Special of the week; Issue 39-69

NDE are the national educational radio network presents special of the week. This is the last program in this series from the symposium student protest and the law held in Ann Arbor last May. Under the sponsorship of the Institute of continuing legal education of the law schools of Wayne State University Detroit and the University of Michigan in Ann Arbor over a two day period college administrators state officials and attorneys from thirty eight states heard the latest on the college university protest law situation from attorneys representing the schools the students the states and from college officials themselves. This last program in this series is a panel discussion questions from the floor and answers from many of the speakers during the symposium. They include Edward Legin an outside attorney representing Columbia University Tom Ferrer professor of law at Columbia William Van Alstyne professor of law at Stanford and Duke and the chairman of the panel is University of

Michigan law professor Paul Carrington. Series of questions we've received I think suggest a number of lines of inquiry but I'll start with that presser fair and ask him to consider a few types of sanctions that were not on his his list and to ask whether there is any promise in the use of such things as fines or work details to provide some kind of compensatory remedy for the university where property has been damaged. Would it be useful and appropriate to attempt to get students to either pay for the damage or to work on some kind of job that probably otherwise wouldn't be done like policing the athletic fields of paper or something for a dollar an hour would that be an appropriate kind of sanction to impose upon students who have

damaged property. I think you know I think that that's one possibility a kind of possibility we discussed at Columbia was having people work in the community. You know the reaction of many was that that wasn't a sanction because many of those have been involved in this are options for the kinds of people who are interested in working in the community. At first that seemed to be a fairly persuasive until I began to think of the kinds of jobs which need to be done in the community. Community organizations. Sounds fairly romantic but you're moving the bedpans and Harlem Hospital may seem considerably less romantic. I think that there may be considerable merit to the proposal along those lines if the university feels a commitment to the community and if one of the bases for the dissent is in fact the university is doing insufficient things perhaps the university might drop a program of useful work in the community which has this

quality of grittiness to it which would make it seem like a genuine sanction not only to the student but to the larger community. Maybe I will come back and then I'll stand now at what this strikes me as a very important question during the day. The trend toward the use of injunctions particularly anticipatory injunction against the demonstrations and the use of the contempt power obviate any need for drawing room with the kind of specificity that you suggest. And I guess what they have in mind here is drawing a specific injunction rather than a specific rule. No I don't think it obviates the need unless of course the university is content to rely exclusively on the civil process. And is indifferent to any desire to own to reserve a prerogative separately to take disciplinary action against the student if it wants to transfer fully to the civil authorities

responsible. Responsibility for policing this area I suppose the injunctive remedy is a reasonably promising one. You know a British subject to certain serious restrictions of its own. I think it's at least possible in some of these cases though the issue has not been raised for instance that the injunction that is issued against certain demonstrations is itself challengeable on constitutional grounds when it is issued in an ex-party proceeding where the other side has not been represented yet there may have been opportunity at least to serve process on the other side and have them appear in argument. I have in mind of simply a decision of the Supreme Court early this fall. Where a municipality secured an injunction against a downtown demonstration. And the injunction was not complied with it was violated and then they the people were cited for contempt and they successfully defended a contempt citation on the basis that given the First Amendment nature

of their their conduct they had been denied procedural due process in the issuance of the injunction so that even in the injunction proceeding you see there may be some demand for an adversary relationship to settle down if time can possibly permit. Again the injunction can be very limited in time. You simply can't have in an ex-party proceeding with no argumentation by the other side. An injunction against forms of protest on the campus lasting indefinitely. It seems to me that quality is a serviceable alternative highly useful in some circumstances especially to the extent that it may frighten the students into leaving buildings from the uncertainty of dealing with the civil authorities. I think to suggest that it's an adequate substitute for adequate campus rules and an adequate student judiciary is a wistful thought. I think I'd like to ask Mr.. The lady in question there too directed

it to part of material that he didn't have an opportunity to discuss. But this seems to be troubling a number of people in the audience particularly with respect to the problems of cert. And I guess I have two particular items in mind to what extent should the university feel inhibited in conducting a search of rooms for firearms or another specific question. And what about a search for women. What I prefer the latter. What kind of fur. What kind of information do you need to conduct such a search and under what circumstances can you use the results. Well the rule seems to be that. A university authority requires less information to render a surge reasonable than would be required for a civil a criminal of authority to get a warrant. I think as a

