Marshall H. Tanick is an attorney with the Twin Cities law firm of MEYER NJUS TANICK and was one of the Daily’s attorneys in the Stanley case.

The 40th anniversary of a landmark First Amendment freedom of expression case at the University passed without much notice or fanfare a few weeks ago: a federal appellate court ruling upholding the challenge by The Minnesota Daily, in successfully challenging the retaliation against it by the Board of Regents for a controversial “Humor” issue that wasn’t very funny.

Four decades ago, on October 11, 1983, the Eighth Circuit Court of Appeals that oversees litigation in Minnesota unanimously overturned a decision of the U.S. District Court in St. Paul. It held in a case entitled Stanley v. Magrath, the First Amendment right of Daily and its staff was infringed. The suit was in response to a decision by the Board stripping some of The Daily’s financial base in response to publication of an issue that was deemed offensive by many Minnesotans, including University officials.

The roots of the Stanley case stem from student strife over the Vietnam War in the late 1960’s.  In a landmark case entitled Tinker v. Des Moines, the U.S. Supreme Court upheld the right of high school students to wear black armbands in school protesting the war, finding that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

Tinker rang the bell for the expansion of freedom of expression rights in the academic world. But the Daily and its editors were taken to the proverbial woodshed a decade later due to the paper’s “Finals Week” edition at the end of the 1978-1979 school year.

Known as the paper’s “Humor” issue, The Daily parodied the popular “National Inquirer” tabloid and laced it with provocative content that included some scatological terminology that would be mild by today’s standards. The issue poked fun at University administrators and, most controversially, contained a mock interview entitled “Christ Speaks” with a pretend Jesus Christ, garbed in a crucifix or a cross in the middle of the Mall adjoining Northrop Auditorium offering this advice to students: “take drugs” and fornicate.

A firestorm broke out, with the 12-member Board of Regents, by a 9-3 vote, heeding the urging of University President, C. Peter Magrath to teach the paper and its staff a lesson to make it more “responsible” and “responsive.” Ignoring the Tinker rationale, the Board Tinkered with the long-standing mandatory “student-service fees” paid by students for the newspaper. That arrangement dates back around 60 years, which at the time was about $5.50 per year. The Regents converted it to an optional arrangement allowing objectors to “opt-out” of paying the fee while getting access to the newspaper.

Because few students opted out, the amount of money lost by the Daily was negligible.  But the paper claimed the retaliatory sanction caused it to steer away from controversial matters or items that might be deemed sensitive or disturbing.

The Daily, through its editors, sued the University and claimed a First Amendment infringement of their right as freedom of the press, an assertion that was rejected after a trial. District Court Judge Robert Renner in St. Paul deemed the fee dilution a “rational” exercise of the Regents’ authority.

But the appellate court 40 years ago reversed that determination, ruling the Regents’ action constituted a First Amendment violation. A three-judge panel reasoned that the slight “amount of money [at issue] is beside the point” because the Regents financial retaliation caused a “chilling effect” on the newspaper and its staff by impermissible “reacting to the contents of the paper and the disapproval that others expressed of those contents,” in violation of the First Amendment.

The Daily was reimbursed for its slight economic loss, along with attorney’s fees for its lawyers. The lawyers, later, generously contributed a portion to establish a “First Amendment Fund,” providing scholarships and other awards for journalism and law students at the University and sponsoring educational programming on First Amendment issues.

The Stanley ruling, as a successor to the Tinker case, constituted a high water mark for Constitutional rights of students who pass through “schoolhouse gate.” While its potency as a bulwark against censorship is academia been diluted over the years, especially at the high school level, it’s a precedent that still stands in Minnesota today 40 years later.