Princeton University v. Schmid – Oral Argument – November 10, 1981

Media for Princeton University v. Schmid

Audio Transcription for Opinion Announcement – January 13, 1982 in Princeton University v. Schmid

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Warren E. Burger:

Thank you gentleman, the case is submitted.

We’ll hear arguments next in Princeton University and New Jersey against Schmid.

Mr. Katzenbach, I think you may proceed when you’re ready.

Nicholas Deb. Katzenbach:

Thank you, Mr. Chief Justice and may it please the Court.

This case involves the rights of a federal — of a private university under the Federal Constitution, the First, Fifth and Fourteenth Amendments to determine without state governmental interference, the expressive activities of strangers that it permits upon its property.

William H. Rehnquist:

Well, Mr. Katzenbach, doesn’t it also involve whether Princeton should be here at all?

Nicholas Deb. Katzenbach:

It — it does, Justice Rehnquist.

The question has been raised withstanding and I’ll address that right now if you wish.

Is there any particular part of it that you would wish me to address or do you want to hear —

William H. Rehnquist:

Well —

Nicholas Deb. Katzenbach:

— my argument definitely?

William H. Rehnquist:

Ordinarily, in a state prosecution to address this, the matter is tried in the criminal courts and in this case, the Supreme Court of New Jersey said, “Although we think perhaps the Federal Constitution would not prohibit trespass.

We interpret our State Constitution to forbid this type of prosecution.

So, the indictment is dismissed or the prisoner free.

And then how — how does Princeton get in?

Nicholas Deb. Katzenbach:

Princeton gets in, Your Honor, because it was invited by the Supreme Court of New Jersey to intervene in the case.

I think that the word intervener means that you’re there as a party.

William H. Rehnquist:

But does that mean you’re here, too, as well as in —

Nicholas Deb. Katzenbach:

I think so, yes.

Because if we were a party in that case under state law and properly so, unless there’s some constitutional reason, a due process reason which has not been suggested in this case, as to why we should not be there, then I think we have participated in a decision where we are bound, a decision in which we participated, in which we have an interest in and which we are bound by the result.

Byron R. White:

And you couldn’t — you couldn’t enforce or even try to enforce your rule again without — which you might had been able to do if you hadn’t been a party.

Nicholas Deb. Katzenbach:

That’s correct.

I believe, if we had — if we had been invited to participate, for example, as amicus, I think it would’ve been open to us following the opinion there and assuming that it was not appealed to this Court, it would’ve been open to Princeton to have sought an injunction against Mr. Schmid or the American Labor Party from coming on to campus at Princeton and that would’ve proceeded through the Supreme Court of the State and then on up on here on appeal.

Now, that — if that were the law in this Court then obviously, we should not have accepted the invitation —

Byron R. White:

But that —

Nicholas Deb. Katzenbach:

— of the Supreme Court to be an intervener because —

Byron R. White:

That also —

Nicholas Deb. Katzenbach:

— we’ve lost our rights of appeal as a result.

Byron R. White:

That also creates — is sufficient to create a case of controversy between you and somebody.

Nicholas Deb. Katzenbach:

I think it is real, yes, Your Honor, I do.

Nicholas Deb. Katzenbach:

I think that we have sacrificed rights.

Princeton has sacrificed rights in this case, if as I believe, they are bound by that decision which they were invited to intervene in which they fully participated and I see it to be no different, unless there’s a constitutional reason from moving as we did for rehearing in the — in the state court.

The State did not happen to join in that motion.

That motion was denied because none of the justices wished to hear it.

If it had been heard and the decision reversed, then that would be the same position that it will be and that this Court would remand it on the ground that the New Jersey Constitution violated rights of the property owner in the First and the Fifth Amendments.

Warren E. Burger:

Is it possible Princeton made an imprudent decision to accept the invitation to intervene instead of declining that and volunteering to file a brief amicus?

Nicholas Deb. Katzenbach:

Is it possible that was a mistake?

I hope not.

Because it certainly was — when invited to intervene at New Jersey, Mr. Chief Justice, has a very, very liberal view of intervention and it is not unusual even in criminal cases to have intervention although it is unusual for private parties to be in that.

It is — normally the courts will invite a municipality or a borough or somebody else, who has some interest in a criminal prosecution even though not technically —

John Paul Stevens:

Mr. Katzenbach —

Nicholas Deb. Katzenbach:

— the criminal prosecutor to intervene.

John Paul Stevens:

You heard our colloquy about mootness in the last case.

Is there not a similarity between this case and that you’ve now adopted a regulation that would have permitted this man to come on and distribute leaflets for them?

Nicholas Deb. Katzenbach:

I don’t believe so because I don’t believe — it is clear to me, Mr. Justice Stevens, that the regulation that Princeton now has which are in the brief are not consistent with the interpretation of the New Jersey Constitution made by the court below and I think that’s very obvious.

John Paul Stevens:

Well, is that — is that a test or is it — if he did precisely the same thing he did here that gave rise to the trespass prosecution, do we now violate your present regulation?

Nicholas Deb. Katzenbach:

Yes, because he never even asked for permission.

John Paul Stevens:

Oh, I see.

Nicholas Deb. Katzenbach:

And they presently — that rule still tell you must ask for permission.

So, I think he would still be in precisely in violation of.

Warren E. Burger:

Your new regulation was a response to this case, was it not?

Nicholas Deb. Katzenbach:

Not to the decision, Mr. Chief Justice.

Warren E. Burger:

Not to — to the problem.

