The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The College Republicans have organized a "Freedom Rally," scheduled to take place in Red Square on the afternoon of Saturday, February 10, 2018, and to feature Joey Gibson, the leader of the controversial, conservative political group Patriot Prayer. Based upon factors including the time and location of the event, the estimated number of attendees, and the responses at prior events featuring Mr. Gibson and Patriot Prayer, the UW has determined that the Freedom Rally requires enhanced security, including the presence of additional officers from the UW Police Department. Pursuant to its Security Fee Policy, the UW seeks from the College Republicans an estimated $17,000 as reimbursement for its security costs. The UW does not require that the fee be paid in advance, but will calculate and assess the total amount owed following the event…. Based upon the pleadings filed at this stage in the proceedings, there is no dispute that
Red Square is a limited public forum…. In a limited public forum, restrictions on speech must be reasonable and viewpoint neutral. A reasonable restriction is one that is "based on a standard that is definite and objective." A viewpoint neutral restriction is one that does not suppress speech "merely because public officials oppose the speaker's view." The Court finds that the Security Fee Policy is neither reasonable nor viewpoint neutral.
First, the Security Fee Policy fails to provide "narrowly drawn, reasonable and definite standards," and thereby gives administrators broad discretion to determine how much to charge student organizations for enhanced security, or whether to charge at all. See Forsyth County v. Nationalist Movement (1992). As in Forsyth, UW administrators are "not required to rely on any objective factors," and "need not provide any explanation for [their] decision[s]." Instead, administrators "must necessarily examine the content of the message that is conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content."
Apparently, the $17,000 fee assessed upon the College Republicans reflected the UW Police Department's estimate that the Freedom Rally would require 24 officers over 4.5 hours, at an hourly rate of $157.52 per officer. While the Chief of Police offers a lengthy discussion of the "objective facts" he considered (e.g., the fact that Mr. Gibson was assaulted and pepper sprayed at recent rallies, the fact that Patriot Prayer has "members who have engaged in open carry in the past," etc.), nowhere does he explain how these facts support his determination as to the number of officers needed. Nor does he identify the "open-source websites" that the UW Police Department referenced to corroborate information about the event. On this record, the Court cannot conclude that the estimated $17,000 fee is the product of a "definite and objective" process.
Second, the Security Fee Policy directs administrators to assess fees based upon the "history or examples of violence, bodily harm, property damage, significant disruption of campus operations" and violations of "the campus code of conduct and state and federal law." Administrators relying on instances of past protests, either for or against a student organization or speaker, will inevitably impose elevated fees for events featuring speech that is controversial or provocative and likely to draw opposition. Assessing security costs in this manner impermissibly risks suppression of "speech on only one side of a contentious debate." …
Forsyth indeed expressly holds that the government can't calculate security fees based on the expected hostility of some listeners to the speaker's message. The only question is whether a different rule would apply to a "limited public forum" (such as university property that the government needn't open to student-invited speakers in the first place) as to a "traditional public forum" like the streets and sidewalks involved in Forsyth, where the government must generally allow public speech.
But even in a limited public forum, viewpoint-neutrality is required. And Matal v. Tam (the Slants case) strongly suggests that discrimination against speech based on public reaction to its supposedly offensive message is indeed viewpoint discrimination: Justice Alito's four-Justice lead opinion stated that denying a benefit to speech "that is offensive to a substantial percentage of the members of any group" "is viewpoint discrimination"; Justice Kennedy's four-Justice concurrence stated that the government "may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker's audience." See also Sonnier v. Crain (5th Cir. 2010) (treating Forsyth as applicable to speech on university campuses). Thanks to Annie Wagner for the pointer.