Joyner v. Whiting

477 F.2d 456

Opinions

BUTZNER, Circuit Judge:

Johnnie Edward Joyner, editor of the Campus Echo, the official student newspaper of North Carolina Central University, and Harvey Lee White, president of the university’s student government association, appeal from an order of the district court, which (a) denied their application for declaratory and injunctive relief to secure reinstatement of financial support for the Echo, and (b) permanently enjoined Albert N. Whiting, president of the university, and his successors in office, from granting future financial support to any campus newspaper. Joyner v. Whiting, 341 F.Supp. 1244 (M.D.N.C.1972). Joyner and White assert that the decree violates the First and Fourteenth Amendments. President Whiting urges affirmance on the ground that the paper’s segregationist editorial policy and racially discriminatory practices violate the Fourteenth Amendment and the Civil Rights Act of 1964. We reverse because the president’s irrevocable withdrawal of financial support from the Echo and the court’s decree reinforcing this action abridge the freedom of the press in violation of the First Amendment.

I

EDITORIAL COMMENT

The first issue of the Echo under Joyner’s editorship published a banner headline on the front page that asked, “Is NCCU Still a Black School,” and an article entitled, “Look and You Shall See,” which stated in part:

“There is a rapidly growing white papulation on our campus.

. . . .

“We want to know why they are here. How many are here? Why more and more come every year (by the hundreds)?

. . . .

“But I think that the reason we will be taken over so quickly and so easily is our fault.

“Black students on this campus have never made it clear to those people that we are indeed separate from them, in so many ways, and wish to remain so. And until we assume the role of a strong, proud people we will continue to be co-opted. Until we chose to make this clear, by any means necessary, the same thing will continue to happen ....

“I maintain that we must pick up the cry of Frantz Fanan who has said, ‘Each generation must discover its mission, fulfill it or betray it.’ And the words of H. Rap Brown, T do what I must out of the love for my people. My will is to fight. Resistance is not enough. Aggression is the order of the day.’ And more over that we take nothing from the oppressor, but only in turn get that which is ours.

“Now will you tell me, whose institution is NCCU? Theirs? Or ours?”

In addition, the paper contained a survey of student opinion which reflected strong opposition to the admission of white students.

President Whiting responded with the following letter to Joyner:

“In my view the September 16 issue of the Campus Echo does not meet standard journalistic criteria nor does it represent fairly the full spectrum of views on this campus. Because of this, I am writing to advise that funds for the publication of additional issues will be withheld until agreement can be reached regarding the standards to which further publications will adhere.

“If consensus cannot be established then this University will not sponsor a campus newspaper. That portion of remaining funds collected or allocated to the Campus Echo budget will accrue to the credit of all contributing students for this school year.” ¹

Despite a meeting to resolve the differences, no agreement could be reached. The president’s counsel then advised him that because North Carolina Central University is a state institution he could not constitutionally refuse to financially support the newspaper if his refusal was contingent on the paper’s meeting journalistic standards or other subjective criteria. Accordingly, acting on advice of counsel, the president irrevocably terminated the paper’s financial support and refunded to each student the pro rata share of the activities fee previous ly allocated to the Echo. The president took no action to bar Joyner, or any other student, from publishing and circulating a privately funded newspaper on the campus. Indeed, several issues of the Echo were published without the university’s financial support, but it became apparent that the paper could not survive unless it received its usual subsidy from the student activities fees;

Fortunately, we travel through well charted waters to determine whether the permanent denial of financial support to the newspaper because of its editorial policy abridged the freedom of the press. The First Amendment is fully applicable to the states, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and precedent establishes “that state colleges and universities are not enclaves immune from [its] sweep.” A college, acting “as the instrumentality of the State, may not restrict speech . simply because it finds the views expressed by any group to be abhorrent.” Healy v. James, 408 U.S. 169, 180, 187, 92 S.Ct. 2338, 2345, 2349, 33 L.Ed.2d 266 (1972); see Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1037 (1969). It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment. Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755, 757 (1971); cf. Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885, 892 (1946).² This rule is but a simple extension of the precept that freedom of expression may not be infringed by denying a privilege. Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

