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From: Bob Donin
To: President's Administrative Forum
Enclosed is a copy of the decision of the U.S. Court of Appeals in Iota Xi
Chapter of Sigma Chi Fraternity v. George Mason University (1993), which was
the basis for the freedom of expression hypothetical discussed at this
morning's PAF meeting.
Please contact Bob Donin if you have any questions.
Thank you.
IOTA XI CHAPTER OF SIGMA CHI FRATERNITY; JOHN HOWLIN; JOHN SINGSANK,
Plaintiffs-Appellees, v. GEORGE MASON UNIVERSITY; KENNETH E. BUMGARNER,
Defendants-Appellants.
No. 91-2684
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
993 F.2d 386; 1993 U.S. App. LEXIS 10579
May 4, 1992, Argued
May 10, 1993, Decided
PRIOR HISTORY:
[**1] Appeal from the United States District Court for the Eastern District
of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-91-785-A)
JUDGES:
Before WIDENER and MURNAGHAN, Circuit Judges, and SPROUSE, Senior Circuit
Judge. Senior Judge Sprouse wrote the opinion, in which Judge Widener joined.
Judge Murnaghan wrote a concurring opinion.
[*387] OPINION
SPROUSE, Senior Circuit Judge:
George Mason University appeals from a summary judgment granted by the
district court [**2] to the IOTA XI Chapter of Sigma Chi Fraternity n1 in its
action for declaratory judgment and an injunction seeking to nullify sanctions
imposed on it by the University because it conducted an "ugly woman contest"
with racist and sexist overtones. We affirm.
n1 Although Sigma Chi's national fraternity is not involved in the
litigation, the IOTA Chapter XI is hereafter referred to as "Sigma Chi" or "the
Fraternity."
I
Sigma Chi has for two years held an annual "Derby Days" event, planned and
conducted both as entertainment and as a source of funds for donations to
charity. The "ugly woman contest," held on April 4, 1991, was one of the "Derby
Days" events. The Fraternity staged the contest in the cafeteria of the student
union. As part of the contest, eighteen Fraternity members were assigned to one
of six sorority teams cooperating in [*388] the events. The involved Fraternity
members appeared in the contest dressed as caricatures of different types of
women, including one member dressed as an offensive caricature of [**3] a black
woman. He was painted black and wore stringy, black hair decorated with
curlers, and his outfit was stuffed with pillows to exaggerate a woman's
breasts and buttocks. He spoke in slang to parody African-Americans.
There is no direct evidence in the record concerning the subjective intent
of the Fraternity members who conducted the contest. The Fraternity, which
later apologized to the University officials for the presentation, conceded
during the litigation that the contest was sophomoric and offensive.
Following the contest, a number of students protested to the University that
the skit had been objectionably sexist and racist. Two hundred forty-seven
students, many of them members of the foreign or minority student body,
executed a petition, which stated: "We are condemning the racist and sexist
implications of this event in which male members dressed as women. One man in
particular wore a black face, portraying a negative stereotype of black
women."
On April 10, 1991, the Dean for Student Services, Kenneth Bumgarner,
discussed the situation with representatives of the objecting students. That
same day, Dean Bumgarner met with student representatives of Sigma Chi, [**4]
including the planners of and participants in the "ugly woman contest." He then
held a meeting with members of the student government and other student
leaders. In this meeting, it was agreed that Sigma Chi's behavior had created a
hostile learning environment for women and blacks, incompatible with the
University's mission.
The Dean met again with Fraternity representatives on April 18, and the
following day advised its officers of the sanctions imposed. They included
suspension from all activities for the rest of the 1991 spring semester and a
two-year prohibition on all social activities except pre-approved pledging
events and pre-approved philanthropic events with an educational purpose
directly related to gender discrimination and cultural diversity. The
University's sanctions also required Sigma Chi to plan and implement an
educational program addressing cultural differences, diversity, and the
concerns of women. A few weeks later, the University made minor modifications
to the sanctions, allowing Sigma Chi to engage in selected social activities
with the University's advance approval.
