Brooks v. Auburn University

• Decision Date: 08 July 1969
• Docket Number: No. 27316.,27316.
• Citation: 412 F.2d 1171
• Parties: Larry BROOKS et al., Plaintiffs-Appellees, v. AUBURN UNIVERSITY et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

412 F.2d 1171 (1969)

Larry BROOKS et al., Plaintiffs-Appellees, v. AUBURN UNIVERSITY et al., Defendants-Appellants.

No. 27316.

United States Court of Appeals Fifth Circuit.

July 8, 1969.

Thomas D. Samford, III, Samford & Samford, Opelika, Ala., and James J. Carter, Hill, Hill, Stovall, Carter & Franco, Montgomery, Ala., for appellants.

Morris Dees, Jr., Montgomery, Ala., C. H. Erskine Smith, Birmingham, Ala., for appellees.

Before BELL and GOLDBERG, Circuit Judges and ATKINS, District Judge.

BELL, Circuit Judge:

This appeal involves a decree of the district court restraining the president of Auburn University, Dr. Harry M. Philpott, from barring the scheduled appearance and speech on the Auburn campus of the Reverend William Sloan Coffin. The decree also required the payment to Reverend Coffin of an agreed honorarium and travel expenses. We agree with the result reached by the district court and therefore affirm.

The decree, entered on the complaint of plaintiffs who were students and members of the faculty at Auburn, rested on the premise that Dr. Philpott was denying them their First Amendment right to hear the speaker. The First Amendment, applicable to a state university through the Fourteenth Amendment, embraces the right to hear. Cf. Martin v. City of Struthers, 1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Lamont v. Postmaster General, 1965, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398.

The honorarium and expenses were within the range of the custom and practice in such instances at Auburn. The speaker was requested by a student organization, the Human Rights Forum, and the request was approved by the Public Affairs Seminar Board of the university. Dr. Philpott, in exercise of the final authority which was his as president of the university, ruled that the invitation could not be extended to Reverend Coffin and that his fee and expenses would not be paid.

The record demonstrates that Auburn had no rules or regulations governing speaker eligibility. The practice was for the Public Affairs Seminar Board, an officially chartered student-faculty board, to pass on requests from student groups to invite speakers. Funds were allocated to the Board by the university from student fees for use in obtaining speakers.¹ The Human Affairs Forum wrote the Board under date of November 13, 1968 requesting $650.00 needed for honorarium and expense purposes in bringing Reverend Coffin, Chaplain at Yale University, to Auburn for a speaking engagement on February 7, 1969. The Board, at a formal meeting on November 20, 1968, approved the request. The approval was communicated in writing to the chairman of the Human Affairs Forum by letter dated November 21, 1968.

Dr. Philpott then notified the Public Affairs Seminar Board that the Reverend Coffin would not be allowed to speak on the Auburn University campus because he was a convicted felon and because he might advocate breaking the law. These reasons had not previously been invoked at Auburn to bar a speaker.

The district court was of the view that to invoke them under the circumstances here, where the speaker had been requested by a student organization and approved under normal procedures, was in the nature of a prior restraint and in violation of the First Amendment rights of plaintiffs. Cf. Kunz v. New York, 1951, 340 U.S. 290, 293, 71 S.Ct. 312, 95 L.Ed. 280. This holding is fairly sustained by the law and the evidence.

Attributing the highest good faith to Dr. Philpott in his action, it nevertheless is clear under the prior restraint doctrine that the right of the faculty and students to hear a speaker, selected as was the speaker here, cannot be left to the discretion of the university president on a pick and choose basis. As stated, Auburn had no rules or regulations as to who might or might not speak and thus no question of a compliance with or a departure from such rules or regulations is presented. This left the matter as a pure First Amendment question; hence the basis for prior restraint. Such a situation of no rules or regulations may be equated with a licensing system to speak or hear and this has been long prohibited. Cantwell v. Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.

It is strenuously urged on behalf of Auburn that the president was authorized in any event to bar a convicted felon or one advocating lawlessness from the campus.² This again depends upon the right of the faculty and students to hear. We do not hold that Dr. Philpott could not bar a speaker under any circumstances. Here there was no claim that the Reverend Coffin's appearance would lead to violence or disorder or that the university would be otherwise...