Jack LIEBERMAN et al., Appellants,
v.
J. Stanley MARSHALL, As Acting President of the Florida State University, a Part of the University System of the State of Florida, Appellee.
Supreme Court of Florida.
*122 Richard J. Wilson, and Margaret Kathleen Wright, Gainesville, for appellants.
Wilfred C. Varn, of Ervin, Pennington, Varn & Jacobs, Tallahassee, for appellee.
*123 ADKINS, Justice.
This is an interlocutory appeal from an order denying a motion to dissolve a temporary injunction enjoining certain members of a Chapter of Students for a Democratic Society (SDS) from holding any meeting or rally in any buildings of the campus of Florida State University, a state supported institution, until further order of Court. The interlocutory appeal was first taken to the First District Court of Appeal, but that Court granted appellee's motion to transfer the cause to this Court because constitutional questions in the area of rights claimed by appellants under the First and Fourteenth Amendments to the Constitution of the United States and Sections Five and Nine of Article I, Declaration of Rights, Florida Constitution, F.S.A., are involved. It was alleged that the purpose of the rally was to sponsor a speaker. By virtue of this allegation, appellants' rights under Section Four, Article I, Declaration of Rights, Florida Constitution, are involved. In view of the fact that a final judgment would be directly appealable to this Court, we accept jurisdiction of the interlocutory appeal. Dade County v. Kelly,
At the outset, certain basic principles should be considered. The powers and responsibilities of The Board of Regents, a university president, or principal of a public school, are awesome and extensive. The administrator has wide discretion in dealing with the requirements of campus order and discipline, and with the time, place, and manner of extracurricular lectures. This Court will not ordinarily review the wisdom with which that discretion is exercised. But this Court will review the exercise of governmental power where there is a tenable claim that it has been exercised in a manner inconsistent with the Constitution. See Brooks v. Auburn University,
A college education is no longer a luxury for the wealthy, but is regarded as a necessity for most high school graduates. College students today, through the television, radio, and news media, are usually well-informed in national affairs and reliant. Unfortunately, many limit their interests to rights and privileges to the extent of ignoring their duties and responsibilities to our Great American Heritage. Be that as it may, the State cannot condition the granting of a college education, even though a privilege, upon the renunciation of constitutional rights. Dixon v. Alabama State Board of Education,
The leaders of great universities are frequently required to make agonizing, hard decisions which may well affect the very existence of the university as a free institution. On one side the university president must consider what the Legislature may think; on the other, he must consider what the militant students may think. The long-term interests of the institution require the right decision, regardless of immediate consequences. So it is that the Constitution furnishes a straight, well-defined path for the preservation and continued improvement of our great educational institutions.
Under the United States or Florida Constitution, any college, university, or public school authority may enact rules and regulations denying a campus group access to the institution's buildings, as well as denying an invitation to a guest speaker requested by a campus group, if it reasonably appears that such group or the speaker would, in the course of the use of the building, advocate or attempt:
(1) Violent overthrow of the Government of the United States, the State of Florida, or any political subdivision thereof;
*124 (2) Willful destruction or seizure of the institution's buildings or other property;
(3) Disruption or impairment, by force, of the institution's regularly scheduled classes or other educational functions;
(4) Physical harm, coercion, intimidation or other invasion of lawful rights of the institution's officials, faculty members or students; or
(5) Other campus disorder of violent nature.
Such rules and regulations meet the clear and present danger test, as they suppress only those activities which would result in serious substantive evil which the institution has the right to prevent. See Stacy v. Williams,
This case arose at the Florida State University in Tallahassee. J. Stanley Marshall, as Acting President of the University, secured an ex parte restraining order March 4, 1969, to prevent the alleged intended occupation that same evening, without permission of the University, of the Florida Room of the University Union. Under regulations of the Board of Regents of the University System of Florida, as well as Regulations of Florida State University, student organizations officially recognized by the Administration of the University may with permission use the university buildings for holding scheduled rallies and sponsoring speakers. The campus chapter of Students for a Democratic Society, SDS, was denied official recognition a few days previously by Acting President Marshall.
The President sought a court order forbidding use of the building for the purpose of holding a nonapproved rally or sponsoring the appearance of a speaker, which rally and speech he alleged were to be held for the sole purpose of causing a confrontation between the administration and SDS, which it was alleged would have resulted in disruption to the University and would have caused irreparable injury. The Circuit Court of Leon County enjoined occupation of campus buildings, but not use of campus grounds.
The injunctive order of the Court was served the evening of March 4, 1969 on defendants by law officers, in the Florida Room, after the occupation and rally already had begun. Although many students left the premises on reading of the Court order, a number refused to obey. Fifty-eight were arrested, and several were ordered by the Court to show cause why they should not be held in contempt.
