993 F.2d 386
61 USLW 2702, 83 Ed. Law Rep. 43
IOTA XI CHAPTER OF SIGMA CHI FRATERNITY; John Howlin; John
GEORGE MASON UNIVERSITY; Kenneth E. Bumgarner, Defendants-Appellants.
Paul Joseph Forch, Sr. Asst. Atty. Gen., Richmond, VA, argued (Mary Sue Terry, Atty. Gen., H. Lane Kneedler, Chief Deputy Atty. Gen., R. Claire Guthrie, Deputy Atty. Gen., Martha M. Parrish, Asst. Atty. Gen., on brief), for defendants-appellants.
Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, argued, Jeanne Goldberg, Victor M. Glasberg & Associates, Alexandria, VA, Michael P. McDonald, Center for Individual Rights, Washington, DC, Stephen B. Pershing, ACLU of Virginia, Richmond, VA, for plaintiffs-appellees.
Before WIDENER and MURNAGHAN, Circuit Judges, and SPROUSE, Senior Circuit Judge.
SPROUSE, Senior Circuit Judge:
George Mason University appeals from a summary judgment granted by the district court to the IOTA XI Chapter of Sigma Chi Fraternity 1 in its action for declaratory judgment and an injunction seeking to nullify sanctions imposed on it by the University because it conducted an "ugly woman contest" with racist and sexist overtones. We affirm.
Chi has for two years held an annual "Derby Days" event, planned and
conducted both as entertainment and as a source of funds for donations to
charity. The "ugly woman contest," held on
There is no direct evidence in the record concerning the subjective intent of the Fraternity members who conducted the contest. The Fraternity, which later apologized to the University officials for the presentation, conceded during the litigation that the contest was sophomoric and offensive.
Following the contest, a number of students protested to the University that the skit had been objectionably sexist and racist. Two hundred forty-seven students, many of them members of the foreign or minority student body, executed a petition, which stated: "[W]e are condemning the racist and sexist implications of this event in which male members dressed as women. One man in particular wore a black face, portraying a negative stereotype of black women."
The Dean met again with Fraternity representatives on April 18, and the following day advised its officers of the sanctions imposed. They included suspension from all activities for the rest of the 1991 spring semester and a two-year prohibition on all social activities except pre-approved pledging events and pre-approved philanthropic events with an educational purpose directly related to gender discrimination and cultural diversity. The University's sanctions also required Sigma Chi to plan and implement an educational program addressing cultural differences, diversity, and the concerns of women. A few weeks later, the University made minor modifications to the sanctions, allowing Sigma Chi to engage in selected social activities with the University's advance approval.
In addition to the affidavit of Dean Bumgarner explaining his meetings with student leaders, the University submitted the affidavits of other officials, including that of University President George W. Johnson and Vice-President Earl G. Ingram. President Johnson, by his affidavit, presented the "mission statement" of the University:
(4) We are committed to teaching the values of equal opportunity and equal treatment, respect for diversity, and individual dignity.
(5) Our mission also includes achieving the goals set forth in our affirmative action
plan, a plan incorporating affirmative steps designed to attract and retain minorities to this campus.
Vice President Earl G. Ingram's affidavit represented:
The University's affirmative action plan is a part of an overall state plan
designed, in part, to desegregate the predominately "white" and
"black" public institutions of higher education in
(7) While the University has progressed in attracting and retaining minority students, it cannot expect to maintain the position it has achieved, and make further progress on affirmative action and minority issues that it wishes to make, if behavior like that of Sigma Chi is perpetuated on this campus.
The district court granted summary judgment to Sigma Chi on its First Amendment claim, 773 F.Supp. 792 (E.D.Va.1991).
The University urges that the district court's grant of summary judgment was premature. It stresses that there remain factual issues which the district court should have weighed in its conclusion. According to the University, the Fraternity's intent in staging the contest is crucial to the issue of whether its conduct was expressive. The University also stresses that if given time it could demonstrate more completely the harm the contest caused to its educational mission. It is, of course, beyond cavil that summary judgment should not be granted while a viable issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment principles require the court to find that the evidence is such that a jury could not reasonably find for the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of a suit under the applicable law preclude entry of summary judgment.
In our view, for the reasons that follow, the district court was correct in concluding that there was no outstanding issue of material fact.