Nicholas Deb. Katzenbach:

To the problem, yes.

It was a response to the problem and they decided, for whatever reason they decided to at least try a new regulation.

But the new regulation is, as I say tougher in some respects, more liberal on others.

Byron R. White:

But it still require a permission.

Nicholas Deb. Katzenbach:

But it still requires permission.

Byron R. White:

To which the court below had said was — was improper.

Nicholas Deb. Katzenbach:

Well, at least, which they did not require from this case.

Byron R. White:

Yes.

William H. Rehnquist:

But you couldn’t say of the same of the City of Mesquite that they decided they would be better to repeal a part of their ordinance than to try and enforce it.

Byron R. White:

But you didn’t feel you’re —

Nicholas Deb. Katzenbach:

That’s a — there’s a difference surely between changing the rule of a private organization.

If you change work rules, for example, that wouldn’t moot the questions.

Under the old rules nor would you narrowly be allowed to put an evidence to the change of rules.

And I don’t see — I think these rules present the same sentence, the same problem that Justice Rehnquist that the other rules provided.

Warren E. Burger:

Is there anything in the New Jersey Constitution or law or the Federal Constitution to prevent Princeton from putting a 20-foot wall around and, in fact, making it like a monastery of the Middle Ages if they wanted to?

Nicholas Deb. Katzenbach:

There may be a borough ordinance, Mr. Chief Justice, on the height of walls, but apart from that, I don’t know of anything —

Warren E. Burger:

Make it an 8-foot wall.

Nicholas Deb. Katzenbach:

That would not prevent it, nor am I clear at the — under the New Jersey Constitution that if they said, “If you want to keep everybody out, that you can do so.”

The test that they apply there is one that talks about the more you invite the public, the more you allow free speech, the more you allow controversy, the more governmental regulation we will have.

William H. Rehnquist:

Why is New Jersey required to respect private property at all except under the Eminent Domain Clause?

Nicholas Deb. Katzenbach:

I missed the word there Justice.

Required to what?

William H. Rehnquist:

Respect private or set up a system of private property at all, except under the Eminent Domain Clause?

Nicholas Deb. Katzenbach:

Well, I would suppose that — if you’re suggesting Justice Rehnquist is that the State could —

William H. Rehnquist:

Could the —

Nicholas Deb. Katzenbach:

If it is a private property, then I assume it is state property.

I can’t —

William H. Rehnquist:

Well —

Nicholas Deb. Katzenbach:

— I don’t know what’s in between.

William H. Rehnquist:

Yes.

Well, assume that there — there are no — the State does not pass any trespass statute —

Nicholas Deb. Katzenbach:

Doesn’t have to.

William H. Rehnquist:

That it doesn’t provide for any recorder of deeds and it simply says all lands shall be held in common by the residents of a State.

Nicholas Deb. Katzenbach:

I would suppose that would be a taking.

William H. Rehnquist:

Well, but if it had started out that way, wouldn’t be a taking?

Byron R. White:

Well, Mr. Katzenbach I thought —

Nicholas Deb. Katzenbach:

If I suppose today at least, it would be a taking.

Byron R. White:

Well, I thought the major part of your argument was that New Jersey’s refusal to apply its trespass laws may not violate your property rights but your free speech rights.

Nicholas Deb. Katzenbach:

That is, but I don’t – it’s not a refusal really to address this right to enforce the trespass laws.

Byron R. White:

Well, no, it’s —

Nicholas Deb. Katzenbach:

It is — it is saying —

Byron R. White:

Is — is the judgment saying —

Nicholas Deb. Katzenbach:

— that nobody has a right to be on our property.

We could — we could not even take self-help at this point.

Byron R. White:

I know but you — you objected on grounds as I understand it that —

Nicholas Deb. Katzenbach:

Yes.

Byron R. White:

— that is — is on free speech ground.

It’s not just the —

Nicholas Deb. Katzenbach:

We object to —

Byron R. White:

— property rights.

Nicholas Deb. Katzenbach:

We object to it on both, but I think with one possible exception.

If like — if we could not prevail on the free speech grounds, it would have very unlikely be a taking and the one exception is that in the Lloyd and Tanner it said, “If there’s no need to go on the property then it would constitute a taking.

And so to that narrow extent since the Court found as a fact that there was no need for communication purposes to go on the campus of Princeton that — that might be a taking.

But I basically, fundamentally, I believe that it is a First Amendment right Mr. Justice White and that that is basically what we’re arguing with property is as it is in the case of the university used for expressive purposes.

Then to — for the — for the state to impose on that property, expressive purposes, expressive purposes of others is to interfere with your expressive right.

I grant the exceptions that can be made to that, I — and I — for the channels of communications are clogged where it is felt necessary for — for state power to do so, I believe it — it can be done.

I have no quarrel with — with PruneYard, I would have no quarrel with — with the — the prior — with Marsh.

I would have no quarrel with prior decisions of this Court —

John Paul Stevens:

Mr. Katzenbach (Voice Overlap) —

Nicholas Deb. Katzenbach:

— even the — where they have been overruled.

Thurgood Marshall:

You’ve put PruneYard and Marsh together?

Nicholas Deb. Katzenbach:

I have put PruneYard and Marsh together Justice Marshall for only — for only one purpose to serve.

I put them together because in each instance, they said we are — we will treat this as though it is public property and the property owner will have the obligations of government with respect to that property to act neutrally and to have only time, place, and manner.

It was for that purpose that I was putting it together.

Here, the New Jersey Court has a — a totally different rule.

