WINTER, Circuit Judge.
The National Socialist White People's Party (the Party) appeals from the district court's order dismissing its suit to compel the Arlington County School Board (the Board) to permit the Party to use Yorktown High School's auditorium for a meeting to be held during non-school hours. The district court premised its ruling on two grounds: (1) the Board properly denied the Party's requests because the meeting would likely result in violence and damage to the facilities; and (2) the Board could not accommodate the Party without involving the state unconstitutionally in the Party's racially discriminatory practices. The Party asserts that the Board's refusal to grant a permit constitutes state action which violates its first amendment right to speech and assembly, and its fourteenth amendment right to equal protection of the laws. We agree with regard to the Party's first amendment rights and therefore reverse the order of the district court.
The facts underlying this controversy have been stipulated by the parties: The Party, a successor to the American Nazi Party, is a non-profit corporation, incorporated in Virginia. A charter purpose of the Party is to gain political power by all legal and non-violent means, including the elective process. Party membership is limited only to whites of any religion who embrace its views. No Negro has ever held membership in the Party.
The Board, an arm of the State of Virginia, has responsibility for schools, grounds, and related property. State law permits the Board to rent high school auditoriums during non-school hours "for any legal assembly," Va.Code Ann. § 22-164 (1969), "as will not impair the efficiency of the schools." §§ 22-164.1, 22-164.2. Pursuant to this statutory authority, the Board has promulgated regulations under which it leases school property to organizations in "good standing." By regulation, an
The Board has consistently refused to rent available auditoriums to the Party, although the Party has no previous record of abuse to school property. Thus, in 1959, the Board rejected a Party application without reasons. In 1969, the Board rejected the Party's application to hold a private meeting explaining that custodial help was unavailable. In fact, the Board rented the facility to "Youths for Christ" on the date requested.
On January 30, 1970, the Party applied to use Yorktown High School on March 7, 1970 for a public meeting to which it invited only non-Jewish white persons. Although the Party does not invite Negro and Jewish persons, in fact it will not, and has not, excluded them from public meetings if they seek admission. The Board initially granted the application, then revoked it because the Party planned to exclude these groups and because the Board feared resultant disorder. On the evening of the planned meeting, the Party held a non-violent rally outside the school and later outside the home of the Assistant Superintendent of Schools. The rally occasioned no violence and no confrontation with the police. The police made no arrests outside the school, but did arrest six Party members outside the Assistant Superintendent's home for violating the county noise ordinance.
On April 3, 1970 the Party again applied for a permit to rent the Yorktown High School auditorium, this time to hold a private meeting open only to "card-carrying members and official supporters." The Board denied the application without stating its reasons. The Party then commenced this suit for declaratory and injunctive relief.
Upon remand, the district court sustained the Board's refusal to make the facilities available on the grounds that (1) the Party's proposed meetings would endanger school property, and (2) the state action doctrine required denial of the use of a publicly owned meeting place and auditorium to an organization, political in nature, which practices a racially discriminatory membership policy. We find neither conclusion legally tenable.
At the outset, we find lacking in merit the conclusion of the district court that the Board properly denied use of the facilities to the Party because a meeting would be likely to result in violence and damage to the facilities. The record,
The Board's repeated exercise of its discretionary authority to rent the Yorktown High School auditorium for a nominal fee during non-school hours to public and private groups for public and private meetings on a first-come first-served basis, to the extent that the auditorium is not needed for school purposes and that non-school uses will not endanger the property, constitutes, in our view, an effective dedication of the auditorium for the exercise of the first amendment rights of freedom of speech, association and assembly. This partial dedication as a forum for the exercise of first amendment rights makes the school auditorium conceptually indistinguishable for first amendment purposes as a "public place" from streets and parks, which too, are acquired and maintained at public expense.
By the same token, we conclude that the school auditorium, since it has effectively been partially dedicated for first amendment uses, may be used for purposes of assembly, communicating thoughts between citizens and discussing public questions. In a public place regularly used for the exercise of free speech and the exchange of ideas, we do not see how walls and a roof can insulate against the reach of the first amendment's commands. That amendment's protections cannot be made to turn on the structural distinctions between, for example, an open public park, a public amphitheatre, a public stadium, or an enclosed public auditorium.
There is no dispute that the first amendment protects from state interference the expression in a public place of the unpopular as well as the popular
Certainly the ability to meet in public places is fundamental to the exercise of
Since the first amendment prohibits the state from interfering with the expression of unpopular, indeed offensive, views, and with assembly and association for the purpose of exchanging and furthering them, we think that the first amendment protects the expression of such views in those public places dedicated to the exercise of first amendment rights by groups which implement them by restrictive membership policies.
The Party's discriminatory membership policy does not bring into play the state action doctrine of the equal protection clause of the fourteenth amendment. The state action doctrine has never been thought to extend to cases where the streets, parks and public meeting places of a particular community are utilized for the exercise of first amendment rights.
