Duke v. State of Texas, Civ. A. No. 1950.

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtBlack, has very recently said otherwise
Citation327 F. Supp. 1218
PartiesElizabeth Ann DUKE and David William Haylon, v. The STATE OF TEXAS, North Texas State University, Crawford Martin, Attorney General of the State of Texas, et al.
Docket NumberCiv. A. No. 1950.
Decision Date26 May 1971

327 F. Supp. 1218

Elizabeth Ann DUKE and David William Haylon,
v.
The STATE OF TEXAS, North Texas State University, Crawford Martin, Attorney General of the State of Texas, et al.

Civ. A. No. 1950.

United States District Court, E. D. Texas, Sherman Division.

May 26, 1971.


327 F. Supp. 1219
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327 F. Supp. 1220
Sylvia M. Demarest, Dallas, Tex., Michael J. Whitten, Denton, Tex., for plaintiffs

Crawford M. Martin, Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., Jack Q. Barton, City Atty., W. Ralph Mann, John E. Lawhon, Dist. Atty., Denton, Tex., for defendants.

MEMORANDUM OPINION AND ORDER

JUSTICE, District Judge.

This is a suit by two individuals, Elizabeth Anna Duke and David William Haylon, seeking injunctive and declaratory relief against the State of Texas and various of its agents and instrumentalities. In order to delineate clearly the context of the veritable maze of facts and law involved in this case, it is necessary that the relevant statutes, university regulations, and court orders be set out in the margin.1

327 F. Supp. 1221
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327 F. Supp. 1222
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327 F. Supp. 1223

From all the evidence, testimony and exhibits, adduced upon the trial of this case on May 5 and 6, 1971, I find that the following events occurred on the dates shown:

FEBRUARY 9, 1971:

Herb Ninness, a student at North Texas State University, discussed with plaintiff David Haylon, a non-student, and with plaintiff Elizabeth Duke, a nonstudent, the holding of a rally on February 17, 1971, on the campus of North Texas State University, to protest certain military activities in Southeast Asia, the obtaining of sponsorship for the rally by the United Students of North Texas, and the presence of both plaintiffs to make speeches at the rally.

The Student Senate passed a resolution, designated Bill No. DEM 46, to "support" the rally planned for February 17 for the "purpose of educating the people as to U. S. involvement in S.E. Asia."

FEBRUARY 10, 1971:

Ninness, a member of the Student Senate, but not formally authorized to act in this matter, approached the Vice President for Student Affairs, William Lindley, regarding the use of university facilities and the appearance of outside speakers at the scheduled rally. Vice President Lindley informed Ninness that his request was a matter for the President's Cabinet, and that the Cabinet would be meeting the following day, at which time the request could be presented.

FEBRUARY 11, 1971:

Ninness told the President's Cabinet that the Student Senate had voted to "support" the rally. The Cabinet thereafter denied the request for outside speakers to be allowed at the scheduled rally, because it was not "sponsored" by the Senate or any other recognized campus organization.

FEBRUARY 12, 1971:

Ninness advised Vice President Lindley that he was withdrawing his request and would have no further connection with the appearance or sponsorship of outside speakers at the scheduled rally,

327 F. Supp. 1224
because he did not wish to be held personally responsible for the rally

FEBRUARY 16, 1971:

Before noon, Vice President Lindley instructed the Chief of Security Police, Tom Martin, to seek legal advice concerning the possibility of obtaining injunctive relief against the plaintiffs. Chief Martin afterwards consulted with the City Attorney of Denton, the Honorable Jack Barton, who conferred with the County and District Attorney of Denton County, the Honorable John Lawhon, and an Assistant Attorney General, the Honorable Jay Floyd. Barton then drafted a proposed application for injunctive relief, which was never used.

Plaintiff Haylon consulted an attorney, Bruce Davis, Esquire, regarding the constitutional standards governing his appearance at the scheduled rally for the purpose of speaking. During the evening, Haylon stated in a radio interview on station KNTU that it was intended that the scheduled rally should proceed in a peaceful manner.

At the regular meeting of the Student Senate, President Jimmy Deming announced his veto of DEM 46. The Senate then passed a resolution, designated Bill No. DEM 49, "sponsoring" certain speakers at the rally planned for the next day, including "two representatives of the People's Community Center of Denton", that is, the plaintiffs. At some time thereafter, President Deming vetoed DEM 49. Appearing before this regular meeting of the Student Senate, Vice President Lindley read from the university policy concerning "Speakers Sponsored by Student Groups" and the policy adopted by the Board of Regents regarding "Extracurricular Use of Facilities" and discussed various provisions of these policies, including the imposition of disciplinary sanctions upon the sponsors of an event for the conduct of non-students invited by them to that event.

FEBRUARY 17, 1971:

In the morning, an Assistant Attorney General in Austin, Texas, dictated a standard form for an application for injunctive relief via long distance telephone to a member of the staff of the County Attorney's office, where it was taken down in shorthand and transcribed. This form was revised so as to fit the facts of the situation and readied for presentation to the District Court of Denton County, 158th Judicial District.