It has a rule where it measures content against content to decide whether it can be said.

It does not say, you must admit people on your property, to say anything they want.

Nicholas Deb. Katzenbach:

They say, “You must admit people on your property to say things that are consistent with your use of the property,” and that means consistent with your intellectual use of the property.

And they say that deciding what is offensive to your views or is not offensive to your views is a problem for the judiciary.

It is a problem for the police officers to resolve, and it is not something which normally would be under the trespass statute for you to resolve for yourself.

John Paul Stevens:

Mr. Katzenbach, it seems to me that you’re arguing with the test they proposed might lead to situations in which the intruder makes an expression that’s offensive to what the university wants to express and thereby offend the university’s —

Nicholas Deb. Katzenbach:

Yes.

John Paul Stevens:

— rights to expression.

But in this particular case, what is the basis for suggesting that what Mr. Schmid did had any conflict whatsoever with any expressive policy of the university?

Nicholas Deb. Katzenbach:

Whether what Mr. Schmid did or not, the — the rule that they put.

John Paul Stevens:

But do we have anything before it?

Nicholas Deb. Katzenbach:

Well, I think.

Yes, I do.

Let me — let me — you have —

John Paul Stevens:

And the reason the case is here is because, if you lose, he can go back and do exactly the same thing all over again.

Nicholas Deb. Katzenbach:

And so can anybody else.

John Paul Stevens:

And how does that interfere —

Nicholas Deb. Katzenbach:

And so can anybody else at Princeton —

John Paul Stevens:

How does that interfere with anything that you want to do with your property?

Nicholas Deb. Katzenbach:

Well, I would —

John Paul Stevens:

Just this limited thing that he’s done.

Nicholas Deb. Katzenbach:

If Princeton is restricted as the New Jersey Court says it is, to governmental standards of time, place and manner, and it got that way because Princeton has such an open policy and let people up on the campus, then I assume that that is the only control.

Now, I think there are situations as open as Princeton, and this is dedicated to those purposes.

There are situations on a college campus were unquestioned.

What is said is highly offensive to the students and to the members of the faculty and the other members of the community.

I believe that for members of the American Nazi Party, to proselytize on the campus of Princeton would be highly offensive to the great majority of students there.

If somebody on the campus, a student or member of the faculty, wanted to adopt those views and express or even if they wish to invite somebody who did that, I believe that that decision on their part would be respected by other members of the community.

I think that is a very definite thing from the State of New Jersey saying to Princeton whether you want to hear him or not, he’s got a right to be there.

William H. Rehnquist:

Mr. Katzenbach, you said a moment ago, if Princeton is to be reduced to the status of a governmental body like New Jersey, actually Princeton is in a sense a creature of New Jersey, is it not?

It has — doesn’t have a charter from —

Nicholas Deb. Katzenbach:

Yes, Justice, the Dartmouth College.

William H. Rehnquist:

Yes.

Nicholas Deb. Katzenbach:

It did, yes.

William H. Rehnquist:

So that — I mean isn’t it in a sense of business or a private institution that is regulated by the laws of the State subject to any constitutional provisions of the U.S. Constitution there — to the contrary?

Nicholas Deb. Katzenbach:

If I understand you correctly Justice Rehnquist, you are suggesting that it is in effect no different from a state university.

William H. Rehnquist:

Yes.

Nicholas Deb. Katzenbach:

And I — I don’t accept that because I think that it is different from a state university.

It is not totally regulated by the State.

It has a charter that goes back as the Dartmouth case did and in that case, I recollect, this Court said that they had all the rights of a private institution they were not just a creature of government.

Warren E. Burger:

I suppose if a GM has a plant in New Jersey, it derives its authority in some way from the states, either as a foreign corporation doing business or a New Jersey corporation, if so, would they fall under this band that has been discussed?

Nicholas Deb. Katzenbach:

I would — I would think not.

There are —

Warren E. Burger:

In other words they could say, “We’re making automobiles here, not speeches”.

Nicholas Deb. Katzenbach:

Yes, but I think we’re — yes, and I don’t see, they — they would, but if the general public were invited under the GM premises at various times under the New Jersey decision then people would have rights to make various speeches there if those rights did interfere with the assembly line and so forth, and so on.

It is a — it is an enormously broad principle that they have adapted by saying, every private property owner in the State is subject to some measure.

John Paul Stevens:

I wonder if that’s a fair statement there in the opinion.

Isn’t the opinion the equivalent of a New Jersey statute that’s said in effect, “Unless a university adapts regulations that contain standards for inviting people to come under their campus, reasonable standard, then it must allow a certain number of people to come on for a limited purpose.”

It doesn’t say, anybody can come on whenever they want to and it does say that if you adapt regulations that are reasonable, you may — there — there may be no problem.

Nicholas Deb. Katzenbach:

By time, place and manner only (Voice Overlap).

John Paul Stevens:

Well, it — I don’t know exactly what they mean but they say —

Nicholas Deb. Katzenbach:

That’s what they say for Princeton, at least.

John Paul Stevens:

Well —

Byron R. White:

It could say, “You cannot require —

John Paul Stevens:

It say — it contained no standards aside from the requirement for invitation from — they say you had no standards whatsoever.

And they say, in a standardless case, you lose, but once you’ve got standard, presumably, the Court would take a look at the standards.

Because the case as it came to them —

Nicholas Deb. Katzenbach:

But — but the standard —

John Paul Stevens:

The only standard, as I understand it was permission.

So it was essentially no standard.

