James D. DeCamp v. Mariemont School District

UNITED STATES DISTRICT COURT IN THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES DOUGLASS DECAMP,

Plaintiff,

-vs-

KEITH BIHN and

DONALD R. THOMPSON,

Defendants.

Case No. C-1-81-356

MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION

1.   Introduction

This case does not seek to open any new First Amendment vistas or to change any practice or routine that exists in public high schools. The traditional deference that courts have given to matters of school administra­tion is not challenged by this action. The narrow focus of the case seeks a determination as to whether or not a student at the Mariemont High School may be prohibited from photographing certain subjects at the school which are found objectionable by the school administration while photographing generally by students, teachers, and even security guards is allowed and even encouraged. The specific claim by the Plaintiff is that his rights under the First Amendment have been violated where he has been prohibited from photographing altogether at the school because some of the pictures he has taken, and some he has caused to be published, do not portray the school in the light the administration wis ed to convey to the public at large, or may be deemed sympathetic to the cause of the striking teachers, or may portray the impression that the continuation of the strike is having an adverse effect on the quality of education now provided at the school.

A second claim by the Plaintiff is that he is prohibited, on pain of the threat of arrest or suspension from the school, from any further photographing or publishing of negatives now in his possession and lawfully and properly gotten. In this latter respect, Plaintiff will argue that the school has imposed an unconstitutional prior restraint on his publication.

The resolution of this prior restraint claim will determine whether or not, for example, Plaintiff may submit for publication, without suffering suspension or other sanction, a photograph showing substitute” teachers (replacing the striking teachers) walking out of the school building. There can be no doubt that Plaintiff has the right to verbally convey the image of such scenes without prior restraint or subsequent punishment. See e.g., Papish v. Board of Curators, 93 S.Ct. 1197 (1973), Healy v. James, 92 S.Ct. 2338 (1972). However, the question here is whether Plaintiff under the First Amendment may convey and publish the image by means of a photograph.

2.   Information gathering or newsgathering, including by photographic means, has protection within the First Amendment.

Newsgathering, including photography, has long been recognized in a number of lower court decisions as a right that has a substantial degree of protection within the First Amendment. The recognition of this right has occurred, most often, in circumstances where the press has been excluded altogether from public events or places where there is a general public invitation, or an individual press member has been selectively excluded.

For example, in Dayton Newspapers Inc. v. Starick, 345 F.2d 677 (6th Cir. 1975), the police prevented a reporter from the Dayton Daily News from approaching a fire by a public street while other reporters were allowed near the fire. The Sixth Circuit, in reversing a dismissal on the pleadings, construed the complaint as “. . . an effort to vindicate its right as a newspaper to gather news for publication without discrimination.” Id., p. 678, 679. In Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969) the Court held that a number of news photographers stated a cause of action when the Chicago police prevented them from covering the tumultuous 1968 Democratic Convention. The Seventh Circuit gave recognition to the “. . . plaintiffs’ constitutional right to gather and report news, and to photograph news events. . .” Id., p. 1085.

The Court in Channel 10 Inc. v. Gunnersor, 337 F.Supp. 634 (D. Minn. 1972) held that a T.V. station has a right to photograph by video-tape the capture and arrest of burglars at the scene with the use of night lights as long as they did not interfere with the police officer’s in their carrying out the arrest. “. . . employees of the news media have a right to be in public places and on public property to gather information photographically or otherwise. . .” Id., p. 638.

In addition to determining the primary press exclusion questions, lower courts have held that information gathering cannot be inhibited by a number of means. In Lewis v. Baxley, 368 F.Supp. 768 (M.D. Ala. 1973) (three judge panel), the Court held violative of the news reporters First Amendment rights a legislative resolution that required reporters before being admitted to the State Legislature to file an “economic interest” statement identifying, their business involvements and investments, and prohibiting any reporter who had an economic interest in a business that was involved in any legislation pending. To like effect, Consumers Union v. Periodical Correspondents’ Assn., 365 F.Supp. 18 (D.D.C. 1973) invalidated a House of Representatives rule that denied access to the House press gallery to members of the media not “. . . owned and operated independently of any industry, business, association or institution.” The Consumers Union published a magazine that staunchly advocated “consumer” interests. Clearly, the right to gather the news cannot be dependent upon elaborate disclosure requirements or qualification tests. Nor may a limitation be imposed allowing access to only recognized or establishment media institutions. In Quad-City Community News Service Inc. v. Jebens, 334 F.Supp. 8 (S.D. Iowa 1971) the Court held that it was a violation of the First Amendment to deny press passes to the Davenport, Iowa “underground” newspaper, and a further violation to deny the paper access to police files that were generally available to the institutional press. “. . . public officials cannot impede the free exercise of speech or press simply because the content is insulting, disturbing or critical. . . ” Id., p. 13. See further, Sherill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).

