This is not the ordinarily encountered First Amendment case in which a university student newspaper seeks to set aside an order directing it not to publish something which it wishes to publish.

To the contrary, it is a case in which a nebulous group, the Mississippi Gay Alliance, representing itself to be an association "basically comprised of homosexuals", seeks judicial compulsion against a student newspaper requiring publication of an advertisement which that paper does not want to publish.

The District Court refused to command publication. We affirm.

On August 16, 1973, a female, the self-styled chairwoman of the Mississippi Gay Alliance, presented a proposed paid advertisement to The Reflector, the student newspaper at Mississippi State University.

The proposed advertisement read as follows:

The editor of the student newspaper refused to accept the tendered paid advertisement.

On February 8, 1974, the same person presented an announcement to be printed in the "briefs" section of The Reflector. This, too, was rejected. The content of that announcement does not appear in the record.

Whereupon, suit was filed against the editor and others, alleging that the refusal to print the paid advertisement and announcement deprived the Gay Alliance of its First Amendment rights and praying that the defendants be ordered to print the rejected material. The suit also sought an order requiring defendants to print future advertisements and announcements tendered by the Gay Alliance. Actual and punitive damages were also demanded.

The parties agreed to stipulations, which might be summarized as follows:

1. The named plaintiffs are not MSU students nor is the MGA a recognized student organization.

2. No member of the MGA was enrolled as an MSU student.

(This second stipulation was, at plaintiff's request, modified by court order in December, 1974, after the district court's ruling was issued. The new stipulation apparently says that some members of the MGA were MSU students. This modification did not affect the ruling of the district court).

3. The MSU student body elected Bill Goudelock as editor of The Reflector.

4. Funds supporting The Reflector are derived at least in part from a non-waivable fee charged to students at MSU.

5. (University officials) Giles, Meyer, and Dudley did not give Goudelock any instructions not to accept the proffered material.

The trial court reviewed these facts, and determined that there were four issues in the case: (1) whether plaintiffs had standing to sue; (2) whether plaintiffs' unclean hands precluded the possibility of the court granting them the equitable relief they sought; (3) whether there was state action on the part of the defendant to support this § 1983 action; and (4) whether the First Amendment protection that covers a student newspaper meant that plaintiffs had no cause of action against Goudelock.

Deciding nothing with reference to the first two points, the District Court found, on the complaint and the stipulated facts, that there was no indication that any University official or faculty member had anything to do with the rejection of the advertisement or the announcement; that there was a complete lack of control over the student newspaper on the part of University officials.

The Court concluded that the rejection of the advertisement "does not constitute state action in any sense of the term".

Relying on Bazaar v. Fortune, 5 Cir., 1973, 476 F.2d 570, affirmed as modified, 489 F.2d 225 (en banc) and Miami Herald Publishing Company v. Tornillo, 1974, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730, it was held that in the absence of state action the student newspaper editor could "accept or reject such material as he saw fit".

While it is true that the student newspaper is supported, in part, by activity fees collected by the University, the students elect the editor. The complaint did not allege and the stipulations did not assert that University officials supervise or control what is to be published or not published in the newspaper.

As a matter of fact, in the context of the matter before us, this Court has held that the University authorities could not have ordered the newspaper not to publish the Gay Alliance advertisement, had it chosen to do so, see Bazaar v. Fortune, supra.

In Miami Herald Publishing Company v. Tornillo, supra, the Supreme Court flatly declared:

"The choice of material to go into a newspaper * * * constitute(s) the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."

Since there is not the slightest whisper that the University authorities had anything to do with the rejection of this material offered by this off-campus cell of homosexuals, since such officials could not lawfully have done so, and since the record really suggests nothing but discretion exercised by an editor chosen by the student body, we think the First Amendment interdicts judicial interference with the editorial decision.

There are special reasons for holding that there was no abuse of discretion by the editor of The Reflector.

Hutchinson's Mississippi Code of 1848 included the following provision:

"Unnatural Intercourse; Punishment.

"Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years."1

The exact language of this provision has been retained in the Code revisions of 1857, 1871, 1880, 1892, 1906, 1917, 1930, 1942, and 1972.2

The Mississippi statute condemns any intercourse which is unnatural, detestable and abominable, including acts committed per anus or per os, State v. Davis, 223 Miss. 862, 79 So. 2d 452 (1955). This is not surprising. The very title of the statute shows it to have been directed against "Unnatural Intercourse".

The statute is not unconstitutional, State v. Mays, 329 So. 2d 65 (Miss.1976).3

The editor of The Reflector had a right to take the position that the newspaper would not be involved, even peripherally, with this off-campus homosexually-related activity.4

AFFIRMED.

I respectfully dissent.

I understand the trial court and the majority of this panel to hold that the lack of direct involvement by university officials and the free expression rights of student editors combine to preclude any possible right of access to the Reflector on the part of the MGA. I disagree with that holding and, on the allegations, would find a narrowly circumscribed right of access which might extend to the MGA in this case.

The majority opinion here can be read as also deciding, in an alternative holding, that the advertisement tendered by the MGA was undeserving of any first amendment protection which might otherwise exist, because the ad might have "involved" the newspaper "with . . . off-campus homosexually-related activity." This latter holding, if indeed it is that, is clearly and absolutely wrong.

A proper disposition of this case requires that we balance the rights of speakers and hearers of "protected" speech against special considerations supporting student control over student publications. In order that my position on the narrow but important first amendment issues in this case might be fully understood, I find it necessary at this juncture to summarize briefly the course of this litigation. After reviewing the background, I will discuss what I consider to be an easy issue whether the MGA advertisement is "protected" speech. Finally, I will attempt to explain why I would reconcile the competing first amendment interests in a different fashion than did the trial court.

In August, 1973, the Mississippi Gay Alliance (MGA),1 through one of its officers, submitted the following paid advertisement to be placed in the Reflector, the student newspaper at Mississippi State University (MSU):

Bill Goudelock, then the student editor of the paper, refused to accept the tendered advertisement. According to the plaintiffs' allegations, the Reflector at that time printed paid and unpaid advertisements of commercial, political, social, religious and informative natures.

In February, 1974, the MGA presented an announcement (the contents of which are not in the record) to the Reflector, asking that it be placed in the "Briefs" section, wherein the paper regularly ran announcements of campus and local organizations free of charge. This was never printed. In March, 1974, the MGA and individual members of the MGA filed the instant suit, seeking to compel publication of their ads, and to obtain declaratory relief and damages. In addition to Goudelock the following were named as defendants: Henry F. Meyers, Faculty Adviser to the student paper; Sam Dudley, Chairman of the MSU communications department; and William L. Giles, President of MSU. After limited discovery by both sides, the three MSU defendants moved to dismiss on the grounds that plaintiffs lacked standing to sue, had acted in bad faith, and had unclean hands.

At a hearing on this motion, the trial court proposed a set of stipulated facts. After some negotiation, the parties agreed to the stipulations which are summarized in the majority opinion. As indicated in that opinion, the district court did not decide the issues of standing2 and unclean hands.3 Rather, the trial court dismissed the action on the grounds now adopted by the panel here.

In determining the appropriate standard of review in this case, it should be noted that the exact nature of the procedural disposition by the lower court is uncertain. The ruling seems to say that no cause of action was stated, which would indicate dismissal under Fed.R.Civ.P. 12(b)6. On the other hand, the trial court's reliance on the stipulated facts suggests that the motion to dismiss was being treated as one for summary judgment (Rule 56 via Rule 12).

The MGA argues that if the latter analysis is accurate, the trial court erred in failing to follow the procedures set out in Rule 12 for converting the motion the nonmoving party must be given a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." If the district court's view of the law is correct, however, the plaintiffs in effect had their "reasonable opportunity" no material they could have presented could have changed the legal effect of the stipulated facts.

I think that it would be most appropriate to treat the disposition below as a summary judgment. The major issues before this court could then be stated as follows: 1) does there exist in any circumstances a constitutional right of access to the advertising and announcement sections of student newspapers at state universities? 2) If so, are there any factual questions in this case which, if resolved in favor of the plaintiffs, could lead to the conclusion that the plaintiffs were within the scope of such a right? If both questions are answered affirmatively, then summary judgment was improper, and, a fortiori, disposition under Rule 12(b)(6) would have been improper.