Byron R. White:

That he’d have permission?

Nicholas Deb. Katzenbach:

Plus invitation.

John Paul Stevens:

Right.

Nicholas Deb. Katzenbach:

And they —

John Paul Stevens:

And they say you got to do something more than that —

Nicholas Deb. Katzenbach:

They would —

John Paul Stevens:

— then they would say (Voice Overlap) —

Nicholas Deb. Katzenbach:

They have to do something more than that.

Why they have to do something more than that.

And what right of who is violated by you’re not doing something more than that?

John Paul Stevens:

Well, they say that if you want to operate a university and to say that the legislature passed such a statute that said, “Until you pass some kind of a — of a regulation, you must let people on for reasonable expressive activities.”

Would that be an unconstitutional statute?

Nicholas Deb. Katzenbach:

I believe — I believe it would for two reasons.

John Paul Stevens:

So, I guess you have to be arguing that, yes.

Nicholas Deb. Katzenbach:

For two reasons.

I think one is, it would — in a — if — if your business is expressive activity, then that regulation itself forces you to state what expressive activities you will or will not permit and what your reasons for it are and that seems to me a violation of the First Amendment.

Byron R. White:

To (Inaudible)

Nicholas Deb. Katzenbach:

To — yes, to require that.

Byron R. White:

Just like saying to the newspaperman that you should — he should be required to put certain kinds of things on your paper.

Nicholas Deb. Katzenbach:

I think it goes that far.

I think it almost says that the more letters to the editor you print, the more you have to print.

Sandra Day O’Connor:

Mr. Katzenbach, I’d like to ask you about two different areas.

One is I’m not clear on how Princeton distinguishes the PruneYard case and distinguishes itself from PruneYard and explain to me what difference it makes that Princeton shops or selling physics and poetry instead of dry goods.

Why isn’t PruneYard applicable?

Nicholas Deb. Katzenbach:

Well, let me suggest Justice O’Connor.

I — I have no problem with PruneYard.

I think PruneYard first involved the shopping center, had no expressive activity and I think that was quite clear that the premises had never been used for expressive activity even though there were some concern by at least some members of the Court in that regard when it came to the expressive activity.

Secondly, the basis for that decision in Justice Newman’s Court in his state court decision was that shopping centers had replaced downtown centers into a dangerous degree and that the problems of communicating on political matters with large numbers of people were seriously impaired by the exclusion of those activities on shopping centers.

So, there was I think a compelling state reason for requiring the owners to permit these activities on those premises.

And the third reason that I would urge which was — is related to it is that the California court having made that decision set a rule which it set all shopping centers which may be somewhat vague, but all shopping centers have to do this.

And there is no test which analyzes the content of what the visitor on the premises wants to say as against the content of what the person whose expressive activities are involved wants to say —

Sandra Day O’Connor:

So, if New Jersey were to say that no college or university campus may exclude anyone, you would be satisfied.

Nicholas Deb. Katzenbach:

No, I would not Justice O’Connor unless there was a compelling state reason for it and I can’t see it.

Nicholas Deb. Katzenbach:

If they — if the reason — it would be a much stronger case here if the facts said the — there is no way of getting at the students of Princeton, they are — can’t be informed about political activity, people are kept off the campus, there’s no way of doing it.

Whether that case would survive the constitutional test or not, it would be an awful lot better than this case.

This case, the Court says, “There’s absolutely no need for that.”

No need at all for that but they can go on anyhow.

I don’t see — I have difficult seeing any state reason it of.

John Paul Stevens:

It’s got to do — are private universities in New Jersey subject to any kind of certification or —

Nicholas Deb. Katzenbach:

Yes.

John Paul Stevens:

By the state?

Nicholas Deb. Katzenbach:

For accreditation on the (Inaudible) of giving, they are, yes.

Byron R. White:

Well —

Nicholas Deb. Katzenbach:

And that’s about —

Byron R. White:

In that — in that sense they tell you what kind of expression you can have at least indirectly, they don’t order you this course or that course but you either live up to the standards or you’re out of business.

Nicholas Deb. Katzenbach:

As a practical matter, Justice White, that is true.

Byron R. White:

Well —

Nicholas Deb. Katzenbach:

That is —

Byron R. White:

And how about the legal —

Nicholas Deb. Katzenbach:

I think that (Voice Overlap) —

Byron R. White:

How about a legal matter?

Nicholas Deb. Katzenbach:

— they can’t stop you from —

Byron R. White:

How about a legal matter?

Nicholas Deb. Katzenbach:

As a — well, no.

My point is —

Byron R. White:

Well, isn’t this —

Nicholas Deb. Katzenbach:

— I don’t think they can stop you —

Byron R. White:

— isn’t this a state —

Nicholas Deb. Katzenbach:

— from teaching it.

They can stop you from giving a degree for it.

Byron R. White:

Isn’t this — isn’t this — doesn’t the state insist that you live up to a certain standard —

Nicholas Deb. Katzenbach:

Minimal standard.

Byron R. White:

— in your expressive activities?

Nicholas Deb. Katzenbach:

Yes.

And that is basically for fraud reasons because of the — and I do not have any problems with expressive activity —

Byron R. White:

Fraud reasons?

I don’t know.

I think it’s —

Nicholas Deb. Katzenbach:

But I would have problems with that.

Byron R. White:

You’re saying if you want to purport to be an educational institution, you have to —

Nicholas Deb. Katzenbach:

Have certain minimal standards.

Byron R. White:

You have to — exactly.