The right to gather the news may be exercised by the New York Times as well as an 18 year old student who serves as a free-lance photographer.

First recognition by the Supreme Court of the right to gather news was made this past summer in Richmond Newspapers Inc. v. Virginia, 100 S.Ct. 2814 (1980). “. . . for the first time, the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and press protected by the First Amendment. . . ” Id. 2831 (Stevens, concurring). The Court held that the press had a First Amendment right to attend a criminal trial for the purposes of gathering news where there was no special showing of an overriding interest in preserving the defendant’s right to a fair trial. Importantly, the present action is not a right of access case. Unlike Richmond Newspapers Inc., where the trial had been closed, the Mariemont School has not forbidden the taking of photographs or otherwise the gathering of news and information by students. This case concerns the discriminatory denial of access to a newsgathering with a disfavored viewpoint.

3. The Mariemont High School: a limited public forum.

A considerable number of First Amendment activities may be undertaken on college and high school campuses. The little islands of learning in many respects are microcosms of society at large. The First Amendment has been held to have a special and vital meaning for students and the academic environment. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. . .” Shelton v. Tucker, 81 S.Ct. 247, 261 (1960). “. . . the First Amendment…does not tolerate laws that cast a pall of orthodoxy over the classroom. . . ” Keyishion v. Board of Regents, 87 S.Ct. 675, 683 (1967). The First Amendment is to be given its”. . . widest latitude for free expression and debate [on the campus] consonant with the maintenance of order.” Healy v. James, 92 S.Ct. 2338, 2341 (1972). Students have a right to engage in protest activity even in the classroom itself, provided that the activity does not “. . . materially disrupt classwork or involve substantial disorder or the invasion of the rights of others. . . ” Tinker v. Des Moines Independent Community School District, 89 S.Ct. 733, 740 (1969). Students have a right to demonstrate on school property as long as it is not obstructive or disruptive”, Saunders v. Virginia Polytechnical Institute, 417 F.2d 1127, 1130 (4th Cir. 1969), and a right to distribute an underground newspaper that may be highly critical of the school administration. Scoville v. Board of Education, 425 F.2d 10 (7th Cir. 1970). Censorship of high school newspapers is no less an offense against the First Amendment than censorship of the institutional media. Gambino v. Fairfax County School Board, 564 F.2d 157 (4th Cir. 1977).

The Mariemont Public High School is a limited public forum for the sake of the First Amendment for those persons, including Plaintiff, who have a right to be there. There has been no attempt, so far, to close the forum down or close off parts of it, and for the reasons of the decisions of Richmond Newspaper Inc. supra; Wolin v. Port of New York Authority, 392 F.2d 83 (2nd Cir. 1968) and Albany Welfare Rights v. Wyman, 493 F.2d 1319 (2nd Cir. 1974) (holding protected orderly leafleting inside a county welfare office) the forum could not be closed off. What is occurring here is that disfavored First Amendment activities are being specifically excluded from the forum.

4. The prohibition of Plaintiff photographing “substitute” teachers or other subjects that would portray the school in conceivably a less than favorable! light while allowing photographing generally to take place that is not deemed objectionable is content censorship in violation of the First Amendment to the United States Constitution.

For the past several years, at least, photography at Mariemont High School has been a common practice that has been encouraged by the administration. There is a Camera Club with about six members. Student photographers submit photos to the school newspaper which comes out about six times a year, to the yearbook and even to outside publishers. There is no rule or regulation regarding photographing in the Student Handbook,*1

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*1 The Student Handbook contains the rules and regulations governing student conduct that have been adopted by the Board of Education pursuant to O.R.C. 3313.20. It is apparent that this rule-making power is conferred upon the Board, and not the principal or school administration.