The principles reaffirmed in Healy have been extensively applied to strike down every form of censorship of student publications at state-supported institutions. Censorship of constitutionally protected expression cannot be imposed by suspending the editors,³ suppressing circulation,⁴ requiring imprimatur of controversial articles,⁵ excising repugnant material,⁶ withdrawing financial support,⁷ or asserting any other form of censorial oversight based on the institution’s power of the purse.⁸

But the freedom of the press enjoyed by students is not absolute or unfettered. Students, like all other citizens, are forbidden advocacy which “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” See Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1969), expressly limits the free and unrestricted expression of opinion in schools to instances where it does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” We previously considered these limitations in Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir. 1971):

“Specifically, school authorities may by appropriate regulation, exercise prior restraint upon publications distributed on school premises during school hours in those special circumstances where they can ‘reasonably “forecast substantial disruption of or material interference with school activities” ’ on account of the distribution of such printed material.”

In his brief President Whiting acknowledges that there does not appear to have been any danger of physical violence or disruption at the university because of the publication of the Echo. The record, of course, does disclose that the paper’s message of racial devisiveness and antagonism was distasteful to the president, and it may well have offended other members of the university community. However, no white faculty members or students complained that the paper’s editorial policy incited anybody at the university to harass or interfere with them. The case, therefore, does not present a situation that Brandenburg, Tinker, and Quarterman recognize as justifying restriction of free expression.

As a foundation for its decree, the district court fashioned a unique exception to the well established body of law dealing with censorship of college newspapers. Describing the Echo as a state agency, the court upheld the termination of its funding by the university on the ground that the Fourteenth Amendment and Civil Rights Act of 1964 bar a state agency from spending state funds to discourage racial integration of the university “by a program of harassment, discourtesy, and indicia of unwelcome.”

Censorship of the paper cannot be sustained on the court’s theory. The record contains no proof that the editorial policy of the paper incited harassment, violence, or interference with white students and faculty. At the most, the editorial comments advocated racial segregation contrary to the Fourteenth Amendment and the Civil Rights Act of 1964. The court’s rationale disregards the distinction between the First Amendment’s clause prohibiting the establishment of religion and its clause protecting freedom of the press. Neither federal nor state governments may expend funds to establish a religion. The First Amendment, however, contains no similar ban against speech or press. Both governments may spend money to publish the positions they take on controversial subjects. The speeches and publications that originate in government offices attest to the diversity of views that are freely expounded. But under the rule that President Whiting urges us to affirm, no state official could use his office to criticize, as the editor of the Echo did, government policy on race relations with which he disagrees. We need not decide whether the Echo is a state agency; it is enough to say that even if it were, it would not be prohibited from expressing its hostility to racial integration. The Fourteenth Amendment and the Civil Rights Act proscribe state action that denies the equal protection of the laws, not state advocacy. To be sure, the line between action and advocacy may sometimes be difficult to draw, but it is clear that nothing written in the Echo crossed it.

A college newspaper’s freedom from censorship does not necessarily imply that its facilities are the editor’s private domain. When a college paper receives a subsidy from the state, there are strong arguments for insisting that its columns be open to the expression of contrary views and that its publication enhance, not inhibit, free speech. Cf. Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). However, this case provides no occasion for formulating a principle akin to the fairness doctrine for the college press. The record does not disclose that Joyner rejected any articles that were opposed to his editorial policy, and President Whiting does not claim the paper refused to publish his pro-integration plea.

The president, emphasizing that the students are still free to publish and circulate a newspaper on the campus without university support, protests that the denial of financial support cannot be considered censorship because it is permanent. Permanency, he suggests, does not link the ebb and flow of funds with disapproval or approval of editorial policy. Absent this correlation, he claims, there is no censorship. But this argument overlooks the fact that one of the reasons for the president’s withdrawal of funds was his displeasure with the paper’s editorial policy. The abridgement of freedom of the press is nonetheless real because it is permanent. Freedom of the press cannot be preserved, as Mr. Justice Frankfurter noted, by prohibitions calculated “to burn the house to roast the pig.” Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed. 2d 412 (1957). The president has failed to carry the “heavy burden of showing justification for the imposition of” a prior restraint on expression. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). He has proved only that he considers the paper’s editorial comment to be abhorrent, contrary to the university’s policy, and inconsistant with constitutional and statutory guarantees of equality. This is plainly insufficient. Healy v. James, 408 U.S. 169, 187, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); cf. Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