Before discussing those major issues, however, I will address the issue raised for the first time in the majority's apparent alternative holding whether the MGA ad is "protected" speech.

As I have indicated, the majority's discussion of "special reasons" justifying the student editor's refusal to accept this ad can be read as an implicit holding that the MGA ad was "unprotected" speech for first amendment purposes. Such a holding obviously would be fallacious. If other local groups had a right of access to the Reflector, that right could not be denied the MGA in respect to the advertisement at issue here. The ad directly solicits nothing approaching criminal activity, and the publication of the ad would not involve the Reflector, "even peripherally," in the proscribed activities discussed in the majority opinion.

The advertisement simply sought to notify persons who were homosexuals, who were interested in the subject of homosexuality or who had problems relating to homosexuality that certain services were available to them at a "gay center." No statute, in Mississippi or in any relevant jurisdiction, makes criminal the status of being a homosexual.4 Indeed, no statute could do that and survive constitutional challenge. See Robinson v. California, 1962, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758. On the face of it, none of the services listed in the advertisement could conceivably be characterized as illegal. The suggestion of Judge Coleman that the criminal taint in the ad is demonstrated by the offer of "legal aid" implies a presumption of illegality whenever lawyers are involved5 surely the level of respect for the profession has not reached this nadir.

Thus, the exception whereby statements which propose illegal transactions are rendered valueless for first amendment purposes cannot be applied to this advertisement.6 Neither could the advertisement even arguably be characterized as "unprotected" speech on any other ground. It is not "directed to inciting or producing imminent lawless action."7 The ad could occasion no substantial disruption of classroom activity,8 nor could it be construed as an "intolerable" invasion of a "substantial" privacy interest.9 No basis exists for suggesting that the ad is libelous,10 obscene11 or "fighting words."12 In short, nothing in the record contradicts the following statement of the trial court:

It is certainly true that this ad tendered by Anne DeBary appears quite innocuous on its face. It certainly would not be such matter that might be regarded as obscene, or, in the eyes of many people, offensive.13

The ad carried an informative statement with regard to a matter of social concern, and, as seen, its contents trigger none of the recognized exceptions to freedom of speech.

Thus, this is not an "unnatural intercourse" case, and there exist no "special reasons" related to the content of the ad which would justify its discriminatory rejection in the face of a general right of nondiscriminatory access. I turn, then, to the difficult first amendment questions actually presented in this case.

The MGA's argument that it had a right of access to the advertising columns of the Reflector is based on the notion that when the state provides a communication forum generally open to the public, the state may not discriminatorily forbid the use of the forum by certain individuals because of the content of their proposed messages. After discussing the contours of this "public forum" doctrine as it might be applied to a state newspaper, I will address two separate questions which the trial court and the majority have commingled: 1) should the Reflector be viewed as a state newspaper?; 2) assuming that the Reflector engages in state action, do the free expression rights guaranteed to student editors preclude any right of access on the part of outside groups? As will be seen, I conclude that on the basis of the allegations the advertising and announcement sections of the Reflector can be seen as a public forum to which the MGA might have a right of nondiscriminatory access.

A. Equal Access: State Newspapers as Public Forums.

There is authority for the proposition that the first amendment's guarantee of free speech carries with it some requirement that the state provide "minimum access" that is, that the state accommodate speakers' attempts to obtain access to listeners.14 Freedom of association, as well as freedom of speech, supports such a requirement in some situations.15

Whatever the scope of the minimum access requirements of free speech, a narrower doctrine is well established in Supreme Court precedent when the state has provided a public forum through which speakers might have access to listeners, the state cannot discriminate among potential speakers on the basis of the content of their message.16 The notion that there must be equality of access to public forums is compelled not only by speech and associational rights, but also by the full force of the equal protection clause.

The Supreme Court expounded on equal access in Police Dep't of Chicago v. Mosley, 1972, 408 U.S. 92, 95-96, 92 S. Ct. 2286, 2290, 33 L. Ed. 2d 212:

. . . (A)bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . . . To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." . . .

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone and may not be justified by reference to content alone.

(Citations and footnote omitted.)