We initially face the task of deciding whether Sigma Chi's "ugly woman contest" is sufficiently expressive to entitle it to First Amendment protection. From the mature advantage of looking back, it is obvious that the performance, apart from its charitable fund-raising features, was an exercise of teenage campus excess. With a longer and sobering perspective brought on by both peer and official disapproval, even the governing members of the Fraternity recognized as much. The answer to the question of whether the First Amendment protects the Fraternity's crude attempt at entertainment, however, is all the more difficult because of its obvious sophomoric nature.
Amendment principles governing live entertainment are relatively clear: short
of obscenity, it is generally protected. See, e.g., Barnes v. Glen Theatre, Inc., --- U.S. ----, ----, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504
(1991) (nude dancing); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95
S.Ct. 1239, 1245-47, 43 L.Ed.2d
448 (1975) (musical "Hair"); Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir.1985)
(blackface performance), cert. denied, 476 U.S. 1159, 106 S.Ct.
2278, 90 L.Ed.2d 720 (1986). As the Supreme Court
announced Schad v. Borough of Mount Ephraim, 452
U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d
671 (1981), "[e]ntertainment, as well as political and ideological speech,
is protected; motion pictures, programs broadcast by radio and television, and
live entertainment ... fall within the First Amendment guarantee."
we must determine if the skit performed
by Sigma Chi comes within the constitutionally protected rubric of
entertainment. Unquestionably, some forms of entertainment are so
inherently expressive as to fall within the First Amendment's ambit regardless
of their quality. For example, Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661
(1989), the Supreme Court flatly ruled that "[m]usic,
as a form of expression and communication, is protected under the First
Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order.
Motion pictures, too, are included within the free speech guarantee of the First Amendment. The Court emphasized Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), that "[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform." Id. at 501, 72 S.Ct. at 780; Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976) (motion picture theaters involve communication protected by the First Amendment, but the state can regulate their secondary effects).
Even crude street skits come within the First Amendment's reach. In overturning the conviction of an amateur actor for wearing a military uniform in violation of a federal statute, the Supreme Court discussed the statute's "theatrical production" exception. 3 Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558-59, 26 L.Ed.2d 44 (1970). Responding to the Government's argument that the amateur skit was not a "theatrical production," Justice Black, writing for the majority, stated:
It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays.
on this dichotomy between low and high-grade entertainment are the Supreme
Court's holdings relating to nude dancing. Barnes v. Glen Theatre, Inc., --- U.S. at ----, ----, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504
(1991); Schad v. Borough of Mount Ephraim, 452
U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d
648 (1975); California v. LaRue, 409 U.S. 109,
116-18, 93 S.Ct. 390, 395-97, 34 L.Ed.2d
342 (1972). Most recently, in Barnes, the Supreme Court conceded that nude
dancing is expressive conduct entitled to First Amendment protection. 4
"[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who ... wants some 'entertainment' with his beer or shot of rye."
Barnes, --- U.S. at ----, 111 S.Ct. at 2475, 115 L.Ed.2d at 529 (White, J., dissenting) (quoting Salem Inn, Inc. v. Frank, 501 F.2d 18, 21 n. 3 (2d Cir.1974), modified sub nom. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)).
In sum, although the Barnes plurality did not explore these views, it appears that the low quality of entertainment does not necessarily weigh in the First Amendment inquiry. It would seem, therefore, that the Fraternity's skit, even as low-grade entertainment, was inherently expressive and thus entitled to First Amendment protection. See Barnes, --- U.S. at ----, 111 S.Ct. at 2460; Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981); Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558, 26 L.Ed.2d 44 (1970).
The University nevertheless contends that discovery will demonstrate that the contest does not merit characterization as a skit but only as mindless fraternity fun, devoid of any artistic expression. It argues further that entitlement to First Amendment protection exists only if the production was intended to convey a message likely to be understood by a particular audience. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989). From the summary judgment record, the University insists, it is impossible to discern the communicative intent necessary to imbue the Fraternity's conduct with a free speech component.
indicated, we feel that the First
Amendment protects the Fraternity's skit because it is inherently expressive
entertainment. Even if this were not true, however, the skit, in our view,
qualifies as expressive conduct under the test articulated in
Importantly, the affidavits establish that the punishment was meted out to the Fraternity because its boorish message had interfered with the described University mission. It is manifest from these circumstances that the University officials thought the Fraternity intended to convey a message. The Fraternity members' apology and post-conduct contriteness suggest that they held the same view. To be sure, no evidence suggests that the Fraternity advocated segregation or inferior social status for women. What is evident is that the Fraternity's purposefully nonsensical treatment of sexual and racial themes was intended to impart a message that the University's concerns, in the Fraternity's view, should be treated humorously. From the Fraternity's conduct and the circumstances surrounding it, we have no difficulty in concluding that it intended to convey a message.
