Advocates for Arts v. Thomson, No. 75-1346

• Decision Date: 31 March 1976
• Docket Number: No. 75-1346
• Parties: ADVOCATES FOR the ARTS et al., Plaintiffs-Appellants, v. Meldrim THOMSON, Jr., etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 792

532 F.2d 792

ADVOCATES FOR the ARTS et al., Plaintiffs-Appellants, v. Meldrim THOMSON, Jr., etc., et al., Defendants-Appellees.

No. 75-1346.

United States Court of Appeals First Circuit.

Argued Dec. 1, 1975.

Decided March 31, 1976.

Howard B. Myers with whom Ingram & Myers, Concord, N.H., Howard M. Squadron Harvey Horowitz and Squadron, Gartenberg, Ellenoff & Present, New York City, were on brief, for plaintiffs-appellants.

Edward A. Haffer, Asst. Atty. Gen., Concord, N.H., with whom Warren B. Rudman, Atty. Gen., Concord, N.H., was on brief, for defendants-appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The question in this case is whether the first amendment permits the Governor and Council of New Hampshire to refuse a grant-in-aid to a literary magazine because they regard a poem appearing in a past issue of the magazine as an "item of filth." The district court, treating the defendants' motion to dismiss as a motion for summary judgment under Fed.R.Civ.P. 12(b) and 56, found no first amendment violation. 397 F.Supp. 1048 (D.N.H.1975). We agree.

In 1965 Congress established the National Foundation on the Arts and the Humanities, 20 U.S.C. § 951 et seq., in order "to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent . . . ." Id. § 951(5). Within this foundation Congress established a National Endowment for the Arts with responsibility for awarding grants-in-aid, both directly to those groups and individuals whose artistic endeavors "have substantial artistic and cultural significance," id. § 954(c)(1), or are otherwise worthy of public support, id. § 954(c)(2)-(5), and indirectly through state agencies established to serve the same purposes, id. § 954(g).

Responding to the federal legislation, the New Hampshire legislature established the New Hampshire Commission on the Arts (the Commission) to administer the grant program in New Hampshire. N.H.Rev.Stats.Ann. ch. 19-A. The legislature declared that "all activities undertaken by the state in carrying out (the program) shall be directed toward encouraging and assisting rather than in any ways limiting the freedom of artistic expression that is essential for the well-being of the arts." Id. ch. 19-A:1. At first the legislature made no provision for executive review of the Commission's funding decisions, but under general provisions of the New Hampshire Constitution and laws calling for approval of treasury disbursements and department expenditures, N.H.Const., pt. 2, art. 56; N.H.Rev.Stats.Ann. ch. 4:15, the practice evolved that Commission grants of over $500.00 were submitted to the Governor and Council for their approval before becoming final. On July 5, 1975, while this litigation was before the district court, the legislature specifically provided for such approval by amendment to chapter 19-A. Id. ch. 19-A:6(VI) (Supp.1975).

Granite is a journal of poetry, fiction, translations and letters that was first published in the spring of 1971. The first three issues, appearing in 1971-1972, were privately funded. An enlarged fourth issue, entitled Northern Lights, was supported by a grant-in-aid voted by the Commission and approved by the Governor and Council in mid-1972. The present controversy arose when Granite's publishers applied for a second grant in October 1973. On March 4, 1974, the Commission voted to award a grant of $750.00. The Governor and Council at first determined to approve this grant, at a meeting on May 1, 1974. After the meeting was adjourned, however, the Governor and members of the Council where shown a poem in the Northern Lights issue of Granite entitled "Castrating the Cat." ¹ They then reconvened the meeting and reversed their decision. At the time the Governor characterized the poem as "an item of filth," and in a letter notifying the Commission of the decision not to approve the Granite grant-in-aid explained that the magazine had published "obscenities." ²

The complaint in this suit was filed on April 15, 1975. The plaintiffs are Granite Publications, the nonprofit corporation that publishes Granite ; Advocates for the Arts, a national organization concerned with promotion of the arts, with members in New Hampshire; an individual member of Advocates of the Arts who resides in New Hampshire; and two individuals whose work appeared in the Northern Lights issue of Granite, one of whom is also a subscriber to the magazine. The complaint alleged that the Governor and Council, in disapproving the $750.00 grant-in-aid on the basis of their own "personal adverse reaction" to a single poem had violated the first and fourteenth amendments of the Constitution, as well as the federal and state statutes authorizing the grants program, 20 U.S.C. § 954; N.H.Rev.Stats.Ann. ch. 19-A. Under 42 U.S.C. § 1983 the plaintiffs sought declaratory and injunctive relief.

