vir-
tue of a ‘special relationship’ between state officials and a
particular member of the public.” Ting v. United States, 927
F.2d 1504, 1511 (9th Cir. 1991). Ting held that law enforce-
ment officers may be held liable under § 1983 for inaction
that breaches their “constitutional duty to protect those per-
sons in [their] custody whom [they] know[ ] to be under a
specific risk of harm from themselves or others in the state’s
custody or subject to its effective control.” Id. (internal quota-
tion marks omitted); see also Preschooler II v. Clark Cnty.
Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007)
OSU STUDENT ALLIANCE v. RAY 12803
(school officials may be held liable for breaching a legal duty
to report abuses committed by a subordinate or for failing to
take corrective action). In sum, for an official’s inaction to
deprive plaintiff of constitutional rights under color of law,
the official must fail to act when the law requires action. Cf.
King v. Zamiara, 680 F.3d 686, 706 (6th Cir. 2012)
(“Liability [under § 1983] will not lie absent active unconsti-
tutional behavior; failure to act or passive behavior is insuffi-
cient.”).
Neither exception applies here. Plaintiffs do not allege that
Ray or McCambridge had a legal duty to stop Martorello from
continued enforcement of his newsbin policy, that they
exerted any control over the decisions of the facilities depart-
ment, or that their failure to intervene in the dispute between
Plaintiffs and Martorello violated any law, statute, or even
university requirement. This is not a case like Preschooler II,
479 F.3d at 1183, where there was a legal duty to report; or
like Starr, 652 F.3d at 1208, where a statute imposed a duty
to protect and to take corrective action; or even like Bergquist
v. Cnty. of Cochise, 806 F.2d 1364, 1369-70 (9th Cir. 1986),
abrogated on other grounds by City of Canton v. Harris, 489
U.S. 378 (1989), where failure to train or supervise amounted
to a policy or custom of deliberate indifference. Nor do plain-
tiffs allege that either Ray and McCambridge personally took
an action that deprived plaintiffs of their constitutional rights.
Rather, the complaint indicates that Ray and McCambridge
did not even know about the removal of The Liberty’s bins
until after the fact, at which point Ray stated that the removal
of the bins was “news” to him, and McCambridge told plain-
tiffs that Martorello would be the “point of contact” with
respect to further inquiries. Nor does the complaint allege that
either official developed or enforced the newsbin policy,
which was promulgated by the facilities department, and
enforced by Martorello. In sum, the complaint merely recites
“the organizational role of the[ ] supervisors,” and makes “no
allegation that the supervisors took any specific action result-
ing in” the constitutional violation. Moss v. U.S. Secret Serv.
12804 OSU STUDENT ALLIANCE v. RAY
(Moss II), 675 F.3d 1213, 1231 (9th Cir. 2012) (emphasis in
original). This is not sufficient to state a claim under § 1983.
The majority misses this central point because it focuses
solely on one component of a § 1983 claim: the proper mental
state for First Amendment claims. The majority’s detailed and
elaborate discussion of this issue, see Maj. op. at 12785-93,
boils down to the simple, though erroneous, proposition that
a plaintiff can adequately allege a § 1983 claim for violation
of that plaintiff’s First Amendment rights merely by alleging
that the official had knowledge of such violation. The major-
ity brushes aside § 1983’s requirement that a defendant
engage in conduct that “subjects, or causes to be subjected”
a plaintiff to a deprivation of constitutional rights, and instead
holds it suffices if a supervisory official “knowingly acqui-
esces” in the misconduct of a lower ranking employee. Maj.
op. at 12793. But of course, “acquiescence” is merely a way
to describe knowledge and inaction. See Webster’s Third New
Int’l Dictionary 18 (3d ed. 2002) (defining “acquiescence” as
“passive assent or submission.”). The word “acquiescence”
adds nothing to the mental state of “knowledge” unless the
official has a legal duty not to acquiesce. Further, the majority
erroneously implies that an allegation of “knowledge” suf-
fices to establish the causation element of a § 1983 claim,
namely, that the official caused the plaintiff’s injury. The
majority relies on a novel and somewhat impenetrable formu-
lation that “duty” is generally equivalent to acting with a
specified state of mind, and this duty “eclipses” proximate
cause where the plaintiff acts with knowledge that a violation
may occur. Maj. op. at 12788-89 n.12. Because (in the majori-
ty’s view) the mental state of knowledge stands in for both
misconduct and causation, the plaintiffs can state a § 1983
claim by alleging only that a supervisor had knowledge of a
subordinate’s misconduct and took no action.
This is not enough. While plaintiffs here must plead the
elements of a First Amendment violation, including mental
state, they must also plead that each official acted in a way
OSU STUDENT ALLIANCE v. RAY 12805
that “subject[ed], or cause[d] to be subjected,” a citizen to the
deprivation of First Amendment rights. 28 U.S.C. § 1983.
Plaintiffs here did not allege that Ray or McCambridge
engaged in any misconduct or that these officials caused their
injury. Therefore, the complaint in its current form does not
meet the bare minimum for stating a First Amendment claim
under § 1983 against Ray or McCambridge, and this claim
must be dismissed.1
The majority reaches a contrary determination only because
it smuggles respondeat superior back into our § 1983 jurispru-
dence. In place of personal misconduct and causation, the
majority substitutes mere knowledge of a lower-ranking
employee’s misconduct. But this is the very standard Iqbal
rejected, because it makes officials responsible for lower-
ranking employees’ misdeeds merely by virtue of the offi-
cials’ positions in the organization. By adopting this standard,
the majority returns us to pre-Iqbal jurisprudence and revives
vicarious liability, at least for First Amendment claims.
Because this is contrary to Iqbal’s ruling that “each Govern-
ment official, his or her title notwithstanding, is only liable for
his or her own misconduct,” 556 U.S. at 677, I dissent.
1
I would dismiss plaintiffs’ equal protection claim against Ray and
McCambridge on the same grounds. See Iqbal, 556 U.S. at 676.