As to the second prong of the Johnson test, there was a great likelihood that at least some of the audience viewing the skit would understand the Fraternity's message of satire and humor. Some students paid to attend the performance and were entertained. What the Fraternity did not anticipate was the reaction to their crude humor by other students on campus and University officials who opposed the racist and sexist implications of the Fraternity's skit.
Even considering, therefore, the sparsity of the evidentiary record, we are persuaded that the Fraternity's "ugly woman contest" satisfies the Johnson test for expressive conduct. 6
this were not a sufficient response to the University's argument, the
principles relating to content and viewpoint discrimination recently emphasized
R.A.V. v. City of St. Paul, --- U.S.
----, 112 S.Ct. 2538, 120 L.Ed.2d
305 (1992), provide a definitive answer. Although the Court in
evidenced by their affidavits,
University officials sanctioned Sigma Chi for the message conveyed by the
"ugly woman contest" because it ran counter to the views the
University sought to communicate to its students and the community. 7
The mischief was the University's
punishment of those who scoffed at its goals of racial integration and gender
neutrality, while permitting, even encouraging, conduct that would further the
viewpoint expressed in the University's goals and probably embraced by a
majority of society as well. "The First
Amendment generally prevents government from proscribing ... expressive conduct
because of disapproval of the ideas expressed."
The University, however, urges us to weigh Sigma Chi's conduct against the substantial interests inherent in educational endeavors. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism, and in providing gender-neutral education. Yet it seems equally apparent that it has available numerous alternatives to imposing punishment on students based on the viewpoints they express. 8 We agree wholeheartedly that it is the University officials' responsibility, even their obligation, to achieve the goals they have set. On the other hand, a public university has many constitutionally permissible means to protect female and minority students. We must emphasize, as have other courts, that "the manner of [its action] cannot consist of selective limitations upon speech." St. Paul, --- U.S. at ----, 112 S.Ct. at 2548; Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (invalidating a ban on residential picketing that exempted labor picketing); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 1559, 26 L.Ed.2d 44 (1970) (invalidating a law that allowed wearing military uniforms only in dramatic portrayals that did not "tend to discredit the military"). The First Amendment forbids the government from "restrict[ing] expression because of its message [or] its ideas." Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.
The decision of the district court is affirmed.
1 Although Sigma Chi's national fraternity is not involved in the litigation, the IOTA Chapter XI is hereafter referred to as "Sigma Chi" or "the Fraternity."
2 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983.
3 10 U.S.C. § 772(f) provides:
While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.
4 At least eight justices
agreed that First Amendment protection extends to nude dancing, but they
differed in their approaches to defining that protection. Justice Rehnquist,
writing for a plurality, relied on the four-part test announced in United
States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). He concluded that the
Because the sanctions imposed in this case targeted the message communicated by Sigma Chi's skit and are thus related to the suppression of speech, we do not rely on the O'Brien balancing test as the Barnes plurality did.
In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether "[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."
6 We think this conclusion
gains support from City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,
108 S.Ct. 2138, 100 L.Ed.2d
771 (1988), in which the Supreme Court said that one factor weighing in the
equation of whether conduct is expressive is "whether the activity in
question is commonly associated with expression."
7 Nor can we accept the University's contention that the sanctions were imposed as a result of the Fraternity's "pure conduct," unrelated to its communicative aspects or viewpoint. Arcara v. Cloud Books, Inc., 478 U.S. 697, 702-05, 106 S.Ct. 3172, 3175-77, 92 L.Ed.2d 568 (1986); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 & n. 5, 104 S.Ct. 3065, 3069 & n. 5, 82 L.Ed.2d 221 (1984); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949). The University's affidavits clearly point to the contrary conclusion.
8 In St. Paul, the Court
rejected the Minnesota Supreme Court's pronouncement that St. Paul's "hate
speech" ordinance was narrowly tailored to serve St. Paul's compelling
interest in "ensur[ing]
the basic human rights of members of groups that ha[d] historically been
subjected to discrimination."
* In a case decided one
month prior to R.A.V., the Supreme Court noted that
among the most difficult First Amendment cases were those requiring a
reconciliation of our commitment to free speech with our commitment to other
constitutional rights. Burson v. Freeman, --- U.S. ----, ----, 112 S.Ct.
1846, 1851, 119 L.Ed.2d 5 (1992). In Burson, the Court ultimately
upheld the content-based regulation, namely, a