On June 5, 1991, Sigma Chi brought this action under 42 U.S.C. § 1983 [**5]
n2 against the University and Dean Bumgarner. It requested declaratory judgment
and injunctive relief to nullify the sanctions as violative of the First and
Fourteenth Amendments. Sigma Chi moved for summary judgment on its First
Amendment claims on June 28, 1991, filing with its motions numerous affidavits
explaining the nature of the "ugly woman contest." Also submitted were large
glossy photographs of the participants as they appeared in the skits, including
photographs of the Fraternity member depicting the offensive caricature of the
black woman.
n2 Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper
proceeding for redress. ...
42 U.S.C. § 1983.
[**6]
In addition to the affidavit of Dean Bumgarner explaining his meetings with
student leaders, the University submitted the affidavits of other officials,
including that of University President George W. Johnson and Vice-President
Earl G. Ingram. President Johnson, by his affidavit, presented the "mission
statement" of the University:
(3) George Mason University is committed to promoting a culturally and
racially diverse student body .... Education here is not limited to the
classroom.
(4) We are committed to teaching the values of equal opportunity and equal
treatment, respect for diversity, and individual dignity.
(5) Our mission also includes achieving the goals set forth in our
affirmative action [*389] plan, a plan incorporating affirmative steps designed
to attract and retain minorities to this campus.
....(7) George Mason University is a state institution of higher education
and a recipient of federal funds.
Vice President Earl G. Ingram's affidavit represented:
(6) The University's affirmative action plan is a part of an overall state
plan designed, in part, to desegregate the predominately "white" and "black"
public institutions of higher education in Virginia. [**7] ... The behavior of
the members of Sigma Chi that led to this lawsuit was completely antithetical
to the University's mission, as expressed through its affirmative action
statement and other pertinent University policies, to create a non-threatening,
culturally diverse learning environment for students of all races and
backgrounds, and of both sexes.
(7) While the University has progressed in attracting and retaining minority
students, it cannot expect to maintain the position it has achieved, and make
further progress on affirmative action and minority issues that it wishes to
make, if behavior like that of Sigma Chi is perpetuated on this campus.
The district court granted summary judgment to Sigma Chi on its First
Amendment claim.
II
The University urges that the district court's grant of summary judgment was
premature. It stresses that there remain factual issues which the district
court should have weighed in its conclusion. According to the University, the
Fraternity's intent in staging the contest is crucial to the issue of whether
its conduct was expressive. The University also stresses that if given time it
could demonstrate more completely the harm the contest [**8] caused to its
educational mission. It is, of course, beyond cavil that summary judgment
should not be granted while a viable issue of material fact remains. Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Summary judgment principles require the court to find that the evidence is such
that a jury could not reasonably find for the party opposing summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S.
Ct. 2505 (1986). Only disputes over facts that might affect the outcome of a
suit under the applicable law preclude entry of summary judgment.
In our view, for the reasons that follow, the district court was correct in
concluding that there was no outstanding issue of material fact.
III
We initially face the task of deciding whether Sigma Chi's "ugly woman
contest" is sufficiently expressive to entitle it to First Amendment
protection. From the mature advantage of looking back, it is obvious that the
performance, apart from its charitable fund-raising features, was an exercise
of teenage campus excess. With a longer and sobering perspective brought on by
both peer and official disapproval, even the governing members [**9] of the
Fraternity recognized as much. The answer to the question of whether the First
Amendment protects the Fraternity's crude attempt at entertainment, however, is
all the more difficult because of its obvious sophomoric nature.
A
First Amendment principles governing live entertainment are relatively
clear: short of obscenity, it is generally protected. See, e.g., Barnes v. Glen
Theatre, Inc., 115 L. Ed. 2d 504, 111 S. Ct. 2456, 2460 (1991) (nude dancing);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 43 L. Ed. 2d
448, 95 S. Ct. 1239 (1975) (musical "Hair"); Berger v. Battaglia, 779 F.2d 992,
999 (4th Cir. 1985) (blackface performance), cert. denied, 476 U.S. 1159, 90 L.
Ed. 2d 720, 106 S. Ct. 2278 (1986). As the Supreme Court announced in Schad v.
Borough of Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176
(1981), "entertainment, as well as political and ideological speech, is
protected; motion pictures, programs broadcast by radio and television, and
live entertainment ... fall [*390] within the First Amendment guarantee." Id.
at 65. Expression devoid of "ideas" but with entertainment [**10] value may
also be protected because "the line between the informing and the entertaining
is too elusive." Winters v. New York, 333 U.S. 507, 510, 92 L. Ed. 840, 68 S.
