Stacy v. Williams, WC 6725

• Decision Date: 01 December 1969
• Docket Number: No. WC 6725,6837.,WC 6725
• Parties: Donald R. STACY et al., Plaintiffs, v. John D. WILLIAMS et al., Defendants. Danny E. CUPIT et al., Plaintiffs, v. M. M. ROBERTS et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

306 F. Supp. 963

Donald R. STACY et al., Plaintiffs, v. John D. WILLIAMS et al., Defendants.

Danny E. CUPIT et al., Plaintiffs, v. M. M. ROBERTS et al., Defendants.

Nos. WC 6725, 6837.

United States District Court N. D. Mississippi, W. D.

December 1, 1969.

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J. Wesley Watkins, James L. Robertson, Eugene M. Bogen, Greenville, Miss., for plaintiffs.

Will S. Wells, Asst. Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg, Miss., for defendants.

Before COLEMAN, Circuit Judge, and RUSSELL and KEADY, District Judges.

KEADY, District Judge:

These consolidated cases¹ brought by students at the University of Mississippi and Mississippi State University, representing campus student organizations, by a faculty association, and by other persons, attack the constitutionality of regulations for off-campus speakers adopted by the Board of Trustees of the Institutions of Higher Learning of the State of Mississippi, and made applicable to all state colleges and universities under the Board's supervision. Plaintiffs seek both declaratory and injunctive relief against enforcement of these regulations.

On January 14, 1969, this three-judge United States District Court convened pursuant to 28 U.S.C. § 2281² to determine the constitutionality vel non of the various speaker regulations³ adopted between February 17, 1955, and February 15, 1968, and then enforced by the Board of Trustees of Mississippi's Institutions of Higher Learning. We considered them only on their face and as written, as alleged invidious, discriminatory application thereof would properly be a matter for a single district judge, and, except for the investigatory powers therein granted the Board and the various University heads, we found them unconstitutionally vague, facially, and issued a declaratory judgment accordingly pursuant to 28 U.S.C. § 2201. As demonstrated (see Fn. 3), the standards adopted by the Board for judging acceptability of invited speakers were invalid on their face for lack of objective measurement, thus falling "within the compass of those decisions of the Supreme Court holding that a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377, 382 (1964).⁴ Acting in the belief that the Board and the university administrators would not attempt to enforce regulations declared invalid by this court, we postponed granting injunctive relief for a sixty-day period, during which time the Board was permitted to propose new regulations, if it so desired, consonant with the ruling of the court.⁵

New regulations adopted by the Board on February 20, 1969, were submitted to this court on March 10, and plaintiffs thereafter filed timely objections. In all essential parts, we find the second set of regulations either invalid for vagueness under the Due Process Clause, as were the former regulations, or in clear violation of the Free Speech and Assembly provisions of the first and fourteenth amendments as well as the Equal Protection Clause of the fourteenth amendment. At the outset, it should be emphasized that this court is unwilling to interfere in any manner with the operation of the state's educational institutions except where, and only to the extent that, the Constitution requires it. We perceive no obstacle of constitutional concern under authoritative federal decisions which precludes a state or its agents from effectively controlling an orderly operation of its educational institutions. Indeed, college officials possess the authority, and have the duty, to make and enforce reasonable rules applicable to students, faculty and campus invitees alike to insure "the maintenance of order and decorum within the educational system." Burnside v. Byars, 363 F.2d 744 (5 Cir. 1966).⁶ For their part college students can have no valid objection to proper rules governing their conduct as members of the academic community.⁷

Before dealing seriatim with the Board's new regulations, we first examine those controlling constitutional principles that relate directly to the issue of where, in the sensitive area of speech control, the university's power ends and students' rights begin.⁸ That question, which is here presented, is one of immense public concern, and rightly so.

We begin with the premise that the facilities of state colleges and universities, dedicated as they are to the specialized function of education, may be utilized solely for that purpose. "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Adderly v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).⁹

Thus, the freedoms of speech and assembly, while occupying a "preferred position" among constitutional liberties, may not be exercised on public property without regard to its primary usage. Moreover, wherever the policy is to allow outside speakers not connected with the university, it does not follow that the freedoms of speech and assembly of those persons on campus — students and faculty alike — may be exercised by anyone, at any time or place and regardless of the circumstances or probable consequences of the event. Snyder v. Board of Trustees of the University of Illinois, supra Fn. 4. See concurring opinion of Circuit Judge Godbold, in Ferrell v. Dallas Independent School District.¹⁰ Just as the rights of students in this regard are not absolute, neither is the power of the Board, upon consent to outside speakers, so unfettered that it can be exercised in censorship over what is and what is not acceptable or in other arbitrary fashion.¹¹

The interest of both students and Board can, and must, yield to harmonious accommodation under the Constitution. In this case, the Board has not adopted an all-inclusive ban, but rather has sought to provide some opportunity, albeit limited, for students at the various institutions to hear guest speakers. For this nonexclusionary attitude it is to be commended, but as it opens the lecture halls it must do so nondiscriminatorily. College administrators, in drafting a rule to regulate speaking, must give primary consideration to students' rights entitled to "comprehensive protection under the first amendment."¹² Utmost care must be shown for the recognition of those rights, particularly since a regulation of this type undertakes to bar certain speech and thus becomes a limitation upon freedom of speech and assembly.¹³ Indeed, speaker regulations, by their very nature, constitute "prior restraints" upon the freedoms of speech and assembly. Although the law presumes their invalidity,¹⁴ prior restraints are not unconstitutional per se. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). But, in order to withstand constitutional attack, prior restraints must be narrowly drafted so as to suppress only that speech which presents a "clear and present danger" of resulting in serious substantive evil which a university has the right to prevent. Schenck v. United States, 249 U. S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919); Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1950). In Dennis, the Supreme Court made an exhaustive review of all of the cases involving application of the clear and present danger test for suppressing speech and concluded by adopting Chief Judge Learned Hand's interpretation of the phrase: "In each case, Courts must ask whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." (United States v. Dennis, 2 Cir., 183 F.2d 201, at p. 212). Obviously the evils sought to be avoided and their seriousness are to be judged within the context of each case, here, the peaceful functioning of institutions of higher learning.¹⁵ Although the priority given first amendment rights makes for a "sanctity and a sanction not permitting dubious intrusions", Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L. Ed. 430, 440 (1945), it is equally true that students' activity, whether manifested by a guest speaker or other mode of expression, which "materially disrupts classroom work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech." Tinker v. Des Moines Community School District, supra.¹⁶

To satisfy the clear and present danger test, there must be a finding by proper authority "either that immediate serious violence or other substantive evil was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated", wrote Mr. Justice Brandeis, in concurring opinion, in Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 641, 648, 71 L.Ed. 1095, 1106 (1927).¹⁷ This guide was followed by Mr. Justice Black in Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192, 203 (1941), by stating it to be "a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high" before utterances can be proscribed.¹⁸ Also, there must be recognized the material difference between speech which agitates and exhorts, calling for present violent action creating clear and present danger of serious substantive evil, which may assuredly be prohibited, and speech which is mere doctrinal justification of a thought or idea, leaving an "opportunity for general discussion and the calm process of thought and reason", which cannot be prohibited.¹⁹ This last principle was recently reiterated by the Supreme Court when it declared that "a statute which fails to draw...