practical matter though this business of search has to be done most traditionally I don't think university people ought to be popping in and out of a room looking for girls needles or whatever. I think that they must as a practical matter have some very substantial grounds to believe that you know something very serious is going on in the room. Justify it as a matter of policy that along with a couple of things you were unwelcome money is again that the joint statements provision on student privacy procedural privacy circumstances of searching are essentially the same standards at the federal courts abuse under the Fourth Amendment for private citizens that is to say no particular distinction is made

of the fact that the university may own the property. In our judgment that's no more worthy of consideration for an intrusion into privacy than for instance for the state to own public housing. That does not justify fishing expeditions into the tenant's apartment. There are so far as I know only two federal court decisions and the more impressive one out of Alabama decided by Judge Johnson to suggest that first the Fourth Amendment does apply. There is a constitutional right to privacy on the part of students even in the college own dormitory but that quite rightly it's just observed something less than the degree of probable cause required of a policeman will suffice. Slightly less reliable information will nonetheless warrant the search but there must be some specific reason to suppose that a rather grave offense is taken has taken place or that the evidence of that offense can be secured in the in the student apartment. I think it's instructive that you say that this too is a development less than a euro to until a year ago.

Comfortable Council might have said why it's outrageous. There's no such thing as a student right of privacy. Don't we have this storm that every student signs consenting to a search of his apartment. Now assure you that such consent is absolutely worthless in this area. It is no more valid today than for instance for a public housing authority to coerce such consent from a tenant and then to rely upon it in a fishing expedition search that's been already thrown out by the federal court one on one and one other comment I think that all area of one requirement of warrants I may well insert themselves in here even apart from the reasonable circumstances of the particular search. The question of the crime many of you are probably familiar with the cases that were decided by the Supreme Court in the housing inspection area. Housing inspection as well primarily C vs Seattle based of that nature. Where was clear that they said that a warrant was required even in the administrative type search

where a municipality wanted to go throughout a whole area and make spot checks. And they said that even in those situations now a rule aren't made much that is required although the nature of the evidence it must be brought before the judge for the issuance of the warrant is going to bear vary depending upon the need of the municipality and the kind of infringement there is on the individual's privacy. Also of some interest I think I mentioned yesterday is a case of people the Overton which allowed a search of police officers of a student's walk are in a high school where narcotics was found. That case is now the judgement in that case which was upheld in the New York courts has now been vacated by the Supreme Court and sent back to the New York court for reconsideration. Unfortunately the they seem to be implying perhaps that the consent that was given by the high school principal was under the rest and therefore the consent was invalid and appears that they're trying to avoid the issue of the

question of the search in an educational institution. However that I suppose is a good chance that that case will go right back up again. And if some of the Supreme Court may be forced to finally give an answer or at least part of any answer in this area. Another problem which I guess a relatively short answer may be provided but it seems to be troubling some people the audience of the question of why there is any problem about double jeopardy in applying both criminal and administrative sanctions to the same individual for the same offense. I guess I should direct that question to the lady. Well I think there's a problem in a policy sense as to the extent to which it is reasonable that a student should be punished twice for the same thing. For instance if he has been sentenced to jail for 15 days for criminal trespass is it then reasonable for his university for the same act to

suspend him for a term or two. Those I think that's a policy question really I don't there's no legal prohibition against it and the policy will probably vary according to change that to show. Several questions that have been asked in the past day or so I have related to the topic that event Al Stein did not get to and I think it will come back and and present this to him and I have yet another question which you've just been handed me the same Theo this question. Maybe you can start with this one. To what extent this demonstration which employs obscene language amplified by a bullhorn constitutionally protected. Very little. To the extent that one restricts the reason for discipline to that particular excess invective. The question really is lifted from the Goldberg case and that was they deteriorated. And of the Free Speech

Movement as I recall it became the filthy Speech Movement and large groups of students were holding four letters spell out over loud speaking systems and they've even set up a charitable collection can call that freedom under Clark Kerr charity which they filled out with initials and then were disciplined and and sought. And sought reinstatement on the First Amendment grounds. I think I might enter this way really a most recent Supreme Court opinion quite properly in my judgment scale down the the offense of obscenity or the use of obscenity under circumstances where it may be made at an offense by a state or by a community or by a university more or less within a time place and manner. Commonsense standard. The recent decision for instance reversing the conviction of an individual merely for possessing an obviously or