Ct. 665 (1948).
Thus, we must determine if the skit performed by Sigma Chi comes within the
constitutionally protected rubric of entertainment. Unquestionably, some forms
of entertainment are so inherently expressive as to fall within the First
Amendment's ambit regardless of their quality. For example, in Ward v. Rock
Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989), the
Supreme Court flatly ruled that "music, as a form of expression and
communication, is protected under the First Amendment." Id. at 790. Justice
Kennedy explained:
Music is one of the oldest forms of human expression. From Plato's discourse
in the Republic to the totalitarian state in our own times, rulers have known
its capacity to appeal to the intellect and to the emotions, and have censored
musical compositions to serve the needs of the state. The Constitution
prohibits any like attempts in our own legal order.
Id. (citations omitted).
Motion pictures, too, are included within the free [**11] speech guarantee
of the First Amendment. The Court emphasized in Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 96 L. Ed. 1098, 72 S. Ct. 777 (1952), that "the importance of
motion pictures as an organ of public opinion is not lessened by the fact that
they are designed to entertain as well as to inform." Id. at 501; see also
Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 49 L. Ed. 2d 310, 96 S.
Ct. 2440 (1976) (motion picture theaters involve communication protected by the
First Amendment, but the state can regulate their secondary effects).
Even crude street skits come within the First Amendment's reach. In
overturning the conviction of an amateur actor for wearing a military uniform
in violation of a federal statute, the Supreme Court discussed the statute's
"theatrical production" exception. n3 Schacht v. United States, 398 U.S. 58,
61-62, 26 L. Ed. 2d 44, 90 S. Ct. 1555 (1970). Responding to the Government's
argument that the amateur skit was not a "theatrical production," Justice
Black, writing for the majority, stated:
It may be that the performances were crude and amateurish and perhaps
unappealing, but the same thing can be said about [**12] many theatrical
performances. We cannot believe that when Congress wrote out a special
exception for theatrical productions it intended to protect only a narrow and
limited category of professionally produced plays.
Id. Although this part of the opinion related to interpretation of the
involved statute, Justice Black proceeded to declare that an actor
participating in even a crude performance enjoys the constitutional right to
freedom of speech. Id. at 63.
n3 10 U.S.C. § 772(f) provides:
While portraying a member of the Army, Navy, Air Force, or Marine Corps, an
actor in a theatrical or motion-picture production may wear the uniform of that
armed force if the portrayal does not tend to discredit that armed force.
Bearing on this dichotomy between low and high-grade entertainment are the
Supreme Court's holdings relating to nude dancing. See Barnes v. Glen Theatre,
Inc., 115 L. Ed. 2d 504, 111 S. Ct. 2456, 2460 (1991); [**13] Schad v. Borough
of Mount Ephraim, 452 U.S. 61, 65-66, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981);
Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 45 L. Ed. 2d 648, 95 S. Ct.
2561 (1975); California v. LaRue, 409 U.S. 109, 116-18, 34 L. Ed. 2d 342, 93 S.
Ct. 390 (1972). Most recently, in Barnes, the Supreme Court conceded that nude
dancing is expressive conduct entitled to First Amendment protection. n4
Barnes, [*391] 111 S. Ct. at 2460. In Barnes, the Court reviewed a Seventh
Circuit opinion authored by Judge Flaum, Miller v. Civil City of South Bend,
904 F.2d 1081 (7th Cir. 1990) (en banc), rev'd sub nom. Barnes v. Glen Theatre,
Inc., 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991), which thoroughly analyzed the
questions of whether and how nude dancing is expression entitled to First
Amendment protection. The Miller opinion noted that dance is inherently
expressive entertainment, as it conveys emotions and ideas. Judge Flaum refused
to distinguish "high" art from "low" entertainment on the asserted basis that
low entertainment "fails to communicate a defined intellectual thought." Id. at
1086. [**14] Applying the test enunciated in Texas v. Johnson, 491 U.S. 397,
404, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989), n5 he concluded that nude
dancing communicated a message of eroticism and sensuality, understood by its
viewers as such. Miller, 904 F.2d at 1087. Thus, notwithstanding its artistic
quality, nude dancing was sufficiently expressive to entitle it to First
Amendment protection. Justice White's dissent in Barnes echoed Judge Flaum's
opinion:
"While the entertainment afforded by a nude ballet at Lincoln Center to
those who can pay the price may differ vastly in content (as viewed by judges)
or in quality (as viewed by critics), it may not differ in substance from the
dance viewed by the person who ... wants some 'entertainment' with his beer or
shot of rye."
