American Future Systems, Inc. v. Pennsylvania State University

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal presents an important first amendment question concerning the power of a state university to regulate activities in student dormitories that it operates in conjunction with its educational programs. Specifically, we are confronted with a chal*856lenge to the constitutionality of a regulation enacted by Pennsylvania State University (“Penn State”) prohibiting group sales demonstrations in students' dormitory rooms. The regulation has operated in this case, now before us for the third time,1 to bar several Penn State students from attending or hosting sales demonstrations conducted by American Future Systems (“AFS”), a corporation that conducts such sales demonstrations as a means of marketing its china and cookware. After trial, the district court held that the regulation was unconstitutional and entered an order enjoining Penn State from continuing to ban AFS sales demonstrations in the dormitories. For the reasons set forth below, we hold that the regulation does not unconstitutionally infringe upon either the right of students to receive commercial information in association with other students or upon the right of AFS to disseminate such commercial information. Accordingly, we reverse the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

The plaintiffs-appellees in this action are AFS and a number of Penn State students.2 AFS is in the business of selling cookware, china, crystal, and silverware, primarily to college students.3 Its primary sales device is the on-cámpus demonstration, which is similar to the well-known Tupperware party. An AFS representative meets with a group of students in their dormitory, gives a presentation extolling the virtues of AFS’s merchandise, and attempts to make sales at the end of the presentation. The students are encouraged to sign an installment sales contract at the time they agree to make the purchase.

AFS actively recruits students to host its demonstrations. An AFS sales representative contacts a particular college student, usually a woman, and asks if she will host an on-campus demonstration.4 The student is informed during the initial phone conversation that, if she hosts an AFS demonstration, she will receive a free vacation in Florida or Las Vegas.5 If a student agrees to host a demonstration, she receives a packet of information containing a number of invitations for guests, which she is asked to distribute to other students, and a description of what is involved in the show.

*857AFS seeks to have about ten to fifteen female students at each demonstration.6 This “target” size is evidently based on AFS’s experience that ten to twenty percent of the students at a particular demonstration usually agree to purchase AFS products. If fewer than the optimal number of students are present five minutes before the demonstration is scheduled to begin, the AFS representative asks those in attendance to attempt to round up others. The representative informs them that there will be a “door prize” of a trip to Florida if at least ten women are present,7 and tells them that a donation will be made to “Save the Children” for each person at the show. The AFS representative does not solicit attendance by knocking on doors herself unless permission to do so has been granted by college officials.

Once the students are present, the AFS representative conducts the demonstration, which is set in the context of a discussion of the post-college lifestyle of students. The AFS representative demonstrates the “American Prestige Series” products, compares them with similar merchandise, and explains the advantages of AFS’s wares.8 Following the demonstration, the representative asks whether any of the students are interested in purchasing the products, and attempts to get those students to sign purchase agreements at the meeting. If a student agrees to buy, the representative fills out a contract that contains a code describing the student’s educational institution, race or national origin, marital status, and type of residence. AFS uses this information to determine the credit terms to be extended to the student.9

When AFS first sought to conduct its demonstrations in Penn State’s dormitories in the fall of 1977, the demonstrations were prohibited by the university’s general policy against commercial solicitation.10 Nonetheless, Edward M. Satell, president of AFS, directed his sales representatives to begin booking demonstrations at Penn State.11 A number of shows were, in fact, conducted, some being interrupted by Penn State officials who asked the AFS repre*858sentative to leave. Satell asserted that the university’s policy was unconstitutional in letters to Penn State officials.

In response to AFS’s actions, Penn State refined its policy on commercial solicitation. The new policy restricted but did not completely prohibit AFS’s demonstrations in university dormitories. The district court described the new policy in the following way:

(1) AFS may conduct group demonstrations in specified common areas of each residence hall; (2) following those demonstrations a student may invite an AFS representative to the student’s room to purchase AFS goods; (3) AFS is free to solicit invitations to individual students’ rooms at the group demonstrations or by telephone or mail; (4) AFS is not permitted to conduct group demonstrations in an individual student’s dormitory room; (5) AFS is not permitted to consummate sales in individual dormitory rooms to a purchaser other than the occupant of the room; (6) AFS is not permitted to conduct group solicitations of sales in the common areas of residence halls; and (7) AFS is not permitted to consummate commercial transactions in the common areas of residence halls.