The state, of course, has considerable discretion in reasonably regulating the time, place and manner in which speech may be made from various public forums.17 What the state cannot do is to provide a forum through which some members of the public are able effectively to communicate their message to a certain audience while other members of the public are prohibited from utilizing the forum because of the content of their proposed messages.18

I take it to be quite clear, for example, that a city, having established a "speaker's corner" in a public park from which almost anyone might speak about almost anything, could not constitutionally prohibit speeches dealing non-obscenely with the topic of homosexuality.19

Taking the hypothetical a step closer to the instant case, we might posit a newspaper paid for and published by the state call it the "Open Forum" in which all citizens are invited to express their views on any issue, subject only to reasonable space limitations and a small fee to help offset printing costs. Could the "Open Forum" refuse to print a tendered statement on the ground that it expressed a political view contrary to that of the Governor, or on no stated ground at all? Surely not. Conceivably, the state could place many non-content-oriented restrictions on the form of the messages, but the state could not refuse tendered statements otherwise similar in form to those regularly accepted solely because the proffered ads were disagreeable in content.20

The conclusion I reach with regard to the "Open Forum" hypothetical finds support in the case law. In a case with striking similarities to the one before us, the Seventh Circuit held that a state university's campus newspaper which was open to commercial and some political and service advertisements could not constitutionally reject, because of editorial content, advertisements describing the purposes of a university employees' union, an advertisement proclaiming the immorality of racial discrimination, or advertisements pertaining to race relations and the Vietnam War. Lee v. Board of Regents, 7 Cir. 1971, 441 F.2d 1257, aff'g, 306 F. Supp. 1097. Indeed, the only potentially important distinction between Lee and the instant case is that in Lee, it was "conceded that the campus newspaper is a state facility." 441 F.2d at 1258. The rules under which the tendered advertisements were rejected had been promulgated by a faculty-student committee. 306 F. Supp. at 1099.

In Zucker v. Panitz, S.D.N.Y.1969, 299 F. Supp. 102, the district court reviewed a claim by high school students seeking to publish in the high school newspaper paid advertisements opposing the Vietnam War. The court found that the newspaper was "a forum for the dissemination of ideas," noting that other articles on the war and the draft had been published in the paper and that the paper was open to the free expression of ideas in news and editorial columns and in letters to the editor. Relying on Tinker v. Des Moines Indep. Comm'ty School Dist., 1969, 393 U.S. 503, 503 S. Ct. 733, 21 L. Ed. 2d 731, the district court enjoined the school officials from interfering with the right of students in the high school to place advertisements in the school newspaper.

In Radical Lawyers Caucus v. Pool, W.D.Tex.1970, 324 F. Supp. 268, Judge Roberts held that the Texas Bar Journal, conceded to be an agency of the state of Texas, was prohibited by the first and fourteenth amendments from refusing to accept an advertisement publicizing an upcoming meeting of the plaintiff organization. The court disposed of the defendant's argument that the Journal be permitted to refuse "political and editorial" advertising so that it might "maintain its neutrality in controversial matters," by pointing to position-taking political statements that had appeared in the Journal. Id. at 270.

A "state" newspaper could not constitutionally refuse advertisements advocating one side of a public issue while accepting advertisements advocating the other side. No less offensive to the first and fourteenth amendments should be a case in which advertisements dealing with public issues are generally accepted, but advertisements on certain public issues are selectively and arbitrarily excluded.21

Were the Reflector clearly a paper run by and for the state, then, the allegations of the MGA (unaltered by the stipulated facts) that the paper regularly accepted paid and unpaid messages and announcements from other local groups would be sufficient to raise a genuine issue of material fact. If the allegations were true, the state would have denied the MGA equal access to a public forum.

On the other hand, if the Reflector were purely a private newspaper, there presumably would exist no such right of access. The editor of a private newspaper is constitutionally protected in a decision not to publish a political reply advertisement, even in the face of a state right to reply statute. See Miami Herald Publishing Co. v. Tornillo, 1974, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730. Clearly, then, a federal court would have no power, under statutes requiring "state action," to prohibit a non-state newspaper from exercising selective content discrimination in its publication of advertisements.22

The first question thus becomes whether the Reflector can be characterized as the state. Even if, under traditional analysis, "state action" is found, the court must proceed to the further question of whether the newspaper is, at least in part, a public forum. That question will require a review of special considerations relating to student newspapers, and a balancing of competing first amendment interests.

