Mississippi Gay Alliance and Anne Debary v. Bill Goudelock

536 F.2d 1073, 1 Media L. Rep. (BNA) 1949, 1976 U.S. App. LEXIS 7593

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 12, 1976
• Docket: 74-4035
• Status: Published

Opinions

COLEMAN, Circuit Judge.

This is not the ordinarily encountered First Amendment case in which a university student newspaper seeks to set aside an order directing it not to publish something which it wishes to publish.

To the contrary, it is a case in which a nebulous group, the Mississippi Gay Alliance, representing itself to be an association “basically comprised of homosexuals”, seeks judicial compulsion against a student newspaper requiring publication of an advertisement which that paper does not want to publish.

The District Court refused to command publication. We affirm.

On August 16, 1973, a female, the self-styled chairwoman of the Mississippi Gay Alliance, presented a proposed paid advertisement to The Reflector, the student newspaper at Mississippi State University.

The proposed advertisement read as follows:

“Gay Center — open 6:00 to 9:00 Monday, Wednesday and Friday nights.

“We offer — counselling, legal aid and a library of homosexual literature. (Emphasis added).

“Write to — The Mississippi Gay Alliance P. O. Box 1328

Mississippi State University, Ms. 39762.”

The editor of the student newspaper refused to accept the tendered paid advertisement.

On February 8, 1974, the same person presented an announcement to be printed in the “briefs” section of The Reflector. This, too, was rejected. The content of that announcement does not appear in the record.

Whereupon, suit was filed against the editor and others, alleging that the refusal to print the paid advertisement and announcement deprived the Gay Alliance of its First Amendment rights and praying that the defendants be ordered to print the rejected material. The suit also sought an order requiring defendants to print future advertisements and announcements tendered by the Gay Alliance. Actual and punitive damages were also demanded.

The parties agreed to stipulations, which might be summarized as follows:

1. The named plaintiffs are not MSU students nor is the MGA a recognized student organization.

2. No member of the MGA was enrolled as an MSU student.

[This second stipulation was, at plaintiff’s request, modified by court order in December, 1974, after the district court’s ruling was issued. The new stipulation apparently says that some members of the MGA were MSU students. This modification did not affect the ruling of the district court].

3. The MSU student body elected Bill Goudelock as editor of The Reflector.

4. Funds supporting The Reflector are derived at least in part from a nonwaivable fee charged to students at MSU.

5. [University officials] Giles, Meyer, and Dudley did not give Goudelock any instructions not to accept the proffered material.

The trial court reviewed these facts, and determined that there were four issues in the case: (1) whether plaintiffs had standing to sue; (2) whether plaintiffs’ unclean hands precluded the possibility of the court granting them the equitable relief they sought; (3) whether there was state action on the part of the defendant to support this § 1983 action; and (4) whether the First Amendment protection that covers a student newspaper meant that plaintiffs had no cause of action against Goudelock.

Deciding nothing with reference to the first two points, the District Court found, on the complaint and the stipulated facts, that there was no indication that any University official or faculty member had anything to do with the rejection of the advertisement or the announcement; that there was a complete lack of control over the student newspaper on the part of University officials.

The Court concluded that the rejection of the advertisement “does not constitute state action in any sense of the term”.

Relying on Bazaar v. Fortune, 5 Cir., 1973, 476 F.2d 570, affirmed as modified, 489 F.2d 225 (en banc) and Miami Herald Publishing Company v. Tornillo, 1974, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, it was held that in the absence of state action the student newspaper editor could “accept or reject such material as he saw fit”.

While it is true that the student newspaper is supported, in part, by activity fees collected by the University, the students elect the editor. The complaint did not allege and the stipulations did not assert that University officials supervise or control what is to be published or not published in the newspaper.

As a matter of fact, in the context of the matter before us, this Court has held that the University authorities could not have ordered the newspaper not to publish the Gay Alliance advertisement, had it chosen to do so, see Bazaar v. Fortune, supra.

In Miami Herald Publishing Company v. Tornillo, supra, the Supreme Court flatly declared:

“The choice of material to go into a newspaper * * * constitute^] the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

Since there is not the slightest whisper that the University authorities had anything to do with the rejection of this material offered by this off-campus cell of homosexuals, since such officials could not lawfully have done so, and since the record really suggests nothing but discretion exercised by an editor chosen by the student body, we think the First Amendment interdicts judicial interference with the editorial decision.

There are special reasons for holding that there was no abuse of discretion by the editor of The Reflector.

Hutchinson’s Mississippi Code of 1848 included the following provision:

“Unnatural Intercourse; Punishment.

“Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.”¹

The exact language of this provision has been retained in the Code revisions of 1857, 1871, 1880, 1892, 1906, 1917, 1930, 1942, and 1972.²

The Mississippi statute condemns any intercourse which is unnatural, detestable and abominable, including acts committed per anus or per os, State v. Davis, 223 Miss. 862, 79 So.2d 452 (1955). This is not surprising. The very title of the statute shows it to have been directed against “Unnatural Intercourse”.

The statute is not unconstitutional, State v. Mays, 329 So.2d 65 (Miss.1976).³

The editor of The Reflector had a right to take the position that the newspaper would not be involved, even peripherally, with this off-campus homosexually-related activity.⁴

The judgment of the District Court is

AFFIRMED.

1 . Chapter 64, Art. 12, Title 7(20).

2 . The current statute is Section 97-29-59, Mississippi Code of 1972. For mention of the significance to be attached to the ancient origin of a similar statute in Virginia, see Doe v. Commonwealth, 403 F.Supp. 1199, 1202, 1203 (E.D.Va., 1975), Affirmed, - U.S. -, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), [44 U.S.L.W. 3543].

3 . The Mississippi Supreme Court relied on the decision of the Supreme Court of the United states in Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). In Rose, a Tennessee statute prohibited “Crimes against nature, either with mankind or any beast”. The Supreme Court, reversing the Sixth Circuit, held that interpreting the Tennessee statute to include cunnilingus did not render it unconstitutional. It cited, 96 S.Ct. at 245, State v. Crawford, 478 S.W.2d 314 (Mo.1972), which held that crime against nature embraces within its terms acts of sodomy, bestiality, buggery, fellatio, and cunnilingus.

4 . One may not be prosecuted for being a homosexual, but he may be prosecuted for the commission of homosexual acts. Taking into consideration the laws of Mississippi on the subject, speaking as only one member of the panel, Judge Coleman is of the opinion that no newspaper in the State may be required to advertise solicitations for homosexual contacts, any more than a paper could be expected to advertise solicitations for contacts with prostitutes. The advertisement tendered by the Gay Alliance offered legal aid Such an offer is open to various interpretations, one of which is that criminal activity is contemplated, necessitating the aid of counsel.