U. OF UTAH STUDENTS AGAINST APARTHEID v. Peterson

• Decision Date: 08 December 1986
• Docket Number: Civ. No. 86C-0688A.
• Citation: 649 F. Supp. 1200
• Parties: UNIVERSITY OF UTAH STUDENTS AGAINST APARTHEID, an unincorporated association; Coalition to Stop Apartheid, an unincorporated association; Mark Nelson; Tom Price; Kim Applequist; and Ruth Nelson, Plaintiffs, v. Chase PETERSON, President of the University of Utah; the University of Utah; the State of Utah; and John Does I through X, Defendants.
• Court: U.S. District Court — District of Utah

649 F. Supp. 1200

UNIVERSITY OF UTAH STUDENTS AGAINST APARTHEID, an unincorporated association; Coalition to Stop Apartheid, an unincorporated association; Mark Nelson; Tom Price; Kim Applequist; and Ruth Nelson, Plaintiffs, v. Chase PETERSON, President of the University of Utah; the University of Utah; the State of Utah; and John Does I through X, Defendants.

Civ. No. 86C-0688A.

United States District Court, D. Utah, C.D.

December 8, 1986.

Brian M. Barnard, Utah Legal Clinic, Salt Lake City, Utah, for plaintiffs.

Ross C. Anderson, Hansen & Anderson, Salt Lake City, Utah, for American Civil Liberties Union, amicus curiae.

David L. Wilkinson, Atty. Gen., and William T. Evans, Asst. Atty. Gen., State of Utah, Salt Lake City, Utah, for defendants.

MEMORANDUM OPINION AND ORDER ON PLAINTIFFS' REQUEST FOR INJUNCTIVE RELIEF

ALDON J. ANDERSON, Senior District Judge.

I. INTRODUCTION

This action involves a dispute between student groups and the University of Utah over the existence and extent of the groups' right to protest the South African apartheid system and the university's investment policy through the use of physical structures resembling shanties (hereinafter "shanties"). The university gave the students a permit to display the shanties beginning in February, 1986. In late July, 1986, however, university officials determined that the shanties would have to be removed from campus. Attempts to negotiate failed and the student groups brought this action in this court seeking a temporary restraining order and permanent injunctive relief.

After a hearing, the court issued a temporary restraining order dated August 11, 1986, prohibiting the defendants from removing or destroying the displays until a full hearing could be held on the issue of injunctive relief. A hearing on the request for injunctive relief was held on August 29, 1986, at which time the parties stipulated that the hearing would serve as a final trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). The day long trial included the examination of a number of witnesses and the introduction of documentary evidence. At the conclusion of the trial, the court ruled from the bench, granting the plaintiffs' motion for a permanent injunction with several conditions attached, and reserving the right to file a written opinion, articulating its ruling in further detail.

II. FACTS

On February 24, 1986, a student organization, University of Utah Students Against Apartheid, erected several protest displays resembling "shanties."¹ These displays were located on a grass area a short distance from the student union building. The students allege, and the university does not dispute, that the shanties were erected to represent the oppressive conditions suffered by blacks in South Africa. The displays were initially constructed without university approval but approval was subsequently obtained in a meeting between Richard Christensen, a member of the university administration, and Connie Spencer, a member of the student protest group.

Testimony given at the trial and sworn statements provided through affidavits indicate that dialogue and interchange on apartheid and University divestiture occurred almost daily at the display site. The shanties resulted in considerable press attention, both supportive and critical of the student protest. See, e.g., Newspaper articles compiled as "Exhibit S" to Affidavit of Alan Chandler (submitted by plaintiffs); Articles included in "Defendant's Submission of Articles and Editorials." Further evidence indicated that a lecture series on the South African situation was held near the displays and that other more spontaneous discussions occurred at the site.