B. State Action.

As indicated above, Lee and Zucker were not difficult cases with regard to the question of state action. It was clear in both that officials, not students, exercised ultimate responsibility for the censorship decision. Indeed, the student editors in Zucker were plaintiffs, seeking to compel publication of the advertisements. Although the students in Lee may have supported the official rules and the specific decision not to publish, it was conceded that the censorship was the product of state action. In this case, by contrast, the university officials argue that they do not and indeed could not countermand specific editorial decisions of the student editor of the Reflector, and thus that the "state action" required to trigger the public forum doctrine is lacking. The trial court and the majority here have agreed with this argument.

The absence of affirmative involvement by university officials in the decision to refuse the MGA ad should not end the state action inquiry. Were direct, active involvement by state officials to become a prerequisite for a state action finding, Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45, and Marsh v. Alabama, 1946, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265, would have to be overruled, and cases like Hudgens v. N.L.R.B., 1976, --- U.S. ----, 96 S. Ct. 1029, 47 L. Ed. 2d 196; Moose Lodge No. 107 v. Irvis, 1972, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627, and Golden v. Biscayne Bay Yacht Club, 5 Cir. 1976, 530 F.2d 16 (en banc) would be very easy cases. State action of course, is not so simple. A number of factors must be examined to determine if the action challenged as detrimental to individual rights should be considered to be state action for fourteenth amendment purposes. As Judge Coleman emphasized in Golden, the ultimate question is whether the facts establish "significant state involvement" in what otherwise may appear to be private activity. 530 F.2d at 19.

To my mind, the allegations of the MGA, if shown to be true, would establish that actions taken by the Reflector, as it deals with and appears to members of the public, should be considered to be state action. The complaint in this action set forth the following allegation:

The Reflector is the official newspaper of MSU, a state supported and controlled institution of higher learning. The major portion of the Reflector's financing comes from the Student Activity Fund which is collected by MSU and disbursed to the Reflector. The Reflector is printed on MSU facilities and it is an organ of MSU.

The stipulations included the fact that funds supporting The Reflector were derived from a non-waivable fee charged to students at MSU.

The Reflector's funding is thus derived from what is in effect a tax charged by the state to the students.23 The allegations suggest that the imprimatur of the state is clearly stamped on the paper. In these circumstances, I have little doubt that this court would review a decision by the students to exclude blacks from participation on the newspaper staff as a decision imbued with state action.24 To my mind, the pure "state action" question should be the same in the first amendment context. Cf. Golden, supra, 530 F.2d at 19.

Having concluded, on the issue of "state action," that appellants are deserving of at least a remand,25 I turn to what I consider the most significant question in this case: does the Constitution permit student editors of an official publication at a state university to pursue a general policy of accepting from local groups advertisements dealing with matters of public interest, but at the same time to exclude, because of its content, a certain advertisement proffered by a similarly situated group?

C. A Right to Edit.

Clearly, student editors of a campus newspaper are protected by their own first amendment rights.26 As the cases discussed below demonstrate, these rights include in some contexts the right to refuse to print as well as the right to print. The district court seems to have determined that these rights extend to provide complete student autonomy over all sections of the newspaper. Relying on this Circuit's decision in Bazaar v. Fortune,27 and the Fourth Circuit's opinion in Joyner v. Whiting,28 the trial judge concluded that student editor of The Reflector was protected in his decision to reject the MGA advertisement by the same protections which, in Tornillo, shielded the Miami Herald's decision not to run a reply to its editorial.

