410 U.S. 667 (1973), 72-794, Papish v. Board of Curators of the University of Missouri

Docket Nº:No. 72-794
Citation:410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618
Party Name:Papish v. Board of Curators of the University of Missouri
Case Date:March 19, 1973
Court:United States Supreme Court
 
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Page 667

410 U.S. 667 (1973)

93 S.Ct. 1197, 35 L.Ed.2d 618

Papish

v.

Board of Curators of the University of Missouri

No. 72-794

United States Supreme Court

March 19, 1973

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Syllabus

Expulsion of student for distributing on campus a publication assertedly containing "indecent speech" proscribed by a bylaw of a state university's Board of Curators held an impermissible violation of her First Amendment free speech rights, since the mere dissemination of ideas on a state university campus cannot be proscribed in the name of "conventions of decency."

Certiorari granted; 464 F.2d 136, reversed.

Per curiam opinion.

PER CURIAM.

Petitioner, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper "containing forms [93 S.Ct. 1198] of indecent speech"1 in violation of a bylaw of the Board of Curators. The newspaper, the Free Press Underground, had been sold on this state university campus for more than four years pursuant to an authorization obtained from the University Business Office. The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover, the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read: ". . . With Liberty and Justice for All." Secondly, the issue contained an article entitled "M___f___ Acquitted," which discussed the trial and acquittal on an assault

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charge of a New York City youth who was a member of an organization known as "Up Against the Wall, M___f___."

Following a hearing, the Student Conduct Committee found that petitioner had violated Par. B of Art. V of the General Standards of Student Conduct, which requires students "to observe generally accepted standards of conduct," and specifically prohibits "indecent conduct or speech."2 Her expulsion, after affirmance first by the Chancellor of the University and then by its Board of Curators, was made effective in the middle of the spring semester. Although she was then permitted to remain on campus until the end of the semester, she was not given credit for the one course in which she made a passing grade.3

After exhausting her administrative review alternatives within the University, petitioner brought an action

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for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of Missouri. She claimed that her expulsion was improperly premised on activities protected by the First Amendment. The District Court denied relief, 331 F.Supp. 1321, and the Court of Appeals affirmed, one judge dissenting. 464 F.2d 136. Rehearing en banc was denied by an equally divided vote of all the judges in the Eighth Circuit.

The District Court's opinion rests, in part,4 on the conclusion that the banned [93 S.Ct. 1199] issue of the newspaper was obscene. The Court of Appeals found it unnecessary to decide that question. Instead, assuming that the newspaper was not obscene and that its distribution in the community at large would be protected by the First Amendment, the court held that, on a university campus, "freedom of expression" could properly be "subordinated to other interests, such as, for example, the conventions of decency in the use and display of language and pictures." Id. at 145. The court concluded that "[t]he Constitution does not compel the University . . . [to. allow] such publications as the one in litigation to be publicly sold or distributed on its open campus." Ibid.

This case was decided several days before we handed down Healy v. James, 408 U.S. 169 (1972), in which, while recognizing a state university's undoubted prerogative

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to enforce reasonable rules governing student conduct, we reaffirmed that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." Id. at 180. See Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). We think Healy makes it clear that the mere dissemination of ideas -- no matter how offensive to good taste -- on a state university campus may not be shut off in the name alone of "conventions of decency." Other recent precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected. E.g., Kois v. Wisconsin, 408 U.S. 229 (1972); Gooding v. Wilson, 405 U.S. 518 (1972); Cohen v. California, 403 U.S. 15 (1971).5 There is language in the opinions below which suggests that the University's action here could be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination. While we have repeatedly approved such regulatory authority, e.g., Healy v. James, 408 U.S. at 192-193, the facts set forth in the opinions below show clearly that petitioner was expelled because of the disapproved content of the newspaper, rather than the time, place, or manner of its distribution.6

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[93 S.Ct. 1200] Since the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University's.action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct, the...

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