AFS, 553 F.Supp. at 1275; see also American Future Systems, Inc. v. Pennsylvania State University, 522 F.Supp. 544, 547 (M.D.Pa.1981); American Future Systems, Inc. v. Pennsylvania State University, 510 F.Supp. 983, 985 (M.D.Pa.1981). In addition, Penn State did not limit in any way the availability of other methods of communication between AFS and the students. AFS was free to solicit students directly by telephone and mail, and indirectly by advertising in the student newspaper and on the student radio station.12 The company was also able to hold its demonstrations at the Nittany Lion Inn — a motel on the Penn State campus — or elsewhere in State College, Pennsylvania.13

Dissatisfied with Penn State’s interpretation of its regulations, AFS filed suit, alleging that Penn State’s regulations infringed its constitutional right to free speech, and the right of students to hear that speech. The focus of AFS’s challenge was on those aspects of the regulations permitting it to conduct demonstrations in the common areas of the dormitories but prohibiting it from consummating sales at the end of these presentations. The district court, after a trial, concluded that AFS could not raise the constitutional rights of the students, who were not then parties to the litigation, see supra note 2,14 and that Penn State’s regulations did not violate AFS’s first amendment rights.15 The court’s decision turned on the availability of other channels for AFS to communicate product information to the students, including demonstrations that did not involve attempts to consummate immediate sales, and on the distinction between “commercial speech” and “soliciting sales.”16 The court held that Penn State’s interests in protecting the privacy of dormitory residents, and in protecting students against “deceptive or potentially coercive practices,” justified regulations that made it “more difficult for students to obtain the type of information about commercial products which [AFS] seeks to distribute.” AFS, 464 F.Supp. at 1262.

*859In American Future Systems, Inc. v. Pennsylvania State University, 618 F.2d 252 (3d Cir.1980) (“AFS I”), we affirmed the district court. We concluded that the common areas of the Penn State dormitories are not “public forums” for first amendment purposes, and that “Penn State has articulated a legitimate interest” — the preservation of the educational and residential atmosphere of the dormitories— “which supports] its ban on group sales activity in the dormitories.” Id. at 257. We also held that Penn State’s distinction between group political speech, which it permitted, and “group commercial speech,” which it restricted, was not “arbitrary, capricious, or invidious,” and thus was constitutional. Id. at 258-59.

Following our decision in AFS I, AFS requested permission from Penn State to hold demonstrations in individual students’ rooms; its position, apparently, was that the constitutionality of Penn State’s regulations regarding activities in the students’ own rooms was left open by the AFS I ruling. Penn State denied AFS’s request on the basis of its regulations. AFS then proposed that it be permitted to present group demonstrations in the common areas of the residence halls, although it agreed that, after AFS I, it had to abide by the University’s requirement that actual sales be consummated only on a one-on-one basis in each student’s room. The company forwarded to Penn State the printed text of its proposed group presentation. The University objected to certain parts of the presentation, characterizing these parts as “outright group commercial solicitation.” Penn State insisted that the parts of the presentation outlining the terms on which the AFS merchandise was being offered be excised from the show.17

Now joined by a group of Penn State students, AFS filed a new complaint, asserting that AFS had a right to conduct its entire demonstration, including those portions aimed at conveying information directly relevant to the sale of its goods, in the dormitory common areas, and to make sales to students other than the resident of a particular room at the end of those demonstrations. The students contended that they had a right to hold sales demonstrations in their individual dormitory rooms.18 Two of the students who lived in the dormitories also asserted constitutional privacy rights, and state law rights under the Pennsylvania Landlord and Tenant Act. The district court granted summary judgment for Penn State, rejecting the first amendment claims of both the students and AFS primarily on the basis of AFS I; it also rejected the students’ other claims. AFS, 522 F.Supp. 544.

In American Future Systems, Inc. v. Pennsylvania State University, 688 F.2d 907 (3d Cir.1982) (“AFS II”), we reversed. We held that Penn State’s attempt to prohibit AFS from including certain information in its sales demonstration was prohibited by the first amendment. We explicitly declined to address the question whether Penn State could ban commercial sales activity in the dormitories altogether, but, relying on the test for commercial speech set out by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Services Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), we held that the university’s attempt to censor the presentation was a content-based regulation not based on a substantial government interest.19 688 F.2d at 912-13. We also concluded that the district court had failed to consider the students’ associational rights and their rights to hear the “commercial speech” in their rooms independent of their rights to conduct the same activity in the common areas. After reviewing the record, we concluded that the university had not introduced any evidence to support *860its contention that the holding of AFS demonstrations in the students’ rooms would interfere with its attempts to preserve a study atmosphere and that the summary judgment was, therefore, inappropriate.20 We remanded the case to the district court for the factfinding made necessary by our opinion.21