Nicholas Deb. Katzenbach:

Yes.

And they do and I think they do it so that those —

Byron R. White:

Was that really much different in terms of the First Amendment than —

Nicholas Deb. Katzenbach:

Oh, I think tremendously —

Byron R. White:

Why?

They’re just telling you what you have to — can or can’t teach.

Nicholas Deb. Katzenbach:

Oh, we’re not saying, they’re not saying.

Somebody else can come on this campus.

Somebody else can come on your property.

Somebody else can do that.

We’re going to give him a right to do that.

All they’re saying is, “Unless you must make some minimal standards of education in your own way, that’s really all the accreditation that —

William H. Rehnquist:

Would you say —

Nicholas Deb. Katzenbach:

— it was down to.

William H. Rehnquist:

Would you say that New Jersey couldn’t allow a police officer to come on the Princeton campus?

Nicholas Deb. Katzenbach:

Of course not, I mean, of course not.

I would agree that — I have no problem with that kind of intrusion.

I don’t think that, Justice Rehnquist, they could say a police officer can come on the campus of Princeton for the purposes of making speeches.

Byron R. White:

Or offering a course.

Nicholas Deb. Katzenbach:

Or offering a course or doing something of that kind.

In the course of his duties, of course — of course you can have inspection of heating systems and sewer systems and other legitimate things you inflict on all property owners.

Nicholas Deb. Katzenbach:

Princeton stands in no special status.

There are no private university does it in my judgment.

So I have no problem.

Can Princeton discriminate and say that the white speakers can come on the campus but not black speakers?

I don’t think so.

It has nothing to do with free speech.

Sandra Day O’Connor:

Mr. Katzenbach, I’d like to go back to the standing issue again —

Nicholas Deb. Katzenbach:

Yes.

Sandra Day O’Connor:

— if I may.

Isn’t the question of whether Princeton has standing to appeal a federal question to this Court itself a federal question?

Does it really matter to us whether New Jersey let Princeton come in?

Nicholas Deb. Katzenbach:

I believe —

Sandra Day O’Connor:

Don’t we have to determine that question anew from a federal standpoint?

Nicholas Deb. Katzenbach:

I don’t believe so Justice O’Connor.

I think in the past at least the precedent has been as to standing in the court below, you were a party to the court below and you have an interest and you have standing in this Court, if that is not the rule.

If the rule for standing is a federal rule, then with respect I suggest you have to make the standards of collateral estoppel and res judicata —

Byron R. White:

Well, the argument —

Nicholas Deb. Katzenbach:

— federal rules as well.

Byron R. White:

The argument you gave awhile ago though Mr. Katzenbach would have — would have purported to suffice to — that even if it’s a federal question, I think you probably will find that it is a federal question but — but you say that if it’s a standing question and just an Article III question, in case of controversy, and you say that you’ve lost your —

Nicholas Deb. Katzenbach:

That’s right.

Byron R. White:

— that you’re bound by a judgment.

Nicholas Deb. Katzenbach:

That’s right.

That was why I — I said if you —

Byron R. White:

Yes.

Nicholas Deb. Katzenbach:

If you don’t give standing, then you got to do something about not being bound by a judgment or it seems to me where you have been left and in a virtually —

Byron R. White:

Well, it doesn’t mean though that it’s not a federal question.

Nicholas Deb. Katzenbach:

No, it does not mean.

You’re correct about that Justice White, you’re correct with that.

But if the — as a federal question, if it adapts the state standards which is what I — would be, I think a more accurate way of saying that I have — what I have to say to you Justice O’Connor, it would.

If I might reserve the remainder of my time unless the Court has further questions.

Warren E. Burger:

Mr. Levinson.

Sanford Levinson:

Mr. Chief Justice and may it please the Court.

The ultimate constitutional issue in this case is simple, whether Princeton University has a federal constitutional right to compel the State of New Jersey to violate its own constitution by applying its criminal law to convict Chris Schmid of criminal trespass in the circumstances of this case.

That is the one judgment before this Court.

Princeton University, we began by arguing has two obstacles to run before this Court can even reach a decision on the merits.

The first is jurisdictional and I do not propose to take much of your time because you have addressed that issue in your own questions and we brief that extensively.

Byron R. White:

Mr. Levinson, do you think that the — the result of this judgment is that — is that — and the main thrust of it is that Princeton is no longer permitted to keep this person off the campus?

Sanford Levinson:

That —

Byron R. White:

Or use self-help against him?

Sanford Levinson:

That would certainly be one plausible reading of right duties.

Byron R. White:

Well — well, so that — so that the case involves more than the constitutional right to have New Jersey enforce its trespass statute.

It involves whether or not Princeton may by itself help keep this person off.

Sanford Levinson:

That is a potential issue.

A potential issue is whether New Jersey could sue Schmid subsequently though I hasten to point out that we do not challenge the existing regulations of Princeton University and Schmid and his political cohorts have been on the university campus following the rules.

There’s no objection.

We argue that this case is moot.

But one other way of generating a case would be to file a civil suit against Schmid or someone similar for civil trespass and go backup the New Jersey courts.

This is a final judgment from a criminal conviction.

There are $15.00 and $10.00 court costs at stake.

Princeton University will not receive the (Inaudible)

Indeed, one of the issues of this case is what would happen if the Court reverses the New Jersey opinion.

New Jersey is not at the counsel’s table.

They make no request for their $15.00.

They specifically disaffirm in their brief, a desire for the $15.00.

The rules have changed.

