Expulsion of student for distributing on campus a publication
assertedly containing "indecent speech" proscribed by a bylaw of a
state university's Board of Curators held an impermissible
violation of her First Amendment free speech rights, since the mere
dissemination of ideas on a state university campus cannot be
proscribed in the name of "conventions of decency."
Certiorari granted; 464 F.2d 136, reversed.
Petitioner, a graduate student in the University of Missouri
School of Journalism, was expelled for distributing on campus a
newspaper "containing forms of indecent speech" [Footnote 1
] in violation of a bylaw of the
Board of Curators. The newspaper, the Free Press Underground, had
been sold on this state university campus for more than four years
pursuant to an authorization obtained from the University Business
Office. The particular newspaper issue in question was found to be
unacceptable for two reasons. First, on the front cover, the
publishers had reproduced a political cartoon previously printed in
another newspaper depicting policemen raping the Statue of Liberty
and the Goddess of Justice. The caption under the cartoon read: ".
. . With Liberty and Justice for All." Secondly, the issue
contained an article entitled "M___f___ Acquitted," which discussed
the trial and acquittal on an assault
Page 410 U. S. 668
charge of a New York City youth who was a member of an
organization known as "Up Against the Wall, M___f___."
Following a hearing, the Student Conduct Committee found that
petitioner had violated Par. B of Art. V of the General Standards
of Student Conduct, which requires students "to observe generally
accepted standards of conduct," and specifically prohibits
"indecent conduct or speech." [Footnote 2
] Her expulsion, after affirmance first by the
Chancellor of the University and then by its Board of Curators, was
made effective in the middle of the spring semester. Although she
was then permitted to remain on campus until the end of the
semester, she was not given credit for the one course in which she
made a passing grade. [Footnote
After exhausting her administrative review alternatives within
the University, petitioner brought an action
Page 410 U. S. 669
for declaratory and injunctive relief pursuant to 42 U.S.C. §
1983 in the United States District Court for the Western District
of Missouri. She claimed that her expulsion was improperly premised
on activities protected by the First Amendment. The District Court
denied relief, 331 F.
, and the Court of Appeals affirmed, one judge
dissenting. 464 F.2d 136. Rehearing en banc was denied by an
equally divided vote of all the judges in the Eighth Circuit.
The District Court's opinion rests, in part, [Footnote 4
] on the conclusion that the banned
issue of the newspaper was obscene. The Court of Appeals found it
unnecessary to decide that question. Instead, assuming that the
newspaper was not obscene and that its distribution in the
community at large would be protected by the First Amendment, the
court held that, on a university campus, "freedom of expression"
could properly be "subordinated to other interests, such as, for
example, the conventions of decency in the use and display of
language and pictures." Id.
at 145. The court concluded
that "[t]he Constitution does not compel the University . . . [to.
allow] such publications as the one in litigation to be publicly
sold or distributed on its open campus." Ibid.
This case was decided several days before we handed down
Healy v. James, 408 U. S. 169
(1972), in which, while recognizing a state university's undoubted
Page 410 U. S. 670
to enforce reasonable rules governing student conduct, we
reaffirmed that "state colleges and universities are not enclaves
immune from the sweep of the First Amendment." Id.
408 U. S. 180
See Tinker v. Des Moines Independent School District,
393 U. S. 503
(1969). We think Healy
makes it clear that the mere
dissemination of ideas -- no matter how offensive to good taste --
on a state university campus may not be shut off in the name alone
of "conventions of decency." Other recent precedents of this Court
make it equally clear that neither the political cartoon nor the
headline story involved in this case can be labeled as
constitutionally obscene or otherwise unprotected. E.g., Kois
v. Wisconsin, 408 U. S. 229
(1972); Gooding v. Wilson, 405 U.
(1972); Cohen v. California,
403 U. S. 15
(1971). [Footnote 5
] There is
language in the opinions below which suggests that the University's
action here could be viewed as an exercise of its legitimate
authority to enforce reasonable regulations as to the time, place,
and manner of speech and its dissemination. While we have
repeatedly approved such regulatory authority, e.g., Healy v.
408 U.S. at 408 U. S.
-193, the facts set forth in the opinions below show
clearly that petitioner was expelled because of the disapproved
content of the newspaper, rather than the time, place, or manner of
its distribution. [Footnote
Page 410 U. S. 671
Since the First Amendment leaves no room for the operation of a
dual standard in the academic community with respect to the content
of speech, and because the state University's.action here cannot be
justified as a nondiscriminatory application of reasonable rules
governing conduct, the judgments of the courts below must be
reversed. Accordingly, the petition for a writ of certiorari is
granted, the case is remanded to the District Court, and that court
is instructed to order the University to restore to petitioner any
course credits she earned for the semester in question and, unless
she is barred from reinstatement for valid academic reasons, to
reinstate her as a student in the graduate program.
Reversed and remanded.
This charge was contained in a letter from the University's Dean
of Students, which is reprinted in the Court of Appeals' opinion.
