Norton v. Discipline Committee of East Tennessee State University

On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.

Petitioners were suspended as students at East Tennessee State University for distributing leaflets critical of the university administration. They brought an action in federal district court under 42 U.S.C. § 1983 seeking reinstatement and expungement of the records of their suspension, claiming that their rights to freedom of speech and procedural due process had been violated. The District Court denied the requested relief after holding a full evidentiary hearing, and the Court of Appeals affirmed, Judge Celebrezze dissenting. 419 F.2d 195 (C.A. 6th Cir. 1969). I would grant certiorari.

The pamphlets involved in this case were published and distributed by students angered by what they regarded as the backward policies of the university administration and the apathy of their fellow students toward these policies. They criticize, often in a crude and sarcastic tone, the positions of the administration on such matters as dress, social regulations, ROTC, campus police behavior, and censorship of the college newspaper. They go on to draw unfavorable comparisons between the response of students at East Tennessee and the response of other students in Czechoslovakia, France, and elsewhere in this country, and call upon students to 'stand up and fight' for their 'constitutional right to protest, demonstrate and demand their rights.'

No charges were brought against these students that the time, place, or manner of distribution were in any way improper. The sole charge was based squarely on the content of the pamphlets namely, that they were 'of a false, seditious and inflammatory nature.' There is no evidence that the pamphlets created any disturbance on campus, nor is there any concrete evidence from which one could infer any substantial danger that they would. Rather there is only the conclusory testimony of university officials that the pamphlets 'could conceivably' have caused an eruption, and reference to 'fears that we might have serious consequences.' The only support given to these assertions is the description of an incident in which some 25 students visited the Dean after the pamphlets were circulated and stated that they 'wanted to get rid of this group of agitators.'

It seems to me altogether too late in the constitutional history of this country to argue that individuals can properly be punished for pamphleteering in these circumstances. These pamphlets are similar in some ways to the broadsides circulated by popular writers in England and the Colonies, official suppression of which helped lead to adoption of the First Amendment; to the writings of Republican polemicists, against which the Sedition Act prosecutions were aimed-prosecutions this Court has said violated the First Amendment, New York Times Co. v. Sullivan, 376 U.S. 254, 273-276, 84 S.Ct. 710, 11 L.Ed.2d 686 (1954); and to leaflets distributed by protestors during the First World War and the 1920's, which evoked the classic opinions of Holmes and Brandeis, since vindicated by history, upon which so much of our law of free speech and the press is based. Abrams v. United States, 250 U.S. 616, 624, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting); Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting); cf. Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).