What is Princeton asking for other than an advisory opinion that at a time three and a half years ago they could do what they have subsequently repudiated?

It’s an interesting question to be sure but not a question which provokes federal jurisdiction in this Court.

John Paul Stevens:

Mr. Levinson, they haven’t repudiated their position that they have they — the man has to ask to come on the campus.

Sanford Levinson:

We don’t challenge that, Your Honor.

Byron R. White:

But they’re barred from having such a provision.

Sanford Levinson:

They are barred from having a — they are barred presumably.

I confess that were they to sue in tort under the old rules of absolutely standardless, in fact to say non-rule it set unless we give you permission and we will not tell you why we will or will not give permission.

If you are an uninvited stranger, you can’t get on campus.

That was the old so-called rule.

It is true that the most plausible reading from the New Jersey Supreme Court is what Your Honor suggested from questioning to Mr. Katzenbach.

Byron R. White:

But you know what, in some cases from — some cases from state courts when there has been a change of law after a judgment of the state court, we have, not always but sometimes, vacated and remanded for reconsideration in light of the new rule or the new statutory provision.

Why wouldn’t that be appropriate?

Sanford Levinson:

Because —

Byron R. White:

We then — we then would — we then — they could then decide whether or not —

John Paul Stevens:

These rules were before the judgment though.

These rules were drafted before the (Voice Overlap).

Sanford Levinson:

Yes, sir.

But the rules were changed prior to determination —

Byron R. White:

Well, that’s right.

They were.

Sanford Levinson:

— of the New Jersey Supreme Court.

Byron R. White:

And what did they — and so — but — well then a fortiori, wouldn’t they then require a — or — or outlaw any requirement that they ask for permission?

They didn’t — they certainly did.

That — that rule would — that prohibition would seem to survive the change of the —

Sanford Levinson:

The prohibition — I think it is true that if Princeton have not changed its rules at all not only with the trespass law not be enforceable but certainly, he would argue that a tort suit would be equally unenforceable.

But Princeton did change its rules well before the New Jersey Supreme Court decision.

And the New Jersey Supreme Court went out of its way in effect to declare the present New Jersey rules perfectly constitutional under the constitution of New Jersey and we do not challenge that.

That is not the issue in this case.

John Paul Stevens:

I am not sure they said that.

At least they said that those rules didn’t affect this case because this case arose at a time when there were no rules.

Sanford Levinson:

Yes, sir, that’s right, Justice Stevens but —

John Paul Stevens:

They didn’t really pass on the validity of the new rule.

Sanford Levinson:

They did not legally pass on the validity in the sense of declaring that the rules are constitutional but I think the most plausible reading of that particular opinion is that the new rules are precisely the kinds of rules that would pass master in a proper case.

John Paul Stevens:

And so that if the same problem arose again maybe Princeton would win.

Sanford Levinson:

Oh, yes, in New Jersey under the existing rules of Princeton University.

Sanford Levinson:

I don’t think there’s any real doubt about that.

We would add one case to this Court’s attention, a case not cited in our brief that is the University of — regents of the University of Texas Systems versus New Left Education Project, 414 U.S. at 807 where the University of Texas in the midst of litigation about rules quite astonishingly similar to the instant rules changed the rules.

This Court with only Justice Douglas expressing some reservations in a one-paragraph opinion ordered the court below to dismiss the case as moot.

That precedent ought to be followed here.

It would dispose of all issues in the most economic way possible.

The second obstacle to this case has not been addressed by Princeton of — in their briefs or in oral argument and that is Flagg Brothers versus Brooks, which we argue would have to be overruled for at least seriously limited in order to reach the merits of this case.

Where is the state action in a state refusing to use its trespass law to punish somebody for conduct?

Flagg Brothers stands for the following proposition.

State action exists if and only if the state — the action can be attributed to the state.

Action is attributed to the state if it orders conduct or indeed, if it encourages conduct.

Chris Schmid was not ordered by the State of New Jersey to enter the Princeton campus.

Chris Schmid was not encouraged by the State from New Jersey to enter Princeton’s campus.

It was an entirely private decision on his part and what the New Jersey Supreme Court has said is that it will stay the hand of state institutions in regard to such private conduct.

That is the meaning, I believe, of the majority decision in Flagg Brothers versus Brooks.

I will add —

William H. Rehnquist:

Well it — it is said that it will stay the hand of the State of New Jersey in prosecuting Schmid, hasn’t it?

Sanford Levinson:

Pardon, Your Honor?

William H. Rehnquist:

I mean, the holding was it would — it would stay the hand of the prosecutors in New Jersey from prosecuting Schmid under an ordinance for trespass.

Sanford Levinson:

Yes sir, that’s correct.

But under Flagg Brothers, we would argue that is not the kind for state action which Princeton can assert that if this case is properly styled as Princeton University versus Schmid, Princeton University and the State of New Jersey on the appellant side which is the style for this case.

What Princeton University must show is state action residing in appellee Schmid and there is no such state action.

Perhaps, Princeton University has an argument with the State of New Jersey obviously.

Princeton University has an argument with the State of New Jersey but it would say that’s it’s precisely the kind of argument held by Brooks with the State of New York as to whether or not the State of New York could allow of the garage in that case to sell the property without first running a hearing.

And this Court held that that was not state action.

Under power of a state law, yes, state action, no.

That we feel is a serious problem facing the Court should it reach the merits of this case.

In all candor, I might say that appellee Schmid would endorse the overruling of Flagg Brothers verus Brooks in returning indeed to Logan Valley because that would make state actions what Princeton asks for.