The district court thereupon held a trial on the constitutionality of Penn State’s restrictions on group sales demonstrations in individual rooms. AFS and the students presented expert testimony on the educational and social value of the AFS demonstrations, and student testimony concerning the reasons why particular students attended the demonstrations. Penn State’s evidence consisted primarily of the testimony of Dr. Lee Upcraft, Director of Residential Life Programs, who explained a number of asserted justifications for the school’s regulations, including that:

(a) Such activity could invade the privacy of students;
(b) Such activity could disrupt students while studying or sleeping;
(c) Such activity could disrupt the educational and personal development programs of the Office of Residential Life Programs;
(d) Such activity could disrupt the activities of student government;
(e) Such activity could disrupt organized and informal and social and recreational activities of students;
(f) Disruptions, to the extent that they occur, would be for a purpose unrelated to the purpose for which residence halls are dedicated;
(g) The greater the frequency of the solicitation of money and sales of products and sales of service, the more likely disruptions would occur;
(h) Such activity could displace some of the normal activities carried on in a residence hall;
(i) Such activity would require Penn State to exercise controls on the commercial activities which could divert resources and efforts from the purpose for which they are now used;
(j) Group solicitations and sales are incompatible with the uses to which the residence halls are dedicated; and
(k) Group solicitations and sales have the potential for deception, fraud, and overreaching.

See AFS, 568 F.Supp. at 671; AFS, 553 F.Supp. at 1280.

The district court held that some of the governmental interests advanced by Penn State were not substantial, that the regulation was not reasonably calculated to advance some of the others, and that there was no factual substantiation for the remainder. See AFS, 553 F.Supp. at 1280-81 (preliminary injunction opinion); AFS, 568 F.Supp. at 671. On that basis, the court granted an injunction against the continued enforcement of the regulation.22 This appeal followed.

II. THE APPLICABLE LEVEL OF FIRST AMENDMENT SCRUTINY

We are confronted in this case by a regulation that infringes on the right of AFS to disseminate, and of the Penn State students to receive, information directly related to the sale and purchase of AFS merchandise by the students.23 As a *861threshold matter, we must determine the nature of this information for first amendment purposes, because there can be no doubt that “the Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression.” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469 (1983); see also Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2349-50, 65 L.Ed.2d 341 (1980); Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978).24

AFS and the students argue that, because there are substantial educational, social, and cultural aspects to the AFS demonstrations, these demonstrations are entitled to the first amendment protection afforded “pure” speech, as opposed to the lesser protection applicable to “commercial” speech. In support of this position, two of the students testified about the noncommercial utility of the demonstrations, and two experts testified about their educational value.25 The district court concluded on the basis of this testimony that “the communicative process at issue here, at least with respect to the students, does not involve solely commercial speech.” AFS, 568 F.Supp. at 669.

The district court’s reliance on the testimony concerning the non-commercial aspects of the demonstrations was misplaced. In Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), the Supreme Court confronted an argument very similar'''to that advanced here by AFS and the students. Youngs was engaged in the sale of contraceptive *862devices, and part of its advertising involved the mailing of pamphlets explaining the usefulness of condoms in avoiding venereal infection. The Court noted that the pamphlets were not “within the core notion of commercial speech” because they did more than simply propose a commercial transaction. Nonetheless, the Court held that, taken together, three factors provided “strong support” for a conclusion that the speech was commercial: (1) the speech involved was conceded to be an advertisement; (2) the speech referred to a specific product; and (3) the speaker had an economic motive for making the speech. The Court explained that mere discussion of important public issues in advertisements does not render them non-commercial. Id. 103 S.Ct. at 2880-81.

We believe that this aspect of the case sub judice is controlled by Bolger. As in Bolger, the speech here is essentially an-advertisement of AFS’s wares, it specifically refers to AFS’s products, and AFS’s motivation for engaging in the speech is purely economic. There may be cases in which the character of the speech is unclear and in which testimony concerning the motivation of the listeners and the educational or social value of the speech might be relevant in determining whether the speech is commercial or pure for first amendment purposes.26 However, cases of this type will be rare, and this is not one of them. On the record before us, the speech in question is commercial as a matter of law.

Moreover, we do not believe, as the district court apparently did, that the speech at issue can be commercial for purposes of determining AFS’s rights but pure for purposes of determining the students’ rights. The Bolger criteria are employed to discern whether speech is, in its essence, part and parcel of a proposed commercial transaction. It is this connection to a commercial transaction that justifies the government’s greater role in regulating the speech: such speech is more subject to abuse and less likely to be chilled by regulation than other types of communication. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 n. 24, 96 S.Ct. 1817, 1830 n. 24, 48 L.Ed.2d 346 (1976). Although, as we noted above, the motivation of the listeners may occasionally be relevant to a conclusion about whether the speech is commercial, the essential nature of the speech remains unchanged regardless of whose rights are being adjudicated, and the same test should be used whether it is the speaker’s or the listeners’ rights that are at stake. Thus, for the students as well as AFS, the speech here was undoubtedly commercial.

