Papish v. Board of Curators of the University of Missouri

Mr. Chief Justice Burger,

dissenting.

I join the dissent of Justice Rehnquist which follows and add a few observations.

The present case is clearly distinguishable from the Court’s prior holdings in Cohen, Gooding, and Rosenfeld, *672as erroneous as those holdings are.* Cohen, Gooding, and Rosenfeld dealt with prosecutions under criminal statutes which allowed the imposition of severe penalties. Unlike such traditional First Amendment cases, we deal here with rules which govern conduct on the campus of a state university.

In theory, at least, a university is not merely an arena for the discussion of ideas by students and faculty; it is also an institution where individuals learn to express themselves in acceptable, civil terms. We provide that environment to the end that students may learn the self-restraint necessary to the functioning of a civilized society and understand the need for those external restraints to which we must all submit if group existence is to be tolerable.

I find it a curious — even bizarre — extension of Cohen, Gooding, and Rosenfeld to say that a state university is impotent to deal with conduct such as that of the petitioner. Students are, of course, free to criticize the university, its faculty, or the Government in vigorous, or even harsh, terms. But 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 or college from regulating the distribution of such obscene materials does not protect the values inherent in the First Amendment; rather, it demeans those values. The anomaly of the Court's holding today is *673suggested by its use of the now familiar “code” abbreviation for the petitioner’s foul language.

The judgment of the Court of Appeals was eminently correct. It should be affirmed.

Cohen v. California, 403 U. S. 15, 27 (1971) (Blackmun, J., with whom Burger, C. J., and Black, J., joined, dissenting); Gooding v. Wilson, 405 U. S. 518, 528 (1972) (Burger, C. J., dissenting), 534 (Blackmun, J., dissenting); Rosenfeld v. New Jersey, 408 U. S. 901, 902 (1972) (Burger, C. J., dissenting), 903 (Powell, J., dissenting), 909 (Rehnquist, J., dissenting).