489 F.2d 225 (5th Cir. 1973), 72-2175, Bazaar v. Fortune

Docket Nº:72-2175.
Citation:489 F.2d 225
Party Name:Eugene M. BAZAAR et al., Plaintiffs-Appellees, v. Porter FORTUNE et al., Defendants-Appellants.
Case Date:December 06, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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489 F.2d 225 (5th Cir. 1973)

Eugene M. BAZAAR et al., Plaintiffs-Appellees,

v.

Porter FORTUNE et al., Defendants-Appellants.

No. 72-2175.

United States Court of Appeals, Fifth Circuit.

December 6, 1973

Heber Ladner, Jr., A. F. Summer, Atty. Gen., State of Mississippi, Jackson, Miss., for defendants-appellants.

Bill Joyner, Harvard Law School, Cambridge, Mass., Stanley L. Taylor, Jr., Oxford, Miss., for plaintiffs-appellees.

Leonard Schwartz, Columbus, Ohio, for A.C.L.U. of Ohio Foundation.

Melvin L. Wulf, Joel M. Gora, New York City, for Amer. Civil Liberties Union Foundation.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

PER CURIAM:

Upon consideration of the record, briefs and oral argument in this cause en banc, the court concludes that the opinion and judgment of the panel should be and the same are hereby affirmed, subject to the following modification:

The defendants-appellants may, at their option, place or stamp on the cover or the format of the magazine Images the following disclaimer (in haec verba): 'This is not an official publication of the University.' 1

Affirmed as modified.

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AINSWORTH, Circuit Judge:

I concur in the result.

BELL, Circuit Judge, with whom RONEY, Circuit Judge, joins, dissenting:

I respectfully dissent. This is a curious case. The majority decision, despite the en banc allowance of a disclaimer to the University of Mississippi, portends a substantial diminution in the First Amendment right not to be compelled to sponsor the writing of another.

The suit underlying this appeal was brought by the students having charge of the student-English Department magazine Images and by the student author whose articles gave rise to the controversy. The faculty advisor to Images was later added as a plaintiff.

The complaint sought to enjoin the defendant officers of the university from violating plaintiffs' right to publish and distribute literary materials. The complaint was filed on May 15, 1972. There was an evidentiary hearing three days later on a motion for a temporary restraining order. The district court entered oral findings and conclusions immediately following the hearing and granted the restraining order. The appeal to this court was from that order. The order has been stayed in the interim.

It developed at the hearing that the particular edition of Images had been printed but was being held at the behest of the university. After some backing and filling on the part of the parties, it became clear that the university was not seeking to confiscate the edition as claimed nor was it seeking to prohibit private distribution. It was made plain that plaintiffs could distribute the issue as a private venture. The sole extant issue then and on appeal was the claim of the university that it should not be compelled to sponsor the publication and the opposite claim of plaintiffs that they were entitled to sponsorship.

The Chancellor of the university testified that his purpose in holding up publication was because he did not consider two stories in Images as appropriate for a university sponsored or endorsed publication. He pointed to the fact that Images was a product of the English Department of the university, and was comprised of student materials published with the advice of the department. This position of sponsorship was somewhat tenuous, public-wise, but the following language was carried on the foreword:

'Images is a student publication of the University of Mississippi, sponsored by the University of Mississippi Associated Student Body with the advice of the Department of English.'

The issue was drawn by the testimony of the faculty advisor, a plaintiff:

'Q I was saying if the magazine should be circulated privately among a group of students, wouldn't your needs then be satisfied without university sponsorship? A Not really, because the university would have taken the position that this is not a thing-- this open expression and discussion and writing is not a thing that it approves of and would thereby have helped to influence the students, many students, and the state to think that this is wrong and would have been, it seems to me, exercising an adverse educational influence.'

Unlike a student newspaper, it did appear that Images was an academic endeavor with its staff being selected by the faculty advisor and that he had a vote on all matters pertaining to the publication. If not essentially an undertaking of the English Department, it was at least a joint student-English Department publication. This nexus with the academic side as distinguished from the extra-curricular side of the university was the hinge on which the matter should have turned. Instead, the case was treated in the district court and

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here as one of censorship and a violation of the open forum doctrine. 1

The right of the university not to sponsor is in conflict with that of the plaintiffs to publish with sponsorship. The students have the right to publish and distribute Images on their own. The question was and is whether they have the...

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