This conclusion, however, forces us to confront an unusual situation: the intersection between government regulation of commercial speech and the regulation of speech on government-owned property. Although the Supreme Court has set up a detailed analytic framework for determining the constitutionality of regulations in each of these situations, it has not, to our knowledge, been faced with the question of what test should be employed when both factors are present. If the two modes of analysis were equally applicable to the facts of this case, we would have to determine whether they yielded different results, and, if so, we would have to choose between them in determining the validity of Penn State’s regulation.

The analysis developed by the Supreme Court for speech on government property and the one for commercial speech are not, however, equally applicable to this case. In order to determine which of two *863“government property” tests to employ, we would have to decide whether student dormitory rooms are “public” or “non-public” forums. See infra pp. 863-64. For the reasons detailed below, see infra p. 864, we believe that dormitory rooms do not fit neatly into either the public forum or the non-public forum mold. As a result, neither analytic framework set out by the Court for speech on government property is completely appropriate here. Our best course of action, therefore, is to pursue the mode of analysis developed by the Supreme Court for cases involving commercial speech; we believe that this analysis is flexible enough to permit a thorough and proper weighing of all the factors and interests involved in this case.

In Central Hudson Gas & Electric Co. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the Supreme Court set out a four-part test for assessing the validity of restrictions on commercial speech. In accordance with this test, we must first determine whether the speech at issue concerns lawful activity and is not misleading; speech failing this initial part of the test is not entitled to any first amendment protection. Second, we must examine the government’s asserted interests in regulating the speech, and we may uphold the regulation only if it is based on a substantial government interest. Third, we must ascertain whether the regulation directly advances the asserted governmental interest. Finally, we must be convinced that the regulation is no more extensive than necessary to carry out the government’s objective. Id. at 566, 100 S.Ct. at 2351; see also Bolger, 103 S.Ct. at 2881; AFS II, 688 F.2d at 913. We turn to application of the Central Hudson test.

III. APPLYING THE CENTRAL HUDSON TEST

The AFS product demonstrations easily get over the hurdle posed by the first prong of the Central Hudson test. The demonstrations clearly concern lawful activity, and the university does not contend that they are misleading.27 The demonstrations are thus entitled to the first amendment protection afforded commercial speech.

The second step in the Central Hudson analysis is an evaluation of the governmental interests being offered to justify the restrictive regulation. Here, Penn State’s long list of proffered justifications for banning group demonstrations in the students’ dormitory rooms, see supra p. 861, can be distilled into two major asserted interests. First, Penn State contends that, in its role as property owner, it may preserve its dormitories for their intended use and prevent them from becoming rent-free merchandise marts; second, the school asserts that, as educator, it may ensure that the dormitories maintain their residential and study-oriented atmosphere.

It has long been recognized that the government has a significant interest in dedicating its own property to a particular use. This interest, however, is not without limitation. Some parcels of government property, such as parks and streets, are effectively held in trust for the public “for purposes of assembly, communicating thoughts ..., and discussing public questions.” Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980) (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.)). This kind of property is considered a “public forum,” and the ability of the government to restrict speech on public forums is extremely circumscribed. Specifically, the government may adopt time, place, and manner restrictions in public forums only if they are content neutral, are narrowly tailored' to serve a significant government interest, and leave open ample alternative channels *864of communication. See Clark v. Community for Creative Non-Violence, - U.S. -, -, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); Members of the City Council of Los Angeles v. Taxpayers for Vincent, — U.S. —, 104 S.Ct. 2118, 2129, 80 L.Ed.2d 772 (1984); United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983); Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647-48, 101 S.Ct. 2559, 2563-64, 69 L.Ed.2d 298 (1981). Other property is dedicated by the government to a purpose inconsistent with public use as a forum for speech; in such “non-public forum” cases, the government may regulate speech so long as its regulation is reasonable and viewpoint neutral. See Perry Education Association v. Perry Local Education Association, 460 U.S. 37, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) (policy giving representative union but not rival union access to teachers’ school mailboxes held constitutional); United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 129-30, 132-33, 101 S.Ct. 2676, 2685, 2686-87, 69 L.Ed.2d 517 (1981); Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976).

If university dormitories were a public forum, Penn State’s first justification for prohibiting the AFS demonstrations — that such action is necessary to preserve the property for its dedicated use — would clearly be insubstantial. Obviously, the state cannot prohibit speech on its property on the grounds that the prohibition is necessary to preserve the property for its intended use when one important purpose of the property is to provide a forum for members of society to communicate information and ideas. On the other hand, if the property involved were a typical nonpublic forum, such as a federal office building, the government's asserted interest in maintaining that property for its intended use would indeed be great.

