Bazaar v. Fortune

• Decision Date: 09 May 1973
• Docket Number: No. 72-2175.,72-2175.
• Citation: 476 F.2d 570
• Parties: Eugene M. BAZAAR et al., Plaintiffs-Appellees, v. Porter FORTUNE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

476 F.2d 570 (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.

February 27, 1973.

Rehearing and Rehearing Granted May 9, 1973.

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

William P. Joyner, Alix H. Sanders, Oxford, Miss., for plaintiffs-appellees.

Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Granted May 9, 1973.

LEWIS R. MORGAN, Circuit Judge:

This appeal grows out of a confrontation between students and officials at the University of Mississippi over the content of a certain issue of the student literary publication Images. The District Court for the Northern District of Mississippi entered a temporary restraining order prohibiting the University from interfering with the publication and distribution of this magazine. This court, to avoid publication which would moot the serious legal issue involved, issued a stay of that temporary restraining order pending review of the case on the merits. After careful consideration, we affirm the decision of the district court ordering the University of Mississippi not to interfere with the publication and distribution of this magazine.

I.

The magazine in question, Images, is a University chartered and recognized student publication at the University of Mississippi. Since its conception in 1969, Images has published several issues on a more or less irregular basis. The magazine was designed for presentation of student-written and student-edited literary compositions.

The relationship of the University of Mississippi to this student publication has been gleaned by this court after careful examination of the record. Interdepartmental communications between officials of the University establish that Images was to be a student literary journal published with the advice of the English department. The publication was to be reproduced at the University's central duplicating facility, with an anticipated press run of 500 copies. The 1969 costs for this service was set at approximately $300.00. From the outset it was understood by all that the amounts collected from sales of the magazine would be used to offset, hopefully in toto, this printing cost. Student editors and faculty members would, of course, contribute their time and effort without remuneration. There was a further provision that in the event the sales of the magazine fell short of recouping the total publication cost, the English department would underwrite any loss from its current activities budget. There is also evidence that the magazine, at least for this past academic year, received a $400.00 grant from the Associated Student Body Activities Fund, which is, in turn, collected from student fees.

In actual operation, the magazine was staffed and run by students with editorial advice from an English department appointed adviser, Dr. Evans Harrington, Professor of English at the University. The magazine was closely connected with a course in creative writing maintained as a regular portion of the English department's curriculum and taught by Professor Harrington. It was intended that the core of student materials for publication in Images come from student efforts in this creative writing course with the possible use of other student submitted materials. The magazine was apparently not designed for widespread circulation, but rather was to be limited to approximately 500 copies per issue and to be offered for sale primarily to students at the University through University bookstore facilities.¹

II.

Until the issue of Images set for publication in the spring of 1972, there had apparently been no conflict between University officials and the magazine's editorial board and no attempts of censorship or control by the University's hierarchy.² After the spring issue had been edited into final form and sent to central duplicating, however, a dispute arose. The superintendent of the University's printing facilities informed Chancellor Porter Fortune that the University should take a close look at the stories to be published. The Chancellor then acted to hold up binding and distribution of the spring issue. He formed a committee consisting of the deans of the various University departments which was to determine if the material in the magazine was suitable for publication. It is not very clear in the record what types of hearings or evaluation this committee gave the magazine. There are allegations that it consistently refused to receive statements from the students or from their adviser, Professor Harrington. This panel of deans decided that publication would be "inappropriate", apparently basing its decision on matters of "taste". The University then refused to finish binding the journal or allow its distribution.

The reluctance of the University to allow the publication and distribution of this magazine centers on two short stories which are contained in the issue.³ Both stories were originally written by a student in the creative writing course for presentation and criticism by the class. The themes of the two stories are interracial love and black pride. The author of the stories is an 18-year-old regularly-enrolled black student at the University of Mississippi.⁴ In framing its objections to the stories, the University was careful to disclaim any unhappiness with the presented themes. Rather, the University based its entire objection to both stories solely upon the grounds of the inclusion therein of what must be termed some quite "earthy" language. It appears to be the University's position that because of its connection with this magazine it has the right to prevent publication and distribution solely because it has determined that this language is inappropriate and in bad taste.

III.

It is necessary to have a clear grasp of the nature of the stories, their characters, and the manner in which the language found objectionable by the University is used. The objectionable portions consist of what are commonly known as "four-letter words", often colloquially referred to as "obscenities". They include use of "that four-letter word" generally felt to be the most offensive in polite conversation. While the University does not specify which words it most objects to, we assume that this epithet and its derivatives are high on the list. We feel that it is imperative, however, to stress the manner in which these words are used and the alleged literary justification for their use.

The protagonist of each story is a black male growing up in and confronted by a basically white society. Each of the two "heroes" is suggestive of a latter-day, black Holden Caulfield,⁵ struggling to find himself in the world. As what could be termed a natural and necessary phase of character development, the "heroes" of these stories occasionally talk and think in a vernacular which is definitely not suited for parlor conversation.

It must be realized that these characters are young blacks who often express themselves by using somewhat crude epithets of the street. The language, while admittedly unacceptable in some quarters, is readily recognized as commonplace in various strata of society, both black and white. The tendency to use such language would seem more prevalent among young males in less-favored social groups of all races. In short, it could well be considered strained and artificial for these characters to speak and think in proper prep school diction.

We also note that the language is not used in a manner which would be termed "pandering". The words are not used in a sexual sense nor are there vulgar passages describing such activities. Throughout the work, the "offensive" words are usually used as modifiers strictly included for their effect and to convey a mood. They are not used in any literal sense. While some may feel that they are used a bit too often, this is a difficult matter to judge and rests largely with individual taste. Certainly, it seems an unsuitable standard for governmental censorship.

Thus, the sole question presented in this case is whether or not a university, under these circumstances, may prevent publication and distribution of a student publication solely on grounds of "taste" and "appropriateness" merely because certain words appear therein, no matter in what context and for what reasons the words are used.

IV.

It is well established that not all rights to freedom of speech and the press are lost by those who attend state-supported colleges and universities. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). In this case it has become incumbent on the University of Mississippi to justify the censorship it has sought to exercise herein. Despite several rather ingenious arguments put forth by the University, we feel their efforts have failed. We find it necessary to address only two specific issues in this opinion. First, does the University here have the status of a private publisher with the right to choose what it will or will not publish. Secondly, if this special status cannot be afforded the University, has the University demonstrated sufficient "special circumstances" to justify censorship.

The University as Publisher

The facts before us in this case do not establish the University's claim that it here stands in the shoes of a private publisher. The evidence shows that the University's financial connection with this endeavor was somewhat tenuous. There was no special appropriation for this magazine. Rather, as envisioned from the outset, it was intended to be self-supporting, with the University supplying printing facilities, more or less on open account, with the costs for such services to be repaid from...