The essential point here is not that there is insufficient state action, but simply that the state action doctrine is not applicable where a group seeks to exercise first amendment rights in a public forum dedicated to that purpose. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) does not require a different conclusion. Burton concerned a restaurant privately owned but operated in public facilities. It was an ordinary commercial activity. In contrast, we have here a political group which seeks to utilize a public forum. We have a place where the position of the state is required to be neutral and where denial of the use of the place will substantially impair the exercise of first amendment rights.
This case is not unlike Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), where the Court held that state payment of the transportation costs of children attending parochial schools did not violate the first amendment prohibition against laws "respecting the establishment of religion." Just as New Jersey in Everson did not transgress the establishment clause or unconstitutionally support parochial schools by providing transportation facilities and "such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks," id. at 17-18, 67 S.Ct. at 512, so, too, Virginia would not transgress the equal protection clause or unconstitutionally support the Party by providing a public forum.
The fact that the Party professes to be a political organization having as its purpose "the gaining of political power in the United States by all legal means and the elective process" does not alter our views. First, political organizations are entitled to first amendment protections, including the use of facilities for meetings and other appropriate purposes. Healy v. James, supra. Secondly, the use of facilities partially dedicated as a public forum for the expression of diverse views does not amount to state espousal of racist views, whether they are merely expressed or whether they are expressed by a group which implements them by racist membership policies. Finally, this is not a case where the Party has been shown to have obtained any degree of political success so that it may be fairly said, as
The able dissent narrowly draws its opinion to apply only to the use of a public school auditorium by a political organization which has a racially discriminatory membership policy.
Nor do we perceive how the use of a public forum by a political organization which has a discriminatory membership policy differs from the use of the same forum by a non-political private club or organization, particularly where that political organization has no effective power. It would be ironic to hold that such a private discriminatory club could use public property for occasional meetings or conventions where no substantial first amendment interests are at stake, but that a fringe political organization could not, even though the very core values protected by the first amendment are at stake.
We are confident that if the high school auditorium is made available to all groups, the very diversity and complexity of the views expressed, taken in bulk, will cure any incidental official identification attendant upon the use of the building for the articulation of extreme or abusive speech. At least that is the principle on which we have staked our all.
To summarize, we conclude that the state action doctrine has no application when the use of facilities effectively dedicated for the exercise of first amendment rights is involved. We therefore reverse the order of dismissal and remand the case for entry of an injunction requiring the Board to give the Party access to the auditorium unless a clear and present danger to good order or the preservation of property is shown.
Reversed and remanded.
BUTZNER, Circuit Judge (concurring in part and dissenting in part).
I concur in the court's ruling that expression of racist and anti-Semitic views does not bar the speaker from using public facilities. This much has long been settled and needs no elaboration. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Collin v. Chicago Park District, 460 F.2d 746 (7th Cir. 1972).
I dissent from that portion of the court's opinion that compels the State of Virginia to furnish a high school auditorium for public and private meetings of a political party that bars black people from membership. On this issue, the facts are not in dispute. The National Socialist White People's Party, a successor to the American Nazi Party, was incorporated in Virginia under the name of the "George Lincoln Rockwell Party." One of the purposes stated in its charter is "the gaining of political power in the United States by all legal means and the elective process." Membership is open only to white persons who embrace the Party's fundamental doctrines.
The Arlington County School Board initially granted the Party's application to use a high school auditorium for a public meeting. The Party then issued a news release announcing a rally in the auditorium, stating "all interested members of the general public [excluding Jews and Negroes] have been invited . . . ." When a school official learned of this release, anticipating violence, he immediately revoked the permit to use the auditorium and refunded the Party's rental fee. The Party nevertheless refused to cancel the rally and distributed flyers proclaiming that: "If you're a non-Jewish White person, you are invited . . ." On the evening of the rally the school was closed and guarded by police. Members of the Party noisily demonstrated at the school and at the home of the official who had revoked the permit. Subsequently, the Board denied the Party's applications for the use of facilities in which to hold other public and private meetings.
The Party claims that the Board's denial of a meeting place infringes the rights secured to it by the first and fourteenth amendments. I reject these claims because in my view the state possesses adequate power to deny the use of public buildings to organizations that exclude black people from membership.
The Party's claim that it has been denied equal protection of the laws because the Board has rented school facilities to other discriminatory organizations requires but brief comment. The record discloses that the Board has rented its facilities to churches which presumably
Although the record discloses that the Board has rented its facilities to organizations that practice racial discrimination, there is no proof that the Board knew of the discrimination when it entered into the rental agreements. Indeed, when the Board found that the Party had invited "the general public [excluding Jews and Negroes]" to the rally it commendably revoked the Party's permit to use the auditorium.