This case is unusual, however, because university dormitories have characteristics of both public and non-public forums. With respect to outsiders, the students’ dormitory rooms at Penn State appear to be non-public forums: they are certainly not in existence in order to facilitate general public communication. The university, therefore, has a legitimate proprietary interest in maintaining the dormitories for their intended use as residence halls and not as rent-free space for commercial vendors. For the students, however, not only do the dormitories resemble public forums but the university campus resembles society at large. Most students at a large public university like Penn State spend most of their time immersed in a world dedicated to the purpose of their education. They live in a dormitory, travel to and from classes on campus, listen to the college radio station, and read college newspapers. The government owns all of the property related to the students’ world yet the students must be able to exchange ideas and information, including commercial information, somewhere on this property unencumbered by university restrictions;28 hence, their interest in doing so in their own rooms is enhanced. As in the case of public parks, therefore, one important use of dormitory rooms is as a forum for speech uninhibited by governmental interference — at least when such speech is desired by the students. For this reason, Penn State cannot meet the Central Hudson requirement of a substantial governmental interest merely by making the blanket assertion that it needs to restrict speech in the dormitories in order to preserve them for their intended use.29

*865Penn State, however, is more than a mere property owner; it is an educational institution. The university contends that, as educator, it must be able to maintain a residential and study-conducive atmosphere in the dormitories. There can be no doubt that a public university has a significant interest in carrying out its educational mission, and that this interest necessarily gives it some power to regulate its students’ lives. While this interest, standing alone, might not be sufficient to meet the Central Hudson test, we believe that Penn State’s proprietary interest (with respect to AFS and other outsiders) in ensuring that its premises do not become a rent-free merchandise mart, coupled with its educational interest (with respect to the students), constitute together a substantial justification for its attempt to regulate commercial speech in the students’ dormitory rooms.

In accordance with Central Hudson, we must next determine whether the regulation at issue advances the government’s asserted interest. Penn State wants to ensure that its dormitories remain a residential and study area for its 12,000 on-campus students. A population of 12,000 is a very tempting market for the sellers of innumerable products and services. Because relatively few college students have an automobile on campus, the ability of a seller to transact business on campus is an important factor in making sales. Furthermore, since the students generally live in close proximity to one another, there may be efficiencies or economies of scale in collectively soliciting them where they reside. When the fact that dormitories present potential vendors with a place to sell their goods rent free is added to these other considerations, it is not unreasonable to conclude that the character of the Penn State dormitories would be adversely affected in the absence of restrictions on commercial solicitation.30 The university’s restriction, therefore, directly advances its purpose.

Finally, we may uphold the regulation only if it is not excessive in light of the state’s objective. This does not mean, of course, that if lesser restrictions on AFS alone would be sufficient to maintain the atmosphere in the dormitories, the university’s regulations must fail. Rather, we must be convinced only that Penn State's total ban on group demonstrations in the dormitory rooms is necessary given the effect of allowing all commercial vendors access to the students’ rooms on the same terms. See Clark v. Community for Creative Non-Violence, 104 S.Ct. at 3071; Heffron, 452 U.S. at 651-55, 101 S.Ct. at 2566-67.

In light of recent Supreme Court precedent, we believe that this last prong of the Central Hudson test cannot be read as a “least restrictive means” requirement. In Clark v. Community for Creative Non-Violence, — U.S. —, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), the Court was faced with a National Park Service regulation that prohibited sleeping in certain parks in Washington, D.C. The Court of Appeals for the District of Columbia Circuit had held the regulation invalid because of its belief that the regulation could have been more narrowly tailored to meet the agency’s purpose, which is a requirement under the “public forum” test. See supra p. *866864. The Supreme Court reversed the Court of Appeals on this issue, stating:

We are unmoved by the Court of Appeals’ view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the government interest in preserving park lands____ The Court of Appeals’ suggestion that the Park Service minimize the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage ... and these suggestions represent no more than a disagreement with the Park Service over how much protection the core parks require or how an acceptable level of preservation is to be attained. We do not believe that [prior first amendment eases] assign to the judiciary the authority to replace the Park Service as the manager of the Nation’s parks or endow the judiciary with the competence to judge how much protection- of park lands is wise____

Id. 104 S.Ct. at 3072; see also Regan v. Time, Inc., 104 S.Ct. at 3271-72 (plurality opinion of White, J.) (“The less-restrictive-alternative analysis invoked by [respondent] has never been a part of the inquiry into the validity of a time, place, and manner regulation.”); White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, at 1528-1532 (D.C.Cir.1984) (discussing Supreme Court’s “rejection of the notion that courts may arbitrarily substitute their judgment for that of legislative or administrative institutions” in first amendment cases).