The district court found that federal jurisdiction was proper under 28 U.S.C. § 1331 and that all of the plaintiffs had standing to sue. 397 F.Supp. 1048, 1049-50. On the merits the court sought to identify exactly what governmental conduct had aggrieved the plaintiffs. It considered that "(t)he only action taken by the defendants is their refusal to sanction the grant because, in their judgment, they do not believe the magazine worthy of state support." Id. at 1052. Regarding such a "value judgment as to .. . literary worth" as "intrinsic to the benefit being sought," the court could find no first amendment violation. Id. at 1052-53. Similarly, the court held that nothing in 20 U.S.C. § 954 prevented state executive review of the funding decisions of a state agency established under that provision, and that such review was not only permitted but required by New Hampshire law. Id. at 1053-54.

In this appeal the plaintiffs have chosen not to pursue their statutory claims and ask us only to review that part of the district court's decision holding that their complaint alleged no first amendment violation.

There is no question that this case is properly before us. The plaintiffs' claim that the defendants' reversal of the grant awarded to Granite by the Commission stifled free expression raises a substantial federal question for which jurisdiction is plainly afforded by 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Cf. Hagans v. Lavine, 415 U.S. 528, 534-38, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577, 586-89 (1974). Moreover, the claim that as a result of the defendants' action Granite was forced to curtail and delay further publishing endeavors was enough to demonstrate that at least the publisher, Granite Publications, had a " 'personal stake in the outcome' such as to 'assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' " O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674, 682 (1974), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 677 (1962). That Granite Publications is a corporation has no bearing on its standing to assert violations of the first and fourteenth amendments under 42 U.S.C. § 1983. See Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660, 665 (1936). Since we thus find a justiciable controversy between Granite Publications and the defendants under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, we find it unnecessary to consider either whether there is jurisdiction under 28 U.S.C. § 1331, with its "amount in controversy" requirement, or whether any of the other plaintiffs besides the publisher have standing. Cf. Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 746, 35 L.Ed.2d 201, 210 (1973).

Nor is there any question that if defendants violated the first amendment, federal injunctive relief would be appropriate. The defendants have advanced no administrative remedy that must be exhausted before plaintiffs can assert their first amendment claim in federal court. If refusal of aid to Granite restrained freedom of speech, it would be no answer that Granite could seek funds directly from the National Endowment for the Arts under 20 U.S.C. § 954(c), cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448, 457 (1975), or that it could ask the National Endowment to cut off further funding of the New Hampshire Commission under 20 U.S.C. § 954(h), even assuming that that provision were applicable to the alleged violation, cf. Van Alstyne, The First Amendment and the Suppression of Warmongering Propaganda in the United States: Comments and Footnotes, 31 Law and Contemp.Prob. 530, 535 (1966) ("(T)he remedy of silence is generally not the way of the first amendment."). Nor are the plaintiffs barred from equitable relief by any adequate remedy at law. If the decisional process leading to denial of funds to Granite violated the first amendment, as plaintiffs allege, appropriate relief would include an injunction ensuring that the violation does not recur, whether or not Granite showed itself to be threatened by recurring violations. See Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962).

We turn, then, to the merits of the plaintiffs' first amendment claim. We do not, of course, understand plaintiffs to suggest that public funding of the arts is unconstitutional. Such a broadside attack would be undercut by the Supreme Court's interpretation of the first amendment in Buckley v. Valeo, --- U.S. ----, ----, 96 S.Ct. 612, 668-69, 46 L.Ed.2d 659, 728, 44 U.S.L.W. 4127, 4154-55 (U.S. Jan. 30, 1976). There the Court held that the public financing of political campaigns "furthers, not abridges, pertinent First Amendment values. . . . " Id., --- U.S. at ----, 96 S.Ct. at 670, 46 L.Ed.2d at 730, 44...