Eisner v. Stamford Board of Education

• Decision Date: 05 March 1971
• Docket Number: No. 389,Docket 35345.,389
• Citation: 440 F.2d 803
• Parties: Jon EISNER et al., Plaintiffs-Appellees, v. STAMFORD BOARD OF EDUCATION: Ursa Coleman, Anna B. Cunningham, Margaret S. Dwyer, Harold E. Hoffman, Theodore P. Jakaboski, Patrick J. Joyce, Ruth A. Linke, Bernard O. Nemoitin and Margaret K. St. John, as members of the Stamford Board of Education, John A. Engel, as Principal of Rippowam High School, and Joseph B. Porter, as Superintendent of Schools of the City of Stamford, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

440 F.2d 803 (1971)

Jon EISNER et al., Plaintiffs-Appellees, v. STAMFORD BOARD OF EDUCATION: Ursa Coleman, Anna B. Cunningham, Margaret S. Dwyer, Harold E. Hoffman, Theodore P. Jakaboski, Patrick J. Joyce, Ruth A. Linke, Bernard O. Nemoitin and Margaret K. St. John, as members of the Stamford Board of Education, John A. Engel, as Principal of Rippowam High School, and Joseph B. Porter, as Superintendent of Schools of the City of Stamford, Defendants-Appellants.

No. 389, Docket 35345.

United States Court of Appeals, Second Circuit.

Argued January 14, 1971.

Decided March 5, 1971.

Frederick L. Comley, Pullman, Comley, Bradley & Reeves, Bridgeport, Conn. (Dion W. Moore, Bridgeport, Conn., on the brief), for defendants-appellants.

Monroe Silverman, Stamford, Conn. (Alan H. Levine, New York Civil Liberties Union, New York City, Stephen M. Seelig, Stamford, Conn., of counsel), for plaintiffs-appellees.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The deceptively simple facts in this case generate legal problems which summon up many centuries of political and social thought and action concerning the relation between the rights and powers of men, women, and children, and their government. To resolve this problem we are required to consider principles and concepts which courts have fashioned over several decades of this century, giving concrete effect to the proscription of the first amendment against any law abridging freedom of expression, and apply them to the unique social structure prevailing in a public system of secondary schools.¹

The Board of Education of the City of Stamford, Connecticut, on November 18, 1969, adopted the following "policy":

"Distribution of Printed or Written Matter

"The Board of Education desires to encourage freedom of expression and creativity by its students subject to the following limitations:

"No person shall distribute any printed or written matter on the grounds of any school or in any school building unless the distribution of such material shall have prior approval by the school administration.

"In granting or denying approval, the following guidelines shall apply.

"No material shall be distributed which, either by its content or by the manner of distribution itself, will interfere with the proper and orderly operation and discipline of the school, will cause violence or disorder, or will constitute an invasion of the rights of others."

Plaintiffs are students at Rippowam High School in Stamford. They wish to distribute free of the restraint imposed by the quoted policy, or of any other similar restraint, a mimeographed newspaper of their own creation and other printed and written literature. The district court agreed with their contention that the Board's policy violates their right to freedom of expression. Limiting the issue to the constitutional validity of the requirement that the contents of "the literature be submitted to school officials for approval prior to distribution" (the validity of reasonable regulation concerning time, place, and manner of distribution being conceded by plaintiffs), the court reasoned that the policy imposed a "prior restraint" on student speech and press, invalid under Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), in the absence of even "a scintilla of proof which would justify" the restraint. As an independent ground for granting plaintiffs' and denying defendants' motions for summary judgment, the court found the policy fatally defective for lack of "procedural safeguards," citing Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Specifically, Judge Zampano faulted the policy because it does "not specify the manner of submission, the exact party to whom the material must be submitted, the time within which a decision must be rendered; nor * * * provide for an adversary proceeding of any type or for a right of appeal." The court therefore declared the policy unconstitutional and enjoined defendants from enforcing any requirement that students obtain prior approval before publishing or distributing literature within the Stamford public schools.

