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
 
FREE EXCERPT

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

Page 668

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

Page 669

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

Page 670

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

Page 671

[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 judgments of the courts below must be reversed. Accordingly, the petition for a writ of certiorari is granted, the case is remanded to the District Court, and that court is instructed to order the University to restore to petitioner any course credits she earned for the semester in question and, unless she is barred from reinstatement for valid academic reasons, to reinstate her as a student in the graduate program.

Reversed and remanded.

BURGER, J., dissenting

MR. CHIEF JUSTICE BURGER, dissenting.

I join the dissent of JUSTICE REHNQUIST which follows and add a few observations.

The present case is clearly distinguishable from the Court's prior holdings in Cohen, Gooding, and Rosenfeld,

Page 672

as erroneous as those holdings are. * Cohen, Gooding, and Rosenfeld dealt with prosecutions under criminal statutes which allowed the imposition of severe penalties. Unlike such traditional First Amendment cases, we deal here with rules which govern conduct on the campus of a state university.

In theory, at least, a university is not merely an arena for the discussion of ideas by students and faculty; it is also an institution where individuals learn to express themselves in acceptable, civil terms. We provide that environment to the end that students may learn the self-restraint necessary to the functioning of a civilized society and understand the need for those external restraints to which we must all submit if group existence is to be tolerable.

I find it a curious--even bizarre -- extension of Cohen, Gooding, and Rosenfeld to say that a state university is impotent to deal with conduct such as that of the petitioner. Students are, of course, free to criticize the university, its faculty, or the Government in vigorous, or even harsh, terms. But it is not unreasonable or violative of the Constitution to subject to disciplinary action those individuals who distribute publications which are at the same time obscene and infantile. To preclude a state university or college from regulating the distribution of such obscene materials does not protect the values inherent in the First Amendment; rather, it demeans those values. The anomaly of the Court's holding today is

Page 673

suggested by its use of the now familiar "code" abbreviation for the petitioner's foul language.

The judgment of the Court of Appeals was eminently correct. It should be affirmed.

REHNQUIST, J., dissenting

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.

We held in Healy v. James, 408 U.S. 169, 180 (1972), that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." But that general proposition does not decide the concrete case now before us. Healy held that the public university there involved had not afforded adequate notice and hearing of the action it [93 S.Ct. 1201] proposed to take with respect to the students involved. Here, the Court of Appeals found, and that finding is not questioned in this Court's opinion, that

the issue arises in the context of a student dismissal, after service of written charges and after a full and fair hearing, for violation of a University rule of conduct.

464 F.2d 136, 138.

Both because I do not believe proper exercise of our jurisdiction...

To continue reading

FREE SIGN UP