Panarella v. Birenbaum, 32 N.Y.2d 108 (1973)

Tax-supported colleges may provide financial assistance for a student newspaper publishing an occasional article attacking religious beliefs, so long as the nature of the attack is arguably within constitutionally protected publication, evidencing a neutral forum for debate rather than an intent to advance or destroy religious beliefs.

Summary

This case concerns whether public colleges can fund student newspapers that publish articles critical of religion without violating the Establishment Clause. The New York Court of Appeals held that colleges may provide financial support to student newspapers that occasionally publish articles attacking religious beliefs, as long as the college maintains a neutral forum for diverse opinions and does not systematically attack religion. The court emphasized that censorship of occasional articles touching on religious beliefs would violate freedom of the press.

Facts

Two separate proceedings were consolidated: one involving Staten Island Community College’s newspaper, The Dolphin, which published an article entitled “The Catholic Church—Cancer of Society,” and the other involving Richmond College’s newspaper, The Richmond Times, which printed an article expressing a Black militant attitude toward Christianity. Both newspapers were funded by mandatory student fees and displayed official seals of their respective colleges. The petitioning students and taxpayers argued that permitting the publication of articles attacking religion in newspapers supported by public funds violated the Establishment Clause of the First Amendment.

Procedural History

Special Term ruled in favor of the petitioners, directing college officials to prevent publication of similar articles in the future. The Appellate Division reversed, dismissing the petitions, holding that the colleges had merely established a forum for the free expression of ideas, and college officials could not infringe on the rights of students to free expression. The New York Court of Appeals then reviewed the Appellate Division’s decision.

Issue(s)

Whether tax-supported colleges violate the Establishment Clause of the First Amendment by providing financial assistance to student newspapers that occasionally publish articles attacking religious beliefs.

Holding

No, because the colleges merely provided a neutral forum for debate and did not evidence an intent to advance or destroy religious beliefs. The court reasoned that only systematic and unbalanced attacks on religion might constitute an attempt to “establish” a “secular religion.”

Court’s Reasoning

The court applied the Establishment Clause principles, referencing cases like Abington School Dist. v. Schempp and Epperson v. Arkansas, which prohibit government action that advances or inhibits religion. However, the court also cited cases like Walz v. Tax Comm., which allows for “benevolent neutrality” that permits religious exercise without sponsorship or interference. The court emphasized that the secular objectives of the student newspapers (developing journalistic skills, providing campus news, and fostering intellectual exchange) outweighed any incidental impact on religion. The court stated, “The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”

The court reasoned that censoring the content of the newspaper would entail a sustained and detailed review of religious material submitted for publication, raising concerns about biased enforcement. The court also noted that excluding all religious material from a student newspaper, even under neutral supervision, could defeat acceptable civilized purposes, such as listing church events or studying comparative religion. The court concluded that the test is not the appearance of derogatory or critical material, but whether the government maintains neutrality by permitting all sides of any religious controversy to be raised without favoring any particular side.

The court further stated, “Granting financial means to a newspaper occasionally publishing articles promoting or condemning religion may give rise to some, but yet a lesser, involvement than censoring articles having a religious subject, or terminating financial aid when religious attacks are published. The questions are ‘whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement-’”

The court also addressed the suggestion that The Richmond Times article should be suppressed to maintain an efficient school system, stating that neither petitioners nor college officials had urged suppression on this ground. The court stated, “unless it can be shown that suppression is necessary to avoid material and substantial interference with the requirements of order and discipline in the operation of the college, publication is protected by freedom of the press.”