Committee for First Amendment v. Campbell

• Decision Date: 06 May 1992
• Docket Number: No. 90-5178,90-5178
• Parties: , 74 Ed. Law Rep. 1073 COMMITTEE FOR THE FIRST AMENDMENT, an unincorporated association of students, faculty, and other members of the university community of Oklahoma State University, including the following members; Richard L. Cummings; Charles Edgley, members of the faculty of Oklahoma State University, individually and as members of the Committee for the First Amendment; James Jude Gramlich; Amy L. Wilsey, individually and as members of the Student Union Activities Board; Kimberly McCoy, individually and as President of the Student Government Association of Oklahoma State University; Tad Cooper, individually and as a student at Oklahoma State University; Mendle E. Adams, individually and as Campus Chaplain for the United Ministry to Oklahoma State University, Plaintiffs-Appellants, v. John R. CAMPBELL, individually and in his official capacity as President of Oklahoma State University; H. Jerrell Chesney, individually and in his official capacity as Executive Secretary of the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, and Carolyn Savage, L.E. Stringer, Jack Craig, Austin Kenyon, Bill Braum, John W. Montgomery, Jimmie Thomas, Robert D. Robbins, Ed Malzahn, individually and as members of the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges; Ronald Beer, as Vice-President of Student Services of Oklahoma State University; Tom Keys, as director of the Student Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1517

962 F.2d 1517

22 Fed.R.Serv.3d 1081, 74 Ed. Law Rep. 1073

COMMITTEE FOR THE FIRST AMENDMENT, an unincorporated association of students, faculty, and other members of the university community of Oklahoma State University, including the following members; Richard L. Cummings; Charles Edgley, members of the faculty of Oklahoma State University individually and as members of the Committee for the First Amendment; James Jude Gramlich; Amy L. Wilsey individually and as members of the Student Union Activities Board; Kimberly McCoy, individually and as President of the Student Government Association of Oklahoma State University Tad Cooper, individually and as a student at Oklahoma State University; Mendle E. Adams, individually and as Campus Chaplain for the United Ministry to Oklahoma State University, Plaintiffs-Appellants, v. John R. CAMPBELL, individually and in his official capacity as President of Oklahoma State University; H. Jerrell Chesney, individually and in his official capacity as Executive Secretary of the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, and Carolyn Savage L.E. Stringer, Jack Craig, Austin Kenyon, Bill Braum, John W. Montgomery, Jimmie Thomas, Robert D. Robbins, Ed Malzahn, individually and as members of the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges; Ronald Beer, as Vice-President of Student Services of Oklahoma State University; Tom Keys, as director of the Student Union, Defendants-Appellees.

No. 90-5178.

United States Court of Appeals, Tenth Circuit.

May 6, 1992.

Laura E. Frossard, Tulsa, Okl. (Micheal Salem, Norman, Okl., with her on the brief), for plaintiffs-appellants.

Burck Bailey, Oklahoma City, Okl. (Barbara G. Bowersox with him on the brief) of Fellers, Snider, Blankenship, Bailey & Tippens, for defendants-appellees.

Before BALDOCK and McWILLIAMS, Circuit Judges, and DUMBAULD, District Judge. ^*

BALDOCK, Circuit Judge.

"How much contrition should be expected of a defendant is hard for us to say. This surely is a question better addressed to the discretion of the trial court." United States v. W.T. Grant Co., 345 U.S. 629, 634, 73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953).

Plaintiffs sought declaratory and injunctive (and later monetary) relief against various defendants ¹ in response to a decision by the Board of Regents (Regents) of Oklahoma State University (OSU) suspending the showing of The Last Temptation of Christ. ² The Student Union Activities Board (SUAB) had scheduled the film for a three-night run (October 19-21, 1989) at the Student Union Theater. At a September 22 meeting, the Regents deferred a decision on whether to allow the controversial film to be shown pending advice as to whether an on-campus showing could be prohibited on the grounds of (1) excessive entanglement between a state university and religion, and (2) damage to the University's reputation due to offending a major segment of the Oklahoma Christian community. The Regents sought this advice through a series of ten multipart questions ³ authored by their executive secretary and directed to the university president.

Plaintiffs sought a temporary restraining order (TRO) so that the film could be shown. The district court denied a TRO, but scheduled a preliminary injunction hearing on October 12, 1989. At the hearing, the district court strongly intimated that judicial resolution of the issue would not favor Regents' suspension decision. II R. 25-26. However, the district court deferred ruling so that the Regents could meet again and reconsider the issue. The next day a majority of the Regents voted to rescind the suspension and leave further handling of the matter to the University administration.