Similarly, the district court’s permanent injunction against the university’s funding of the paper cannot stand. The court’s grant of the injunction was intended to protect the student press by eliminating the inducement of future financial support “as a possible method for censorship.” But the proper remedy against censorship is restraint of the censor, not suppression of the press. A court, no less than the executive and the legislature, must defer to the First Amendment. Twice in the history of the nation the Supreme Court has reviewed injunctions that imposed prior restraints on the publication of newspapers, and twice the Court has held the restraints to be unconstitutional. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). In both instances the proof was insufficient to overcome the presumption of unconstitutionality under which prior restraint of expression labors. Because this case is marked by the same defect, the injunction must be dissolved.

II

DISCRIMINATORY PRACTICES

Early in September of 1971, Joyner, who had been elected editor the previous spring, told the Echo’s faculty advisor that the paper would be black-oriented and that neither whites nor foreigners would be allowed to serve as staff members. The first edition of the paper under Joyner’s editorship, published later in the month, contained a notice that the paper would not carry advertising for white merchants.

The president asserts that the Echo is an agency of the state, and that continued financial support of the paper despite its discriminatory practices would violate the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In contrast, the Board of Governors of the University of North Carolina ⁹ takes the position that the Echo is not an agency of the state, but it justifies the president’s withholding of funds as a permissible means of enforcing a valid campus regulation proscribing racial discrimination.

We need not choose between these theories. Under both of them, the president was justified in prohibiting racial discrimination in staffing the newspaper and accepting advertising. The equal protection clause forbids racial discrimination in extracurricular activities of a state-supported institution. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 899 (5th Cir. 1966), cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967), and freedom of the press furnishes no shield for discrimination in advertising. United States v. Hunter, 459 F.2d 205, 211 (4th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972); cf. Lee v. Board of Regents, 441 F.2d 1257 (7th Cir. 1971). Even if the Echo is not, strictly speaking, an agency of North Carolina, the president was not powerless to act. Campus organizations claiming First Amendment rights must comply with valid campus regulations, Healy v. James, 408 U.S. 169, 191, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), and the state, acting through the president, possesses adequate power to promulgate and enforce rules prohibiting discrimination. Railway Mail Ass’n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945).

It does not follow, however, that the appropriate remedy for the paper’s racial discrimination was the permanent cessation of financial support. During a meeting with the president after suspension of financing, Joyner disavowed his black only staff policy. Moreover, the second issue of the Echo carried a notice repudiating its statement that it would not accept any more business from white advertisers. Henceforth, the notice said, the Echo will “only accept ads from white businesses that employ on an equal opportunity basis.”

We cannot accept the contention pressed by Joyner and the Board of Governors that the issues of discrimination in staffing and advertising are now moot. Neither the president nor the district court were required to give credence to the disavowal of the discriminatory practices, and, as the president points out, the paper is still free to take ads from black businesses which are not equal opportunity employers. Therefore, on remand, the president should be afforded an opportunity to amend his pleadings to apply for relief against discriminatory practices in staffing and advertising. If he does, the district court should determine whether “there exists some cognizable danger of recurrent violation.” United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953). If the court finds that this danger exists, it may enjoin these discriminatory practices.

The permanent withdrawal of funds, however, is not an appropriate remedy. While the state may suppress speech when it is thoroughly enmeshed with unlawful conduct, Milk Wagon Drivers’ Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941), this record fails to disclose that the discriminatory staffing and advertising policies are inextricably related to the news and editorial content of the paper. To comply with the First Amendment, the remedy must be narrowly drawn to rectify only the discrim ination in staffing and advertising. Cf. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957).

Ill

Two other matters require but brief comment. The parties have argued about the right of a student to resist having a part of his student activities fee allocated to the Echo. Cf. International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). This issue is speculative. No student has protested that he was compelled to subscribe to the paper. We, therefore, express no opinion concerning this aspect of the case.

The second issue which we do not reach is the contention that the students have been denied the equal protection of the laws because eleven other state supported universities in North Carolina sponsor college newspapers. In view of our disposition of the case, we find it unnecessary to consider this alternative ground for relief.

