Mississippi Gay Alliance v. Goudelock

• Decision Date: 12 August 1976
• Docket Number: No. 74-4035,74-4035
• Citation: 536 F.2d 1073
• Parties: 1 Media L. Rep. 1949 MISSISSIPPI GAY ALLIANCE and Anne DeBary, Plaintiffs-Appellants, v. Bill GOUDELOCK et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1073

536 F.2d 1073

1 Media L. Rep. 1949

MISSISSIPPI GAY ALLIANCE and Anne DeBary, Plaintiffs-Appellants, v. Bill GOUDELOCK et al., Defendants-Appellees.

No. 74-4035.

United States Court of Appeals, Fifth Circuit.

Aug. 12, 1976.

Mark Shenfield, Jackson, Miss., Melvin L. Wulf, New York City, for plaintiffs-appellants.

A. F. Summer, Atty. Gen., William A. Allain, Asst. Atty. Gen., Ed Davis Noble, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.

Travis H. Clark, Jr., Greenwood, Miss., for Bill Goudelock.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.

COLEMAN, Circuit Judge.

This is not the ordinarily encountered First Amendment case in which a university student newspaper seeks to set aside an order directing it not to publish something which it wishes to publish.

To the contrary, it is a case in which a nebulous group, the Mississippi Gay Alliance, representing itself to be an association "basically comprised of homosexuals", seeks judicial compulsion against a student newspaper requiring publication of an advertisement which that paper does not want to publish.

The District Court refused to command publication. We affirm.

On August 16, 1973, a female, the self-styled chairwoman of the Mississippi Gay Alliance, presented a proposed paid advertisement to The Reflector, the student newspaper at Mississippi State University.

The proposed advertisement read as follows:

The editor of the student newspaper refused to accept the tendered paid advertisement.

On February 8, 1974, the same person presented an announcement to be printed in the "briefs" section of The Reflector. This, too, was rejected. The content of that announcement does not appear in the record.

Whereupon, suit was filed against the editor and others, alleging that the refusal to print the paid advertisement and announcement deprived the Gay Alliance of its First Amendment rights and praying that the defendants be ordered to print the rejected material. The suit also sought an order requiring defendants to print future advertisements and announcements tendered by the Gay Alliance. Actual and punitive damages were also demanded.

The parties agreed to stipulations, which might be summarized as follows:

1. The named plaintiffs are not MSU students nor is the MGA a recognized student organization.

2. No member of the MGA was enrolled as an MSU student.

(This second stipulation was, at plaintiff's request, modified by court order in December, 1974, after the district court's ruling was issued. The new stipulation apparently says that some members of the MGA were MSU students. This modification did not affect the ruling of the district court).

3. The MSU student body elected Bill Goudelock as editor of The Reflector.

4. Funds supporting The Reflector are derived at least in part from a non-waivable fee charged to students at MSU.

5. (University officials) Giles, Meyer, and Dudley did not give Goudelock any instructions not to accept the proffered material.

The trial court reviewed these facts, and determined that there were four issues in the case: (1) whether plaintiffs had standing to sue; (2) whether plaintiffs' unclean hands precluded the possibility of the court granting them the equitable relief they sought; (3) whether there was state action on the part of the defendant to support this § 1983 action; and (4) whether the First Amendment protection that covers a student newspaper meant that plaintiffs had no cause of action against Goudelock.

Deciding nothing with reference to the first two points, the District Court found, on the complaint and the stipulated facts, that there was no indication that any University official or faculty member had anything to do with the rejection of the advertisement or the announcement; that there was a complete lack of control over the student newspaper on the part of University officials.

The Court concluded that the rejection of the advertisement "does not constitute state action in any sense of the term".

Relying on Bazaar v. Fortune, 5 Cir., 1973, 476 F.2d 570, affirmed as modified, 489 F.2d 225 (en banc) and Miami Herald Publishing Company v. Tornillo, 1974, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, it was held that in the absence of state action the student newspaper editor could "accept or reject such material as he saw fit".

