The plaintiff, Alfred Avins, brought suit in the District Court for the District of New Jersey against the defendant, Rutgers, The State University of New Jersey, for declaratory and injunctive relief. The plaintiff alleged that he had submitted to the editors of the Rutgers Law Review for publication in the Review an article which reviewed the legislative history of the Civil Rights Act of 1875 as it pertained to school desegregation and which concluded that, in the light shed by the Congressional debates, the United States Supreme Court had erred in
Brown v. Board of Education, 1954, 347 U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873, in holding that ‘although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive.’ The articles editor of the Review had rejected the article, stating in his letter of rejection ‘that approaching the problem from the point of view of legislative history alone is insufficient.’ The plaintiff asserted that the editors of the Law Review had adopted a discriminatory policy of accepting only articles reflecting a ‘liberal’ jurisprudential outlook in constitutional law, an outlook which, he said, rejects the primacy of legislative history and the original intent of the framers of a constitutional provision. The plaintiff stated that his article represented the ‘conservative’ approach to constitutional law and he contended that its rejection, which he said was solely because of its conservative tenor, violated his constitutional right to freedom of speech. Both the plaintiff and the defendant moved for summary judgment. After hearing, the trial judge, in an oral opinion, stated, inter alia, that he had ‘serious doubt as to whether the right of freedom of speech embraces a privilege to use a law school review publication as a medium. Freedom of speech is guaranteed by the Constitution, but the right to have others listen is not guaranteed, nor is anyone obligated to read articles that an author is able to publish. It could not be contended reasonably that the Editorial Board of Rutgers Law Review must accept for publication every treatise on law which is submitted to it. There must necessarily be a broad area for the exercise of discretion.’ The judge concluded that the plaintiff had not shown that he had been deprived of a federally protected right. Summary judgment was accordingly entered for the defendant and this appeal by the plaintiff followed.