Douglass v . Londonderry School, et al CV-04-424-SM 02/14/05 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Blake S Douglass, a minor, By and through his next friend and father, J. Sherwood Douglass, Plaintiff

v. Civil N o . 04-424-SM Opinion N o .

Londonderry School Board, et a l . , Defendants

O R D E R

Blake Douglass, a senior at Londonderry’s public high

school, challenges editorial decisions that have effectively

limited his ability to express his individuality in his yearbook

photograph. The basic legal question presented is whether the

United States Constitution limits editorial authority over

school-related publications and, if s o , to what extent. Before

the court is Blake’s motion for preliminary injunctive relief.

Defendants object.

Blake argues that he is entitled to control the form,

content, and presentation of his photographic portrait in the

senior section of the 2005 Londonderry High School Yearbook. Or,

viewed from a slightly different perspective, he claims that school officials may not lawfully refuse to publish the senior

portrait he submitted merely because they disapprove of the

“message” they think readers will take from i t . Blake insists

upon publication of a yearbook photograph that shows him dressed

in trapshooting gear and holding a shotgun broken open over his

shoulder, in a safe fashion. He points out that, in the past,

other students were permitted to pose with items expressing their

hobbies or interests, such as athletic equipment, cars, and

musical instruments. Accordingly, he claims that the refusal to

publish his chosen photograph in the senior portrait section of

the yearbook amounts to unconstitutional viewpoint

discrimination, in violation of his First Amendment rights.

Blake’s lawsuit seeks preliminary and permanent injunctive

relief that would compel school authorities to publish his chosen

photograph in the senior portrait section of the yearbook. But,

as will be discussed, based upon the pleadings, exhibits, and

testimony presented at a hearing, he has not established (and

perhaps cannot establish) the necessary prerequisites for

equitable relief. That i s , he has not demonstrated a likelihood

2 of success on the merits of his constitutional claims and, in

fact, it appears unlikely that he will succeed on those claims.

Standard of Review

To obtain a preliminary injunction, Blake must establish

each of the following: (1) a likelihood of success on the merits

of his claims (either at summary judgment or at trial); (2) the

potential for irreparable harm if an injunction is not issued;

(3) that the hardship imposed upon defendants if they are

enjoined will be less than the hardship he will suffer if no

injunction issues; and, finally, (4) that issuance of an

injunction is consistent with (or at least not contrary to) the

public interest. See Ross-Simons of Warwick, Inc. v . Baccarat,

Inc.,

2 , 15 (1st Cir. 1996).

Findings of Fact

At the hearing on his motion for preliminary injunctive

relief, Blake called two witnesses: his father, J. Sherwood

Douglass, and the principal of Londonderry High School, James

Elefante. Defendants did not call any witnesses, but did cross-

examine those called by plaintiff. Based upon the testimony and

3 documentary evidence presented at that hearing, the court makes

the following findings of fact.

Blake Douglass is a senior at Londonderry High School and an

avid trapshooter. The high school does not sponsor or support an

organized trapshooting team or club. Accordingly, Blake pursues

his hobby independently. In late summer of 2004, Blake went to a

studio used by many local students for yearbook pictures, to have

his senior portrait taken. He decided to pose for his senior

portrait in dress that communicated his keen interest in sport

shooting; he wore trapshooting attire, including a pocketed

shooting vest with what appear to be two shotgun shells in his

vest pocket, and he crouched on one knee, with his Ruger shotgun

safely broken open over his shoulder. At some point during the

session, the photographer suggested that Blake might want to pose

for some additional pictures, without the shotgun, noting that a

photo including a firearm might not be deemed appropriate by

yearbook officials. Blake did s o .

Alerted by the photographer’s comment about the potentially

controversial nature of his senior portrait, Blake’s mother

4 contacted the yearbook faculty advisor, M r . Juster. She

described the photograph to M r . Juster, who told her, based on

her description, that he did not believe the yearbook would agree

to publish the photograph. Blake’s mother then asked if she

could meet with M r . Juster, to show him the photograph before any

decision was made regarding its propriety. M r . Juster agreed.

