# Korn v. Elkins > District Court, D. Maryland · September 17, 1970 · 317 F. Supp. 138 URL: https://www.frixlaw.com/law-library/cases/9625043 ## Case - **Full name:** Robert A. KORN, Laurence Becker, Robert Hall, Richard M. Muirhead v. Dr. Wilson H. ELKINS, Individually and as President, University of Maryland, Dr. Walter B. Waetjen, Individually and as Vice-President for Administrative Affairs, University of Maryland, Clayton R. Plummer, Individually and as Director of Procurement, Purchasing Department, University of Maryland - **Court:** District Court, D. Maryland - **Decided:** September 17, 1970 - **Citations:** 317 F. Supp. 138; 1970 U.S. Dist. LEXIS 10208 - **Precedential status:** Published - **Opinion:** Concurring in part by Northrop - **Judges:** Winter, Northrop, Kaufman - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9625043 ## How later opinions describe it (automated extraction) - holding that university's excision of repugnant material from student publication violated students' First Amendment rights ## Opinion text NORTHROP, District Judge (concurring in part and dissenting in part). I agree with the majority that the action of the defendants as to this issue of Argus magazine was constitutionally impermissible, but I do so for a different reason. In this instance, well aware that the contents of the Argus magazine before us were just as questionable as the cover, the defendants nevertheless procured its publication, and such uneven application of prior restraint would seem to me to be constitutionally impermissible and a proper subject for declaratory relief. However, it is my feeling that if the censorship had gone to the contents as well as the cover of the publication, the university officials would have been exercising a constitutionally permissible prior restraint. I cannot subscribe to the view that the administration or the faculty must submit to possible criminal prosecution by the State in order to sustain the right of freedom of speech of a small minority of militant students. While a state university may not exercise censorship over the contents of a magazine merely by virtue of its proprietary interest, as was held in Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (M.D.Ala.1967), and more recently *145 in Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass.1970), it does not make sense to say that in no instance, particularly when advised by their legal counsel (in this instance, the Attorney General), that they must permit students to force them to violate the law. Here their proprietary interest could subject them, as persons responsible, to the prescribed criminal penalty, and they were so advised by the Attorney General with reference to the cover of Argils, which was the only part of that magazine submitted to the Attorney General. They were also advised by the first printer that his attorney had found not only the cover but the contents to be violative of the so-called uniform “flag desecration” statute. In People v. Radich, 26 N.Y.2d 114 , 308 N.Y.S.2d 846 , 257 N. E.2d 30 (Feb. 18, 1970), the proprietor of an art gallery exhibiting the works of an artist was found guilty of flag desecration. And a publisher, as well as the art director and editor of a magazine in People v. Von Rosen, 13 Ill.2d 68 , 147 N.E.2d 327 (1958), were submitted to criminal prosecution, though their conviction was ultimately reversed for insufficiency of the evidence. Other cases that constituted desecration of the flag were Halter v. Nebraska, 205 U.S. 34 , 27 S.Ct. 419 , 51 L.Ed. 696 (1907), involving use of the flag on a beer bottle; State v. Schlueter, 127 N.J.L. 496 , 23 A.2d 249 (1941), tearing and crumbling a flag before a group; and more recently, Hoffman v. United States, 256 A.2d 567 (D. C. Court of Appeals 1969), wearing a shirt resembling an American flag en route to a Congressional hearing. While the United States Supreme Court has held that one need not honor the flag of the United States, it has not yet held that it is permissible to desecrate it. In Street v. New York, 394 U.S. 576 , 89 S.Ct. 1354 , 22 L.Ed.2d 572 (1969), at least four Justices, former Chief Justice Warren, and Justices Black, White and Fortas, indicated that the uniform flag desecration statute, which is the statute in question here, is facially constitutional. Former Chief Justice Warren stated categorically: “I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace.” Id. at 605 , 89 S.Ct. at 1372 . Justice Fortas characterized the flag as “a special kind of personalty” and stated further; “(i)ts use is traditionally and universally subject to special rules and regulation” and when it is used for the purpose of protest, its use "does not immunize the violator.” It is not every type of symbolic speech that is constitutionally protected. See United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968). While freedom of expression is certainly the hallmark of academic freedom, with the university community one crucible in which ideas and possible solutions to our complex civilization can be ground out for the betterment of all mankind, freedom of expression cannot and should not be the instrument by which a small minority seeks to bring down our civilization. The administration of the university has every right to reduce a point of friction in the interests of accomplishing educational ends. In Tinker and Antonelli , and the cases cited therein relating to freedom of speech on the campus, it is recognized that regulations restricting speech are permissible when they relate to the maintenance of order and discipline in the educational process. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 513 , 89 S.Ct. 733, 740 , 21 L.Ed.2d 731 (1968). Recent events on campuses throughout the country clearly indicate that unrestrained protestations characterized as “symbolic speech” have escalated the “protestations” into violence and disrupted the vast majority of the students’ pursuit of education. We judges often, in our charges to the jury, term the law as “common sense.” Can it be said that it is common sense to force the university to walk the tight rope of “imminent danger” for the sake of rhetorically extending logic to its breaking point ? Certainly recent events on the University of Maryland’s campus do not warrant this *146 court in circumscribing the University in its sincere endeavor to eliminate “protestations” calculated to bring on disruption. The defendants are in a better position than this court to determine what printed matter, and under what circumstances that printed matter, might disrupt the order and discipline necessary to the educational process. I think the declaratory relief of the majority is over-broad, and I would not restrict the defendants from promulgating regulations of censorship and exercising them, even as to the uniform flag desecration statute. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9625043. Public record. Not legal advice.