Although the Supreme Court has not yet addressed this issue in the context of the Central Hudson test, we see no reason for doubting that it would interpret the “no more extensive than necessary” language of Central Hudson in the same way it has interpreted the “narrowly tailored to serve a significant governmental interest” language in Community for Creative NonViolence. Therefore, although we might be able to imagine alternative regulations that accomplish Penn State’s objectives while interfering less with the students’ and AFS’s rights to communicate, we will not strike down the university’s regulation on this ground. This court may not establish itself as the manager of Penn State’s students and property, nor may it substitute its own judgment for Penn State’s conclusion as to the best means to carry out the university’s legitimate ends. There is a whole realm of permissible means of accomplishing the university’s objectives, and our function must be limited to determining whether the school has chosen an acceptable — not the least restrictive — alternative.

Penn State’s regulation does not prohibit all commercial information from reaching its students while they are in their dormitory rooms. If invited by a student, a commercial vendor may conduct a one-on-one demonstration and sale in that student’s own room. Moreover, the telephone, mails, student newspaper, and college radio station are all available to commercial entities who desire to advertise in the student market. In addition, the university’s regulation does not prohibit all group solicitation on state-owned property; Penn State has indicated its willingness to make a facility on campus, the Nittany Lion Inn, available to AFS and other vendors for group sales demonstrations.

We believe that the existence of ample alternative means for students and vendors to exchange commercial information in the dormitories and elsewhere confirms that Penn State’s restriction is carefully tailored to carry out its intended purpose. The university does not want its dormitory rooms converted, in effect, into rent-free space for commercial vendors because it fears that such a result would prevent it from maintaining the dormitories as a place where students can reside and study without disruption. It has acted on this fear by banning all on-site group commercial solicitation on an equal basis, while permitting all other types of commercial communication between its students and outside ven*867dors. We cannot say that this limited restriction on commercial speech is excessive.

IV. CONCLUSION

In sum, we hold as follows:

(1) the group demonstrations that AFS desires to conduct constitute commercial speech for first amendment analysis with respect to the rights of both AFS and the students;

(2) the demonstrations are not unlawful or misleading, and they are therefore entitled to first amendment protection;

(3) Penn State’s regulation banning group commercial solicitation in its students’ dormitory rooms is constitutional because it directly advances the university's substantial (governmental) interests, as property owner and educator, in maintaining its dormitories as a residential and study area for its students and in preventing their use as a rent-free merchandise mart, and because the regulation is not excessive in light of this objective;

(4) the privacy claims asserted by the students are barred by res judicata.31

The judgment of the district court will be reversed and the case will be remanded with instructions to enter judgment on the merits for Penn State.32

. See American Future Sys., Inc. v. Pennsylvania State Univ., 618 F.2d 252 (3d Cir.1980) (“AFS I’’); and American Future Sys., Inc. v. Pennsylvania State Univ., 688 F.2d 907 (3d Cir.1982) OAFSII"). The district court has also authored several opinions in the case, which, after the initial reference, we refer to by their volume of the Federal Supplement, preceded by the legend "AFS.”

. As explained below, this case was originally brought by AFS alone; the students were joined after this court affirmed the district court’s holding that AFS could not assert the constitutional rights of its potential customers. See American Future Sys., Inc. v. Pennsylvania State Univ., 464 F.Supp. 1252, 1259 (M.D.Pa.1979), aff'd, 618 F.2d 252 (3d Cir.1980) (AFS I). The student-plaintiffs named in the amended complaint are Steven Brubaker, Richard J. Wingert, W. Bruce Del Valle, Joan D. Varsies, Dennis C. Habacher, and John B. Spillar. Kevin Graves was added as a plaintiff in August 1981; Kathy Johnson was added in December 1982; and John B. Spillar was dropped as a plaintiff at the same time. Only Graves is currently a student at Penn State.

. AFS’s sales techniques are described in detail in United States v. American Future Systems, Inc., 571 F.Supp. 551, 554-57 (E.D.Pa.1983), aff’d, 743 F.2d 169 (3d Cir.1984).

. The original contact is made either by AFS’s central booking office in Bryn Mawr, Pennsylvania, or by the sales representative responsible for the area in which a particular college is located.