The use of coercive state processes to punish a person for exercising free speech rights.

We do not argue that if you find state action, Schmid loses.

We argue that Schmid wins either way.

Sanford Levinson:

But Flagg Bothers must be addressed both by appellant Princeton and by this Court if their claims on the merits are to be reached at all.

In the PruneYard case, neither of the parties briefed the issue.

There is one mention of Flagg Brothers in one footnote of an amicus opinion and therefore, this Court cannot address the issue.

It easily submits a fresh issue before this Court on what the implications of Flagg Brothers are for cases like this one.

We therefore move to the issue on the merits where we obviously are willing to defend of a highly differential New Jersey State decision, a decision differential to the interest of Princeton University as we point out in our brief and as the amicus brief of the American Association of University Professors points out at length, the New Jersey Supreme Court took full recognition of the legitimate rights of Princeton University.

What they correctly found is that Princeton University presented no reason whatsoever to keep Schmid off its campus and the State of New Jersey has a strong tradition in support of political speech.

That is not only the rational interest but we would argue if need be the compelling state interest that the state sought.

The brief mentions of the Republican forms of Government Clause that is obviously not judicially enforceable by this Court going back — back to Luther versus Borden.

But we would argue that the Republican forms of Government Clause points to the essential underpinning of what our system of government is about which is a free relatively unrestricted, relatively unstructured public dialogue.

And that is what the State of New Jersey, the very state protected even if not of — protected by judicial enforcement, protected in the federal constitution and surely a State Supreme Court can construe its own state constitution to protect those basic Republican institutions of our society.

And that’s what they did in this case taking full measure of every interest that Princeton University could properly put before it.

And thus we argue — we would be delighted if this Court reached the merits in spite of the jurisdictional and state action hurdles because it would seem inconceivable that a state could not act so as to protect the political dialogue.

In PruneYard versus Robins, United States participated in oral argument before this Court to point out its grave reservations as to the constitutionality of the National Labor Relations Act and the Civil Rights Act of 1964, should the shopping center be upheld in that case.

Similar issues are present here.

What Princeton University argues on page eight of its reply brief and in oral argument this afternoon is that there is, “The right of a private university to determine its educational policy.”

With educational policy being whatever is defined as such by Princeton or any other university.

This point has also made it like in the amicus brief of the American Association of University Professors.

What if the policy which you referred the special authority of white males by hiring only white males to teach?

Indeed, what if in furtherance of some notion having alleged educational policy princeton sought to use New Jersey trespass law in the context with attempting to keep up uninvited blacks though issuing a generous invitation to all whites and to invited blacks.

Could New Jersey truly not refuse its aid or does the constitution compel that giving over of public power to such indefensible private ends.

The Bob Jones case will be before this Court later in this term and raises serious constitutional issues for the constitutional issues are those of the Free Exercise Clause.

If Princeton University hang before this Court arguing that Presbyterian Doctrine forced the policy adapted in 1978, that would present a truly challenging question of constitutional law.

That does not raise questions of academic freedom at all however.

It raises questions of the free exercise of religion and issues blessedly not before the Court in this case.

Neither the holding nor the opinion of the New Jersey Supreme Court reaches this far as Princeton would have us believe.

The decision of the court below is extremely narrow in its holding after a careful and detailed examination of the relationship between Schmid’s speech interest and the actual policy operation from Princeton University had found Schmid’s interest more weighty.

So a vague recognition of the narrowness of the holding below, Princeton constantly asks this Court in its brief and in its argument to decide cases not before it even as plausible hypotheticals.

On the other hand, all of the arguments put forth in our argument are all too plausible because Princeton University has not offered and cannot offer a cogent distinction between what it asks for in this case and any future request to be exempt from the most basic statutes found necessary by Congress, state legislatures or the people of the state acting through their constitutive document in order to provide elemental social justice.

One final argument must be addressed more before by conclusion and that is the purported use by the court below of inadmissible content distinctions.

The court below does argue with distinguished among categories of speech but so of course does this Court.

Sanford Levinson:

For example, political speech versus commercial speech, not to mention offensive speech or obscene speech.

Categorical distinctions, whatever the difficulties are wholly different from genuine content distinctions which say that for example within a given category certain speech is acceptable while other speech is not.

One cannot say for example that political speech about domestic policy is protected though debates about foreign policy is not or that one can only praise but not criticize public policy.

That is the meaning of graded mostly.

But it is far too late in the day to argue that all speech is one undifferentiated whole so that the deceptive (Inaudible) strength of a commercial salesperson is the constitutional equal of a political address.

In summary that this case graces a host of complex issues not the least of depth of procedure.

And these complexities can be most easily avoided through recognizing this as the moot controversy that it is.

But my concluding remarks return to the merits because there, Princeton’s arguments are not only wrong on the law but profoundly dangerous to the meaning of the United States Constitution.

The decision of the New Jersey Supreme Court does not open up the Princeton campus so those wishing to expound on the merits of their pizzas or used cars.

But to Chris Schmid who wishes to engage his fellow citizens in this course relating to the polity of which we are all apart.

It has become the duty of this Court to reject Princeton’s claim of exemption from New Jersey’s constitution and to reassert instead the right of a state to assure the preservation of the public discussion that undergirds a Republican form of Government.

Indeed, this case presents an example of our uniquely federal system at its best.

The fact that the United States Constitution is interpreted by this Court has not been held to provide by its own force access to non-state controlled property saved for company towns does not preclude a state from structuring its laws to afford additional protection for important public values.