hardcore porn pornographic book merely for possessing it seems to me to to indicate that the so-called real nature of obscenity. The real nature now is largely aesthetic. It is the use of certain kinds of exposure Tori styles under circumstances where the speaker must know. That the use of the words under the circumstances are simply repugnant to other people who are unwilling auditors. The notion of exploiting a captive audience for instance to offend their sensibilities does not carry First Amendment protection in this area. That's it seems to me to punish ability of obscenity has now become largely a function of the time and place and manner of its use. So it seems to me not surprising therefore that the Goldberg court in this respect is probably correct that the deliberate use of obscene language before a captive audience that offends their sensibilities may appropriately be made the subject of discipline without violating First Amendment standards. But that's the

essence of the offense. You see it now it becomes a harder case in my judgment to the extent that you are concerned with the student underground press not particularly a recognized or subsidize thing but a magazine or newspaper which one must volunteer to read. It becomes a little bit more awkward to say that we should be able to forbid the use of obscenity in this publication even though the consuming public knows in advance the nature of the publication it's appeared on campus before and they must volunteer to be offended. Can they protect themselves against the against the offense of volunteering to be offended by forbidding the publication. I think that a much more difficult question and they would the answer is not clear. Possible that some courts will allow the control to extend that far but I think that on policy grounds it's doubtful. Friday of course there are other problems that they raise the same kind of question as to how what kinds of misconduct or conduct I guess might be protected speech but as you know for decades

and maybe I could ask one of the students to choose simply to. Sit on the front steps of the administration building you know make leaving a small corridor for people to get through but not closing the building altogether is that constitutionally protected. Paul I want to have to take it in three steps and I'll answer you directly and then give you three steps if the case were exactly that way I think at least a fine argument could be made that that particular activity was protected. The three steps are the three different elements that are involved here are these some attempt to separate the protection of free speech from the place where speech may take place so that if we were talking about a seemingly neutral rule not one that singled out these students because of what they represented by their sit down under the circumstances but a seemingly neutral rule which simply said that there may be no assembly

of any kind. Within 100 yards of the administration building or within a hundred yards of any other academic building on its face it is not an anti speech regulation. Fair enough it simply seems to be a kind of place regulation. No one's free speech is infringed. The perplexity of that point of view is however that none of us as I think Eric Sevareid observed for Mr. Justice Black made this distinction in his in his interview on CBS. None of us thus far has discovered a way of inventing a platform in the air. Thus our ability effectively to reach an audience can't be separated from some prerogative to choose a place from which to speak. That's the majority of Supreme Court has not accepted the distinction. A flat distinction that says so long as the regulation is not anti speech on its face not directed to the prohibition of expression but is merely a neutral ban on assemblies of any type for any purpose on public property a majority said. That's not enough that's not enough.

The justification must be that under the particular circumstances the style of communication. Rises above the level of mere inconvenience or petty annoyance. And it's at least a substantial and substantial conflict with the accomplishment of other legitimate uses to be made of the property. That's clearly congestive picketing. Clearly disruptive or ruckus demonstrations clamorously interfering with classes blocking access that sort of thing are clearly subject to prohibition by university as they are by responsible state law. The usual test in this field is really that the the manifestation of expression both in terms of its style though its non forensic ability symbolic communication oral communication but by the presence of warm bodies. That they that the style of the communication and the manner of communication must to be subject to regulation. Rise above the level of mere inconvenience or annoyance. Once it does then a rule may

properly be invoked. There is one. There is one possible exception. I perhaps have overstated the protection of first amendment to that extent to the extent that the university may restrict forbit any form of picketing or assembly or even handling in very limited places leaving many alternatives and meaningful forums free for peaceful demonstration on campus. Some very few places out of an intelligent notion of administrative convenience. The marginal infringement on speaking places or demonstration places may be so trivial as against the endless headaches of trying to police in those very locations the permissible from the impermissible demonstrations that a flat ban would be upheld. To be specific for instance I think it not unlikely that a court would uphold a flat ban on picketing inside academic buildings even as against a particular picketing that happened to occur in a corridor at a time when there was no class in session so that in point of

fact it turned out not to be disruptive but the restriction is so marginal given alternative forms and given the administrative inconvenience of having to make decisions that that limited restrictions of certain kinds of inside facilities would seem to be tolerable if you were to expand this ban. On the other hand for instance to forbid even handling or the distribution of leaflets within the student union because at such a central traffic area a place where people mix where they can readily be reached through the wood through the peaceful distribution of leaflets I would suspect that that regulation is subject to constitutional reproach. It's obvious from what I've said that this is largely a matter of trading off interests. It's a matter of balancing the vitality of the First Amendment conduct against competing interests legitimate interests to be served on campus. It is necessary to provide

