719 F.2d 279 (8th Cir. 1983), 83-1058, Stanley v. Magrath

Docket Nº:83-1058.
Citation:719 F.2d 279
Party Name:Catherine M. STANLEY, Jeffrey A. Goldberg, Michael Douglas, and Christopher Ison, each individually and as Editors of The Minnesota Daily, The Minnesota Daily, and The Board of Student Publications, Appellants, v. C. Peter MAGRATH, individually and as President of the University of Minnesota, and Charles H. Casey, William B. Dosland, Erwin L. Goldf
Case Date:October 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 279

719 F.2d 279 (8th Cir. 1983)

Catherine M. STANLEY, Jeffrey A. Goldberg, Michael Douglas,

and Christopher Ison, each individually and as Editors of

The Minnesota Daily, The Minnesota Daily, and The Board of

Student Publications, Appellants,

v.

C. Peter MAGRATH, individually and as President of the

University of Minnesota, and Charles H. Casey, William B.

Dosland, Erwin L. Goldfine, Lauris D. Krenik, Robert Latz,

David M. Lebedoff, Charles F. McGuiggan, Wenda Moore, Lloyd

H. Peterson, Mary T. Schertler, Neil C. Sherburne, Michael

W. Unger, Verne Long, Willis Drake, and David Roe, each

individually and as a member of the Board of Regents of the

University of Minnesota, Appellees.

No. 83-1058.

United States Court of Appeals, Eighth Circuit

October 11, 1983

Submitted June 14, 1983.

Page 280

Tanick & Heins, Marshall H. Tanick, Samuel D. Heins, Minneapolis, Minn., for appellants.

Amy Silberberg, Legal Counsel, Minnesota Civil Liberties Union, Minneapolis, Minn., amicus curiae brief of The Minnesota Civil Liberties Union and The Associated Collegiate Press; Owen Gleason, Eden Prairie, Minn., of counsel; Steven Daily and Chris Kobin, MCLU Volunteer Law Students.

Leonard J. Keyes, Terence N. Doyle, Bruce W. Mooty, St. Paul, Minn., for appellees; Stephen S. Dunham, R. Joel Tierney, Minneapolis, Minn., of counsel.

Before LAY, Chief Judge, SWYGERT, [*] Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

At the end of the 1978-79 school year, the Minnesota Daily, the student newspaper of the Twin Cities campuses of the University of Minnesota, published an especially controversial issue. The Board of Regents, the governing body of the University, later changed the method of funding the newspaper. In the past, a compulsory fee had been exacted from every student to support the Daily. The Board voted to allow students to obtain a refund of this fee. Its stated reason was solicitude for students who objected to buying a newspaper they did not want. Our study of the record, however, leaves us with the definite and firm conviction that this change in funding would not have occurred absent the public hue and cry that the Daily's offensive contents provoked. Reducing the revenues available to the newspaper is therefore forbidden by the First Amendment, as made applicable to the states by the Fourteenth, and the Daily is entitled to an injunction restoring the former system of funding. 1

I.

In June 1979 the "Finals Week" edition or "Humor Issue" of the Minnesota Daily, styled in the format of sensationalist newspapers, contained articles, advertisements, and cartoons satirizing Christ, the Roman Catholic Church, evangelical religion, public figures, numerous social, political, and ethnic groups, social customs, popular trends, and liberal ideas. In addressing these subjects, the paper frequently used scatological language and explicit and implicit references to sexual acts. There was, for example, a blasphemous "interview" with Jesus on the Cross that would offend anyone of good taste, whether with or without religion. No contention is made, however, that the newspaper met the legal definition of obscenity.

This issue generated vehement criticism. Members of the Board of Regents and University administrators received numerous letters deploring the content of the "Humor Issue" from church leaders, members of churches, interested citizens, students, and legislators, who in many cases were responding to the complaints of constituents. On June 8, 1979, the Regents unanimously passed a resolution stating that they were "compelled to deplore the content of the June 4-9, 1979 issue of the Minnesota Daily." University President C. Peter Magrath sent this resolution to the acting president of the Board of Student Publications, stating that "the Regents will want some accounting as to what corrective action is contemplated in response to their resolution."

In another resolution passed unanimously on July 13, 1979, the Regents stated that the issue in question was "flagrantly offensive" and established an ad hoc committee "to review with the President the concerns expressed and the recommendations of the President regarding the Minnesota Daily." Among other things, the Regents directed the special committee to consider the "appropriate mechanism for circulation and financial support for the Minnesota Daily."

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At a meeting of the Regents in August 1979, the ad hoc committee made its report. The committee recommended that the Regents not take any action at that time to change the funding of the paper. In support of its recommendation, committee members stated that the fees issue should be left to the normal funding procedure, under which student committees and the administration would make recommendations on which the Board would vote in May 1980. 2 They also offered the opinion of the University attorney that changing the fees immediately following the "Humor Issue" could be viewed as punitive action in violation of the First Amendment. The committee's resolution was passed, although several Regents expressed their unhappiness with waiting until May of the next year to take action on changing the funding.

Meanwhile, both houses of the Minnesota Legislature held committee hearings regarding the "Humor Issue." The Senate Committee on Education met on June 25, 1979, and the House Education Committee, Higher Education Division met on November 14, 1979. In December, the House committee chairman wrote the chairman of the Board of Regents stating that the vast majority of the Division recommended that the "Regents allow students a means to withdraw their individual financial support from the Daily."

In March of 1980, the Student Services Fees Committee, composed of elected students, faculty members, and administrators, recommended by a 6-5 vote that a refund system not be instituted and in addition that the Board of Publications Fees be increased by 11.6%. In April, the President sent the...

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