Subsequently, the defendants moved to dismiss the injunctive complaint for insufficiency, and to dissolve the injunction forbidding use of campus buildings on grounds it violated their constitutional rights. At a hearing April 28, 1969, the trial judge refused both motions, stating his findings that the restraining order had been necessary, because the confrontation planned and staged by SDS would have created a risk of violence and would have unduly disrupted the University campus.
The issues raised and argued by defendants center on two primary questions:
First, was the injunction legally sufficient at the time it was initially issued?
Second, do the SDS members have a present constitutional right to use the Florida Room of the University Union regardless of University rules or decisions; restated, does denial of such use infringe on citizenship rights protected by the Federal or State Constitutions?
These questions will be discussed in order.
The temporary injunction was issued without notice to the defendants and without giving them an opportunity to be heard in opposition.
Rule 1.610(b), R.C.P., 31 F.S.A., contains the following:
"No temporary injunction shall be granted except after notice to the adverse *125 party unless it is manifest from the allegations of a verified complaint or supporting affidavits that the injury will be done if an immediate remedy is not afforded and in such event the court may grant a temporary injunction until a hearing or further order of court."
The rule also provides for bond, dispensable if the injunction is sought by a public agency. A state university is such an agency, and the trial judge had authority to issue the injunction without requiring bond.
Rule 1.610(b) rests on the rationale that courts should not intercede in the affairs of men except on a showing of necessity, where injury and damage are shown by proofs. Since orders are sustained by proofs, and proofs result from adversarial presentations, a court should never issue an ex parte order without notice to defendants and without a hearing, unless an immediate threat of irreparable injury exists, which forecloses opportunity to give reasonable notice and in which a subsequent remedy for damages or other relief would be inadequate.
To justify issuance of a restraining order without notice, it must appear that the time required to give notice of a hearing would actually permit the threatened injury to occur. Thursby v. Stewart,
The argument that appellee should have applied earlier to the court for an injunction in order to provide more time for notice and participation bears no weight. SDS might have called off the meeting, or moved it to the lawn, or gone to court to challenge the decision it chose to defy. We do not believe that a university or other agency, threatened with an injury which might not happen, is required to go to court at the earliest possible moment to secure an injunction. We conclude that a public agency, rather than being required to speculate as to what might happen, should be permitted to wait until the last opportunity to preserve the status quo, before invoking the extreme measures of the judicial process. A state agency, charged with a public trust, cannot be placed in the position where it must forfeit its right and power to restrain injury, if it chooses to wait until the fifty-ninth minute, while attempting to negotiate away or avoid the problem it faces.
The purpose of an injunction is not to take sides or to preserve a status quo which existed at some time prior to the controversy. Rather, as we stated in Bowling v. National Convoy & Trucking Co.,
"[B]y the status quo which will be preserved by preliminary injunction is meant the last, actual, peaceable, noncontested *126 condition which preceded the pending controversy. * * *" (p. 544)
In the case sub judice, the pending controversy which appellee sought to avoid was the defiant and disruptive occupation of the Florida Room, and the status quo sought to be preserved was, as it should have been, the last, peaceable, uncontested condition preceding such confrontation and occupation.
The requirement of Rule 1.610(b) that a complaint must show irreparable injury is long-established law in Florida. See Charlotte Harbor & N. Ry. Co. v. Lancaster,
It is argued by defendants that no irreparable injury is alleged to support the injunction, and that any injury which in fact might have occurred was susceptible to reparations by law. We disagree.
The State and its citizens, through their University and public school officials, have a valid interest in the orderly, peaceful, and nondisrupted operation of the University system. Actions which fall outside protected constitutional liberties, and which invade this valid state interest, are susceptible of being restrained, and the state is not restricted to after-the-fact punishment by administrative or criminal sanctions. Restraint may be imposed where necessary to preserve the safety and order of the campus community and prevent interference with pursuit of educational objectives; behavior susceptible of such restraint includes seizure of a portion of a campus building, and conduct which may without exaggeration be termed disruptive, contemptuous, defiant, highly visible and provocative, intended to bring about a confrontation, and carrying with it the virus of violence. However, the state's interest which may be protected must in every case be more than mere public desire, public demand, or public benefit, and must be grounded in genuine necessity for health, safety and welfare. Peavy-Wilson Lumber Co., Inc. v. Brevard County,
"Those charged with the administration of the state's institutions of higher learning * * * must determine the standard of behavior necessary to maintain discipline and general good conduct of the members of the student body as is essential to preserve high public regard * * * and to properly utilize the facilities and services which the universities are intended to provide." (p. 59)
We conclude that the University would have been irreparably injured were the confrontation continued and occupation of the Florida Room permitted, the injunction was properly issued, and that it was necessary that the defendants obey it unless their actions were shielded by constitutional liberties under the Florida or United States constitutions.
