National Socialist White People's Party v. Ringers

• Decision Date: 05 February 1973
• Docket Number: No. 72-1737.,72-1737.
• Citation: 473 F.2d 1010
• Parties: NATIONAL SOCIALIST WHITE PEOPLE'S PARTY et al., Appellants, v. Joseph RINGERS, Jr., and Witcher N. Beverly, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

473 F.2d 1010 (1973)

NATIONAL SOCIALIST WHITE PEOPLE'S PARTY et al., Appellants, v. Joseph RINGERS, Jr., and Witcher N. Beverly, Appellees.

No. 72-1737.

United States Court of Appeals, Fourth Circuit.

Argued September 14, 1972.^*

Decided February 5, 1973.

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James H. Cohen, Washington, D. C. (James R. McCotter, Washington, D. C., and Philip J. Hirschkop, Northern Virginia Civil Liberties Union, Alexandria, Va., and Ralph J. Temple, Washington, D. C., ACLU Fund of the National Capital Area, on brief), for appellants.

Gregory U. Evans, Arlington, Va. (James H. Simmonds, Arlington, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting in banc.

WINTER, Circuit Judge.

The National Socialist White People's Party (the Party) appeals from the district court's order dismissing its suit to compel the Arlington County School Board (the Board) to permit the Party to use Yorktown High School's auditorium for a meeting to be held during non-school hours. The district court premised its ruling on two grounds: (1) the Board properly denied the Party's requests because the meeting would likely result in violence and damage to the facilities; and (2) the Board could not accommodate the Party without involving the state unconstitutionally in the Party's racially discriminatory practices. The Party asserts that the Board's refusal to grant a permit constitutes state action which violates its first amendment right to speech and assembly, and its fourteenth amendment right to equal protection of the laws. We agree with regard to the Party's first amendment rights and therefore reverse the order of the district court.

I.

The facts underlying this controversy have been stipulated by the parties: The Party, a successor to the American Nazi Party, is a non-profit corporation, incorporated in Virginia. A charter purpose of the Party is to gain political power by all legal and non-violent means, including the elective process. Party membership is limited only to whites of any religion who embrace its views. No Negro has ever held membership in the Party.

The Board, an arm of the State of Virginia, has responsibility for schools, grounds, and related property. State law permits the Board to rent high school auditoriums during non-school hours "for any legal assembly," Va.Code Ann. § 22-164 (1969), "as will not impair the efficiency of the schools." §§ 22-164.1, 22-164.2. Pursuant to this statutory authority, the Board has promulgated regulations under which it leases school property to organizations in "good standing." By regulation, an organization possesses "good standing" if it has "no previous record of abuse of school facilities." The Board has for some time, and on a regular basis, granted permits to use the auditorium to a wide variety of public and private groups on a first-come first-served basis. The Board has granted such permits to organizations which exclude certain racial, religious, or sexual groups. Except for a few instances involving groups which had previously damaged school property, no group has been denied the use of an available auditorium except the Party.

The Board has consistently refused to rent available auditoriums to the Party, although the Party has no previous record of abuse to school property. Thus, in 1959, the Board rejected a Party application without reasons. In 1969, the Board rejected the Party's application to hold a private meeting explaining that custodial help was unavailable. In fact, the Board rented the facility to "Youths for Christ" on the date requested.

On January 30, 1970, the Party applied to use Yorktown High School on March 7, 1970 for a public meeting to which it invited only non-Jewish white persons. Although the Party does not invite Negro and Jewish persons, in fact it will not, and has not, excluded them from public meetings if they seek admission. The Board initially granted the application, then revoked it because the Party planned to exclude these groups and because the Board feared resultant disorder. On the evening of the planned meeting, the Party held a non-violent rally outside the school and later outside the home of the Assistant Superintendent of Schools. The rally occasioned no violence and no confrontation with the police. The police made no arrests outside the school, but did arrest six Party members outside the Assistant Superintendent's home for violating the county noise ordinance.

On April 3, 1970 the Party again applied for a permit to rent the Yorktown High School auditorium, this time to hold a private meeting open only to "card-carrying members and official supporters." The Board denied the application without stating its reasons. The Party then commenced this suit for declaratory and injunctive relief.¹ During discovery, the Board stated that it had denied the April 3 application because of the Party's protest on March 7 and because the Board feared the proposed private meeting would endanger school property and disrupt the tranquility of the community. The district court denied the Party's motion for a temporary restraining order. This court affirmed and remanded for a hearing on the merits. National Socialist White People's Party v. Ringers, 429 F. 2d 1269 (4 Cir. 1970).

Upon remand, the district court sustained the Board's refusal to make the facilities available on the grounds that (1) the Party's proposed meetings would endanger school property, and (2) the state action doctrine required denial of the use of a publicly owned meeting place and auditorium to an organization, political in nature, which practices a racially discriminatory membership policy. We find neither conclusion legally tenable.²

II.

At the outset, we find lacking in merit the conclusion of the district court that the Board properly denied use of the facilities to the Party because a meeting would be likely to result in violence and damage to the facilities. The record,³ considered in the light of Collin v. Chicago Park District, 460 F.2d 746 (7 Cir. 1972), will simply not support this conclusion.⁴ We turn, therefore, to the issue of application of the state action doctrine. So far as we have been able to ascertain, its possible application here is a question of first impression.

III.

The Board's repeated exercise of its discretionary authority to rent the Yorktown High School auditorium for a nominal fee during non-school hours to public and private groups for public and private meetings on a first-come first-served basis, to the extent that the auditorium is not needed for school purposes and that non-school uses will not endanger the property, constitutes, in our view, an effective dedication of the auditorium for the exercise of the first amendment rights of freedom of speech, association and assembly. This partial dedication as a forum for the exercise of first amendment rights makes the school auditorium conceptually indistinguishable for first amendment purposes as a "public place" from streets and parks, which too, are acquired and maintained at public expense.⁵ There can be little doubt that streets and parks are recognized forums for the exercise of first amendment rights. In Hague v. Committee for Industrial Organization, 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), Mr. Justice Roberts wrote:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.⁶ (emphasis added).

By the same token, we conclude that the school auditorium, since it has effectively been partially dedicated for first amendment uses, may be used for purposes of assembly, communicating thoughts between citizens and discussing public questions. In a public place regularly used for the exercise of free speech and the exchange of ideas, we do not see how walls and a roof can insulate against the reach of the first amendment's commands. That amendment's protections cannot be made to turn on the structural distinctions between, for example, an open public park, a public amphitheatre, a public stadium, or an enclosed public auditorium.⁷ While limitations on its use as a forum to permit it to serve its prime function (school purposes), to serve the general comfort and convenience, and to preserve peace and good order, including the protection of property, may be sustained, regulation which limits the exercise of first amendment guarantees should be stricken down.

There is no dispute that the first amendment protects from state interference the expression in a public place of the unpopular as well as the popular⁸ and the right to assemble peaceably in a public place in the interest and furtherance of the unpopular as well as the popular.⁹ Specifically, the expression of racist and anti-semitic views in a public place and the right to assemble in a public place for the purpose of communicating and discussing racist and anti-semitic views are protected activities and may not be circumscribed by the state, except where "advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969), or where "there are...