After an October 18 advertisement for the film, the University administration directed SUAB to modify subsequent advertisements by deleting the phrase "Brought to you by the students, faculty and staff of OSU ..." and inserting the following disclaimer:

The showing of this film does not reflect an endorsement of its contents by the OSU Board of Regents or Oklahoma State University.

On October 19, 1989, plaintiffs filed an amended complaint seeking damages due to content-based censorship by the defendants. The altered advertisements appeared on October 19 and 20. Notwithstanding any of the above, the film was shown on the originally scheduled dates.

Subsequently, Defendants moved for summary judgment on several grounds including mootness and qualified immunity. Plaintiffs filed a partial response on the merits and urged the court to defer ruling pending discovery. Plaintiffs requested additional time pursuant to Fed.R.Civ.P. 56(f) to depose Defendants. On the merits, Plaintiffs argued that material issues of fact remained concerning the Defendants' propensity for content-based censorship and prior restraint of unpopular speech. Plaintiffs also claimed that the disclaimer and the alteration of their original advertisement represented a second and subsequent violation the First Amendment because it chilled SUAB members' right to free expression and constituted a negative endorsement of the film by SUAB at the insistence of the Administration.

The district court dismissed the Plaintiffs' action with prejudice, indicating that it was "not inclined to issue constitutional fiats in futuro" because it "presume[d] the parties ... will conduct themselves, constitutionally and morally, in an appropriate manner." I R. doc. 35 at 3. The district court refused to defer ruling on the summary judgment motion while Plaintiffs' engaged in discovery.

Plaintiffs sought reconsideration, arguing that material issues of fact remained concerning censorship at OSU. Plaintiffs submitted affidavits and other materials indicating that: (1) in late 1966, Professor Thomas J. Altizer ⁴ was invited to speak at OSU, but the invitation was withdrawn by the university president because of content, (2) in 1967, an alternative student newspaper, The Drummer, was screened for content and students were charged $10.00 per day for a distribution point at the university, (3) in November 1967, the Regents announced a formal ban on unapproved speakers on campus (the following speakers were invited by various groups, but disapproved by the university: Dr. Timothy Leary, Rev. Phillip Berrigan, Abbie Hoffman and Rep. Adam Clayton Powell, Jr.); (4) campus police disrupted and ended a 1967 debate on the Vietnam war held at the student union and also monitored an informal lunch group (Provos) which met at the student union, (5) in March 1967, the university president attempted to silence controversial faculty opinion by holding a secret meeting with four department chairs and telling them "to keep their departments quiet," and (7) all faculty members in the sociology department resigned given the atmosphere of suppression, which targeted outspoken or controversial faculty members.

The university speaker policy was challenged in Bullock v. Kamm, No. CIV-70-418 (W.D.Okla.) and resulted in a stipulated settlement and a new speaker policy. The 1970 policy, "Policies and Procedures for Extra-classroom Activities" (1970), does not specifically address films. See I R. doc. 6, ex. A. The 1970 policy was in effect during the actions concerning The Last Temptation of Christ.

The district court denied reconsideration on the grounds that the new summary judgment evidence was remote in time (1966-70) and involved individuals other than the present regents and university administrators. I R. Doc. 44 at 1-2. On appeal, the Plaintiffs contend that: (1) the Regents' voluntary cessation of their content-based prior restraint did not make the case moot, (2) summary judgment was improper because a genuine issue of material fact remained, and (3) the Regents' suspension of the film pending review was an unconstitutional prior restraint and was content-based censorship. Defendants have filed a motion to dismiss the appeal because the regents have adopted a "Policy Statement Governing the Extracurricular Use of University Facilities, Areas or Media for the Purpose of Expression (1991)," substantially revising the 1970 policy. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm in part and reverse in part.

I. Was the summary judgment procedure appropriate?

Appellate review of a district court's summary judgment decision is de novo, but both courts apply the same standard in evaluating the merits of a summary judgment motion. ⁵ See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Factual disputes about immaterial matters are irrelevant to a summary judgment determination. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We view the evidence in a light most favorable to the nonmovant; however, it is not enough that the nonmovant's evidence be "merely colorable" or anything short of "significantly probative." Id. at 249-50, 106 S.Ct. at 2511. The movant need only point to those portions of the record which demonstrate an absence of a genuine issue of material fact given the relevant substantive law. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. If a movant establishes its entitlement to judgment as a matter of law given uncontroverted, operative facts contained in the documentary evidence, summary judgment will lie. See Anderson, 477 U.S. at 251, 106 S.Ct. at 2511. See also Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) ("Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is 'no genuine issue for trial.' ") (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20...