The judgment of the district court is reversed, and the injunction which- it entered is dissolved. This ease is remanded for the entry of a declaratory judgment consistent with this opinion. In the exercise of its sound discretion, the district court may grant or withhold injunctive relief. See Antonelli v. Hammond, 308 F.Supp. 1329, 1338 (D.Mass.1970).

Footnotes

1

. The president also circulated the following memorandum to all members of the university community:

“By now I am certain that most of you have read the September 16 issue of the Campus Echo. Because of the very pronounced critical position taken in this paper regarding integration in the University Community, I feel it my duty as President to indicate clearly and unequivocally what the official policy of the Institution is and will continue to be in accordance with the present law of the land and the State of North Carolina. North Carolina Central University has always been opposed to any policies and practices which deprive any individual of a right or a privilege because of race, color, creed, or national origin. It will not extend recognition to or knowingly affiliate with and condone any group, organization, or association, espousing policies which discriminate on such bases.

“Because of historical circumstances issuing out of the shameful segregated past this institution is and will continue to be in the foreseeable future predominantly Black or Negro (whichever word one chooses to use here is a.matter of personal' choice). It has had a prideful and heroic educational tradition and in its various forms, from the date of its founding, has contributed significantly and effectively to the development and well-being of those who have had the good fortune to attend. Because of relatively recent social changes, integration on all college and university campuses and, as a matter of fact, in all legitimate schools has become more visible. This is no longer a reversible trend and it is sheer folly to think otherwise. Presently, at North Carolina Central University we have an array of ethnic and racial types but in actuality only a statistically insignificant number of non-Negroes. This notwithstanding, the point that I wish to make is that as a State-Supported Institution especially, but also in terms of what is morally and legally right, this institution is not a ‘Black University’ and does not intend to become one.

“To those who find this assertion and this fact uncomfortable and/or intolerable I wish to make it perfectly clear that they must, while here, operate within the framework of the University policies regarding this. If this is not possible, then my advice is to seek enrollment and/or employment in institutions where such attitudes are acceptable.

“In line with this point of view, I am herewith announcing that all funds for the publication of the Campus Echo have been temporarily suspended until consensus can be established regarding the journalistic standards to which this paper will adhere and its role on this campus. If consensus cannot be developed, then the university will no longer sponsor a campus newspaper and that proportion of funds collected and allocated to the budget of the Campus Echo will accrue to the credit of all contributing students for this school' year.”

2

. In Danskin, Mr. Justice Traynor dealt with the validity of a school board rule requiring persons seeking use of a school auditorium for meetings, to take an oath renouncing the overthrow of the government by force or unlawful means. In holding that such a requirement violated the First Amendment, he wrote:

“It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable.” 171 P.2d at 892.

3

. Scoville v. Board of Educ. of Joliet Tp. H. S. Dist. 204, 425 F.2d 10 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970); Sullivan v. Houston Ind. School Dist., 307 F.Supp. 1328 (S.D.Tex.1969); Dickey v. Alabama State Bd. of Educ., 273 F.Supp. 613 (M.D.Ala.1967).

4

. Channing Club v. Board of Regents, 317 F.Supp. 688 (N.D.Tex.1970).

5

. Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971); Eisner v. Stamford Bd. of Educ., 440 F.2d 803 (2d Cir. 1971); Trujillo v. Love, 322 F.Supp. 1266 (D.Colo.1971); Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755 (1971).

6

. Korn v. Elkins, 317 F.Supp. 138 (D.Md. 1970); Zucker v. Panitz, 299 F.Supp. 103 (S.D.N.Y.1969).

7

. Korn v. Elkins, 317 F.Supp. 138 (D.Md. 1970); Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass.1970).

8

. Trujillo v. Love, 322 F.Supp. 1266 (D.Colo.1971); Korn v. Elkins, 317 F.Supp. 138 (D.Md.1970); Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass.1970); Dickey v. Alabama State Bd. of Educ., 273 F.Supp. 613 (M.D.Ala.1967); Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755 (1971); see Developments in the Law-Academic Freedom, 81 Harv. L.Rev. 1045, 1130 (1968): “[Sitate finaneial support alone is not enough to prevent application of the first amendment to student newspapers.”

9

. The Board is the governing body of the University of North Carolina system, which includes North Carolina Central University. It filed a brief amicus curiae.