Lee v. Board of Regents of State Colleges
Decision Date | 04 May 1971 |
Docket Number | 18405.,No. 18404,18404 |
Parties | Jack K. LEE et al., Plaintiffs-Appellees, v. The BOARD OF REGENTS OF STATE COLLEGES et al., Defendants-Appellants. |
Court | U.S. Court of Appeals — Seventh Circuit |
Thomas G. Godfrey, Elkhorn, Wis., Robert W. Warren, Atty. Gen., Charles A. Bleck, Asst. Atty. Gen., Madison, Wis., for defendants-appellants.
Henry L. Mason, III, Chicago, Ill., for plaintiffs-appellees; Louis D. Gage, Jr., Janesville, Wis., Bernard Weisberg, Chicago, Ill., of counsel.
Before FAIRCHILD and KERNER, Circuit Judges, and CAMPBELL, Senior District Judge.1
This is an appeal from a judgment, entered on motion for summary judgment, declaring that defendants have unlawfully deprived plaintiffs of freedom of speech by refusing to print in a university campus newspaper editorial advertisements submitted by plaintiffs. The opinion of the district court appears at 306 F.Supp. 1097 (1969), and we will avoid unnecessary repetition. We affirm.
1. State action. It is conceded that the campus newspaper is a state facility. Thus the appeal does not present the question of whether there is a constitutional right of access to press under private ownership.2
2. The issue presented. The substantive question is whether the defendants, having opened the campus newspaper to commercial and certain other types of advertising, could constitutionally reject plaintiffs' advertisements because of their editorial character. The case does not pose the question whether defendants could have excluded all advertising nor whether there are other conceivable limitations on advertising which could be properly imposed.
The student publications board had adopted the following policy:
Plaintiff Riley submitted an advertisement describing the purposes of a university employees' union and announcing a meeting on safety regulations. It was rejected under the policy because part of it dealt with the business of the meeting.
Plaintiff Scharmach's advertisement was entitled "An Appeal to Conscience." It was signed by nine ministers and proclaimed the immorality of discrimination on account of color or creed.
Plaintiff Lee submitted an advertisement to be signed by himself and stating as follows:
The rejection stated in part, "Your ad could possibly come under the public service ad, but it deals with political issues, and is therefore not a public service."
Decisions cited by the district court3 support the proposition that a state public body which disseminates paid advertising of a commercial type may not reject other paid advertising on the basis that it is editorial in character. Other decisions condemn other facets of discrimination in affording the use of newspaper and other means of expression on public campuses.4
Defendants rely upon Adderley v. Florida (1966), 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 for the proposition that the state "has power to preserve the property under its control for the use to which it is lawfully dedicated." (p. 47, 87 S.Ct. p. 247) Adderley dealt with jail grounds, and rejected an asserted right to trespass there in order to demonstrate against certain arrests. The case is not apposite. The refusal to permit a demonstration on jail premises was expressly found to have been nondiscriminatory.
The problems which defendants foresee fall far short of fulfilling the Tinker standard.
3. Joinder of the Board of Regents. The argument on behalf of many of the defendants is confined to the merits. The defendant Board of Regents argues, in addition, (1) that the action is not maintainable against it because if so maintained, it would be an action against the state, and (2) that there is no foundation for declaratory judgment against it because it played no part in formulating the challenged policy.
With respect to the first point, "It has been settled law since Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that suits against state and county officials to enjoin them from invading constitutional rights are not forbidden by the Eleventh Amendment." Griffin v. County School Board (1964), 377 U.S. 218, 228, 84 S.Ct. 1226, 1232, 12 L.Ed.2d 256. The facts that the board is a "body corporate"7 rather than a natural person and that this action is one...
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