Papish v. Board of Curators of the University of Missouri (1973) was the first case from the U.S. Supreme Court to address student press on campus. At issue in Papish was whether university officials could expel a graduate student for distributing a newspaper on campus because they disapproved of its content. Given the significant implications of Papish for the First Amendment rights of students in colleges and universities and the extent to which institutional officials can limit speech that may be perceived as offensive, this entry reviews its background and judicial analysis.
Facts of the Case
Barbara Papish, a 32-year-old graduate student majoring in journalism at the University of Missouri, was expelled for distributing an issue of the Free Press Underground newspaper, published by the nonprofit Columbia Free Press Corporation. According to university officials, the paper contained forms of what they described as indecent speech. The newspaper had been sold on campus for more than four years with authorization from officials in the university’s business office. The issue of the newspaper in question was unacceptable to university officials, because it included a political cartoon depicting police officers raping the Statue of Liberty and the Goddess of Justice and an article with the title “M— f— Acquitted.” Papish was a staff member of the Free Press Underground.
The student, who had been pursuing a graduate degree for five and one-half years when the newspaper episode occurred, was on academic probation for prolonged submarginal academic progress. After the Faculty Committee on Student Conduct decided that the student violated a university bylaw prohibiting “indecent conduct or speech,” she was placed on disciplinary probation. The student subsequently exhausted her rights to review within the university as its chancellor and board of curators affirmed her expulsion. Although the student was allowed to remain on campus until the end of the semester, she was not given credit for the one course she passed.
The student unsuccessfully filed suit in a federal trial court in Missouri, seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, also commonly known as Section 1983 of the Civil Rights Act of 1871 (a law that was enacted to fight discrimination against Blacks during Reconstruction), asserting that she was expelled for activities protected by the First Amendment. Based on the university’s defense that focused on the time and place of distributing the newspaper issue, the student’s being on academic probation, and the issue of indecent speech, the Eighth Circuit affirmed in its favor. The court was convinced that the student’s freedom of expression could be subordinated to the “conventions of decency” with regard to the language and pictures on the campus of a public university.
The Supreme Court’s Ruling
On further review, in a six-to-three judgment, in a relatively brief per curiam opinion that was not signed by any of the members of the majority, the Supreme Court reversed in favor of the student. In its deliberations, the Court noted that the Eighth Circuit’s ruling came just before the Court’s judgment in Healy v. James (1972), wherein it held that officials at public colleges and universities are not without the ability and responsibility to enforce reasonable rules governing student conduct. Yet, acknowledging its recent judgment in Tinker v. Des Moines Independent School District (1969), in which it upheld the free speech rights of high school students who wore black armbands to protest American involvement in Vietnam, the Court pointed out that college and university campuses are not closed societies that are immune to the sweep of the First Amendment.
In Healy, the Court ruled that officials had overstepped their bounds by forbidding students from organizing a local chapter of Students for a Democratic Society on the grounds that such an organization might have caused a disruption on campus. In the light of Healy, the Supreme Court determined that the mere dissemination of offensive ideas is an insufficient ground on which to bar student groups from campuses. Put another way, the Court made it clear that the propagation of ideas on a state university campus, regardless of their offensiveness, cannot be prohibited simply in the name of “conventions of decency.” The Court, relying on its own precedent in free speech cases in noneducation contexts, was clear that neither the political cartoon nor the title was obscene or unprotected under the First Amendment. The Court thus concluded that officials acted unconstitutionally in expelling the student because of the content of the newspaper rather than the time, place, or manner of its distribution on campus.
In his dissent, Chief Justice Burger disagreed with the majority in observing that the cases on which the majority relied arose in the context of criminal cases rather than on campuses, where university officials had the right to control unacceptable speech. Justice Rehnquist also dissented, contending that the Court should not have ignored evidence presented at trial on how unacceptable the student’s behavior had been before she was expelled for distributing the newspaper.
As the first case to address the free speech rights of students in higher education to distribute newspapers on campuses, even if the content of such papers may have been perceived as offensive, Papish has opened the door to ongoing litigation on the boundaries of the First Amendment on college and university campuses. As institutions of higher learning have entered the cyber age, college and university officials should consider the ramifications that Papish might have when attempting to limit the content of student publications.
Darlene Y. Bruner
See also Free Speech and Expression Rights of Students
Brownstein, A. E. (1986). Regulating hate speech at public universities: Are First Amendment values functionally incompatible with equal protection principles? Buffalo Law Review, 39, 1–52.
Civil Rights Act of 1871, Section 1983, 42 U.S.C. § 1983.
Healy v. James, 408 U.S. 169 (1972).
Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973).
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).