university facilities to student organizations who insist on publishing profanity. I take it that I have a fairly easy answer. Perhaps you want to take that on. That's not the one the particularly interesting thing happened. I think if you mean profanity is defined by the Supreme Court that is the kind of hardcore hardcore obscenity. If you mean more broadly obscenity which can be which can be banned under existing constitutional restrictions I think the answer is quite simple. If you're talking more colloquially about obscenities and raise the larger issue what happens when students simply produce things in their newspapers which offend large numbers of your most generous benefactors. This is a problem that the law schools confronted recently with a law school newspaper which is published not only with the support of the school but with the

support of a small fund provided by our alumni. This is the newspaper has caused a considerable amount of concern among some of my colleagues expect me and among many of our alumni and there's been a question of what to do I think. That it is legitimate and this moves away from the immediate question. It is legitimate to ask for some measure of fairness in the reporting of a newspaper at least to the extent it is supported by the university. That may be regarded as censorship but I regard it as analogous to the fair fair allocation of time requirement on the radio on the television. I think it's roughly analogous to that. You can clearly divide up the newspaper into the reportorial sections on the editorial sections any kind of censorship. The editorial position of the newspaper comment on current events offends me profoundly and I think does raise at least in state

universities important First Amendment questions but a requirement. A fair presentation is to it's obviously too difficult to try and police a requirement phrase in terms of the news story must be written fairly. But it may be possible to achieve the functional equivalent of by requiring alternative representations of what occurred. If the Dean wants to put a statement in the newspaper describing what his version of a certain confrontation I think he has that right as long as he doesn't take up an inordinate amount of space. So I think that the notions of fair allocation of time to present opposing views on important controversial issues should be imposed on college newspapers and perhaps it ought to be contemplated more broadly although it does raise serious constitutional questions. This is been a subject for a good deal of legislation or at least proposed legislation that

I know that I believe it's north there in North Dakota that is an active quite extraordinary piece of legislation here which requires in effect as I am interpret the statute that all publications issued by public schools or colleges or universities in the state will be edited by the chairman of the English department and obviously have a pending bill as I understand it in our house here in this state which proposes that to an in effect that will be a misdemeanor for any university administrator to fail to provide to adopt standards of decency for university publication. I suppose most of that legislation is invalid but an event seems to be an extraordinary interest right now in the character and quality of the school publication. And insert two cents worth and if by a lot you get different legal answers of course partly because you

have different. Arrangements. For instance it would seem to me to make a considerable difference if the students are compelled to subscribe to the campus newspaper. In that sense there is some analogy that their feeds which are required of them as a condition of remaining in good standing are used by the editorial board to propagandize in favor of a certain view and in a sense one may look at this by analogy. As an abuse of their First Amendment freedoms the compulsory support for the given idiology that characterizes the editorial tone of that particular paper. Assume that the relationship is not that but that rather than a newspaper is wholly financed by the university it may be operated as part of its journalistic laboratory part of its journalism school. The complete financing of the paper by the school would seem to give it a greater proprietary control that it is not attempting merely to use its so called claim of governmental force to regulate the press. But it is merely deciding rather how it elects to spend its own money in developing this as an auxillary enterprise as part of its programme in journalism.

Still it's a very different situation is it not. If the student newspaper is an independent corporation that supports itself by advertising much of which to be sure may come from the university under a contract reserving them the right to use a certain space every day to publish notices of general interest to the campus and otherwise community advertising. Then it's a very different situation and the degree of possible control by the university scales way down here most especially if other kinds of magazines and newspapers are also permitted to be distributed on campus which I suspect might be constitutionally compelled. So I don't think one can answer a question as to the extent of university control easily without bearing the different possible relationships in mind which brings me then to the point. And that was that. Again there is a part of the joint statement on student rights and freedoms directed to this matter and which very much commands the financial severing and the rendering independent of the Student

Press. So to avoid both really the pernicious ness and the inevitable responsibility of the administration having to act and censor whenever it has a primary. Financial responsibility for the paper. Financial independence would seem to be at least the most civilized resolution of Everett's possible and then to have the institution deal with that student pressed by contract as it would with a downtown paper for instance and not assert any additional leverage. The paper then becomes of course subject to normal state laws respecting libel or obscenity or something else. It is responsible in the same sense as any other paper. This panel discussion ending that today an OB or symposium student protest and the law brings this broadcast series to a close and a Rs special of the week. Thanks the Institute of continuing legal education of the law schools of Wayne State University Detroit and the University of Michigan and OB are sponsors of this symposium held in May of 1969. The producer of the

program series friend kindly of Wu Alam Ann Arbor. This is been a special of the week from ennui are the national educational radio network.