States are not to be sure of — free to act without limits but their willingness to be imaginative and creative in responding to the exigencies of modern life should not be stifled unless constitutionally compelled.

There is much to be learned from New Jerseys and Californians.

Byron R. White:

Mr. Levinson, could Congress do the same thing here in the District of Columbia with respect to Georgetown and George Washington or Catholic University?

Sanford Levinson:

If one assumes as I recall that the constitution does give Congress the power to regulate of — the District of Columbia, I would be prepare to argue, yes, if Georgetown came before this Court arguing, no, the reason would be free exercise, not academic freedom.

Byron R. White:

George Washington?

Sanford Levinson:

George Washington, without a doubt.

Byron R. White:

Without a doubt, what?

Sanford Levinson:

That Congress could pass a law of — in behalf of defending the values —

Byron R. White:

Saying that George Washington you must allow in your campus certain kinds of speech but you can keep others’ speech off.

Sanford Levinson:

Yes, you could keep those who wish to sell pizzas or engage in commercial speech off but Congress could, I think, require George Washington at least and perhaps at most to adapt the kinds of rules adapted by Princeton University subsequent to the initiation of this case and de facto upheld by the New Jersey Supreme Court in its decision that is before you.

Warren E. Burger:

I’m not sure.

I — I attacked you on these illustrations because there are public streets running through all of the campuses, I think of that have been mentioned.

I’m not so sure about Georgetown.

But take it as a hypothetical campus which is one square mile or a half square mile, entirely college property, no public streets, and private highways and sidewalks running through them.

Now, this is operated by an order of the Catholic Church.

Are you telling us that they must permit people to come on there and make speeches advocating abortion?

Sanford Levinson:

I am stating that the decision on appeal before this Court certainly does not extend that far because the opinion bends over backwards to what the educational policy of the institution in question.

Sanford Levinson:

Let us say —

Byron R. White:

What are you submitting?

Sanford Levinson:

What I am submitting is that the college raised in hypothetical by Chief Justice Burger could put forth serious free exercise claims that might well lead this Court to say that public power have gone too far.

I think it’s only fair to say that in our brief in some distinction from the brief of amicus American Association of University Professors, we emphasize the fact that on Princeton’s campus are required to leave 3000 registered — potentially registered voting adults and if a state found in the hypothetical post of that, it was necessary to order such entrée onto campus in order to reach registered voters or potentially registered voters — the brief of appellee suggests that that would be defensible.

The brief of amicus American Association of University Professors is, I think it is fair to say, somewhat more deferential to the interest of an educational — of institutes and per se.

Warren E. Burger:

Let me change my hypothetical from advocacy of abortion to advocacy of Marxism.

It eliminates the free exercise.

Must they allow on Marxist to — from a Soviet Union —

Sanford Levinson:

A Marxist —

Warren E. Burger:

— to come over and say why we should convert to Marxism.

Sanford Levinson:

The facts of the case before us deal with someone participating in the American political process trying to pass out information for candidates —

Warren E. Burger:

But I was asking a hypothetical question —

Sanford Levinson:

— beyond —

Warren E. Burger:

— to test your argument.

Sanford Levinson:

— someone — if a state legislature or Congress in your initial hypothetical or the people in their constitution said that the importance of the free trade in ideas and exposure to diversity that has been emphasized as the root meaning of academic freedom of — in opinions by this Court over many years that that commitment to diversity of expressing required entrée to a private university.

Yes sir, I would defend the ability of a state to do that.

Byron R. White:

And you would say — and I think if you would say if it were — if it were — you would say there’d be a difference between a Catholic University and American University, you would say you would — you would value the religious freedom claim higher than the free speech claim.

Sanford Levinson:

I am saying that in one, there is a free exercise claim —

Byron R. White:

Yes.

Sanford Levinson:

— that poses serious constitutional problems.

Byron R. White:

And American University comes in and says, “I am not making a free exercise claim, I’m making a free speech claim.

I don’t want to be told what kind of speech to be — to be airing on — on the campus.”

Sanford Levinson:

If a university — to return to a hypothetical raised in the court below, if a university on whose campus was forced to leave — were forced to leave 3000 students said, “We wish only Republican ideas,” contemporary Republican rather than classical Republican ideas to be heard on this campus.

During a political campaign, I would not support the right of a university to in effect prevent access to registered voters by non-Republicans.

I certainly do not think that the university must teach non-Republican values in its classrooms or even a point non-Republicans to the faculty but it cannot structure the marketplace of ideas.

Byron R. White:

What about the army base?

It has 10,000 soldiers living on it.

Sanford Levinson:

There, it seems to me that this Court over the set has emphasized the special nature of military communities and the necessity of members of the armed forces not to be distracted in effect by political controversies of the day which is precisely the opposite of that which one would say about the kind of university depicted for example in Justice Powell’s opinion in the Bakke case wherein every other opinion by this Court that has addressed the meaning of academic freedom.

If there are no further questions, then I would submit that the judgment below if not dismissed should certainly be affirmed.

Warren E. Burger:

Do you have anything further, Mr. Katzenbach?

Nicholas Deb. Katzenbach:

Just one brief comment Mr. Chief Justice.

I hope that the members of this Court do not think that it was a claim of Princeton University that it can discriminate on race as of educational philosophy or that it can keep people off the campus because of educational philosophy.

Or that a Court cannot inquire and enforce for the republic policy statute into that issue to determine whether or not it is a genuine question of educational policy in philosophy.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.