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and indeed, photographing has taken place in nearly every nook and cranny in the school including the kitchen, a restroom, teachers’ offices, classrooms, the library, gym, etc. Photographing by a number of students has continued throughout the strike, however the rules of the game were changed for the Plaintiff.

The first limitation occurred on January 27, 1981 when Superintendent Thompson informed Plaintiff that he would have to submit any photographs that might be published off campus to the administration for its prior approval, and if approved, a “press release” would be granted. Following the publication in the Cincinnati Enquirer of two of his pictures, for which he was given credit by name, showing a student holding a sign with a message expressing sympathy for the striking teachers, and his photograph of Defendant Thompson and a student gesticulating at each other at a meeting , Plaintiff was given a series of directives by Defendant Bihn. Plaintiff was ordered by the principal that no pictures could be taken by Plaintiff in school until “things settled down” because the photographing was “and indeed,interfering with the educational process.” Plaintiff was warned that if he did not abide by this directive, he could be suspended from school. Several weeks later on February 20, after Defendant Bihn observed Plaintiff outside the school, building photographing the “substitute teachers” leaving school at the end of the day, Defendant Bihn ordered Plaintiff to cease photographing the “substitutes”, and to get off school property. This was the same day that the school administration sent to the parents a school bulletin stating that the school was “normal”.

Throughout these events the school administration, including the Defendants, had been in an adversarial posture vis-a-vis the striking teachers. There had been a breakdown in negotiations, followed by the strike of some fifty teachers, the hiring of “strike breakers” or “scabs” as they are impolitely called, substitute teachers, as they are politely called, the firing of approximately fifty striking teachers (now the “Mariemont 50”) and the daily picket lines. The strike has resulted in the formation of two Community organizations consisting mostly of parents, one group generally sympathetic to the school administration and the other siding with the striking teachers. Public assemblies have been held. School administrators, including the Defendant Thompson, have participated in a number of them offering their viewpoints, and defending their actions. In addition, Board members have aired their views in public on television, radio and in the press. Press coveraqe has been almost daily, and has included viewpoints expressed both by the administration and strikers. There has been throughout the long strike a robust public debate by nearly all of the interested parties.

Not so for the students who, as always, are caught helplessly in the middle of teacher-school administration labor disputes. (They must continue their attendance no matter who their teachers are, or what their positions in academic controversies may be. Their “bargaining positions” consequently are very limited ones.) The rules for participation in this debate by the students have been newly fashioned in order to not undermine the school administration’s position, or dispute its messages. The role of the students in this debate is thus a limited and conditioned one. Fortuitous events even further limited the possibilities of student expressive activities; the school newspaper had been out of commission, the press having been accidentally broken and the faculty advisor ill. Plaintiff’s father, a journalist, offered to underwrite the printing costs and act as the student advisor; however, Defendant Bihn has not responded to his offer.

There are no independent content-neutral justifications for the special rules that have been applied to Plaintiff:

(a) The only conceivable explanation for the prohibition of photographing the substitute teachers while they are leaving the schoolhouse at the end of the day is to protect these teachers from being identified by their faces in the public press by those who may disagree with their crossing a picket line. There surely may be discomfort and apprehension by some of these teachers, yet they are public employees, doing public business in public places and paid with public funds. Their apprehension, however, is insufficient to deny Plaintiff’s constitutional right to photograph them from a vantage point where he has a right to be. In Galella v. Onassis, 487 F.2d 486 (2nd Cir. 1973) the Court held that in spite of the intrusive and even tortious conduct of the free-lance reporter in photographing Jacqueline Kennedy’s family, an injunction against such misbehavior must preserve the photographer’s right to photograph at reasonably close distances. Mr. Galella, a “papparazo” had invaded the children’s private schools, leapt in front of young John Kennedy while the latter was riding his bike, interrupted tennis matches and whizzed a motorboat near Mrs. Onassis while she was swimming. In spite of this rather bizarre behavior, the Court framed an injunction to allow Mr. Galella to photograph Mrs. Onassis from 25 feet, the children from 30 feet and from the property lines of their private residence and schools, whatever the distance.