Bazaar held that, on the facts before it, state university officials could not censor the contents of a student literary magazine. The court rejected the defendants' argument that, because the magazine was published with the advice of the university's English department, the magazine would be identified as speaking for the university, which gave the defendants a right to censor. Neither was censorship justified on the ground that four-letter words used in the objected to stories made them "too tasteless and inappropriate" to be connected with the university. Our en banc court modified Bazaar only by making explicit the university's right to print a disclaimer of official responsibility with the stories. 489 F.2d 225.29

Joyner held that a state university's withdrawal of financial support from the official newspaper, in response to the newspaper's segregationist editorial policy, abridged the freedom of press rights of the students. 477 F.2d at 460-62.30

These cases do not suggest that the Reflector should be thought of as something other than a state newspaper indeed, they suggest the contrary. The rationale of Bazaar is expressly grounded on the "open forum" cases discussed in the preceding section. 476 F.2d at 575. Although Joyner invokes "freedom of the press", the result in that case is certainly consistent with public forum notions, and the Joyner court also relies on the open forum cases cited above. 477 F.2d at 460. Bazaar and Joyner indicate that state school officials, having provided a forum for free expression by students, cannot censor the content of the messages that the students seek to disseminate. That rule, on its face, would not be inconsistent with a requirement that the columns of the state-sponsored paper be open to anyone with anything to say. The Joyner court seemed to recognize this possibility:

When a college paper receives a subsidy from the state, there are strong arguments for insisting that its columns be open to the expression of contrary views and that its publication enhance, not inhibit, free speech.

477 F.2d at 462.

In my opinion, however, a requirement of wide-open access to the pages of a student newspaper would sweep much too broadly. To the extent that the right of student editors to free expression is to be protected, that right must include the right to edit. With limited space for news and editorial columns, and with attribution on the masthead as "editors," students operating a student paper must necessarily exercise some discretion in choosing what to publish and what not to publish. This is most clear, perhaps, when the materials to be edited are generated solely by the student staff, but the "right to edit" (based in part on the necessity for editing) would logically extend to articles or columns submitted by outside sources.

This principle is supported by Joyner's reliance on a "freedom of the press" rationale, and by the Third Circuit's decision in Avins v. Rutgers, State University of New Jersey, 3 Cir. 1967, 385 F.2d 151, cert. denied, 1968, 390 U.S. 920, 88 S. Ct. 855, 19 L. Ed. 2d 982. Rutgers upheld the right of the student editors of a state university law review to reject a tendered article. The court stressed the impossibility and undesirability of a requirement that student editors publish every article submitted, and held that "the acceptance or rejection of articles submitted for publication in a law school law review necessarily involves the exercise of editorial judgment." 385 F.2d at 153. Both Joyner and Rutgers assumed without deciding that state action existed, but, nevertheless, Joyner held that the school officials could not censor the paper, and Rutgers held that an outside author could demand no right of access to the space allotted to outside articles.

I fully support the result in the Rutgers case and the implication it bears for a general right to edit on the part of students editors of state-supported publications. The question thus becomes one of competing first amendment interests, and the search must be for a reconciliation between the interests, on the one hand, of student autonomy in control over the contents of the newspaper, and, on the other, of nondiscriminatory public access to a communication forum sponsored by the state.

D. A Reconciliation of Competing Interests.

I think that the two interests discussed above can be accommodated through a doctrine which permits student editors of state newspapers unfettered discretion over what might be termed the "editorial product" of the newspaper, yet requires that when the newspaper devotes space to unedited advertisements or announcements from individuals outside the newspaper staff, access to such space must be made available to other similarly situated individuals on a nondiscriminatory basis.

I use "editorial product" to comprehend the news and editorial columns of the paper, and other sections that by tradition and popular perception would be subject to editorial input from the operators of a newspaper. Guest columns and letters to the editor, although closer to the borderline because of the authorship, probably would be included in this "editorial product" notion.31

As to the sections of the newspaper which would be subject to the requirement of nondiscriminatory access, I take the two sections of the Reflector at issue in this suit to be paradigmatic. According to the allegations of the MGA, the sections of the Reflector to which access was sought were regularly available to local organizations for announcements and messages of social, political and informative natures.32 Also, the student editors apparently do not purport to exercise editorial responsibility over the issues raised by or the content of these paid advertisements and unpaid announcements. No one would be likely to confuse statements appearing in them as officially endorsed by the students or the school.33 Were there any problems in this regard, clear disclaimers as to the source of the messages easily could be added.34

I want to emphasize that the right of equal access I would invoke could, for the purposes of this case, be carefully circumscribed.35 For example, the newspaper could perhaps provide access only to students or other members of the university community and not be guilty of content discrimination.36 Perhaps access could even be restricted to local community businesses and groups.37 The possibility of various source restrictions need not be reached in this case, however. The allegations of the plaintiffs suggest that other local groups, similarly situated to the MGA, were allowed access to the advertising and "briefs" sections of the paper. If that is true, impermissible content discrimination will have been shown the "state" cannot accept advertisements from some local groups and refuse those from others because of their content.

