Papish v. Board of Curators of the University of Missouri
35 L. Ed. 2d 618, 93 S. Ct. 1197, 1973 U.S. LEXIS 93 (1973)
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Rule of Law:
A state university cannot expel a student for disseminating ideas, no matter how offensive to good taste, on the basis of the content of speech alone, unless that speech is constitutionally obscene or causes a material and substantial disruption of the university's functions or interferes with the rights of others.
Facts:
- Barbara Papish was a graduate student in the University of Missouri School of Journalism.
- Papish distributed an issue of the student newspaper, the Free Press Underground, on the university campus.
- The front cover of the specific newspaper issue featured a political cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice, with the caption “With Liberty and Justice for All.”
- The same issue also contained an article entitled “M— f— Acquitted,” which discussed the trial and acquittal on an assault charge of a New York City youth.
- The Free Press Underground had been sold on the University campus for more than four years pursuant to an authorization obtained from the University Business Office.
- No disruption of the University’s functions occurred, nor was there interference with the rights of others, in connection with the distribution of the newspaper.
Procedural Posture:
- The University of Missouri's Student Conduct Committee found Barbara Papish violated the University's General Standards of Student Conduct, which prohibits 'indecent conduct or speech.'
- The Chancellor of the University affirmed the Committee's finding.
- The University's Board of Curators affirmed the Chancellor's decision, making Papish's expulsion effective in the middle of the spring semester.
- Papish, after exhausting administrative review within the University, brought an action for declaratory and injunctive relief pursuant to 42 U. S. C. § 1983 in the United States District Court for the Western District of Missouri, claiming her expulsion violated the First Amendment.
- The District Court denied relief, finding the newspaper obscene and that Papish (a nonresident) had no federally protected right to attend a state university.
- Papish appealed the District Court's decision to the United States Court of Appeals for the Eighth Circuit.
- The Court of Appeals affirmed the District Court's judgment, reasoning that on a university campus, 'freedom of expression' could be subordinated to 'conventions of decency' even if the content was not obscene.
- A petition for rehearing en banc by the full Eighth Circuit was denied by an equally divided vote.
- Papish filed a petition for a writ of certiorari with the Supreme Court of the United States.
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Issue:
Does a state university violate the First Amendment by expelling a student for distributing a newspaper on campus solely because the newspaper's content, though not constitutionally obscene, contains offensive language and images?
Opinions:
Majority - Per Curiam
Yes, a state university violates the First Amendment when it expels a student for distributing a newspaper on campus solely based on its content, if that content is not constitutionally obscene and does not disrupt campus order or interfere with others' rights. State colleges and universities are not "enclaves immune from the sweep of the First Amendment," as reaffirmed in Healy v. James. The mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be suppressed solely in the name of "conventions of decency." Neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected under precedents like Kois v. Wisconsin, Gooding v. Wilson, and Cohen v. California. The university's action was based on the disapproved content of the newspaper, not the time, place, or manner of its distribution, and there was no disruption of campus order or interference with the rights of others. The First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech.
Dissenting - Chief Justice Burger
No, a state university does not violate the First Amendment by disciplining a student for distributing a publication on campus that is obscene and infantile, as universities have a legitimate interest in fostering a civil environment and maintaining self-restraint among students. This case is distinguishable from Cohen, Gooding, and Rosenfeld because it concerns rules governing conduct on a university campus, not criminal statutes with severe penalties. A university is an institution where individuals learn to express themselves in "acceptable, civil terms," and it is not unreasonable or violative of the Constitution to subject to disciplinary action those individuals who distribute publications which are at the same time obscene and infantile. To preclude a state university from regulating such materials does not protect First Amendment values; rather, it demeans them.
Dissenting - Justice Rehnquist
No, a state university does not violate the First Amendment by expelling a student for distributing a publication with lewd and obscene language on campus, especially given the context of the distribution and the university's mission to educate. While state universities are not immune from the First Amendment, this case involves a student dismissal after proper notice and a fair hearing. The public use of the word "M—f—" is "lewd and obscene" as those terms were used in Chaplinsky v. New Hampshire, where the Court stated such utterances are "no essential part of any exposition of ideas" and their social value is clearly outweighed by the social interest in order and morality. A state university is an establishment for educating the State’s young people, and its officials should have control over the environment for which they are responsible, particularly when the publication was hawked near a memorial tower, student union, and chapel, frequented by many minors, and with the intent to "provoke a confrontation with the authorities by pandering the publication with crude, puerile, vulgar obscenities." Equating the state's power to criminally punish with its authority to control the university it operates does a disservice to public education.
Analysis:
This case significantly reinforces the principle that First Amendment protections extend fully to state university campuses, explicitly rejecting the notion of a "dual standard" for student speech content. It clarifies that merely offensive or "indecent" speech, if not legally obscene and non-disruptive, cannot be grounds for expulsion. The decision restricts a university's authority to regulate speech based on subjective standards of taste or general conduct, emphasizing that content-based restrictions must meet strict constitutional scrutiny. This precedent empowers student journalists and activists by broadening the scope of protected expression on public campuses, placing a substantial burden on universities to demonstrate that speech falls into an unprotected category or genuinely causes material disruption.