The substitute teachers have no greater interests than the wife of the former president. No privacy interest is aroused by being photographed in a public place. Prosser, Law of Torts, West Publishing Co. (1971), p. 808; Jenkins v. Dell Publishing Co., 251 F.2d 447 (3rd Cir. 1958); Goldman v. Time Inc., 336 F.Supp. 133 (N.D. Cal. 1971) (photo of two Americans living on Crete to illustrate story on young American nomads); Melter v. Los Angeles Examiner, 35 Cal. App. 2d 304, 95 P.2d 491 (1939) (photo of suicide leap).

(b) There is likewise no plausible rationale or non-content grounds for the prohibition of Plaintiff photographing in school on his free time while other photographing by a number of students has been a near everyday occurrence at the school. If it did not materially disrupt classwork or cause a substantial disorder, Tinker v. Des Moines Independent School District, supra, see further Shamloo v. Mississippi State Board of Trustees, 620 F.2d 516 (5th Cir. 1980) to photograph almost exactly the same scenes and same generic subjects before the strike, it is inconceivable that it is inherently disruptive during the strike. There will be no claim that Plaintiff was a “papparazzo”. He very quietly and unobtrusively photographed the goings-on in school. The only sounds were the barely audible clicks. There were no in-school outbursts or disorders of any kind, and no hulabaloo over anyone’s being photographed. The only differences during the strike are the fact of the controversy outside between the striking teachers and the administration and the fact that the pictures display different teachers’ faces and students expressing different attitudes. Several of the photographs, for example, convey the image of total boredom – a student sleeping, a student playing with a yo-yo, etc. The idea conveyed by these and other photos is that all is not well, that the educational process is suffering because of the prolonged labor dispute. Plaintiff has sympathies for the striking teachers. The principal knows this. Some of the messages of Plaintiff’s photographs differ markedly from those of the principal who has contended that things are “normal”. The administration, for obvious reasons, would wish that the students remain neutral and uninvolved. The Plaintiff has respectfully declined.

The prohibition of Plaintiff on this subject violates the equal protection and content neutrality norms that are inherent in the First Amendment. Police Department of Chicago v. Moseley, 92 S.Ct. 2286 (1972) (invalidating an ordinance which allowed labor dispute expressive activities and in the same area forbade expressive activities relating to other subjects. [subject matter discrimination]); City of Madison v. Wisconsin Employment Relations Commission, 97 S.Ct. 421 (1976) (invalidating a rule that allowed members of the public to comment on the subjects of a labor negotiation but not school teachers who were not part of the bargaining team [discrimination between speakers in the same forum], the Court stating “. . . The participation in public discussions cannot be confined to one category of interested individuals. . .” Id., p. 426); Princeton Education Association v. Princeton Board of Education, 80 F.Supp. 962 (S.D. Ohio 1979) (Porter, J.) (invalidating rule, interalia, that precluded non-resident teachers from commenting during public comment period that was confined to comments by only residents) and Solid Rock v. Ohio State University, 478 F.Supp. 96 (S.D. Ohio 1979) (Duncan, J.) (invalidating regulation which limited off-campus publication to distribution at only eight of the one hundred campus buildings while allowing the official OSU newspaper to be distributed at 145 points around the campus (discrimination as to degree of use of forum).

There are present here all three forms of First Amendment discrimi­nation. There is subject matter discrimination in allowing photographs prior to the strike of students and teachers at work and at play, but not of a different set of teachers and a less involved student body during the strike. There is discrimination among speakers in the same forum where the administration persuasively broadcasts its views to the public of what happens in school, but Plaintiff has been declared ineligible. There is further discrimination in degree of usage of forums. Somehow the administration was able to publish its newsletter to parents, but somehow the student newspaper is not being published.