Conceivably, other limitations on the envisioned right of equal access could arise in response to logistics and cost. A state newspaper which had provided a public forum for the publication of any message from anyone could in one week receive thousands of proposed messages on the same subject. It may not be feasible to print them all.38 A word-per-message limitation might be useful, but situations still might exist in which there were simply too many similar messages to print. If the "public forum" is to remain that, some content neutral means of selection would become necessary e. g. requiring payment of a reasonable fee,39 printing the first however many submissions, or selecting statements at random. Again, we need not reach these questions to decide this case. There is no indication that any other advertisements, or announcements in the "briefs" section, had ever been refused by the newspaper, or that any consideration of space limitations was relevant in the decision to exclude the MGA ad.

I mention these possible limitations on the right of equal access to a state student newspaper to illustrate how narrowly a decision in the instant case could be written, and how careful a court should be in delineating the scope of such a right. These factors are closely related, of course, to the notion that time, place and manner restrictions are permissible "provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 1976, --- U.S. ----, ----, 96 S. Ct. 1817, 1830, 48 L. Ed. 2d 346. The best way for the regulating agency to demonstrate that its restrictions are not based on content is through the formulation of specific rules governing what will and will not be published. When no rules guide the decision to exclude a controversial message from what otherwise appears to be a public forum, the courts are properly very skeptical of any proffered justification for the exclusion.40

I think it must be plain by now that I consider this a most difficult area of conflicting first amendment interests. It should also be plain that I am convinced that the majority has reached an erroneous conclusion, and has failed adequately to consider the difficult issues actually presented in the case. As I have indicated, I would hold that there exists in some situations a right to nondiscriminatory access to the advertising and announcement sections of state-supported newspapers. I would remand this case to the district court for findings on state action (the nature of the funding, and the extent to which the Reflector can fairly be characterized as the official newspaper of MSU), on the other types of advertisements and announcements carried by the Reflector and on the practice followed by the student editors in rejecting advertisements.41

One reason for extreme caution in suggesting the sort of rules I have envisioned in my dissent is the danger that the state may provide "nondiscriminatory" access by providing no access, at least through the student newspapers under consideration here. While that danger counsels sensitivity in insuring that the requirements placed on the student newspapers are reasonable, I do not think that it should deter the courts from requiring the equality of access which the first amendment has properly been read to guarantee. I am not so cynical as to suppose that state school officials and student editors of state school publications would uniformly choose to permit no outside views to be expressed in their publications rather than to permit, in a designated section of the publication, a free and open discussion of public issues.

The accommodation of competing interests which I have tried to sketch in this opinion may seem, on the surface, to lead to anomalous distinctions, especially from the perspective of university officials. Students may not be censored in their decision to publish, nor countermanded in their fashioning of an "editorial product." Yet student editors may themselves be treated, in effect, as agents of the state in their dealings with the public. On close consideration, I feel, these lines are not anomalous.

Bazaar and the other cases discussed above placed in student hands the right to be free of official censorship and, by implication, the right to edit. Neither Bazaar not any other case, however, equips student editors of a state publication with the scyth of the censor to be used arbitrarily in cutting a few out of many submissions from the public. Although a bright line (e. g., student editors of state publications have all the rights of private editors) might be easier to draw, I believe that when each side of the balance is weighted with important constitutional interests, the court cannot abdicate its calligraphic responsibility to draw careful lines reflecting the optimum accommodation of rights.

The key to the reconciliation here is an emphasis in each situation of the powerful interests of speakers and listeners in free expression. In each context officials attempting to censor students, and students attempting selectively to censor certain messages from the public on the basis of content the court must balance the competing interests, but always with its thumb of the side of full and open discussion of public issues.42

For the reasons stated, I DISSENT.