But, after seeing the photograph, Juster affirmed his initial

impression and told Mrs. Douglass that he thought the photo was

inappropriate for the senior portrait section of the yearbook.

Mr. Juster also told Mrs. Douglass that Blake could discuss the

matter further with the school’s principal, M r . Elefante, if he

wished.

Blake did take the issue up with M r . Elefante. M r . Elefante

also reviewed the photograph and explained that, while he had

only recently assumed the role of principal, and was not an

active participant in editing or laying out the yearbook, his own

initial impression was that the photograph was inappropriate for

publication in the senior portrait section. But, he told Blake

that before any final decision would be made regarding

publication, he would have to consult with the yearbook’s

5 editorial staff. Blake’s parents then retained legal counsel.

Subsequently, M r . Elefante met with Blake’s parents and their

legal counsel, and reiterated the same views he had shared with

Blake. Elefante did concede that if the same photo were

submitted, but without the shotgun resting on Blake’s shoulder,

he would have little concern about publishing it in the senior

section of the yearbook.

In an effort to persuade school officials that the

photograph of Blake with the shotgun should be published in the

senior portrait section, Blake and his parents reviewed

Londonderry High School yearbooks from the past twenty years or

s o , collecting photographs in which students were engaged in

seemingly violent, unlawful, and/or vulgar behavior (e.g., posing

with weapons or simulated weapons, making offensive gestures,

referencing use of alcohol by minors, e t c ) . No doubt, their

point was that Blake should not be treated differently based on

the content of his photograph, which was fairly benign when

compared to some that had been published in the past.

6 School officials remained unpersuaded, noting that the

yearbook reflects current standards and values of the community,

and that those standards had evolved since the 1980s and even the

1990s. School officials also told the Douglass family that they

did not want students to use their senior portraits to advocate

politically charged positions or evoke divisive issues in the

community. The Douglass family countered that Blake wanted that

particular picture in the senior section of the yearbook not for

the purpose of provoking controversy, but simply because he

wished to express his enthusiasm for trapshooting, his major

recreational interest. The photograph, they said, did not

represent any type of political statement or implicit comment on

gun regulation, or the right to bear arms, or the reach of Second Amendment.1

Meanwhile, the students who comprised the yearbook staff

became aware of the controversy. At some point, the ten student

1 That claim is contradicted somewhat by the senior quotation Blake submitted to yearbook staff, for publication just under his senior picture: “‘From my cold dead hands!’ - Charlton Heston (May 2 0 , 2000).” Taken together, the photograph of Blake posing with his shotgun and the Heston quote immediately beneath it might reasonably be viewed as a comment on gun control, a matter of some public controversy. Nevertheless, the yearbook staff agreed to publish the quotation.

7 editors of the yearbook met to discuss the issue. They took an

informal vote on whether to publish the photograph Blake

submitted and initially, before they saw the photograph, six

editors expressed the view that the photograph was inappropriate

for the senior portrait section, while four expressed the view

that it was appropriate. Later, the editors examined the

photograph and met with Principal Elefante to discuss the issue

further. M r . Elefante testified that he told the student editors

that he wanted the yearbook to represent their thoughts and views

and, therefore, solicited their opinions on the issue. After the

students discussed the issue among themselves (with M r . Elefante

present) for approximately 30 minutes, Elefante asked if they

would take a “straw poll,” so he might see how many editors were

in favor of publishing the photograph and how many were opposed.

Eight of the student editors tentatively voted against publishing

the photograph in the senior portrait section and two voted in

favor.

Eventually, according to M r . Elefante’s testimony, the

yearbook editorial staff formally voted on the issue, and all ten

editors agreed that the photograph of Blake posing with his

8 shotgun should not appear in the senior portrait section. But,

in an effort to accommodate Blake’s desire to have that

particular photograph published, the student editors proposed to

publish it in the community sports section, a section of the

yearbook dedicated to students’ pursuits of extracurricular

activities not officially sponsored by the school, such as

skiing, archery, biking, bowling, etc. Blake and his parents

rejected that proposal. Blake did, however, submit an alternate

photograph for the senior portrait section, in case his efforts

to compel the publication of his chosen photograph proved

unsuccessful.