. The "free vacation" does not include food or transportation, but only accommodations. American Future Sys. Inc. v. Pennsylvania State Univ., 553 F.Supp. 1268, 1273 (M.D.Pa.1983) (finding of fact No. 55). There are evidently other limitations on the offer as well. It may not be used unless the recipient is 21 years of age or older and may only be used within a prescribed time period. The effect of these two limitations is that many students do not use the "free” vacation at all. See AFS, 464 F.Supp. at 1256 (finding of fact No. 35). AFS generally does not inform the potential hostess of these limitations. See AFS, 553 F.Supp. at 1274 (finding of fact No. 77); AFS, 464 F.Supp. at 1256 (findings of fact Nos. 27, 35). But see AFS, 464 F.Supp. at 1256 (finding of fact No. 26).

. This number does not include women who have attended AFS demonstrations before. AFS, 553 F.Supp. at 1273 (finding of fact No. 58).

. This Florida trip is subject to the same limitations as that offered to the hostess. Only women who have not previously attended an AFS demonstration are counted toward the ten required for the offering of a door prize. See supra notes 5 & 6.

. The demonstrations are extensively scripted and accompanied by visual aids. The students are offered a glamorous view of their post-college apartment life, and are urged to buy “quality” tableware, crystal, and cookware without delay.

. AFS has been found to follow a racially discriminatory credit policy, under which white students receive better terms than blacks or hispanics. See United States v. American Future Systems, Inc., 571 F.Supp. 551 (1983), aff’d, 743 F.2d 169 (3d Cir.1984).

. The University had "No Trespassing” signs posted near the entrance of each dormitory, and it required students to sign a housing contract that prohibited “any business enterprise for personal profit ... in or around the university operated units.” AFS, 464 F.Supp. 1254-55. In addition, the student handbook states:

The institution ... has rights and responsibilities of its own. The rights and responsibilities of the institution include: ... [the] [r]ight to prohibit individuals and groups who are not members of the University community from using its physical and operating facilities for commercial ... activities.
Lectures, concerts, demonstrations, displays, or exhibits may not be used in any manner as a means of promoting commercial companies, products, or services.
The word "commercial" ... means any activity or event which results in personal financial gain to the peddler or organization thereof, provided that contact between a peddler and a student shall not be deemed commercial if such contact was invited by the individual student involved.
Persons who are not students or employees of the University, while on University property, are required to ... abide by University policies and regulations.

,4FS I, 618 F.2d at 253 (citations omitted).

. AFS scheduled 51 demonstrations in the Penn State dormitories during the last two weeks of September 1977. AFS, 553 F.Supp. at 1274 (finding of fact No. 79).

. AFS, 553 F.Supp. at 1272 (finding of fact Nos. 44, 45).

. American Future Sys., Inc. v. Pennsylvania State Univ., 568 F.Supp. 666, 670 (M.D.Pa.1983).

. The court did not base its conclusion wholly on AFS’s lack of standing, in the constitutional sense, to raise those issues, but on a number of factors, including that “facts in support of such a claim [i.e., one based on the student’s rights] have not been pled or proven,” and "assertion of the First Amendment rights of Penn State students by [AFS] would add nothing to the analysis of this case.” AFS, 464 F.Supp. at 1259.

. The district court, in this first trial, used an advisory jury, which made certain factual determinations. We will not distinguish between the findings made by the judge and those made by the jury, since we are not reviewing those findings here.

. The court based this distinction on Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).

. The information in this paragraph is taken from AFS I, 688 F.2d at 910-11.

. The students also asserted freedom of association rights which the district court found to be "indistinguishable from the rights sought with respect to making group demonstrations and sales in their dormitory rooms.” AFS, 522 F.Supp. at 552; AFS, 510 F.Supp. at 987.

. For a description of the Central Hudson test, see infra pp. 863-64.

. We affirmed the district court’s rejection of the students’ privacy claims. 688 F.2d at 915-16.

. Penn State reacted to the first part of our holding in AFS II by promulgating a new regulation that no longer permitted use of the common areas of dormitories for commercial demonstrations. Thus, Penn State now prohibits AFS from conducting any kind of demonstration in any part of the dormitories. However, the comprehensive ban on the use of the common areas is not presently before us.

. The court held that only those plaintiffs currently residing in the Penn State dormitories who desired to host AFS demonstrations had standing to raise the issue of the constitutionality of the regulations.

. The students also assert that their rights to "free association” are infringed by the regulation in question here, and that this infringement is independent of the infringement on speech. The district court rejected this argument. AFS, 522 F.Supp. at 552; AFS, 510 F.Supp. at 987. In AFS II, we implicitly treated the "speech” and *861"associational" interests as intertwined. 688 F.2d at 914-15. We now expressly hold that the students have not raised any “free association” claims independent of their “free speech” claims.

