NEW LEFT ED. PROJ. v. BOARD OF REGENTS OF U. OF TEX. SYS.

• Decision Date: 03 September 1970
• Docket Number: Civ. A. No. A-69-CA-106.
• Citation: 326 F. Supp. 158
• Parties: NEW LEFT EDUCATION PROJECT et al., v. BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM.
• Court: U.S. District Court — Western District of Texas

326 F. Supp. 158

NEW LEFT EDUCATION PROJECT et al., v. BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM.

Civ. A. No. A-69-CA-106.

United States District Court, W. D. Texas, Austin Division.

September 3, 1970.

COPYRIGHT MATERIAL OMITTED

David R. Richards, Austin, Tex., for plaintiffs.

Crawford Martin, Atty. Gen., W. O. Shultz, Asst. Atty. Gen. of Tex., Austin, Tex., for defendant.

Before THORNBERRY, Circuit Judge, SUTTLE and ROBERTS, District Judges.

MEMORANDUM OPINION

PER CURIAM.

This suit was born of a state court proceeding instituted by the University of Texas Board of Regents against the New Left Education Project and a number of individuals, seeking to restrain them from violating two Regents' rules by distributing a newspaper known as the Rag on the Austin campus of the University of Texas. The defendants in that suit filed this case requesting that this Court enjoin the further prosecution of the state court suit, and declare the Regents' rules which found the basis of that suit unconstitutional.

This Court met in November, 1969, and decided this case was properly one to be heard by a three-judge court convened under 28 U.S.C. § 2281 (1964). The Court also allowed joinder as parties plaintiff the Young Democratic Club at the University of Texas at Austin, and a number of individual University of Texas students interested in the "free flow of ideas" and the "full enjoyment of First Amendment rights" on the University of Texas campus. At the same time, the Court refused the original plaintiffs declaratory and injunctive relief and dismissed them as plaintiffs so that there would be no interference with the state judge's adjudication of the proceedings pending against them in state court. The remaining plaintiffs, however, were allowed to challenge the two rules "in further proceedings" in the Court. The Young Socialist Alliance of the University of Texas was subsequently also allowed to intervene as a party plaintiff. The case is now before us on the plaintiffs' motion for summary judgment and the defendants' motion to dismiss.

I.

The defendants argue that this suit should be dismissed because the state court judgment rendered in the suit against the severed plaintiffs in this case is res judicata on the question of the constitutionality of the two Regents' rules challenged here. The state court has determined that the two rules "are not in violation of the First and Fourteenth Amendments," and has granted a temporary injunction against the New Left Education Project, individuals associated with the publication and distribution of the Rag, and all persons acting in concert with them, restraining them from "selling or distributing the newspaper known as the Rag upon the campus of The University of Texas at Austin * * *" and from engaging in any other violation of the commercial and non-commercial solicitation rules involved in this case.

Assuming arguendo that this Court's earlier decision to allow joinder of parties plaintiff under Federal Rule 20(a) was, as the Regents argue, in fact a determination that all the parties in federal court constituted a class under Federal Rule 23, it still does not follow that the state court injunction issued against some of the federal class members will support res judicata as to the remainder of the class. In the first place, there is no final judgment in the state court. Under Texas law, a temporary injunction "can not be the basis of res judicata since it is only an interlocutory order * * *." Miers v. Brouse, 153 Tex. 511, 516, 271 S.W.2d 419, 421 (1954). Thus there is no fullfaith-and-credit issue presented in this case which might justify a holding of res judicata. Compare Gart v. Cole, 263 F.2d 244 (2d Cir. 1959).

Secondly, the state court proceeding never purported to deal with a "class" any larger than individuals associated with the publication and distribution of the Rag. The remaining plaintiffs in the larger "class" in the federal lawsuit were never in state court, and are certainly not bound by even the most expansive reading of that court's injunction.

