The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Offense to the few is the repercussion of freedom for all.
Gettysburg College, a private institution located in an area of
the country best known for a three-day battle during the Civil
War, plans to display an exhibit featuring the flag of the
Confederacy. The exhibition opens later today. Two days ago,
James Andrew Coleman commenced a civil action seeking to enjoin
the display.*fn1 He claims that he and the community will be
irreparably harmed by presentation of this racially charged
symbol. The complaint will be dismissed.*fn2
The complaint seeks, in addition to injunctive relief,
compensatory damages in excess of five million dollars and
punitive damages in excess of ten million dollars. How these sums
were generated is undisclosed. Whatever their basis, however,
they are clearly unreasonable. The exhibit at issue has not yet
appeared, and Mr. Coleman could not have suffered any compensable
injuries at this time. And, since Gettysburg College has not yet
presented the exhibit, there is no basis for the imposition of
punitive fines against the institution. These demands lack any
arguable basis in law or fact and must be viewed as legally
Similarly lacking are the substantive grounds for Mr. Coleman's
claims. He cites various constitutional and statutory civil
rights provisions in support of relief. But a cursory review of the complaint discloses that the events
at issue do not implicate "state action," a prerequisite to
federal civil rights actions. See Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-58 (1999). Gettysburg College is a
private institution. See Brownley v. Gettysburg Coll.,
338 F. Supp. 725 (M.D. Pa. 1972), cited in Braden v. Univ. of
Pittsburgh, 552 F.2d 948, 964 n. 79 (3d Cir. 1977) (collecting
cases). No government actor was apparently involved in the
creation or presentation of the exhibit, and no other state
action is asserted or apparent. The complaint targets a private
entity for alleged violations of constitutional provisions.
Federal law provides no relief in such circumstances. See Am.
Mfrs., 526 U.S. at 49-58.
More importantly, the complaint reveals a fundamental
misapprehension of the right to freedom of speech. Open and free
debate is the cornerstone of American society.*fn3 See
Cohen v. California, 403 U.S. 15, 24 (1971). The First
Amendment embodies and protects this interest by preventing
government whether in the guise of the executive, the
legislature, or the courts from intruding on individuals'
rights of free expression absent a compelling justification.
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265 (1964); Shelley
v. Kraemer, 334 U.S. 1, 13 (1948). Mere offense or injury to
sensibilities is insufficient. Texas v. Johnson, 491 U.S. 397, 408-09 (1989);
Cohen, 403 U.S. at 24-25. Only when the expression carries an
immediate and palpable risk of cognizable harm can government
intercede. NAACP v. Claiborne Hardware Co., 458 U.S. 886,
927-28 (1982); Gooding v. Wilson, 405 U.S. 518, 524 (1972);
Schenck v. United States, 249 U.S. 47, 52 (1919) (Holmes, J.).
No such risk exists here. The expression at issue is an art
exhibit, and the sole objection is that the symbols of the
display will cause offense. The exhibition deals with a
controversial subject but will not and could not cause such
immediate harm as to permit court intervention. It may, as the
complaint alleges, "glorif[y]" the symbols and views of the
Confederacy that Mr. Coleman and others loath.*fn4 See
Cantwell v. Connecticut, 310 U.S. 296, 302, 310-11 & n. 10
(1940) (citing Schenck, 249 U.S. 47). It may engender anger and
fear among African-American residents.*fn5 See Virginia
v. Black, 538 U.S. 343, 365-66 (2003); see also R.A.V. v. St. Paul, 505 U.S. 377, 402 & n. 4 (1992)
(White, J., concurring in judgment). It may "invite hate groups
. . . to come to the area and protest." See Gregory v.
Chicago, 394 U.S. 111, 120 (1969). It may even "advocate the
overthrow of the United States government." See Brandenburg v.
Ohio, 395 U.S. 444, 448 (1969) (per curiam). It may do all of
these things without inviting or allowing regulation by
government. Sullivan, 376 U.S. at 265. Only if speech would
potentially cause immediate and cognizable harm to an individual
or a particular group may the court act. N.Y. Times Co. v.
United States, 403 U.S. 713, 714 (1971) (per curiam);
Brandenburg, 395 U.S. at 448. The exhibition at issue
admittedly would cause no greater immediate injury than personal
offense, and enjoining the expression would clearly violate the
Constitution. See Black, 538 U.S. at 362-66.
Indeed, the "high purpose" of the First Amendment is to protect
speech that some may find objectionable. Johnson,
491 U.S. at 408-09 ("[Free speech] may indeed best serve its high purpose
when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger.")
(quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). An
effective symbol is one that evokes an emotional response,
positive or negative. Id. Without the right to engage in speech
that potentially offends, one is without the right to engage in speech that fundamentally advocates.
Id.; see also Cohen, 403 U.S. at 24-25; Bair v. Shippensburg
Univ., 280 F. Supp. 2d 357, 370-71 (M.D. Pa. 2003). The
Constitution precludes government from imposing limitations on
expression based on viewpoint when the only injury alleged is
personal affront. See R.A.V., 505 U.S. at 390-91; Johnson,
491 U.S. at 408-09; Cohen, 403 U.S. at 24-25. The court is
simply without constitutional authority to order the relief
requested in this case. See Sullivan, 376 U.S. at 265.
But Mr. Coleman is not without remedies. He is free to protest
the exhibit through picketing or speeches. He is free to publish
leaflets and editorials on the subject. He is free to present his
own counter-exhibit at another location. Any of these acts would
likely be protected by the First Amendment, even if they shock
and anger Gettysburg College or other members of the community.
Offense to the few is the repercussion of freedom for all. The complaint will be dismissed for failure to state a claim
and as legally frivolous. See 28 U.S.C. § 1915(e)(2). An
appropriate order will issue. ORDER
AND NOW, this 3rd day of September, 2004, upon consideration of
plaintiff's complaint (Doc. 1) and application to proceed in
forma pauperis (Doc. 2), and for the reasons stated in the
accompanying memorandum, it is hereby ORDERED that:
1. The application to proceed in forma pauperis
(Doc. 2) is construed as a motion to proceed without
full prepayment of fees and costs and is GRANTED.
See 28 U.S.C. § 1915(a).
2. The complaint (Doc. 1) is DISMISSED for failure to
state a claim and as legally frivolous. See
28 U.S.C. § 1915(e)(2).
3. Leave to amend is DENIED based on futility and bad
faith. See Grayson v. Mayview State Hosp.,
293 F.3d 103, 108 (3d Cir. 2002).
4. Any appeal ...