When questioned by the court, M r . Elefante testified that if

the students had voted to publish the photograph in the senior

portrait section, he would have given that decision substantial

weight. But, he and the faculty members who served as advisors

to the yearbook (and, presumably, the school board), retained

full authority to overrule such a student vote. Because the

students unanimously voted not to publish Blake’s chosen

photograph in the senior portrait section, however, neither the

9 school’s faculty advisors nor its administrators were called upon

to exercise that veto authority.

When Blake and his parents learned of the decision not to

publish Blake’s chosen photograph in the senior portrait section

and, instead, to publish it in the community sports section, they

filed this lawsuit. While the suit was pending, and in advance

of the hearing on plaintiff’s motion for preliminary injunctive

relief, the Londonderry School Board enacted a new policy

regarding school yearbook publications. That new policy

provides:

Senior Portraits: All senior portraits shall be of the student only with a traditional indoor or outdoor background. No props, instruments, pets, athletic equipment, hobby items, or vehicles shall be allowed in the photographs. Clothing shall be modest and free of slogans and/or political expressions and such clothing shall be in conformance with the School district’s dress code. Photographs of seniors engaged in non-School District sponsored sporting events (only Olympic or NHIAA sanctioned events qualify) may be submitted for inclusion on the community sports page.

Advertisements: The Londonderry High School yearbook and other school yearbooks are not a public forum. Accordingly, any advertisements must be free of political expression and reflect the common values of the Londonderry School District. Advertisements shall not promote the use of tobacco, drugs or the use of other items prohibited from use on school grounds.

10 Senior Messages: All senior messages shall be free of personal attacks, abusive language, racial epithets, vulgar comments, sexual innuendo, and all other speech that is inconsistent with the shared community values of the Londonderry School District.

Londonderry School District Yearbook Policy, adopted January 1 1 ,

2005 (emphasis supplied).

Although he is not a member of the school board, M r .

Elefante testified, both on direct and cross-examination, that

the new policy was not aimed at suppressing Blake’s particular

viewpoint regarding firearms, nor was it specially designed to

prevent his chosen photograph from appearing in the senior

portrait section of the yearbook. Instead, M r . Elefante said,

the policy was implemented to free student editors and school

officials from having to annually determine which props, slogans,

or political speech used in students’ senior photographs might be

offensive or might risk associating the school with non-neutral

positions on divisive social or political issues - an editorial

task which requires them to constantly draw difficult lines on a

case-by-case basis. That i s , the new policy was designed to

standardize the senior portrait section and minimize the need for

discrete content-based editorial decision-making.

11 Discussion

I. State Action.

Plaintiff advances his federal constitutional claims

pursuant to

. Under that statute, a federal

cause of action may be asserted against any person who, while

acting under color of state law, “subjects or causes to be

subjected . . . [another] to the deprivation of any rights,

privileges, or immunities secured by the Constitution.” In order

to prevail on the merits in this case, Blake must first establish

that the named defendants deprived him of a constitutional right

and acted under color of state law when they did s o . See, e.g.,

Polk County v . Dodson,

1 2 , 315 (1981) (noting that, as

a jurisdictional prerequisite to pursuing a claim under section

1983, a plaintiff must establish that a defendant acted under

color of state l a w ) .

