Opinion · Court of Appeals for the Fourth Circuit
Thonen v. Jenkins
Thonen v. Jenkins, 491 F.2d 722 (4th Cir. 1973)
- Type
- Opinion
- Court
- Court of Appeals for the Fourth Circuit
- Jurisdiction
- Federal
- Date
- 1973-08-02
- Topic
- general
How later courts describe this case
- holding that First Amendment prohibited university from disciplining students for using single expletive in a letter published in a school newspaper
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THONEN v. JENKINS,491 F.2d 722(4th Cir. 1973)
ROBERT R. THONEN, APPELLEE v. LEO W. JENKINS, PRESIDENT OF EAST CAROLINA
UNIVERSITY, ET AL., APPELLANTS.
WILLIAM SCHELL, JR., APPELLEE v. LEO W. JENKINS, INDIVIDUALLY AND AS
PRESIDENT OF EAST CAROLINA UNIVERSITY AND HIS SUCCESSORS AND ROBERT
MORGAN, INDIVIDUALLY AND AS CHAIRMAN AND REPRESENTATIVE OF THE BOARD OF
TRUSTEES OF EAST CAROLINA UNIVERSITY, APPELLANTS.
Nos. 72-1601, 72-1602.
United States Court of Appeals, Fourth Circuit.
Argued October 31, 1972.
Decided August 2, 1973.
James E. Keenan, Durham, N.C. (Paul, Keenan Rowan, Durham, N.C., on brief), for appellees.
Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.
[2] While students at East Carolina University, Schell wrote a letter that was published in the school newspaper, of which Thonen was editor-in-chief. The letter was critical of parietal regulations and ended with a "four-letter" vulgarity referring to the president of the university. Disciplinary action was commenced against Thonen and Schell by officials of the university, and subsequently plaintiffs brought this suit in the United States District Court seeking appropriate relief, including readmission to the university to pursue their education.
[3] At a plenary hearing below, the district court found: "No disturbances or disorders or interference in connection with any school or school related function occurred as a result of the printing of the letter . . . ." The district judge reasoned that the sanction imposed upon the students was in violation of thefirstamendment to the United States Constitution, and accordingly granted a preliminary injunction. We affirm.
[4] In Healy v. James,408 U.S. 169,92 S.Ct. 2338,33 L.Ed.2d 266(1972), the Court made clearfirstamendment rights on college campuses are coextensive with those in the community at large.1Thus, as to speech related activities, a university may legitimately "enforce reasonable regulations as to the time, place and manner of speech and its dissemination."2"But, above all else, theFirstAmendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."3
[5] The record reveals that university officials undertook to deny these college students the right to continue their education because one word in an otherwise unexceptionable letter on a matter of campus interest was deemed offensive to good taste. On at least one prior occasion the officials had remonstrated with the student editors about the use of vulgarity in the publication but had made it clear that they did not intent to act in a censorial fashion nor did they suggest that such vulgarity would not be tolerated in the future. It was only when the vulgarity was used in the open letter addressed to President Jenkins with respect to his dormitory policy that the school authorities viewed it as totally unacceptable and took disciplinary action against Thonen and Schell. That they may not do. The decisions of the Supreme Court make clear "that the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not bePage 724shut off in the name alone of `conventions of decency.'"Papish,410 U.S. at 670,93 S.Ct. at 1199,35 L.Ed.2d at 622.
[6] Accordingly, for the reasons stated, the decision of the district court is
[7] Affirmed.
[8] BOREMAN, Circuit Judge, reserves the right to file a dissenting opinion.Page 729
- InHealy,the Court stated:
Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order,FirstAmendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker,364 U.S. 479,487,81 S.Ct. 247,251,5 L.Ed.2d 231(1960). The college classroom with its surrounding environs is peculiarly the "`marketplace of ideas,'" and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom.
408 U.S. at 180-181,92 S.Ct. at 2346. ↩ - Papish v. Board of Curators,410 U.S. 667,93 S.Ct. 1197,35 L.Ed.2d 618,622(1973). Police Dep't v. Mosley,408 U.S. 92,98,92 S.Ct. 2286,33 L.Ed.2d 212(1972). ↩
- Police Dep't v. Mosley,408 U.S. at 95,92 S.Ct. at 2290. Recent decisions of the Court make clear that the published letter is not obscene, Cohen v. California,403 U.S. 15,91 S.Ct. 1780,29 L.Ed.2d 284(1971), is not "directed to inciting or producing imminent lawless action [or] is likely to incite or produce such action," Brandenburg v. Ohio,395 U.S. 444,447,89 S.Ct. 1827,1829,23 L.Ed.2d 430(1969); and, is not otherwise unprotected.Papish,410 U.S. at 670,93 S.Ct. at 1199,35 L.Ed.2d at 622. We note that the standards are less stringent, however, in the secondary school setting. Baughman v. Freienmuth,478 F.2d 1345(4th Cir., 1973); Quarterman v. Byrd,453 F.2d 54(4th Cir. 1971). ↩