Barnes, 115 L. Ed. 2d at 529 (White, J., dissenting) (quoting Salem Inn,
Inc. v. Frank, 501 F.2d 18, 21 n.3 (2d Cir. 1974), modified sub nom. Doran v.
Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975)).
n4 At least eight justices agreed that First Amendment protection extends to
nude dancing, but they differed in their approaches to defining that
protection. Justice Rehnquist, writing for a plurality, relied on the four-part
test announced in United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88
S. Ct. 1673 (1968). He concluded that the Indiana statute prohibiting public
nudity was constitutional because it was unrelated to the suppression of
speech, infringed only incidentally on protected expression, and furthered the
important government interest of prohibiting public nudity. Justice Scalia
concurred in the result, but wrote separately because he believed the statute
regulated conduct, not expression. Justice Souter also wrote separately because
he believed that the state's interest was to combat secondary effects, an
interest unrelated to the suppression of expression. Justice White, joined by
Justices Marshall, Blackmun, and Stevens, dissented, stating that the Indiana
statute targeted the erotic message communicated by nude dancing. He would have
applied a higher standard of scrutiny than the O'Brien test requires.
Because the sanctions imposed in this case targeted the message communicated
by Sigma Chi's skit and are thus related to the suppression of speech, we do
not rely on the O'Brien balancing test as the Barnes plurality did. [**15]
n5 In Texas v. Johnson, discussed infra, the Supreme Court stated:
In deciding whether particular conduct possesses sufficient communicative
elements to bring the First Amendment into play, we have asked whether "an
intent to convey a particularized message was present, and [whether] the
likelihood was great that the message would be understood by those who viewed
it."
Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S. 405,
410-11, 41 L. Ed. 2d 842, 94 S. Ct. 2727 (1974)).
In sum, although the Barnes plurality did not explore these views, it
appears that the low quality of entertainment does not necessarily weigh in the
First Amendment inquiry. It would seem, therefore, that the Fraternity's skit,
even as low-grade entertainment, was inherently expressive and thus entitled to
First Amendment protection. See Barnes, 111 S. Ct. at 2460; Ward v. Rock
Against Racism, 491 U.S. 781, 790, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989);
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 68 L. Ed. 2d 671, 101 S.
Ct. 2176 (1981); [**16] Schacht v. United States, 398 U.S. 58, 61-62, 26 L. Ed.
2d 44, 90 S. Ct. 1555 (1970).
B
The University nevertheless contends that discovery will demonstrate that
the contest does not merit characterization as a skit but only as mindless
fraternity fun, devoid of any artistic expression. It argues further that
entitlement to First Amendment protection exists only if the production was
intended to convey a message likely to be understood by a particular audience.
See Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989). From the summary judgment record, the University insists, it is
impossible to discern the communicative intent necessary to imbue the
Fraternity's [*392] conduct with a free speech component.
As indicated, we feel that the First Amendment protects the Fraternity's
skit because it is inherently expressive entertainment. Even if this were not
true, however, the skit, in our view, qualifies as expressive conduct under the
test articulated in Texas v. Johnson. It is true that the Johnson test for
determining the expressiveness of conduct requires "'an intent to convey a
particularized message'" and a great likelihood "'that the message would be
[**17] understood by those who viewed it.'" Id. (quoting Spence v. Washington,
418 U.S. 405, 410-11, 41 L. Ed. 2d 842, 94 S. Ct. 2727 (1974)). As Johnson and
Spence point out, however, the intent to convey a message can be inferred from
the conduct and the circumstances surrounding it. Thus viewed, the University's
argument is self-defeating. The affidavit from the University's Vice-President,
Earl Ingram, stated that the message conveyed by the Fraternity's conduct--that
racial and sexual themes should be treated lightly--was completely antithetical
to the University's mission of promoting diversity and providing an educational
environment free from racism and sexism. Dean Bumgarner, in his affidavit,
stated that the University does not and cannot condone this type of on-campus
behavior which perpetuated derogatory racial and sexual stereo-types, tends to
isolate minority students, and creates a hostile and distracting learning
environment. Such behavior is incompatible with, and destructive to, the
University's mission of promoting diversity within its student body [and] sends
a message to the student body and the community that we ... are not serious
about hurtful and offensive [**18] behavior on campus.