From February 24 to the date of the trial, from one to three shanties existed at the display site. The university does not claim that the displays obstruct pedestrian traffic or otherwise disrupt the regular educational function of the university. Rather, the university contends that the existence of the shanties causes the university considerable expense and exposes the university to large potential liability. As support for this argument, the university points to several violent and potentially dangerous incidents resulting from the existence of the shanties. On two occasions part or all of the shanties were destroyed in nighttime attacks. On another occasion one shanty was set on fire. On a final occasion a Molotov Cocktail was thrown in the vicinity of the shanties. Although no injuries were sustained in these attacks, it forced the university to increase police protection of the shanties and increased the university's estimated potential liability. The university introduced evidence that as a result insurance through the State Risk Management Pool, a form of state government self-insurance, was cancelled with respect to any liability resulting from the existence of the shanties. See Letter from Alan Edwards to President Chase Peterson (Aug. 20, 1986) (Defendant's Exhibit "C").

The administration allowed the shanties to remain for approximately six months before informing the students that it was considering requiring their removal. During this time President Peterson gave support to the right of the students to speak to the issue through use of the shanties. On July 14, 1986, the university's Institutional Council voted against divestiture.² On July 17, 1986, President Peterson requested a meeting with the protesting students. A meeting was subsequently held on August 6, 1986, in which President Peterson informed the students that the shanties had to come down. Apparently, the parties made some attempt to negotiate. The plaintiffs stated they would provide their own insurance and security. They further offered to use only one portable shanty and display it only during daytime hours. President Peterson disputed student testimony regarding the exact content of the offers but stated that he told the students that they could display the shanties if they would make them portable and bring them on campus only on limited occasions as permitted by the administration. Upon failing to reach an agreement, the students initiated this action, alleging that the university's removal of the shanties would violate their right to freedom of speech under the first amendment.

III. DISCUSSION

A. The Scope of the First Amendment

The initial inquiry for the court in this case is to determine whether the shanties themselves come within the scope of the first amendment's protection of free expression.³ It has long been clear that "speech" within the meaning of the first amendment's guarantee of "freedom of speech" includes more than mere verbal or written communication. Despite distinctions between some types of conduct not typically involving speech and what has been labeled "pure speech", protected speech under the first amendment can include expressive and symbolic conduct.⁴ Various forms of nonverbal expression have been extended first amendment "free speech" protection by the Supreme Court. Expressive conduct, including demonstrating, picketing, marching and conducting "sit-ins," has received first amendment protection. See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (marching); Brown v. Louisiana, 383 U.S. 131, 89 S.Ct. 935, 22 L.Ed.2d 162 (1966) (public library sit-in); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (demonstrating); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (picketing). Other expressive conduct of a more symbolic nature, including wearing armbands, desecrating an American flag and displaying a red flag to advocate the overthrow of the government, has also received protection.⁵See, e.g., Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (affixing peace symbol to an American Flag); Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands to public high school); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (displaying a red flag).⁶

Of course, the free speech protection extended to nonverbal expression is not without limits. Chief Justice Warren, writing for the majority in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), said:

We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.

Id. at 376, 88 S.Ct. at 1678 (upholding a conviction for burning a draft card without deciding to what degree the action raised first amendment considerations). Although the speech/conduct dichotomy was identified in O'Brien, not until Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), did the Court attempt to articulate standards which could be applied to other forms of symbolic expression or conduct. In Spence, a college student was prosecuted for violating a Washington statute which prohibited attaching extraneous material to a United States flag. Spence had attached a large peace symbol to a flag and then hung the flag upside down out of his apartment window. Three police officers viewed the flag from the street and arrested Spence. In reviewing the case, the Supreme Court reiterated its caution in O'Brien that not all conduct can be labeled speech. Id. at 409, 94 S.Ct. at 2729. The Court ruled, however, that under the circumstances in Spence, the display of the flag was symbolic expression protected under the first amendment. In reaching this conclusion, the Court stated:

The nature of the appellant's activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.... In many of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas ...," and "a short cut

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