Ordinarily, a federal constitutional violation does not

arise when a private citizen acts. For example, barring unusual

circumstances, a private employer does not violate the First

Amendment rights of its employees by implementing a policy

preventing employees from displaying political placards, slogans,

12 or bumper stickers in their offices. See generally Denver Area

Educ. Telecoms. Consortium v . FCC,

2 7 , 737 (1996) (“We

recognize that the First Amendment, the terms of which apply to

governmental action, ordinarily does not itself throw into

constitutional doubt the decisions of private citizens to permit,

or to restrict, speech.”); Hudgens v . NLRB,

0 7 , 513

(1976) (“It i s , of course, a commonplace that the constitutional

guarantee of free speech is a guarantee only against abridgment

by government, federal or state. Thus, while statutory or common

law may in some situations extend protection or provide redress

against a private corporation or person who seeks to abridge the

free expression of others, no such protection or redress is

provided by the Constitution itself.”) (citation omitted). In

other words, the First Amendment protects individuals against

governmental action; it does not restrict the conduct of private

citizens, nor is it violated when one private actor “suppresses”

the speech of another.

The first hurdle Blake faces, then, is that he must show

that people acting under color of state law - state actors - made

the decision that allegedly deprived him of his First Amendment

13 rights. In that regard, he (or his counsel) appears to have sued

the wrong people. That is to say, Blake has sued people who,

although they are state actors, do not appear to be the ones who

made the decision not to publish his chosen photograph in the

senior section of the yearbook, at least not the controlling

decision.

As noted, the record evidence establishes that the

challenged conduct in this case - the decision not to publish the

photograph of Blake holding a shotgun in the senior portrait

section of the yearbook - was actually made (unanimously) by the

ten student editors of the yearbook, and not school officials.

None of those students is a named defendant in this case. And,

even if Blake had sued those students, it seems clear on the

record as it stands that none is a state actor (that is to say,

none of the students may properly be viewed as “the government”

for purposes of this suit). The fact that the school’s

principal, the yearbook’s faculty advisors, and/or the school

board (all of whom are unquestionably “state actors”) retained

authority to overrule the students’ editorial decisions does not,

standing alone, convert the students into state actors. Nor does

14 the fact that the school’s administration may have endorsed the

editors’ decision (indeed, fully agreed with and supported i t ) ,

turn the student editors into state actors for purposes of this

suit.

The critical facts here are that the students were vested

with editorial discretion and they apparently made the

controlling decision not to publish the photograph Blake

originally submitted. Absent state action, the students’

decision not to publish Blake’s chosen photograph (or, perhaps

more accurately, the decision to publish it in the community

sports section, rather than in the senior portrait section)

cannot be said to have violated Blake’s First Amendment rights.

As the court of appeals for this circuit noted only a few years

ago:

The essential state action inquiry is whether the government has been sufficiently involved in the challenged actions that it can be deemed responsible for the plaintiff’s claimed injury. If there is no state action, then the court may not impose constitutional obligations on (and thus restrict the freedom of) private actors.

15 Yeo v . Town of Lexington,

4 1 , 248-49 (1st Cir. 1997)

(footnote omitted).

In Yeo, the Court of Appeals for the First Circuit

concluded, under circumstances similar to those presented here,

that student editors of a public high school yearbook and

newspaper are not “state actors” for First Amendment purposes.

Where, as here, there are First Amendment interests on both sides of the case, the analysis of whether there is state action must proceed with care and caution. Because the record establishes that the editorial judgment exercised was the independent judgment of the student editors of both [the school newspaper and the school yearbook], we resolve the question of state action against [finding that the students were state actors].

.

In reaching the conclusion that student editors of the

school newspaper and yearbook in Yeo were not, for purposes of

constitutional analysis, state actors, the appellate court

considered and rejected three separate theories advanced by the

plaintiff in that case (theories that have not, but could have

been advanced by Blake’s counsel in this case): First, that the

16 editorial decisions were actually controlled by school officials,

thereby injecting the necessary element of state action; second,

that even if the state did not actively direct or control

editorial decisions made by the students, the state had a duty to

intervene and control the content of school publications, thus

making the students state actors; and, finally, that even if

editorial decisions were made independently by the students,

those decisions are fairly attributed to school officials

(plainly state actors), because they were made in the school

setting.