464 F.2d 136, 139 (CA8 1972).
In pertinent part, the bylaw states:
"Students enrolling in the University assume an obligation and
are expected by the University to conduct themselves in a manner
compatible with the University's functions and missions as an
educational institution. For that purpose students are required to
observe generally accepted standards of conduct. . . . [I]ndecent
conduct or speech . . . are examples of conduct which would
contravene this standard. . . ."
464 F.2d at 138.
Miss Papish, a 32-year-old graduate student, was admitted to the
graduate school of the University in September, 1963. Five and
one-half years later, when the episode under consideration
occurred, she was still pursuing her graduate degree. She was on
"academic probation" because of "prolonged submarginal academic
progress," and, since November 1, 1967, she also had been on
disciplinary probation for disseminating Students for a Democratic
Society literature found at a university hearing to have contained
"pornographic, indecent and obscene words." This dissemination had
occurred at a time when the University was host to high school
seniors and their parents. 464 F.2d at 139 nn. 3 and 4. But
disenchantment with Miss Papish's performance, understandable as it
may have been, is no justification for denial of constitutional
Prefatorily, the District Court held that petitioner, who was a
nonresident of Missouri, was powerless to complain of her dismissal
because she enjoyed no "federally protected or other right to
attend a state university of a state of which she is not a
domiciled resident." 331 F.
, 1326. The Court of Appeals, because it affirmed on
a different ground, deemed it "unnecessary to comment" upon this
rationale. 464 F.2d at 141 n. 9. The District Court's reasoning is
directly inconsistent with a long line of controlling decisions of
this Court. See Perry v. Sindermann, 408 U.
, 408 U. S.
-598 (1972), and the cases cited therein.
Under the authority of Gooding
have reversed or vacated and remanded a number of cases involving
the same expletive used in this newspaper headline. Cason v.
City of Columbus,
409 U.S. 1053 (1972); Rosenfeld v. New
Jersey, 408 U. S. 901
(1972); Lewis v. City of New Orleans, 408 U.
(1972); Brown v. Oklahoma, 408 U.
(1972). Cf. Keefe v. Geanakos,
359, 361 and n. 7 (CA1 1969).
It is true, as MR. JUSTICE REHNQUIST's dissent indicates, that
the District Court emphasized that the newspaper was distributed
near the University's memorial tower, and concluded that petitioner
was engaged in "pandering." The opinion makes clear, however, that
the reference to "pandering" was addressed to the content of the
newspaper and to the organization on the front page of the cartoon
and the headline, rather than to the manner in which the newspaper
was disseminated. 331 F. Supp. at 1325, 1328, 1329, 1330, 1332. As
the Court of Appeals opinion states, "[t]he facts are not in
dispute." 464 F.2d at 138. The charge against petitioner was quite
unrelated to either the place or manner of distribution. The Dean's
charge stated that the "forms of speech" contained in the newspaper
were "improper on the University campus." Id.
Moreover, the majority below quoted without disapproval
petitioner's verified affidavit stating that "no disruption of the
University's functions occurred in connection with the
at 139-140. Likewise, both the
dissenting opinion in the Court of Appeals and the District Court
opinion refer to this same uncontroverted fact. Id.
145; 331 F. Supp. at 1328. Thus, in the absence of any disruption
of campus order or interference with the rights of others, the sole
issue was whether a state university could proscribe this form of
MR. CHIEF JUSTICE BURGER, dissenting.
I join the dissent of JUSTICE REHNQUIST which follows and add a
The present case is clearly distinguishable from the Court's
prior holdings in Cohen, Gooding,
Page 410 U. S. 672
as erroneous as those holdings are. * Cohen,
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,
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
Page 410 U. S. 673
suggested 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.
, 403 U. S. 27
(1971) (BLACKMUN, J., with whom BURGER, C.J., and Black, J.,
joined, dissenting); Gooding v. Wilson, 405 U.
, 405 U. S. 528
(1972) (BURGER, C.J., dissenting), 405 U. S. 534
(BLACKMUN, J., dissenting); Rosenfeld v. New Jersey,
408 U. S. 901
(1972) (BURGER, C.J., dissenting), 903 (POWELL, J., dissenting),
909 (REHNQUIST, J., dissenting).
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN join, dissenting.
We held in Healy v. James, 408 U.
, 408 U. S. 180
(1972), that "state colleges and universities are not enclaves
immune from the sweep of the First Amendment." But that general
proposition does not decide the concrete case now before us.
held that the public university there involved had
not afforded adequate notice and hearing of the action it proposed
to take with respect to the students involved. Here, the Court of
Appeals found, and that finding is not questioned in this Court's
"the issue arises in the context of a student dismissal, after
service of written charges and after a full and fair hearing, for
violation of a University rule of conduct."
464 F.2d 136, 138.
Both because I do not believe proper exercise of our
jurisdiction warrants summary reversal in a case dependent in part
on assessment of the record and not squarely governed by one of our
decisions, and because I have serious reservations about the result
reached by the Court, I dissent from the summary disposition of
Petitioner Papish has for many years been a graduate student at
the University of Missouri. Judge Stephenson, writing for the Court
of Appeals in this case, summarized her record in these words:
"Miss Papish's academic record reveals that she was in no rush
to complete the requirements for her graduate
Page 410 U. S. 674
degree in Journalism. She possesses a 1958 academic degree from
the University of Connecticut; she was admitted to graduate school
at the University of Missouri in September in 1963; and although
she attended school through the fall, winter, and summer semesters,
she was, after 6 years of work, making little, if any, significant
progress toward the achievement of her stated academic objective.
