The Supreme Court’s decision in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), reaffirmed that public universities cannot punish students for indecent or offensive speech that does not disrupt campus order or interfere with the rights of others.

Papish expelled for distributing allegedly indecent underground newspaper

Barbara Papish, a thirty-two-year-old graduate journalism student at the University of Missouri, was expelled for distributing on campus an underground newspaper containing allegedly indecent speech: a front-page political cartoon depicted policemen raping the Statue of Liberty and the Goddess of Justice, and inside, a headline that read “Motherfucker Acquitted.”

Officials said Papish had violated a university by-law requiring students “to observe generally accepted standards of conduct” and prohibiting “indecent conduct or speech.” The Eighth Circuit Court of Appeals ruled that her freedom of expression could be subordinated to the “conventions of decency in the use and display of language and pictures” on a public campus without violating the First Amendment.

Court said colleges are not immune from the First Amendment

Voting 6-3 to reverse, the Supreme Court noted that the Eighth Circuit’s ruling had come several days before Healy v. James (1972), in which the Court had ruled that although a state university could enforce reasonable rules governing student conduct, “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” In a per curiam opinion, the Papish majority said Healy made “clear that the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of ‘conventions of decency.’ ”

Court said it was clear that the newspaper was protected by the First Amendment

Relying on Gooding v. Wilson (1972) and Cohen v. California (1971), the majority held that it was equally clear that neither the political cartoon nor the headline was obscene or otherwise unprotected under the First Amendment. The majority also held that Papish had been unconstitutionally “expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.”

Dissenters said criminal prosecution was different than expulsion

In separate dissents, Chief Justice Warren E. Burger and Justice William H. Rehnquist argued that even if precedents precluded criminal prosecution of Papish, the university was not precluded from expelling her for the same conduct. Each emphasized the university’s authority and role in teaching students “to express themselves in acceptable, civil terms.” Rehnquist also adhered to his view that public use of the word motherfucker was “lewd and obscene” as defined in Chaplinsky v. New Hampshire (1942).

This article was originally published in 2009. Joey Senat, Ph.d., teaches mass communication law and multimedia journalism in Oklahoma State University’s School of Media & Strategic Communications. He is the author of Mass Communication Law in Oklahoma and Our Right to Know in Oklahoma. Dr. Senat received the 2007 Marian Opala First Amendment Award and the 2005 Oklahoma Society of Professional Journalists Award for Distinguished Service to the First Amendment.

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