. The court rejected each of those

arguments in turn, concluding that editorial decisions made by

public school students do not constitute “state action.”

Nothing in the factual record of this case (at least as it

presently stands) suggests any basis upon which to distinguish it

from the Yeo case. The decision not to publish the photograph

originally submitted by Blake in the senior portrait section was,

according to the uncontradicted testimony of Principal Elefante,

made by the student editors of the yearbook; those student

editors appear to have been vested with substantial discretion to

decide matters relating to the content and lay-out of the

17 yearbook; although the decision was endorsed and perhaps even

applauded by school officials, the students’ decision was

apparently neither mandated by nor controlled by any of the named

defendants in this case; and, finally, the fact that public

school officials might be vested with authority to reject student

editors’ publication or lay-out decisions is not, standing alone,

sufficient to imbue the students’ decisions with state action,

nor does it transform student editors into state actors.

The decision to “suppress” Blake’s speech based upon its

content - if the decision to publish his photograph in the

community sports section of the yearbook, rather than in the

senior portrait section, is correctly viewed as “suppressing”

Blake’s speech - was made by private citizens, not state actors.

In simple terms, the state has not, it seems, suppressed Blake’s

speech; his fellow students have done s o , for reasons they deemed

appropriate in developing, editing, organizing, and publishing

the yearbook. The First Amendment to the Constitution simply

does not preclude such conduct by private actors. Consequently,

Blake has not met his burden of demonstrating that he is likely

18 to succeed on the merits of his First Amendment claim, a

prerequisite to obtaining preliminary injunctive relief.

II. The Londonderry School District Yearbook Policy.

Even if Blake could establish state action in the decision

not to publish his desired photograph in the senior portrait

section, his request for preliminary injunctive relief would

still fall short. Parenthetically, the court notes that the

final decision not to publish Blake’s chosen photograph in the

senior portrait section was made before the new yearbook policy

was adopted, and that decision has not been changed (nor does it

appear that it was affirmed under the new policy). The new

policy did affect two other students, who submitted senior

portraits which included props of some sort. Absent the new

policy, their photographs likely would have been published in the

senior portrait section, but now run afoul of the new “no props”

policy. Of course, Blake’s proposed picture also runs afoul of

the new “no props” policy. As it turns out, however, even if the

new policy had been or is now invoked as an additional or

superceding reason to reject Blake’s chosen photograph, his

challenges to that policy would still fail.

19 The recently enacted yearbook policy - which, by its terms,

applies to this year’s edition of the Londonderry High School

Yearbook - i s , on its face, viewpoint-neutral regarding

limitations imposed on the subject-matter of senior portraits.

Plaintiff appears to concede as much.2

Accordingly, even though the new policy effectively

precludes Blake’s proposed photograph, and suppresses whatever

message it might arguably convey (regardless of whether one views

that message as “I enjoy trapshooting” or “I am against gun

control”), the policy does not do so in an impermissible or

unconstitutional manner. The new yearbook policy does not single

out any particular viewpoint(s) for preferential treatment, nor

does it single out any for unfavorable treatment. Instead,

Londonderry’s new yearbook policy uniformly precludes all

students from posing with any props, whether they are

automobiles, pets, sporting equipment, beverages, or firearms.

2 At the hearing, counsel for plaintiff agreed that, “if this policy had been in place at the beginning of the school year, [Blake] couldn’t have posed with a shotgun. There is absolutely no question about it.”

20 Blake has not demonstrated that such a content (and viewpoint)

neutral policy is likely to be held unconstitutional.3

Nor has he demonstrated that the new yearbook policy is

being enforced selectively, in an effort to single out his

particular speech for special treatment. In fact, M r . Elefante’s

uncontradicted testimony established that the new policy was

applied even-handedly, and that two other seniors who, like

Blake, had submitted photographs of themselves posing with props,

were notified that they would have to submit different

photographs. Both did s o .