At the time of her dismissal, Miss Papish was enrolled in a
one-hour course entitled 'Research Journalism' and in a three-hour
course entitled 'Ceramics 4.' In the semester immediately preceding
her dismissal, she was enrolled only in 'Ceramics 3.'"
464 F.2d at 138 n. 2.
Whatever may have been her lack of ability or motivation in the
academic area, petitioner had been active on other fronts. In the
words of the Court of Appeals:
"3. On November 1, 1967, the Faculty Committee on Student
Conduct, after notice of charges and a hearing, placed Miss Papish
on disciplinary probation for the remainder of her student status
at the University. The basis for her probation was her violation of
the general standard of student conduct. . . . This action arose
out of events which took place on October 14, 1967, at a time when
the University was hosting high school seniors and their parents
for the purpose of acquainting them with its educational programs
and other aspects of campus life. She specifically was charged,
with openly distributing, on University
grounds, without the permission of appropriate University
personnel, two non-University publications of the Students for
Democratic Society (SDS). It was alleged in the notice of charges,
and apparently established at
Page 410 U. S. 675
the ensuing hearing, that one of these publications, the New
contained "pornographic, indecent and obscene
words, f____,' `bull s____,' and `sh__s.'" The notice of
charges also recites that the other publication, The CIA at
College: Into Twilight and Back, contained "a pornographic and
indecent picture depicting two rats apparently fornicating on its
cover. . . .""
"4. Some two weeks prior to the incident causing her dismissal,
Miss Papish was placed on academic probation because of prolonged
submarginal academic progress. It was a condition of this probation
that she pursue satisfactory work on her thesis, and that such work
be evidenced by the completion and presentation of several
completed chapters to her thesis advisor by the end of the
semester. By letter dated January 31, 1969, Miss Papish was
notified that her failure to comply with this special condition
within the time specified would result in the termination of her
candidacy for a graduate degree."
at 138-139, nn. 3, 4.
It was in the light of this background that respondents finally
expelled petitioner for the incident described in the Court's
opinion. The Court fails to note, however, two findings made by the
District Court with respect to the circumstances under which
petitioner hawked her newspaper near the memorial tower of the
"The Memorial Tower is the central unit of integrated structures
dedicated to the memory of those students who died in the Armed
Services in World Wars I and II. Other adjacent units include the
Student Union and a Non-Sectarian chapel for prayer and meditation.
Through the Memorial Arch pass parents of students, guests of the
Page 410 U. S. 676
including many persons under 18 years of age and high school
, 1325 n. 4.
"The plaintiff knowingly and intentionally participated in
distributing the publication to provoke a confrontation with the
authorities by pandering the publication with crude, puerile,
I continue to adhere to the dissenting views expressed in
Rosenfeld v. New Jersey, 408 U. S. 901
(1972), that the public use of the word "M___f___" is "lewd and
obscene" as those terms were used by the Court in Chaplinsky v.
New Hampshire, 315 U. S. 568
(1942). There, the Court said:
"There are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or
'fighting' words -- those which, by their very utterance, inflict
injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
at 315 U. S.
But even were I convinced of the correctness of the Court's
disposition of Rosenfeld,
I would not think it should
control the outcome of this case. It simply does not follow under
any of our decisions or from the language of the First Amendment
itself that, because petitioner
Page 410 U. S. 677
could not be criminally prosecuted by the Missouri state courts
for the conduct in question, she may not therefore be expelled from
the University of Missouri for the same conduct. A state university
is an establishment for the purpose of educating the State's young
people, supported by the tax revenues of the State's citizens. The
notion that the officials lawfully charged with the governance of
the university have so little control over the environment for
which they are responsible that they may not prevent the public
distribution of a newspaper on campus which contained the language
described in the Court's opinion is quite unacceptable to me, and I
would suspect would have been equally unacceptable to the Framers
of the First Amendment. This is indeed a case where the observation
of a unanimous Court in Chaplinsky
"such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality"
applies with compelling force.
The Court cautions that "disenchantment with Miss Papish's
performance, understandable as it may have been, is no
justification for denial of constitutional rights." Quite so. But a
wooden insistence on equating, for constitutional purposes, the
authority of the State to criminally punish with its authority to
exercise even a modicum of control over the university which it
operates, serves neither the Constitution nor public education
well. There is reason to think that the "disenchantment" of which
the Court speaks may, after this decision, become widespread among
taxpayers and legislators. The system of tax supported public
universities which has grown up
Page 410 U. S. 678
in this country is one of its truly great accomplishments; if
they are to continue to grow and thrive to serve an expanding
population, they must have something more than the grudging support
of taxpayers and legislators. But one can scarcely blame the latter
if, told by the Court that their only function is to supply tax
money for the operation of the university, the "disenchantment" may
reach such a point that they doubt the game is worth the