In the final analysis the Regents' res judicata argument amounts to no more than a reliance on England v. Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L.Ed.2d 440 (1964) for the proposition that in this case the entire federal "class" voluntarily chose to fully litigate its constitutional claims as a class in state court. This assertion is unsupportable. On the basis of a "technical" rule—the anti-injunction statute, 28 U.S.C. § 2283 (1964)—and the policy of federal-state comity, this Court earlier temporarily denied some of the plaintiffs the right to litigate their federal claims in federal court. The Regents' suggestion that this Court's respect for the policy of comity entitles them to a judgment of res judicata flies in the face of the strong policy in favor of respecting a Plaintiff's choice of a federal forum for litigating his federal claims. As the Court in England stated, "the right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied," 375 U.S. at 413, 84 S.Ct. at 465, quoting Willcox v. Consolidated Gas Co., 212 U. S. 19, 40, 29 S.Ct. 192, 53 L.Ed. 382 (1909).

Even if the Rag plaintiffs could be said to have defended the state court suit in such a way as to have voluntarily foregone their right to return to this Court,¹ the remaining plaintiffs, having never even been in state court, can hardly be held to have relinquished their right to return, especially since this Court's earlier order left those plaintiffs in this Court for "further proceedings" in their case.

Defendants' motion to dismiss is accordingly denied. Since there are no material facts at issue, we find this case ripe for determination on the plaintiffs' motion for summary judgment.

II.

The Regents' Rules at issue prohibit both "commercial"² and "non-commercial"³ solicitation on the campus of any component institution of the University of Texas System. "Commercial" solicitation is broadly defined to include not only the sale or contract for sale of any item of personal property, but also the "inducement of any person * * * to contract with regard to * * * anything the offeror may offer." Commercial solicitation is prohibited except for five permissible categories: (1) solicitation inside a Student Union Building that has been approved by the governing body of the Union; (2) the sale of any publication authorized by an agency of the component institution; (3) solicitation pursuant to a contract between the vendor and the governing authority of a campus; (4) the sale of publications from vending machines at approved location; and (5) any solicitation necessary for the educational purposes of the University.⁴ Non-commercial solicitation is not defined in Rule 6.12. Nonetheless, such solicitation is prohibited without the prior approval of the component institution head or his delegate. Approval may be granted for "public benevolent purposes," but not for fund-raising for the benefit of a particular person or group. However the institution head of a campus may approve the solicitation of funds by registered student organizations from their members, but only "at official meetings of the organization."⁵ The Plaintiffs argue that both rules violate their first amendment rights of speech and association because they are overly broad and are mere licensing schemes. As these rules are currently applied, neither the Young Democrats nor the Young Socialist Alliance can solicit dues from potential members of their organization on campus without permission of the institutional head, and then only at official meetings.⁶ Moreover, neither group can sell political material, such as tracts by Leon Trotsky or even campaign bumper stickers, on the main malls of the Austin campus. It is undisputed that these rules seriously impede the associational activities of the organizations, primarily because the rules decrease their ability to procure both members and funds. It is also undisputed that a great deal of commercial and non-commercial solicitation coming within the heretofore noted exceptions to the rules is allowed on the Austin campus.⁷ It is not clear, however, which of the two rules questioned prohibit the activities engaged in by the plaintiffs. For example, solicitation of dues from new members by either organization is purportedly covered by the terms of the non-commercial solicitation rule, which prohibits such solicitation without approval of the institutional head, and then only at official meetings of the organization. Thus solicitation of dues on campus would violate the non-commercial rule. But it seems clear that such solicitation would also constitute "the solicitation of funds" within the meaning of the commercial solicitation rule. Indeed, under the commercial rule, soliciting a person to become a dues-paying member of an organization would constitute a violation of that portion of the rule which prohibits the "inducement of any person * * * to contract with regard to * * * anything that the offeror may offer"—namely, membership in the organization. Moreover, some of the activities at issue—selling books, pamphlets, newspapers and campaign paraphernalia for fund-raising purposes—are clearly covered by the prohibition against the commercial sale of personal property. The sale of a newspaper like the Young Socialists' The Militant, if not for profit, might be either commercial or non-commercial. It seems significant that in the state injunction suit the Regents claimed that the activities of the Rag (a supposedly non-profit organ of the New Left Education Project) violated both rules. Although the rules are not challenged on the grounds of vagueness there is enough ambiguity in their coverage to warrant this Court's considering the rules together for purposes of the overbreadth question raised by the plaintiffs.

III.

We start from the dual premises...