The President's Cabinet met in a special session to consider the request of some student proponents of the scheduled rally to allow the outside speakers without regard to compliance with applicable university regulations, but the request was denied. The Acting President of North Texas State University orally authorized Chief Martin to secure injunctive relief.

After 11:00 A.M., the completed application and accompanying affidavit were presented to the Honorable Robert Scofield, District Judge of Denton County, 158th Judicial District. Following a brief ex parte hearing, Judge Scofield granted a temporary restraining order against plaintiffs.

Around 12:00 noon, the scheduled rally began. Near 12:30 P.M., the temporary restraining order was served on plaintiff Duke at the scene of the rally on the campus. Both plaintiffs subsequently spoke, Mrs. Duke reading the application, and they remained at the rally until about 2.30 P.M. The rally proceeded without incident after service of the temporary restraining order upon Mrs. Duke.

FEBRUARY 18, 1971:

In the morning, plaintiff Haylon was served, and both plaintiffs were arrested for contempt and incarcerated. In the afternoon, a writ of attachment for contempt was issued.

MARCH 4, 1971:

After a hearing held on February 24, February 26, and March 4, 1971, Judge Scofield granted a permanent injunction against the plaintiffs. He found plaintiff Duke guilty and plaintiff Haylon not guilty of contempt by being at the scheduled rally, but Haylon was found

327 F. Supp. 1225
guilty of contempt for trespassing on university property on a later date

MARCH 26, 1971:

Judge Scofield signed the order granting the permanent injunction.

The plaintiffs contend that:

(1) The temporary restraining order issued by the District Court of Denton County, 158th Judicial District, was improper under the Texas Rules of Civil Procedure,2 for which they seek declaratory relief;

(2) The issuance of the temporary restraining order, ex parte and without notice, was violative of their rights under the First and Fourteenth Amendments, for which they seek declaratory relief;

(3) The university's policies concerning outside speakers do not conform to standards consistent with the First and Fourteenth Amendments, for which they seek declaratory and injunctive relief;

(4) Campus Security Regulation 3g, adopted pursuant to Section 9 of Article 2919j, is unconstitutional, because it is both vague and overbroad, for which they seek declaratory and injunctive relief;

(5) In the circumstances of this case, Article 466a was unconstitutionally applied to plaintiffs Haylon and Duke, for which they seek declaratory relief; and

(6) The permanent injunction issued by the District Court of Denton County, 158th Judicial District, violates the First and Fourteenth Amendment rights of the plaintiffs, for which they seek injunctive relief.

Since all of the plaintiffs' contentions implicate the First and Fourteenth Amendments, some preliminary observations are appropriate. At this point in history, there can be no doubt that the Fourteenth Amendment made applicable to the States the full panoply of First Amendment guarantees. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), cases cited in Schneider v. State, 308 U.S. 147, at 160 (Footnote 8), 60 S.Ct. 146, 84 L.Ed. 155 (1939), and Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). In the case by case exposition that has occurred over the past half-century, the Supreme Court has developed the view that the freedom of expression protected against abridgement by State, as well as by federal government, action

"was not merely a guarantee of a personal liberty to the individual, but was essential to the very existence of the American form of democratic society. This theory, that freedom of expression is of `super' importance not merely to the individual but to society as a whole, had existed since the beginnings of the federal government and was perhaps the prime motive for inclusion of freedom of speech in the Bill of Rights. The concept is premised upon the supposition that the rights to assemble and to express fully their views give all citizens the opportunity to participate in the democratic process. These rights, the theory goes, assure a full dissemination and discussion of all ideas, and this produces two vital results: rational judgment by the majority on the essential issues and an outlet for the views of the dissenters. The dissenters with such an outlet are more likely to continue their dissent within, rather than without, the democratic process; the peaceful dissent of one day thus may become
...

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2 practice notes
  • Duke v. State of Texas, No. 71-2845.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 Junio 1973
    ...which forbade appellees from speaking upon or entering upon the campus of North Texas State University. Duke v. Texas, E. D.Tex., 1971, 327 F.Supp. 1218. Because the proper disposition of this appeal turned, in part, on the long disputed, never settled question of whether the Civil Rights A......
  • Eschrich v. Williamson, No. 7313
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 13 Enero 1972
    ...1 of the constitution of this state.' Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252 (1887). In Duke v. State of Texas, 327 F.Supp. 1218 (E.D.Tex.1971), the court held unconstitutional an exparte restraining order prohibiting off-campus speakers at a scheduled rally. At page 1225......
2 cases
  • Duke v. State of Texas, No. 71-2845.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 Junio 1973
    ...which forbade appellees from speaking upon or entering upon the campus of North Texas State University. Duke v. Texas, E. D.Tex., 1971, 327 F.Supp. 1218. Because the proper disposition of this appeal turned, in part, on the long disputed, never settled question of whether the Civil Rights A......
  • Eschrich v. Williamson, No. 7313
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 13 Enero 1972
    ...1 of the constitution of this state.' Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252 (1887). In Duke v. State of Texas, 327 F.Supp. 1218 (E.D.Tex.1971), the court held unconstitutional an exparte restraining order prohibiting off-campus speakers at a scheduled rally. At page 1225......

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