Importantly, the affidavits establish that the punishment was meted out to
the Fraternity because its boorish message had interfered with the described
University mission. It is manifest from these circumstances that the University
officials thought the Fraternity intended to convey a message. The Fraternity
members' apology and post-conduct contriteness suggest that they held the same
view. To be sure, no evidence suggests that the Fraternity advocated
segregation or inferior social status for women. What is evident is that the
Fraternity's purposefully nonsensical treatment of sexual and racial themes was
intended to impart a message that the University's concerns, in the
Fraternity's view, should be treated humorously. From the Fraternity's conduct
and the circumstances surrounding it, we have no difficulty in concluding that
it intended to convey a message.
As to the second prong of the Johnson test, there was a great likelihood
that at least some of the audience viewing the skit would understand the
Fraternity's message of satire and humor. Some students paid to attend the
performance and were entertained. What the Fraternity did not anticipate [**19]
was the reaction to their crude humor by other students on campus and
University officials who opposed the racist and sexist implications of the
Fraternity's skit.
Even considering, therefore, the sparsity of the evidentiary record, we are
persuaded that the Fraternity's "ugly woman contest" satisfies the Johnson test
for expressive conduct. n6
n6 We think this conclusion gains support from City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988),
in which the Supreme Court said that one factor weighing in the equation of
whether conduct is expressive is "whether the activity in question is commonly
associated with expression." Id. at 769. A live, albeit crude, skit performed
for an audience is an activity commonly associated with expression.
IV
If this were not a sufficient response to the University's argument, the
principles relating to content and viewpoint discrimination recently emphasized
in R.A.V. v. City of St. Paul, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992),
[**20] provide a definitive answer. Although the Court in St. Paul reviewed the
constitutional effect of a city "hate speech" ordinance, and we review the
constitutionality of sanctions imposed for violating University policy, St.
Paul's rationale applies here with equal force. Noting that St. Paul's city
ordinance prohibited displays [*393] of symbols that "arouse[] anger, alarm or
resentment in others on the basis of race, color, creed, religion or gender,"
but did not prohibit displays of symbols which would advance ideas of racial or
religious equality, Justice Scalia stated: "The First Amendment does not permit
St. Paul to impose special prohibitions on those speakers who express views on
disfavored subjects." Id. at 2541, 2547.
As evidenced by their affidavits, University officials sanctioned Sigma Chi
for the message conveyed by the "ugly woman contest" because it ran counter to
the views the University sought to communicate to its students and the
community. n7 The mischief was the University's punishment of those who scoffed
at its goals of racial integration and gender neutrality, while permitting,
even encouraging, conduct that would further [**21] the viewpoint expressed in
the University's goals and probably embraced by a majority of society as well.
"The First Amendment generally prevents government from proscribing ...
expressive conduct because of disapproval of the ideas expressed." Id. at 2542
(citing Johnson, 491 U.S. at 406).
n7 Nor can we accept the University's contention that the sanctions were
imposed as a result of the Fraternity's "pure conduct," unrelated to its
communicative aspects or viewpoint. See Arcara v. Cloud Books, Inc., 478 U.S.
697, 702-05, 92 L. Ed. 2d 568, 106 S. Ct. 3172 (1986); Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d 221, 104 S. Ct. 3065
& n.5 (1984); United States v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d
672, 88 S. Ct. 1673 (1968); Kovacs v. Cooper, 336 U.S. 77, 89, 93 L. Ed. 513,
69 S. Ct. 448 (1949). The University's affidavits clearly point to the contrary
conclusion.
The University, however, urges us to weigh Sigma Chi's conduct [**22]
against the substantial interests inherent in educational endeavors. See Tinker
v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L.
