The Volokh Conspiracy
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The UCLA Republicans have been trying to arrange a UCLA speech by noted conservative commentator Ben Shapiro (who, as it happens, is a UCLA graduate); the speech was expected to draw about 600 attendees. UCLA, though, told the Bruin Republicans that this speech would be governed by the 70-30 provision in Costs of Safety Services Policy. This means that:
- If the Republicans could arrange things so that at least 70 percent of the audience consisted of UCLA students, faculty, and staff—i.e., no more than 30 percent of the audience was outsiders—then UCLA would pay for the university-required Safety Services costs.
- If it ended up that more than 30 percent of the audience was outsiders, then the Bruin Republicans would have to pay the Safety Services costs, though not including any "cost of additional security required to respond" to any "protests in response to viewpoints expressed" during the event. (UCLA would always bear those protest-management costs.) According to the lawyer for the Bruin Republicans—Tyson Langhofer of the noted conservative public interest law firm Alliance Defending Freedom—UCLA never told the Republicans the exact costs they would have to bear in this situation, except to say that they would be very high.
- According to the lawyer for the Bruin Republicans, with whom I talked at some length, the Bruin Republicans would need to pay some unspecified fee required by the contractor who takes care of the reservations and checking for the 70-30 policy (unless the Republicans were willing to pay for the Safety Services costs, see item 2 above).
- According to the lawyer, the Bruin Republicans would also have to pay a separate unspecified "crowd control" fee (apart from the "safety services costs"), regardless of how it deals with the 70-30 issue, plus of course the normal rental fee for the audience.
The Bruin Republicans were upset by this, and their lawyer wrote a letter to UCLA demanding that UCLA rescind the threatened fees and revise the policy to make it more objectively defined. (If you want to see the Republicans' position, read the letter; it's pretty clear and strikes me as quite well argued.) UCLA responded with this statement (paragraph break added):
UCLA has worked closely with our Bruin Republicans, as we do with all registered student groups, to ensure that the campus community engages in a free exchange of ideas, consistent with our university's commitment to free speech. This collaboration has been guided by the 2009 UCLA Costs of Safety Services at Campus Events policy. This policy uses content-neutral and viewpoint-neutral criteria, namely the degree to which the audience is from the campus community, to determine how basic security costs are allocated.
UCLA provides resources to student groups sponsoring campus events with the intent that the campus community (students, faculty and staff) be the primary beneficiary; that free speech be protected; and, that such events are safe. To ensure that free speech is protected for every event, regardless of the degree to which the audience is from the campus community, the policy specifies that UCLA—not the sponsoring student group—will pay all incremental security costs associated with protests that may occur in connection with an event. UCLA remains committed to providing a safe campus environment at events in which attendees and speakers can exercise their free speech rights.
But Friday, UCLA changed its position, and (according to KPCC (Adolfo Guzman Lopez), quoting a UCLA spokesman):
Given UCLA's commitment to free speech, and to avoid any appearance to the contrary, UCLA has decided to also pay the basic security costs for this event. UCLA will be adopting this approach going forward while it reviews its current policy to ensure that it continues to be a useful planning tool for UCLA and registered student organizations.
The Bruin Republicans' lawyer reports that the group won't be charged either a Safety Services fee or a crowd control fee.
A few thoughts on the matter:
1. Universities have no obligation to open up classrooms on campus to student-group-invited speakers—and, if they do open up classrooms this way, they have no obligation to allow outside audience members at all.
2. Nonetheless, if the university does set up such a policy, creating what is called a "limited public forum," it has to define and enforce the rules in a viewpoint-neutral way, and define the rules objectively (since vague rules can so easily be enforced in a viewpoint-based way). The 70-30 policy provides:
The University's professional event planners … and other University safety personnel (UCLA Police, UCLA Fire Marshall) shall determine the level of safety services required for individual events …. The criteria for this determination may include:
- Event venue
- Anticipated number of participants/attendees
- Timing of event
- Length of event
- Whether admission will be charged
- Whether the event requires special facilities
- Publicity and outside media involvement
In those instances in which specific safety services are deemed by University officials to be necessary and appropriate for a particular event, [the 70-30 policy shall apply.
On its face this seems like a viewpoint-neutral policy (indeed, like a content-neutral policy)—but it also leaves a good deal of room for discretion. One question, then, is how this discretion has been exercised in the past, so I asked university officials,
Has the 70% policy been uniformly applied to all events of a similar size before [600 attendees]? I have been told that the policy had been applied only 5 times since 2009, and 3 have been Bruin Republican events—is that right, and is it just because the Bruin Republicans tend to have larger events …?
I didn't get an answer, but my guess is that there had indeed been quite a few events of comparable size before to which the policy just wasn't applied and without any explanation based on the objective factored laid out in the policy. If so, then this suggests that the decision whether to apply the policy is indeed too discretionary and leaves room for discrimination against unpopular speakers (whether or any such deliberate discrimination has occurred).
3. The Bruin Republicans' lawyer also told me that there's a danger with ticketing plans used to implement policies such as the 70-30 policy: Opponents of the event can reserve many student tickets and not show up, thus essentially blocking willing audience members from showing up. Students are discouraged from attending because they're told all the tickets have been distributed already, and general community members are barred from showing up because only a few students/faculty/staff are there, and the 70-30 rule kicks in. The lawyer said that, to his knowledge, this indeed happened at Berkeley in the past. I asked university officials whether this could be a problem at UCLA but didn't get an answer.
4. I also asked:
[Does the 70-30 rule] kick in solely based on the location, timing, size, and similar content-neutral non-controversiality factors? Or is it that the University may apply the [70-30] rule based in part on the expectation of protests, but any extra safety services for responding to actually materializing protests will always be borne by the University?
I wanted to check into this because the policy says that "[t]he criteria for [the] determination [whether the 70-30 rule applies] may include" certain content-neutral factors; but presumably they might include other factors, too. Here, too, I haven't gotten an answer.
5. So here's my thinking: I understand UCLA's interest in making sure that UCLA resources be focused on providing benefits for UCLA students, faculty and staff. If the administration charges higher fees for large events that primarily or largely benefit outside listeners, it can do so without violating the First Amendment.
I also appreciate UCLA's decision to always pay the costs of dealing with protests (especially when that covers anticipated protests as well as ones that actually materialize); that makes sure that unpopular speakers aren't targeted for higher fees.
But any policies such as the 70-30 policy have to be clearly defined and evenhandedly applied—e.g., for all events that exceed 300 audience members, or all events that exceed 400 members during the day or 200 at night, or something along those lines. If the policy is haphazardly applied, for instance only when administrators think about it because the speaker has drawn protests in the past, then it is in practice too discretionary, too pregnant with the possibility of viewpoint discrimination and thus unconstitutional. See, e.g., Forsyth County v. Nationalist Movement (1992); Sonnier v. Crain (5th Cir. 2010) (revised as to other matters the following year); Jones v. Board of Regents (9th Cir. 1970).