The only plausible explanation for the limitations imposed upon the Plaintiff that remains is that his message was deemed unattractive or objectionable in the minds of the administration. This clearly breaches the First Amendment in this judicial circuit. In a case bearing many similarities, Minarcini v. Strongville City School District, 541 F.2d 577 (6th Cir. 19__) the Court held that once books are placed in a high school library (Catch-22 and a number of Vonnegutt titles) they could not be removed and replaced (the substitutes were a biography of Herbert Hoover and one of General McArthur) because their content was objectionable to the School Board. “. . . Once having created such a privilege for the benefits of its students [the Board could not] place conditions on the use of the library which were related solely to the social and political tastes of the School Board members. . . ” Id., p. 581.

(c) The prohibition of Defendant Thompson that Plaintiff submit photographs to him for his approval before publishing them off-campus deserves brief mention. Prior restraints or pre-publication approval requirements as applied to newspapers and literature have been held unconstitutional in nearly every conceivable configuration. Near v. Minnesota, 51 S.Ct. 625 (1931); New York Times v. United States, 91 S.Ct. 2140 (1971); Nebraska Press Assn v. Stuart, 96 S.Ct. 2791 (1976); Organization for a Better Austin v. Keefe, 91 S.Ct. 1575 (1971). Where licensing systems in First Amendment contexts other than newspapers and literature have been approved, see Times Film Corp. v. Chicago, 81 S.Ct. 391 (1961) (film censorship); Donaldson v. Read Magazine, 68 S.Ct. 591 (1948) (commercial advertising); and Cox v. New Hampshire, 61 S.Ct. 762 (1941) (permit requirements to use public places), the restraint must be narrowly and specifically drawn to delimit only clearly non-First Amendment activity, and in order to prevent irreparable harm.

First Amendment activities in no manner may be contingent upon the will of a· licensing bureaucrat or school administrator. Staub v. Baxley, 78 S.Ct. 277 (1958) cf. New Left Education Project v. Board of Regents of Univ. of Tex., 326 F.Supp. 158 (3 judge panel, W.D. Tex. 1980).

The apparent unlimited discretion insisted upon by Defendant Thompson is a prior restraint in its most extreme form.

5. Conclusion

Plaintiff has argued above that he has a right under the First Amendment to photograph in a place where he has a right to be, that a communicative forum has been created at the High School from which he has been excluded, and that the only remaining rationale that may exist for the limitations that have been imposed upon him amounts to content censorship. There are three further constitutional principles that should be briefly noted that apply throughout this controversy.

(a) The total absence of any written rules or regulations on the subject of photographing and other communicative activities is a constitu­tional vice in itself. Schiller v. Northern Kentucky University (No. 79-126, E.D. Ky. 1980, slip opinion attached). “Any regulation of First Amendment activities must be narrowly and precisely drawn so that only legally objectionable forms of speech are regulated, and that protected forms are not improperly inhibited.” Id., p. 17. There may be any number of proper “time, place and manner” restrictions imposed upon the collection of information, photographing and other forms of speech at Mariemont High School, but no such restrictions of uniform application have been elaborated.

Until that occurs it is impermissible to allow Plaintiff’s First Amendment activities, in the fashion they have been carried out for the past 3 1/2 years to depend on the bare discretion of a school administration. Schiller v. Northern Kentucky University, supra at p. 20.

(b) The burden imposed upon a governmental agency in attempting to Justify an impingement upon speech is indeed a substantial one. In Kelly v. United States Postal Service, 492 F. Supp. 121 (S.D. Ohio 1980) (Porter, J.), involving symbolic speech in a public workplace, the Court concluded that there was a “heavy burden”, Id. 131 on any such justification. In Schiller the same test, in effect, was applied when the Court imposed a strict scrutiny standard to limitations on speech activities on a college campus. There will be shown no extraordinary circumstances here that would require the Mariemont School to be declared a blackout area for Plaintiff’s camera.

(c) The final consideration for the purposes of meeting the criteria for a temporary restraining order and a preliminary injunction is the fact that “. . . the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable harm.” Elrod v. Burns, 96 S.Ct. 2673, 2690 (1976); Kelly v. United States Postal Service, supra.

Respectfully submitted,

Robert Newman, Trial Counsel American Civil Liberties Union
4 Oak Street
Cincinnati, Ohio 45206
961-5566

Michael O’Hara
American Civil Liberties Union
4 Oak Street
Cincinnati, Ohio 45206