Ed. 2d 731 (1969). The University certainly has a substantial interest in
maintaining an educational environment free of discrimination and racism, and
in providing gender-neutral education. Yet it seems equally apparent that it
has available numerous alternatives to imposing punishment on students based on
the viewpoints they express. n8 We agree wholeheartedly that it is the
University officials' responsibility, even their obligation, to achieve the
goals they have set. On the other hand, a public university has many
constitutionally permissible means to protect female and minority students. We
must emphasize, as have other courts, that "the manner of [its action] cannot
consist of selective limitations upon speech." St. Paul, 112 S. Ct. at 2548;
see also Carey v. Brown, 447 U.S. 455, 471, 65 L. Ed. 2d 263, 100 S. Ct. 2286
(invalidating a ban on residential picketing that exempted labor picketing);
Schacht v. United States, 398 U.S. 58, 62-63, 26 L. Ed. 2d 44, 90 S. Ct. 1555
(1970) (invalidating a law [**23] that allowed wearing military uniforms only
in dramatic portrayals that did not "tend to discredit the military"). The
First Amendment forbids the government from "restricting expression because of
its message or its ideas." Police Dept. v. Mosley, 408 U.S. 92, 95, 33 L. Ed.
2d 212, 92 S. Ct. 2286 (1972). The University should have accomplished its
goals in some fashion other than silencing speech on the basis of its
viewpoint.
n8 In St. Paul, the Court rejected the Minnesota Supreme Court's
pronouncement that St. Paul's "hate speech" ordinance was narrowly tailored to
serve St. Paul's compelling interest in "ensuring the basic human rights of
members of groups that had historically been subjected to discrimination." St.
Paul, 112 S. Ct. at 2549. Although the Court acknowledged that this interest
was compelling, it concluded that the content discrimination contained in the
ordinance was not "reasonably necessary to achieve St. Paul's compelling
interests." Id.
The decision of [**24] the district court is affirmed.
AFFIRMED
MURNAGHAN, Circuit Judge, concurring in judgment:
CONCURBY:
MURNAGHAN
CONCUR:
While I agree with the majority's affirmance of the district court's grant
of summary judgment, I feel that its reasoning goes unnecessarily too far. By
holding that the First Amendment prohibits any action by a public university to
prevent or punish offensive conduct like that at issue, the majority [*394]
goes much further than necessary, going beyond the facts of the instant case in
order to reach a conclusion unsupported by First Amendment jurisprudence.
The present case can be decided easily within the contours of First
Amendment law simply by holding that George Mason University's action violated
the Fraternity members' rights by punishing them post hoc and in conflict with
its tacit approval of their performance. Instead, the majority ranges far to
discuss what it has concluded the law would be absent such permission. The
majority opinion expounds upon the development of First Amendment doctrine and
concludes that George Mason was absolutely forbidden from regulating speech
based on its content. However, the Supreme Court has held repeatedly that a
content-based regulation [**25] of protected expression survives judicial
scrutiny if it "'is necessary to serve a compelling state interest and is
narrowly drawn to achieve that end.'" Simon & Schuster, Inc. v. New York
Crime Victims Board, 502 U.S. #6D 6D6D6D#, , 116 L. Ed. 2d 476, 112 S. Ct. 501,
509 (1991) (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221,
231, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987)). Accord Perry Education Assn. v.
Perry Local Educators' Assn., 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948
(1983); Carey v. Brown, 447 U.S. 455, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980).
Thus, the Supreme Court has recognized that regulation of speech based on its
content is not only permissible but, in limited circumstances, justified.
In an attempt to reach a much broader conclusion, the majority cites from
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct.
2286 (1972). Yet, the quoted passage from Mosley misrepresents its holding. The
Mosley Court did not rule that Chicago's selective proscription of nonlabor
picketing was per se unconstitutional, but rather indicated that the regulation
would be valid if Chicago demonstrated that nonlabor [**26] picketing was
"clearly more disruptive than labor picketing." 408 U.S. at 100. A complete
reading of First Amendment jurisprudence reveals "that content-based
distinctions, far from being presumptively invalid, are an inevitable and
indispensable aspect of a coherent understanding of the First Amendment."
R.A.V. v. St. Paul, U.S. , , 65 L. Ed. 2d 1113, 100 S. Ct. 3012, 100 S. Ct.
3012, 120 L. Ed. 2d 305, 112 S. Ct. 2538, 2563 (1992) (Stevens, J.
concurring).
George Mason's treatment of the Fraternity is not itself constitutionally
flawed, because the University was concerned about the message of the students'
performance, but because of the permission to give the performance which the
University granted. The University, following the Fraternity's performance of
the skit, meted out punishment to the Fraternity, without any prior indication
that such behavior was not allowed at school-sanctioned events, and despite
indicating that the Fraternity's skit had University approval.
