Antonelli v. Hammond

• Citation: 308 F. Supp. 1329
• Decision Date: 05 February 1970
• Docket Number: Civ. A. No. 69-1128-G.
• Parties: John ANTONELLI, Plaintiff, v. James J. HAMMOND, Defendant.
• Court: U.S. District Court — District of Massachusetts

308 F. Supp. 1329

John ANTONELLI, Plaintiff, v. James J. HAMMOND, Defendant.

Civ. A. No. 69-1128-G.

United States District Court, D. Massachusetts.

February 5, 1970.

COPYRIGHT MATERIAL OMITTED

Harold C. DuLong, Burlington, Mass., for plaintiff.

Mark L. Cohen, Asst. Atty. Gen., Boston, Mass., for defendant.

OPINION

GARRITY, District Judge.

This action is brought under 42 U.S.C. § 1983 and its jurisdictional counterpart 28 U.S.C. § 1343(3). Plaintiff is John Antonelli, a student at Fitchburg State College, a state-supported school of higher education in the Commonwealth of Massachusetts.¹ He was the editor-in-chief of The Cycle, the campus newspaper, when a dispute as to the control of the newspaper arose between the student editorial staff and the college president, defendant James J. Hammond. The complaint in substance is that the defendant Hammond through his power over the purse is censoring the material for publication by subjecting it to the prior approval of a faculty advisory committee. It is also alleged that president Hammond refused to release the usual funds to pay for the printing of an issue of The Cycle containing an article the defendant felt was obscene. Contending that this action is in violation of the First and Fourteenth Amendments to the Constitution of the United States, plaintiff is seeking injunctive relief and a declaratory judgment under 28 U.S.C. §§ 2201 and 2202. The case was tried without jury; several witnesses testified for both parties and the court received memoranda of law, affidavits and certain stipulated facts.

Findings of Fact

1. In the spring of 1969 plaintiff Antonelli was duly elected by the student body of Fitchburg State College to serve for one year as the editor-in-chief of the campus newspaper. At the start of the fall semester in September 1969 Antonelli changed the name of the paper from Kampus Vue to The Cycle. The change in name was indicative of a change in policy and format. While Kampus Vue's focus had been primarily on student news and events on campus, The Cycle sought to explore and comment upon areas of broader social and political impact.

2. The Cycle is not financially independent. It depends on an allocation of a portion of revenues derived from compulsory student activity fees. In accordance with Mass.G.L. c. 73, § 1B, these fees and any receipts from the student activities themselves are retained in a revolving fund to be expended "as the president of the college may direct in furthering the activities from which the fees and receipts were derived * * *." Prior to the present dispute, the publication costs and other bills of the student newspaper at Fitchburg State College had been consistently paid from this fund. Without this money the campus newspaper cannot be published on a regular basis.

3. On September 21, 1969 an article entitled "Black Moochie" written by Eldridge Cleaver and originally appearing in Ramparts Magazine, Vol. 8, No. 4, October 1969, was included in the material for Vol. 1, No. 3, of The Cycle submitted to Raymond Plante, the paper's usual printer. Mr. Plante, whose daughter is a student at the college, strenuously objected to the theme of and four-letter words generously used in the text of "Black Moochie." He refused to print the article, preferring to smash his presses first, and he telephoned president Hammond to inform him of the content of the edition which the students were asking him to print. Soon thereafter the defendant came to Plante's office and expressed his own displeasure at the proposed issue of The Cycle. He felt that the "Black Moochie" article was "garbage" and obscene and not fit for publication in the campus newspaper. President Hammond had not been pleased with the change in the focus and format that previous issues of The Cycle had brought to the campus newspaper. He stated that publication should provide an opportunity for students to develop skills in journalism, should not consist primarily of compilations published previously elsewhere and should not serve as a vehicle for the dissemination of obscene material.² On this occasion and thereafter the defendant indicated to the plaintiff and others that he felt morally obligated to use his powers over the allocation of funds for student activties under G.L. c. 73, § 1B, to see that the money was spent properly and to prevent its expenditure on the publication of such "trash" as "Black Moochie." He stated that therefore he would not consider paying for articles like "Black Moochie" and would refuse to allow future editions of The Cycle to be published unless he or someone acting with his authority approved of all the matter to be included in the newspaper prior to its being printed.