While it is true that the student newspaper is supported, in part, by activity fees collected by the University, the students elect the editor. The complaint did not allege and the stipulations did not assert that University officials supervise or control what is to be published or not published in the newspaper.

As a matter of fact, in the context of the matter before us, this Court has held that the University authorities could not have ordered the newspaper not to publish the Gay Alliance advertisement, had it chosen to do so, see Bazaar v. Fortune, supra.

In Miami Herald Publishing Company v. Tornillo, supra, the Supreme Court flatly declared:

"The choice of material to go into a newspaper * * * constitute(s) the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."

Since there is not the slightest whisper that the University authorities had anything to do with the rejection of this material offered by this off-campus cell of homosexuals, since such officials could not lawfully have done so, and since the record really suggests nothing but discretion exercised by an editor chosen by the student body, we think the First Amendment interdicts judicial interference with the editorial decision.

There are special reasons for holding that there was no abuse of discretion by the editor of The Reflector.

Hutchinson's Mississippi Code of 1848 included the following provision:

"Unnatural Intercourse; Punishment.

"Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years." ¹

The exact language of this provision has been retained in the Code revisions of 1857, 1871, 1880, 1892, 1906, 1917, 1930, 1942, and 1972. ²

The Mississippi statute condemns any intercourse which is unnatural, detestable and abominable, including acts committed per anus or per os, State v. Davis, 223 Miss. 862, 79 So.2d 452 (1955). This is not surprising. The very title of the statute shows it to have been directed against "Unnatural Intercourse".

The statute is not unconstitutional, State v. Mays, 329 So.2d 65 (Miss.1976). ³

The editor of The Reflector had a right to take the position that the newspaper would not be involved, even peripherally The judgment of the District Court is

with this off-campus homosexually-related activity. ⁴

AFFIRMED.

GOLDBERG, Circuit Judge (dissenting):

I respectfully dissent.

I understand the trial court and the majority of this panel to hold that the lack of direct involvement by university officials and the free expression rights of student editors combine to preclude any possible right of access to the Reflector on the part of the MGA. I disagree with that holding and, on the allegations, would find a narrowly circumscribed right of access which might extend to the MGA in this case.

The majority opinion here can be read as also deciding, in an alternative holding, that the advertisement tendered by the MGA was undeserving of any first amendment protection which might otherwise exist, because the ad might have "involved" the newspaper "with . . . off-campus homosexually-related activity." This latter holding, if indeed it is that, is clearly and absolutely wrong.

A proper disposition of this case requires that we balance the rights of speakers and hearers of "protected" speech against special considerations supporting student control over student publications. In order that my position on the narrow but important first amendment issues in this case might be fully understood, I find it necessary at this juncture to summarize briefly the course of this litigation. After reviewing the background, I will discuss what I consider to be an easy issue whether the MGA advertisement is "protected" speech. Finally, I will attempt to explain why I would reconcile the competing first amendment interests in a different fashion than did the trial court.

I. FACTS AND PROCEDURAL BACKGROUND

In August, 1973, the Mississippi Gay Alliance (MGA), ¹ through one of its officers, submitted the following paid advertisement to be placed in the Reflector, the student newspaper at Mississippi State University (MSU):

Bill Goudelock, then the student editor of the paper, refused to accept the tendered advertisement. According to the plaintiffs' allegations, the Reflector at that time printed paid and unpaid advertisements of commercial, political, social, religious and informative natures.

In February, 1974, the MGA presented an announcement (the contents of which are not in the record) to the Reflector, asking that it be placed in the "Briefs" section, wherein the paper regularly ran announcements of campus and local organizations free of charge. This was never printed. In March, 1974, the MGA and individual members of the MGA filed the instant suit, seeking to compel publication of their ads At a hearing on this motion, the trial court proposed a set of stipulated facts. After some negotiation, the parties agreed to the stipulations which are summarized in the majority opinion. As indicated in that opinion, the district court did not decide the issues of standing ² and unclean hands. ³ Rather, the trial court dismissed the action on the grounds now adopted by the panel here.

and to obtain declaratory relief and damages. In...