Actually, forbidding the skit or requiring substantial amendment was not
beyond its power. The University does have greater authority to regulate
expressive conduct within its confines as a result of [**27] the unique nature
of the educational forum. Tinker v. Des Moines School District, 393 U.S. 503,
513, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) (holding that expressive activity
in a school setting can only be restricted if it "materially disrupts
class-work or involves substantial disorder or invasion of the rights of
others"); see also Grayned v. City of Rockford, 408 U.S. 104, 117-118, 33 L.
Ed. 2d 222, 92 S. Ct. 2294 (1972) (stating that the Court had never "suggested
that students, teachers, or anyone else has an absolute right to use all parts
of a school building or its immediate environs for his [or her] unlimited
expressive purposes"); cf. Widmar v. Vincent, 454 U.S. 263, 276-277, 70 L. Ed.
2d 440, 102 S. Ct. 269 (1981).
In Widmar, Justice Stevens, concurring in judgment, has provided an
insightful analysis of the special character of institutions of higher
education:
Today most major colleges and universities are operated by public authority.
Nevertheless, their facilities are not open to the public in the same way that
streets and parks are. University facilities--private or public--are maintained
primarily for the benefit of the student body and the faculty. In performing
[**28] their learning and [*395] teaching missions, the managers of a
university routinely make countless decisions based on the content of
communicative materials. They select books for inclusion in the library, they
hire professors on the basis of their academic philosophies, they select
courses for inclusion in the curriculum, and they reward scholars for what they
have written. In addition, encouraging students to participate in
extracurricular activities, they necessarily make decisions concerning the
content of those activities.
454 U.S. at 278 (Stevens, J. concurring in judgment). In the present case,
the University, by officially recognizing Greek-letter social organizations and
participating in the planning of their events, inevitably has participated in
the activities of those groups. Therefore, it must retain the ability to refuse
to sanction certain behavior which infringes on the rights of other students.
The University need not allow activity distinctly injurious to its
objectives.
Certainly, the most fundamental concern of a university is to provide the
optimum conditions for learning. The majority concedes that "the University
certainly has a substantial [**29] interest in maintaining an educational
environment free of discrimination and racism, and in providing gender-neutral
education." Therefore, the University must have some leeway to regulate conduct
which counters that interest, and thereby infringes upon the right of other
students to learn. See Tinker, 393 U.S. at 513; cf. R.A.V., U.S. at , 112 S.
Ct. at 2565 (Stevens, J. concurring) ("A selective proscription of unprotected
expression designed to protect 'certain persons or groups' would be
constitutional if it were based on a legitimate determination that the harm
created by the regulated expression differs from that created by the
unregulated expression.").
By concluding that a university must be allowed to regulate expressive
conduct which runs directly counter to its mission, I do not mean to imply that
a university has the unrestricted power to silence entirely certain
perspectives. I wholeheartedly believe that the free exchange of ideas and
debate are fundamental to a place of learning. Yet, they comprise only part of
a university's mission and must be balanced against a university's other
interests, especially those [**30] interests which rise to the level of
constitutional significance. * Moreover, if the University, in advance, had
refused to allow the Fraternity to perform its intended skit, the marketplace
of ideas would hardly have been endangered. The Fraternity, if it wished, could
have presented its ideas and perspectives on the value of women and Blacks in
an open debate, allowing other students to challenge its perspective.
* In a case decided one month prior to R.A.V., the Supreme Court noted that
among the most difficult First Amendment cases were those requiring a
reconciliation of our commitment to free speech with our commitment to other
constitutional rights. Burson v. Freeman, 119 L. Ed. 2d 5, U.S. , , 112 S. Ct.
1846, 1851 (1992). In Burson, the Court ultimately upheld the content-based
regulation, namely, a Tennessee law prohibiting election-day political speeches
within 100 feet of a polling place, holding that the State's interest in
protecting the right to vote was sufficiently compelling.
[**31]
All in all, my concurrence rests on the unrevoked permission to give the
skit. I find it unnecessary, and of doubtful validity, to suggest that,
regardless of such approval, there was any First Amendment provision
guaranteeing the right to give the skit, in circumstances under which it was
inextricably linked with George Mason University.
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