We affirm the decision below, 314 F. Supp. 832 (1970), insofar as it declares unconstitutional and enjoins the enforcement of the Board's policy of November 18, 1970, but we do so, as will shortly appear, with some reservations and for reasons significantly different from those advanced by the court below. In sum, we agree that Freedman v. Maryland delineates precisely why the policy here is defective. We do not agree with the district court, however, that reasonable and fair regulations which corrected those defects but nevertheless required prior submission of material for approval, would in all circumtances be an unconstitutional "prior restraint."

I.

Consideration of the judicial interpretations enunciated over the years in this highly complex free speech-press area are a necessary backdrop to our discussion. In Near, the Supreme Court struck down a statute which if analogized to the instant case would place a prior restraint upon distribution of literature by any student who had in the past regularly distributed material deemed by school authorities to be obscene, lewd, and lascivious, or malicious, scandalous, and defamatory. The law held unconstitutional in Near permitted such a broad restraint to be imposed by county courts upon publishers of newspapers and periodicals in the state of Minnesota. The Court considered such a scheme to be "of the essence of censorship" and in strong terms, gave expression to the enmity reflected in the first amendment toward "previous restraints upon publication." 283 U.S. at 713, 51 S.Ct. 625. The Court's particular concern was directed at that aspect of the law under which crusading newspaper publishers would hazard not only libel actions, but the utter abatement of their publications and consequently the squelching of their campaigns, if they should attempt systematically to expose the derelictions of public officials. But Chief Justice Hughes made it clear that his opinion was not to be read as invalidating all "previous restraints." He took pains to catalogue several varieties of "exceptional cases" which would justify a "previous restraint." Thus, it was well established then as it is now that "the constitutional guaranty of free speech does not `protect a man from an injunction against uttering words that may have all the effect of force'." Nor did it question that "the primary requirements of decency may be enforced against obscene publications." 283 U.S. at 716, 51 S.Ct. at 631.

A listing of permissible prior restraints did not have its genesis nor end in Near. We are aware of the warning sounded in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957), quoted and put to use by Times Film Corp. v. City of Chicago, 365 U.S. 43, 49, 81 S.Ct. 391, 394, 5 L.Ed.2d 403 (1961), that "the phrase `prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test." In Times Film, the Court instructed that the First Amendment does not guarantee "complete and absolute freedom to exhibit, at least once, any and every kind of motion picture," relying in part on the dictum in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), that governments may with appropriate measures either punish or prevent the dissemination of "the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The earlier dictum and the holding in Times Film were sifted and refined again in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), when the Court laid down three specific procedural safeguards "designed to obviate the dangers of a censorship system," safeguards which we shall shortly discuss in more detail.

The sensitive analysis of the constitutional validity of previous restraints of speech suggested by these cases requires that we address ourselves to the following questions. First, is the Board's policy justified as included within one or more of the categories of exceptional cases to which previous restraints are permissible? Second, is the policy as narrowly drawn as may reasonably be expected so as to advance the social interests that justify it or, to the contrary, does it unduly restrict protected speech, to an extent "greater than is essential to the furtherance of" those interests? See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In light of Freedman, the latter question might usefully be addressed, alternatively, to the substantive and to the procedural aspects of the policy — that is, first to the criteria by which school officials are permitted to bar literature from the school and second to the means by which the bar is to be effected.

II.

We agree with appellants that we need not and should not concern ourselves with the content or disruptive potential of the specific issue of the newspaper which plaintiffs sought unsuccessfully to distribute on school property. The students are challenging the policy "on its face" and not as applied to their particular publication.

Moreover, we cannot ignore the oftstressed and carefully worded dictum in the leading precedent, Tinker v. Des Moines School District, 393 U.S. 503, 514, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1969), that protected speech in public secondary schools may be forbidden if school authorities reasonably "forecast substantial disruption of or material interference with school activities." In an apparent reformulation of that dictum, the Tinker Court dissociated its holding that school authorities may not prohibit entirely non-disruptive student speech from cases involving "speech or action that intrudes upon the work of the schools...