The injunction does no violence to Section 5, Article I, Florida Constitution, which reads as follows:
"The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances."
As appellants were merely restrained from unlawfully occupying and unauthorizedly *127 using any building in defiance of the Rules of the University, their right to assemble, to hold a meeting or rally, or to express their views was not restrained.
The next question is whether the injunction infringed improperly on the liberty of speech guaranteed to citizens of this state by Article I, Declaration of Rights, ยง 4, Fla. Const. (1968).
Section 4, of the Declaration of Rights, is almost identical to Section 13, Declaration of Rights of the Constitution of 1885. We therefore adopt as authority under Section 4, of the 1968 Constitution, those cases which construed Section 13 of the 1885 Constitution.
The Declaration of Rights, Section 4, provides:
"Every person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. * * *"
It is undisputed that the command that no law shall be passed also means that no order shall be issued and no regulation adopted in the name of the state which infringes on the liberty herein reserved to the people.
It is contended by defendants that the injunction infringes on their constitutional right of liberty of speech.
In Stoner v. South Peninsula Zoning Commission,
Conflicts between actions by public officials and citizens attempting to exercise constitutionally-protected liberties of speech have not been infrequent in Florida. Examination of our cases reveals several balanced policies. Liberty of speech must be respected by public agents, even if the speech is angry, critical, adverse, or threatens to bring about economic harm, as in union activity. Unreasonable or improper infringements of this liberty cannot stand. State ex rel. Wilson v. Russell,
It is claimed in the case sub judice by appellants that their liberty of speech protects them from an injunctive order forbidding use of the Florida Room without permission. Recognizing, as we must, that the University permits other student organizations to use the room for meetings, if they are officially recognized, the question presented is not without difficulty. As the Supreme Court of California stated on somewhat similar facts,
"The state is under no duty to make school buildings available for public meetings. If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. Nor can it make the privilege of holding them dependent on conditions that would deprive any members of the public of their constitutional rights."
Danskin v. San Diego Unified School Dist.,
We hold that a University in Florida need not open its campus buildings to student groups, but if it does so, it may not close such buildings to any students in violation of their constitutional rights, including liberty of speech.
Without deciding whether any student group could use campus buildings without permission, we conclude that in the circumstances of this case, denial of recognition of SDS appears to have been valid. Further, the order of the trial court denying the motion to dissolve the injunction also was valid. The injunction did not ban SDS from the Florida State University campus, but only from unpermitted occupation of buildings which, it may be presumed, have other legitimate uses not justifiably interrupted at the whim of a small group.
The interest of the state and its citizens in this situation is clear. As in any other community, rules must be made and generally followed for the convenience and safety of all. They must also be made and enforced within a campus community. Casual or indifferent disobedience to the law is not tolerated. Bad actions may be mitigated, but are not sanctified, by noble motives. The existence of serious local or national problems may be cause for action, but is not cause for striking the face or blocking exercise of valid rights of the nearest person who fails to agree and take up banners for a particular cause.
We should be gratified by the deep and passionate interest of our students today in the world and our country. An apathetic young American citizenry would be a tragedy. One that is alert, interested, and argumentative is a vital line of defense against the decline of our free institutions. But some cannot understand that he who flouts the law cannot be confident of the protection of any law.
Dissent is built into the policy of our constitution, but it must be contained within the framework of the constitutions. University officials are entitled ย indeed, they have the unavoidable duty ย to maintain campus order and discipline, to protect the campus from undue disruption and violence, and to pursue educational goals.
When the interest of SDS members in seizing a portion of a campus building in open defiance of known university regulations is balanced against the need of the university to maintain order and respect for fair rules, and its need to pursue educational goals without undue disturbance, it is apparent that the equities clearly lie with the university and that the activities *129 of SDS and its members fell beyond the limits of protected speech under our state constitution.
The question of whether the injunction infringes on freedom of speech and assembly guaranteed by the First Amendment to the United States Constitution, and extended to actions of state officials by the Fourteenth Amendment should also be considered. In taking up this question, our role is clear:
"The Constitution of the United States, within its limited sphere, is the supreme law of the land; and it is the duty of all officials, whether legislative, judicial, executive, administrative, or ministerial, to so perform every official act as not to violate the constitutional provisions.
"The duty rests upon all courts, state and national, to guard, protect, and enforce every right granted or secured by the Constitution of the United States, whenever such rights are involved in any proceeding before the court and the right is duly and properly claimed or asserted." Montgomery v. State,55 Fla. 97 ,45 So. 879 , 881 (Fla. 1908).
