Barbara Susan Papish v. The Board of Curators of the University of Missouri

ROSS, Circuit Judge

(dissenting).

I respectfully dissent. It is clear that Miss Papish was dismissed from the University because of a finding that the cartoon, depicting helmeted, club-wielding policemen raping the Statue of Liberty and the Goddess of Justice, and the headline, “Motherfucker Acquitted”, were obscene. This objectionable material appeared in the Free Press Underground, a publication which had been distributed on campus, with the University’s permission, for almost two years. The distribution of this particular edition, by Miss Papish, however, was found to be in violation of the Board of Curator’s by-law proscribing “indecent conduct or speech.” The dismissal could not have been on the basis of physical disturbance or disr ’ption resulting from the distribution, .lause it was admitted, by stipulation, that there had been none. Rather, the record amply demonstrates that Miss Papish was disciplined for the content of the newspaper, rather than merely its distribution.

The trial court found that the cartoon and the headline were obscene, were “pandered” by Miss Papish, and were therefore not protected by the first and fourteenth amendments. In this Court, the- Board of Curators argue that the cartoon, appearing on the cover of the newspaper, and the headline, appearing on the second page, taken together, supply the erotic connotations necessary to be considered legally obscene under the Roth standard. See Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, *1461 L.Ed.2d 1498 (1957). It is clear to me that the cartoon and the headline, alone or together, cannot be characterized as legally obscene.

The cartoon, a hard-biting social comment, may be revolting to most persons, but it certainly cannot be considered obscene under the standards enunciated by the Supreme court. As stated in an affidavit submitted by an associate professor of art at the University, “[t]he cartoon in question is a biting satirical depiction of the artist’s view of police brutality and injustice. The obvious theme is a political protest against police injustice and police interference with liberty.”

Likewise, the word “motherfucker”, common in the modern radical genre,1 and used as it was in the news story in question, does not conjure up erotic thoughts of incestuous conduct. Cf. Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 29 L.Ed.2d 284 (1971). In Cohen, the Supreme Court held that the words “Fuck the Draft” written upon a jacket, and publicly displayed in a state courthouse in front of women and children, was a protected exercise of the “freedom of speech” guaranteed by the Constitution. The Court held that not only was that expression not legally obscene, but also that the State of California had no overriding justifiable interest in regulating it as “offensive conduct.” Certainly a word, such as was used in the Free Press Underground, comes as no great shock to the majority of today’s youth; and the University cannot validly be said to have an overriding justifiable interest in protecting college-age students from exposure to it. Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (1st Cir. 1969).

There is no doubt an educational institution has authority to prohibit legally obscene material from its campus, because that material retains no constitutional protection. It likewise has authority to regulate dissemination of forms of speech or conduct that is something less than obscene, if that action is calculated to or has the potential effect of being disruptive to the educational process. In such a case, it is the act of dissemination, and the resulting disruption, rather than solely the content of the material disseminated, which is offensive. For a regulation prohibiting such conduct to be constitutionally valid, the student’s interests of free expression must be outweighed by the University’s interest in protecting its educational process. See Scoville v. Board of Education, 425 F.2d 10, 14 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed. 2d 55 (1970). Moreover, “the standard of conduct which a college seeks to impose must be one relevant to ‘a lawful mission, process or function of the educational institution’ . . . .” Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (8th Cir. 1969). In the absence of constitutionally valid reasons to regulate speech or conduct, students are entitled to freedom of expression of their views. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

“Obviously, one does not lose his first amendment rights by matriculation at a college. Those rights follow one through the classroom door . . And what better or more ideal place is there for free discussion and for the exchange of ideas than academic halls?” Esteban v. Central Missouri State College, supra, 415 F. 2d at 1085.

It is argued that the fact Miss Papish was distributing “indecent” material on the sidewalks of the campus distinguishes this case from other methods of distribution or exchange of ideas. However, upon the facts of this case, this ar*147gument disregards the premise that the touchstone is disruption or interference with the legitimate educational processes of the University. There must have been more than “mere fear and apprehension of possible disturbance.” Esteban v. Central Missouri State College, supra, 415 F.2d at 1087; see Tinker v. Des Moines Independent Community School Dist., 393 U.S. at 514, 89 S.Ct. 733. Yet, from the record in this case, it cannot be said that the requisite disruption was imminent.

While I wholeheartedly agree that a school has latitude and discretion in formulating its regulation of general standards of conduct, Esteban v. Central Missouri State College, supra, 415 F.2d at 1088, in a case where a student’s constitutional rights are being infringed, those rules and regulations must be related to the legitimate interests of protecting its educational process. By dismissing Miss Papish for the reasons it gave, without a showing of disruption to that process, the University violated her rights of free expression guaranteed by the first and fourteenth amendments. I would, therefore, reverse the district court, and order Miss Papish reinstated unless she is barred from reinstatement for valid academic reasons.

. See Litton, “The Young and the Old”, Atlantic Monthly (Sep. 1969), ior the etymology of the word. This article was introduced by plaintiff as evidence of the type of literature', containing the same word, that was being sold in the campus book store. The same article was also the subject of the litigation in Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969).