3 Although the distinction between content-based restrictions and those which are viewpoint-based is somewhat imprecise, see, e.g., Rosenberger v . Rector & Visitors of the Univ. of Va.,

(1995), this much can be said with relative confidence: content-based restrictions tend to focus on the subject matter of speech, whereas viewpoint-based restrictions tend to focus on the speaker’s perspective or opinion on a particular subject. Viewpoint-based restrictions on speech are, then, a subset of content-based restrictions. See

(“When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (citation omitted).

21 Through his counsel, Blake suggests (but does not develop

any supporting legal argument) that because the policy was

adopted shortly after he filed suit, it necessarily constitutes

an impermissible effort to stifle his constitutionally protected

speech. Although the precise contours of Blake’s claim are

unclear, he seems to contend that an otherwise viewpoint and

content-neutral policy may, nevertheless, be unconstitutional if

its enactment was motivated by an intent to suppress his speech.

If the court has accurately interpreted plaintiff’s claim, he has

failed to point to any authority which might support i t .

The general rule, as expressed by the Supreme Court, is that

an illicit motive underlying the enactment of an otherwise valid

and content-neutral regulation will not invalidate that

regulation.

It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated: “The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.”

22 United States v . O’Brien,

6 7 , 383 (1968) (quoting

McCray v . United States,

7 , 56 (1904)). The Court of

Appeals for the Seventh Circuit summarized this principle rather

well when it noted that “[j]ust as we would never uphold a law

with unconstitutional effect because its enactors were benignly

motivated, an illicit intent behind an otherwise valid government

action indicates nothing more than a failed attempt to violate

the Constitution.” Grossbaum v . Indianapolis-Marion County Bldg.

Auth.,

, 1293 (7th Cir. 1996).

This court is aware of the Supreme Court’s decision in

Cornelius v . NAACP Legal Defense & Educ. Fund,

(1985), which might seem to be at odds with (or, perhaps,

describe an exception to) the general rule. There, the Court

held that, “[t]he existence of reasonable grounds for limiting

access to a nonpublic forum, however, will not save a regulation

that is in reality a facade for viewpoint-based discrimination.”

. See also Ridley v . Mass. Bay Tansp. Auth.,

5 ,

77 (1st Cir. 2004) (“If [defendant] revised [its guidelines on

the types of advertising it accepts] merely as a ruse for

23 impermissible viewpoint discrimination, that would be found

unconstitutional regardless of the type of forum created.”).

Importantly, however, in Cornelius the Court was concerned

with the government’s subjective motivations because the case

involved a restriction on speech which was not content-neutral -

under the challenged policy, some organizations were allowed to

participate in the federal government’s general charity drive,

known as the Combined Federal Campaign, while others were not.

That fact distinguishes Cornelius (and Ridley) from this case, in

which the new Londonderry School District Yearbook Policy is

plainly both content and viewpoint neutral, precluding, as it

does, all, not “some,” props from senior portraits. The Court of

Appeals for the Seventh Circuit explained the significance of

this distinction in clear and succinct language:

Because the government was distinguishing among groups based on the content of their messages (either advocacy or nonadvocacy vocacy), the [Cornelius] Court remanded the case to see whether the government was really targeting certain viewpoints.

Where, however, the government enacts a content-neutral speech regulation for a nonpublic forum, there is no concern that the regulation is “in reality a facade for viewpoint-based discrimination.” Whatever the intent of the government actors, all viewpoints will be

24 treated equally because the regulation makes no distinctions based on the communicative nature or impact of the speech. A facade for viewpoint discrimination, in short, requires discrimination behind the facade (i.e., some viewpoints must be disadvantaged relative to other viewpoints). . . . When the government restricts speech in a content-neutral fashion, however, all viewpoints - from the Boy Scouts to the Hare Krishnas - receive the exact same treatment.