The Party's fourteenth amendment argument is also foreclosed by Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945), which upheld the constitutionality of a New York law forbidding racial discrimination in labor unions against a fourteenth amendment challenge. Speaking for the Court, Mr. Justice Reed said: "A judicial determination that such legislation violated the Fourteenth Amendment would be a distortion of the policy manifested in that amendment which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color." 326 U.S. at 93, 65 S.Ct. at 1487. Concurring, Mr. Justice Frankfurter added: "To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment." 326 U.S. at 98, 65 S.Ct. at 1489.
I conclude, therefore, that the fourteenth amendment does not authorize a federal court to compel a state to rent its property to an organization that bars black people from membership.
Were this case concerned solely with prior restraint on freedom of speech and assembly, I would not dissent. But this appeal does not turn on the right to preach racial hatred and religious bigotry. The first amendment clearly grants this right whether the speech is made in a park, on a street, or in a building that has been designated as a public forum. It is the Party's exclusion of black citizens,
Contrary to the Party's assertion, its first amendment rights are not so overriding that its racially discriminatory membership policy is irrelevant. Freedom of speech, assembly, and association are guaranteed by the first amendment to political organizations. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). Indeed, these rights are indispensable to a democracy. Nevertheless, the guarantee of first amendment freedoms does not compel a state to nurture racially discriminatory political parties. Just the opposite is true.
In a long line of cases, the Supreme Court has construed the fourteenth and fifteenth amendments to prohibit a wide variety of devices designed to keep black citizens from participating in political parties and the election process.
Similarly, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), provides the Party scant support. There the Court held that the first amendment did not prohibit New Jersey from paying transportation costs of children attending parochial schools. Significantly, the Court did not hold—as the Party contends in the case before us —that a state is compelled to furnish such transportation. Moreover, while the question is not free from doubt, it is possible that the state would have been prohibited from making the contribution if the schools had excluded pupils on the basis of race. Cf. Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Poindexter v. Louisiana Financial Assistance Comm'n., 275 F.Supp. 834 (E.D.La.1967), aff'd, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968); but cf. Norwood v. Harrison, 340 F.Supp. 1003 (N.D.Miss.1972), prob. juris. noted, 409 U.S. 839, 93 S.Ct. 68, 34 L.Ed.2d 79 (1972).
The Party also contends that its first amendment rights are paramount because rental of the school auditorium would not involve the state in promoting the Party's racist policies. The Party insists that, tested by Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the rental of school property is innocuous. In Moose Lodge, the Court held that Pennsylvania's grant of a liquor license to a private club did not sufficiently involve the state to bring the club's racially discriminatory guest policies within the ambit of the fourteenth amendment. Moose Lodge, it is readily apparent, does not reach the claim on which the Party's application for an injunction is based— that the first amendment requires the state to confer benefits on an organization despite its practice of racial discrimination. Moreover, the facts in Moose Lodge readily distinguish it from the case before us. The lodge, as the Court noted, is a private club; in contrast, the Party is a political organization open to all white persons who subscribe to its doctrines. The lodge conducted all of its activities in its own building on its own land; the Party, on the contrary, seeks to hold its meetings in a public building. Finally, Moose Lodge rests on the conclusion that the grant of a state liquor license cannot be said in any way to foster or encourage racial discrimination; a similar conclusion, however, cannot be reached here. As the Party's charter indicates, it is dedicated to gaining national political power. The proof establishes beyond question that it desires to use county school property for various meetings, both public and private, to further its political aims.
Viewing these facts in their entirety, I conclude that the state aid which the Party seeks is legally significant and that its reliance on Moose Lodge is misplaced. Mr. Justice Rehnquist, the author of Moose Lodge, carefully distinguished
Furthermore, at the risk of being repetitious, I emphasize that the School Board has chosen not to ally itself with the Party's racial practices. Therefore, even if it were to be conceded that the fourteenth and fifteenth amendments permit the state to rent its property to a racially discriminatory political organization, the issue is not settled. The state's power to prohibit racial discrimination is broader than the fourteenth amendment's ban on discriminatory state action. See Railway Mail Ass'n v. Corsi, 326 U.S. 88, 98, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945) (Frankfurter, J., concurring). There is no reason why this principle which pertains to labor unions whose members also possess first amendment rights should not be applied to political parties.
Less my dissent provoke misunderstanding, I repeat that it is based on the racially discriminatory practices of the Party, not its speeches. A political party's rhetoric cannot be equated with its rules. Though politicians of every persuasion are entitled to freedom of speech and assembly, their exclusion of people from party membership on account of race is a tactic that has been expressly condemned by the Supreme Court.
We are therefore not confident that the Board's regulation does not involve a denial of equal protection of the laws. We do not pursue the question, however, because of our conclusion concerning the first amendment.