The Rag v Regents

An underground newspaper's journey to the Supreme Court

by Alice Embree

This is a repost from Alice’s Substack. Alice Embree is now an adjunct researcher for PHIT. We are proud to be associated with the award winning author of Voice Lessons. Please subscribe to her substack and learn lots of interesting past and current history.

In the dog days of August, my Substack posts will highlight two underground newspapers, Austin’s Rag and Houston’s Space City!  They were harbingers of change.   

Art by Jim Franklin, The Rag, November 16, 1970.

In 2016, former Ragstaffers held a reunion to commemorate the 50th anniversary of Austin’s pioneering underground newspaper, The Rag. We published Celebrating The Rag: Austin’s Iconic Underground Newspaper at that time. The book has been used in several University of Texas history classes and prompted student inquiries.

A 2022 question from a University of Texas journalism student sent me on a quest for more information about The Rag’s journey to the US Supreme Court.

To be clear, the Board of Regents of the University of Texas at Austin did not love The Rag and Austin’s underground newspaper did not love the Board of Regents.  In 1966, with The Rag in its infancy, intrepid salespeople hawked the paper on campus.  George Vizard and others faced down UT administrative demands to cease and desist. Vizard recounts his escapes with campus cops and administrators in the second issue of the paper (October 17, 1966). The outcome was that he sold out all the newspapers he had from that first run.

On July 8, 1969, the UT Board of Regents sought and got an injunction in state court to prevent sales of The Rag on campus. The Rag famously defied structure, so the Regents named the New Left Education Project, the Radical Media Project, and eight individuals as the plaintiffs. 

I was determined to discover who had been named and kept expanding an e-mail conversation with likely suspects. Some could not remember. Some recounted stories of the New Left Education Project. One attorney shared memories of court testimony and another provided a blow-by-blow account of the legal proceedings as they shifted from state to federal jurisdictions.

I re-read The Rag’s account of the case.  I read David Richards’ chapter on his legal defense in his book, Once Upon a time in Texas: A Liberal in the Lone Star State. Finally, after a few failed efforts, I procured a scanned copy of the pleadings for injunctive relief from the Travis County Archives Repository. Let the record show that the eight individuals named on the pleadings were: Clyde Alan Locklear, Gary Thiher, Paul Spencer, Nancy Sweeny (as named in the lawsuit), James Caldwell, Patricia Cuney, David Waddington, and Larry Neil Winn.

With considerable assistance from former Ragstaffer Doyle Niemann who served as a Maryland legislator and became a lawyer late in life, I received a blow-by-blow account of the legal journey prompted by the UT Regents.

After the Regents obtained an injunction from a state court, David Richards filed a counter suit in a federal court that was heard by a panel of three judges. The three-judge panel decided the case against the Regents, finding that their rules were overly broad and infringed on protected rights. The Regents then appealed to the US Supreme Court, which decided that the three-judge District Court panel was not appropriate and referred the case back to the federal District Court for action. A single judge in the federal District Court again sided with Richards and reissued the ban on the Regents rules. The Regents appealed that decision to the federal Circuit Court, arguing that they had revoked the offensive rules in the meantime.  They lost once again, leaving in place Richard’s victory.

Jim Wheelis, a retired judge, remembered listening to the initial arguments in federal court in response to Richards’ countersuit.  He recalled a state attorney’s attempt to besmirch the New Left Education Project. The assistant attorney general argued that the New Left Education Project was a sham, that it was just individuals pretending to be a separate organization. Had this argument succeeded, it would have meant that the matter had to proceed in state courts.

“I remember,” said Jim Wheelis, “the state lawyer held his hands down by his hips, flapping them like little wings. ‘They’re just birds of a feather, your honor, birds of a feather.’”

The “birds of a feather” argument failed to impress Judge Homer Thornberry.  Later, the state attorney objected to the admissibility of a number of documents.  Jim Wheelis remembers the judge’s thundering voice and concise reply, “All exhibits are admitted for all purposes.”

The Rag earned bragging rights to a Supreme Court victory even though the Court had failed to address the Regents’ rules themselves. Justice William O. Douglas rightly dissented from the Supreme Court’s overly technical opinion, noting the free speech issues involved.

The Rag continued throughout its many years (1966-1977) to sell the paper on campus and across the street from the campus, undeterred by the UT Board of Regents and the UT Administration.