Grossbaum, 100 F.3d at 1298 (quoting Cornelius,

)

(emphasis supplied). So it is in this case. Because the new

yearbook policy treats all seniors similarly and prohibits all

from posing with any sort of props, regardless of the message

sought to be conveyed, the new policy governing what is at best a

nonpublic forum, is content-neutral. The school board members’

subjective motivations in enacting that policy, then, are not

legally relevant. But, even if they had acted only to suppress

Blake’s chosen photograph - and no direct evidence has been

presented suggesting that they did - at best they engaged in

“nothing more than a failed attempt to violate the Constitution.”

Id., at 1293.

Finally, it probably bears noting that even if Blake could

point to some legal authority supportive of his view that a

25 discriminatory motive underlying the school board’s adoption of a

content-neutral policy might invalidate that policy, he has

failed to present any evidence, other than an inference arising

from the timing of the board’s decision to adopt the new policy,

which supports his assertion that the board was motivated by an

intent to suppress his constitutional rights. To the contrary,

the only direct evidence on that point is the testimony of M r .

Elefante, who repeatedly stated that the new policy was adopted

so school administrators and faculty would not have to be

involved in an annual task of weighing the relative

appropriateness or inappropriateness of various props, costumes,

or slogans that students might wish to include in their senior portraits.4

It i s , of course, likely that the local controversy

surrounding publication of Blake’s photograph prompted the school

4 The United States Supreme Court has made clear that, with regard to student publications, public schools do “retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the shared values of a civilized social order, or to associate the school with any position other than neutrality on matters of political controversy.” Hazelwood Sch. Dist. v . Kuhlmeir,

6 0 , 272 (1988) (citation and internal punctuation omitted) (emphasis supplied).

26 board to adopt the new policy to avoid future conflicts of that

sort. Nevertheless, Blake has failed to demonstrate that the new

policy constitutes either a ruse or facade, actually designed to

suppress his particular message. Of course, after some fact

discovery and legal research, it is possible that Blake might

better support his position (either at summary judgment or

trial). At this stage, however, Blake has failed to demonstrate

that he is likely to prevail on the merits of his federal claim

relative to the new policy as well, s o , again, has not met his

burden with regard to the “likelihood of success” prerequisite to

obtaining injunctive relief.

Conclusion

The evidence of record establishes that the student editors

of the Londonderry High School Yearbook decided (unanimously) not

to publish the photograph of Blake posing with his shotgun in the

senior portrait section of the yearbook. Given the controlling

legal precedent in this circuit, and based upon the evidentiary

record as it presently stands, the court cannot conclude that the

students’ decision involved “state action,” or was taken under

color of state law. Accordingly, plaintiff has failed to

27 demonstrate that he has a viable constitutional claim.

Necessarily, then, he has not shown that he is likely to prevail

on the merits of any federal constitutional claims.

Moreover, even if plaintiff had established that “state

action” was involved in the decision not to publish the

photograph he originally submitted in the senior portrait

section, he has failed to show that the new Londonderry School

District Yearbook Policy unconstitutionally abridges his First

Amendment rights, or that the policy would be unenforceable as to

him. (Plaintiff’s counsel implausibly suggested at the hearing

that some form of estoppel might preclude enforcement of the

policy because it was adopted well into the school year, or that

the policy is unenforceable as some form of impermissible ex post

facto regulation, interfering with Blake’s vested right to have

the photograph of his choosing published in the senior section of

the yearbook. Neither argument has merit.)

For the foregoing reasons, plaintiff’s Motion for Expedited

Consideration of Motion for Preliminary Injunctive Relief

(document n o . 11) is granted. His Motion for Preliminary

28 Injunctive Relief (document n o . 12) i s , however, denied. Unless

a genuine dispute of material fact exists regarding the student

editors’ decision, or their status as private actors, the case

would seem to be ripe for summary judgment disposition (e.g., an

editorial decision by private actors does not give rise to a

constitutional violation, nor does a content-neutral publication

policy). A prompt further pretrial status conference, on the

record, will be scheduled by the Clerk of Court.

SO ORDERED.

Steven J. McAuliffe r Chief Judge

February 14, 2005

cc: Penny S . Dean, Esq. Russell F. Hilliard, Esq.

29