Avins v. Rutgers, State University of New Jersey

Citation385 F.2d 151
Decision Date02 November 1967
Docket NumberNo. 16480.,16480.
PartiesAlfred AVINS, Appellant, v. RUTGERS, the STATE UNIVERSITY OF NEW JERSEY.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Alfred Avins, pro se.

John G. Graham, Newark, N. J., for appellee.

Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.

Certiorari Denied January 29, 1968. See 88 S.Ct. 855.

OPINION OF THE COURT

MARIS, Circuit Judge.

The plaintiff, Alfred Avins, brought suit in the District Court for the District of New Jersey against the defendant, Rutgers, The State University of New Jersey, for declaratory and injunctive relief. The plaintiff alleged that he had submitted to the editors of the Rutgers Law Review for publication in the Review an article which reviewed the legislative history of the Civil Rights Act of 1875 as it pertained to school desegration and which concluded that, in the light shed by the Congressional debates, the United States Supreme Court had erred in Brown v. Board of Education, 1954, 347 U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873, in holding that "although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive." The articles editor of the Review had rejected the article, stating in his letter of rejection "that approaching the problem from the point of view of legislative history alone is insufficient." The plaintiff asserted that the editors of the Law Review had adopted a discriminatory policy of accepting only articles reflecting a "liberal" jurisprudential outlook in constitutional law, an outlook which, he said, rejects the primacy of legislative history and the original intent of the framers of a constitutional provision. The plaintiff stated that his article represented the "conservative" approach to constitutional law and he contended that its rejection, which he said was solely because of its conservative tenor, violated his constitutional right to freedom of speech. Both the plaintiff and the defendant moved for summary judgment. After hearing, the trial judge, in an oral opinion, stated, inter alia, that he had "serious doubt as to whether the right of freedom of speech embraces a privilege to use a law school review publication as a medium. Freedom of speech is guaranteed by the Constitution, but the right to have others listen is not guaranteed, nor is anyone obligated to read articles that an author is able to publish. It could not be contended reasonably that the Editorial Board of Rutgers Law Review must accept for publication every treatise on law which is submitted to it. There must necessarily be a broad area for the exercise of discretion." The judge concluded that the plaintiff had not shown that he had been deprived of a federally protected right. Summary judgment was accordingly entered for the defendant and this appeal by the plaintiff followed.

The plaintiff's basic contention on this appeal is that a law review published by a state-supported university, such as the defendant, is a public instrumentality in the columns of which all must be allowed to present their ideas, the editors being without discretion to reject an article because in their judgment its nature or ideological approach is not suitable for publication. In considering this contention it must be borne in mind that the validity of a restraint on speech in each case depends on the particular circumstances. Speiser v. Randall, 1958, 357 U.S. 513, 521, 78 S.Ct. 1332, 2 L.Ed. 2d 1460. It is essential, therefore, to scrutinize the procedure by which it is claimed that Rutgers, as an instrumentality of the State of New Jersey, has restrained that freedom. For "Differences in circumstances beget appropriate differences in law." Whitney v. State Tax Commission, 1940, 309 U.S. 530, 542, 60 S.Ct. 635, 640, 84 L.Ed. 909. As Justice Black remarked in his concurring opinion in Cox v. State of Louisiana, 1965, 379 U.S. 559, 578, 85 S.Ct. 476, 468, 13 L.Ed. 2d 487: "The First and Fourteenth Amendments, I think, take away from government, state and federal, all power to restrict freedom of speech, press, and assembly, where people have a right to be for such purposes."

Our inquiry, therefore, is whether in the setting of this case the refusal of the editors of the Rutgers Law Review to permit the review to be the medium for the expression of the plaintiff's ideas abridged his right of free speech. It appears that the publication is part of the educational program of the Law School of Rutgers University for its law students, that the editorial work is done by law students under general faculty guidance, and that the material published consists of "lead" articles...

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28 cases
  • Pell v. Procunier Procunier v. Hillery 8212 754, 73 8212 918
    • United States
    • U.S. Supreme Court
    • 24 Junio 1974
    ...to a person's views, let alone a right to require a publisher to publish those views in his newspaper, see Avins v. Rutgers, State University of New Jersey, 385 F.2d 151 (CA3 1967); Chicago Joint Board, Amal. Clothing Workers v. Chicago Tribune Co., 435 F.2d 470 (CA7 1970); Associates & Ald......
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    ...American Communications Association v. Douds, 339 U.S. 382, 394, 70 S.Ct. 674, 94 L.Ed. 925 (1950); Avins v. Rutgers, State University of New Jersey, 385 F.2d 151, 153 (3rd Cir. 1967), cert. denied, 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982 (1968). The First Amendment rights of cable opera......
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    ...by Joyner's reliance on a "freedom of the press" rationale, and by the Third Circuit's decision in Avins v. Rutgers, State University of New Jersey, 3 Cir. 1967, 385 F.2d 151, cert. denied, 1968, 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982. Rutgers upheld the right of the student editors of ......
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    ...also possesses editorial powers when it acts as the proprietor of an entity with press rights. See Avins v. Rutgers, State Univ. of New Jersey, 385 F.2d 151 (3d Cir. 1967), cert. denied, 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982 (1968) (state university law review had editorial prerogative......
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