Gay Students Organization v. Bonner: Expressive Conduct and First Amendment Protection

After the Gay Students Organization, an officially recognized student group at the University of New Hampshire, held a dance on campus on November 9, 1973, the Governor of New Hampshire complained to the university's Board of Trustees about the impropriety of allowing such a "spectacle." The next day the Trustees banned all further G.S.O. social functions until the matter could be legally resolved. In Gay Students Organization v. Bonner, the G.S.O. brought an action for a declaratory judgment on the constitutionality of the university's ban. The court held the ban to be an unconstitutional restriction of the group's freedom of association, finding that the right to hold a dance derived from the associational right of official university recognition. Under this analysis, the G.S.O. dances were conceded not to involve expression in themselves, but were afforded first amendment protection only as a right attaching to university recognition. This Note proposes a fundamentally different first amendment analysis which focuses on the holding of the dance as communicative conduct. As a consideration preliminary to this analysis, it is argued that insofar as college administrators have power to restrict expression of students beyond that of state authorities over citizens generally, the prohibition of the dance, viewed as a form of expression, is not an exercise of such power. The communicative aspects of the dance are then discussed to demonstrate that the dance was expressive conduct which in itself invoked first amendment protection.