The basis of the students’ argument that they have separate "association” claims is that the dormitory regulations permit one-on-one sales in the dormitory rooms, but prohibits group sales demonstrations therein. Our conclusion in this case is that Penn State has a substantial proprietary and educational interest in regulating commercial speech in its dormitories in order to preserve their residential character and use, that the prohibition on group sales demonstration directly furthers that interest, and that Penn State’s regulation is not excessive. See infra pp. 863-67. The exception for one-on-one sales is not inconsistent with the interest Penn State seeks to further; permitting individual sales does not involve the risk that commercial organizations will have an incentive to turn the dormitory into a “rent-free merchandise mart" because it does not provide them with the enhanced ability to reach the student market provided by group demonstrations. See infra pp. 865-66. The infringement on the students’ associational rights in this case is limited — there is no evidence that students are prohibited from inviting an AFS representative to a party as a social guest, as long as no commercial activity takes place — and the infringement is directly related to the legitimate purpose Penn State is seeking to further by means of its regulation. We are aware of no authority for the proposition that where the state would have the power to regulate speech if it were made in a vacuum, the presence of a group of listeners, whose very presence gives rise to the state interest that justifies the regulation, gives the speech additional protection under the right of "free association.”

. Of course,-the first amendment would not even be implicated if Penn State were not a "state actor” for purposes of the first amendment. Penn State has raised this issue, in light of three recent Supreme Court decisions, which have redefined the boundaries of the "state action” doctrine. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). We have recently considered similar claims by Temple University and the University of Pittsburgh and concluded that those institutions are "state actors” on the basis of their close relationship with the state government. Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d Cir.1984) (consolidated with Schier v. Temple University). Since Penn State has a far closer relationship with the state than the University of Pittsburgh or Temple University, we believe that our analysis in Krynicky clearly establishes that Penn State is a state actor.

. The students and experts explained that the AFS presentations were valuable to the students because they taught the students about fine china and about consumer credit purchasing, furnished the students with a worthwhile experience in relating to people, and generally provided a valuable real-life experience to students whose daily routine was otherwise very academic.

. For instance, if a non-commercial organization, such as the Campus Crusade for Christ, were to sell bibles or religious materials at meetings, the sales would not necessarily make the communication during the meeting commercial speech for first amendment purposes. The critical question would be whether the primary purpose of the organization was to sponsor religious activity or to sell Bibles, and the Bolger criteria would be applied in an attempt to answer this question. In such a case, testimony regarding the motivation of the speakers, as well as regarding the motivation of the listeners and the value of the speech, would no doubt be relevant to the Bolger analysis.

. Penn State does make the blanket assertion that group sales "have the potential for deception, fraud, and overreaching ” Supra p. 860 (emphasis added). However, the university does not claim that AFS’s demonstrations are, in fact, misleading, nor did it present any evidence to this effect in the district court.

. Indeed, the Supreme Court has determined that meeting facilities on a university campus are public forums. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). See also Stanley v. McGrath, 719 F.2d 279 (8th Cir. 1983) ("A public university may not constitutionally take adverse action against a student newspaper ... because it disapproves of the content of the paper.”).

. A useful analogy might be made here to public housing projects. It is unclear whether a public housing authority could prohibit tenants in public housing projects from inviting companies such as AFS to conduct group demonstrations in their individual apartments solely on the grounds that, as property owner, the govern*865ment has a substantial interest in maintaining the apartments for residential use.

. We are not persuaded by the argument that what takes place in individual students rooms’ does not impair the general atmosphere in the dormitories. AFS itself scheduled 51 demonstrations in the Penn State dormitories during two weeks in September 1977. See supra note 11. Each of these proposed demonstrations was supposed to involve a minimum of ten to fifteen students. See supra p. 856. Even if the demonstrations themselves were confined to individual students' rooms, the disruption from this type of activity is apparent.

Neither are we moved by AFS’s reminder that the dormitories are frequent sites of rowdy student-sponsored gatherings which detract from the study atmosphere of the dormitories. The university has a legitimate interest in minimizing the number of intrusions, and, in addition, may legitimately target only commercial activity for regulation, much like a city may enact a zoning ordinance restricting only commercial activity in certain locations.

. In AFS II, we rejected the students' claim that the regulation violated their “privacy” rights. See supra note 20. Although the students renewed these claims on this appeal, they have raised no argument that explains why these claims are not barred by our decision in AFS II. We therefore reject them.

. Judge Sarokin’s suggestion that this case could be disposed of simply by holding that AFS’s speech is not entitled to first amendment protection because of its unlawful or misleading nature is very attractive. The problem with his approach is that the district court did not make sufficient findings to support it. Neither is our opinion in United States v. American Future Systems, Inc., see note 3, supra, sufficiently particularized or encompassing to conclude the issue.