4. In order that some form of student publication continue during the pendency of these proceedings, and under protest, plaintiff agreed to cooperate with an advisory board of two faculty members, Drs. Greene and Quigley, who were appointed by the defendant to exercise their judgment as to the "responsible freedom of the press" in the student newspaper. Under president Hammond's plan, funds from student fees would not be forthcoming for future issues until the issues were approved by the advisory board. Drs. Greene and Quigley were authorized by the defendant to certify the necessary expenditures and approve their payment only after they exercised their judgment as to the "responsible freedom of the press" in the student newspaper. President Hammond expressed his willingness to abide by the judgment of the advisory board.

5. The primary function of the advisory board is to pass on the acceptability of material intended to be published in The Cycle and to prevent the printing of articles which the administration feels are not fit for the campus newspaper. No guidelines of acceptability were established and no standards limit the discretion of the two faculty members as they pass judgment on the material submitted to them. No procedure was designed whereby the reasonableness or validity of a board decision might be tested or reviewed.

6. Prior to the present controversy, the officials at Fitchburg State College had left control over the content of the campus newspaper entirely to the student editors. Only with the attempted publication of "Black Moochie" did president Hammond feel it necessary to interpose administrative control in the form of the advisory board.

7. The issue of The Cycle containing the article entitled "Black Moochie" was in fact printed and widely circulated both at Fitchburg State College and elsewhere. A different printer did the printing and the costs were not paid for from student activity funds. President Hammond never authorized payments relating to this issue of The Cycle. The publication came about through the combined efforts of the editors of the newspapers of five Massachusetts state colleges, including Fitchburg. There was no evidence that any of the funds expended in connection with this issue belonged to plaintiff or that he has any legal liability with respect to them.

8. On November 7, 1969 plaintiff repudiated his agreement to cooperate with the advisory board and he and the entire editorial board submitted their resignations. This action was announced in the one issue of The Cycle published under the control of the advisory board, Vol. 1, No. 4. It was prompted by disputes with the two faculty members as to the newspaper's financial responsibility and budgetary mechanics.

9. Although the conflict leading to the resignations did not concern material submitted for publication and although the board neither rejected nor censored in any way any of the material actually proposed for the one issue printed under its auspices, the controversy over censorship still colored the relationship of the student editors and representatives of the administration.

10. On November 20, 1969 the resignations were accepted by the student government association of the college. However, in an attempt to avoid the threat of mootness, a special meeting of the student government was called on November 25, 1969 and the previous recognition of the resignations was unanimously withdrawn. The acceptance of the resignations was now to be deemed effective December 17, 1969 rather than November 20.

11. This is not the only indication of support that the student government association has shown for The Cycle and the plaintiff in the dispute over the control of the content of the campus newspaper. On October 14, during a time of cessation in publication, an open meeting of the student government association was held and a motion was debated that another publication, edited by one who opposed The Cycle, be given funds from the newspaper budget to publish a weekly newsletter until the fate of The Cycle was decided. This motion was virtually unanimously defeated.

12. The Cycle has not been published since the announcement of the resignations on November 7. The office of editor-in-chief will have been officially vacant since December 17, 1969. Although he would have to be reelected by the student body, Antonelli testified that he would be willing to run again and serve as editor-in-chief if the advisory board were eliminated.

13. At no time has any disciplinary action been taken by Fitchburg State College against the plaintiff or any other student in connection with the publication of The Cycle.

Conclusions of Law

The first question for decision is whether the case is moot. "Simply stated, a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory Judgments 35-37 (2nd ed. 1941)." Powell v. McCormack, 1969, 395 U.S. 486, 496-497, 89 S.Ct. 1944, 23 L.Ed.2d 491. See also Maryland Casualty Co. v. Pacific Coal and Oil Co., 1941, 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826; Golden v. Zwickler, 1969, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113. As argued by ...