Stephens v. Stickel, supra, (
"The organic command that no law shall restrain or abridge the liberty of speech * * * does not by its terms or intendments contemplate that the exercise of such liberty * * * shall be superior to reasonable duly authorized regulations * * *."
The court then held that the liberty of speech involved in distribution of religious literature to motorists at street intersections was subordinate to the state's interest in securing orderly traffic movement and efficient use of its streets.
There are many decisions of the Federal courts relating to freedom of speech under the Federal Constitution, and concerned with the rights of students or employees or public, relating to universities and schools. Underlying all these decisions is the fundamental principle that the absence of a valid state interest is fatal to a state action relating to exercise of fundamental freedom, and the existence of such an interest ordinarily will justify the limited and reasonable regulation of the exercise of such fundamental freedom.
This dichotomy underlies the companion orders, both filed July 21, 1966, of the United States Fifth Circuit Court of Appeals in Blackwell v. Issaquena County Board of Education,
Both these cases were relied on by the United States Supreme Court, in Tinker v. Des Moines Independent Community School District,
"[M]ay express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without `materially and substantially interfering with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. Burnside v. Byars * * *. But conduct by the student, in class or out of it, which for any reason ย whether it stems from time, place or type of behavior ย materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquenna County Board of Education * * *." (p. 740).
Counsel for appellant students relies heavily on Brooks v. Auburn University, supra, in which the Federal District Court for the Middle District of Alabama held that an unconcealed and invalid prior restraint on freedom of speech existed where Auburn University adopted regulations stating that student organizations could not invite speakers onto campus who might advocate breaking the law, or who previously had been convicted of a felony, or whose views the University might not approve or find acceptable. The Court held that a University President clothed with power to permit or deny on-campus appearance of speakers may not bar the way to any speaker except on a showing of a clear and present danger the speaker will break the law, and that all speakers invited by all student groups must be permitted to use facilities provided to some speakers invited by some student groups.
Although the decision of the District Court in the Auburn case would not be binding on this Court, its weight as authority is not lightly ignored. However, in the case sub judice we are faced with an injunction granted to prevent the occupation of a portion of a campus building, by a student organization whose denial of recognition has not been shown to be invalid, to hear a speaker whom the university neither approved nor disapproved, in circumstances which reveal calculated and deliberate efforts to publicly confront, embarrass, defy and challenge the university in the enforcement of its regulations.
For other important decisions relating to First Amendment freedoms and school authorities, see Steier v. New York State Education Commissioner,
Other cases illuminating the state of Federal law are: West Virginia State Board of Education v. Barnette,
Under the Federal Constitution, the free exercise of First Amendment freedom may not be restrained absent a "clear and present danger" to a substantial governmental interest. Schenck v. United States,
"When clear and present danger appears of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. Equally obvious is it that a state may not unduly suppress free communication of views * * * under the guise of conserving desirable conditions." (at 308,60 S.Ct. at 905 )
The Federal District Court for the Western District of Missouri, sitting en banc, took up the problem of students' rights and university authority, and adopted a "General Order on Judicial Standards of Procedure and Substance," reported at
"Attendance at a tax supported educational institution of higher learning is not compulsory. The federal constitution protects the equality of opportunity of all qualified persons to attend. Whether this protected opportunity be called a qualified `right' or `privilege' is unimportant. It is optional and voluntary.
"The voluntary attendance of a student in such institutions is a voluntary entrance into the academic community. By such voluntary entrance, the student voluntarily assumes obligations of performance and behavior reasonably imposed by the institution of choice relevant to its lawful missions, processes, and functions. These obligations are generally much higher than those imposed on all citizens by the civil and criminal law. So long as there is no invidious discrimination, no deprival of due process, no abridgement of a right protected in the circumstances, and no capricious, clearly unreasonable or unlawful action employed, the institution may discipline students to secure compliance with these higher obligations as a teaching method or to sever the student from the academic community.
"No student may, without liability to lawful discipline, intentionally act to impair or prevent the accomplishment of any lawful mission, process, or function of an educational institution." (p. 141)
The views expressed and the conclusions which are reached in the case sub judice, are further bolstered by comments in 22 Vanderbilt Law Review 1027 (Oct. 1969), 13 South Dakota Law Review 96 (Winter 1968), 42 Tulane Law Review 394 (Feb. 1968), and 56 Virginia Law Review 215 (March 1970).
It necessarily follows that the order of the Circuit Court denying the motion to dissolve the temporary injunction should be and is hereby
Affirmed.
ROBERTS, Acting C.J., and DREW, CARLTON and BOYD, JJ., concur.