The Volokh Conspiracy
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UNM Policy Used to Charge High Security Fees for Riley Gaines Talk Struck Down
The case was brought by Turning Point USA over the University of New Mexico's decision to charge over $5K (originally planned to be over $10K).
From yesterday's decision by Judge David Herrera Urias in Leadership Institute v. Stokes (D.N.M.):
Kenna Fleig, one of TP-UNM's co-presidents, submitted an event request form indicating that TP-UNM expected around 100 attendees for an event that would last 3.5 hours. The form noted that [the speaker, Riley Gaines,] travels with her own security, and the students did not want to request additional security. A week later, TP-UNM received an email from UNM informing them that they were required to request and accept university security…. Defendant Stump of the UNM police department … provided the students an invoice that listed the cost of security for the event as $10,202.50….
[T]he quote of over $10,000 was for every officer UNM employed—thirty-three officers; nearly one for every three attendees the students expected. When TP-UNM asked why Defendant Stump intended to assign every officer to the Gaines event, and whether it was because of the speaker or the inviting organization, he responded that "it's all based on individual assessments," that they were looking at the "individual," and that "there is not a criteria [sic]."
He also told the students that if an organization were to screen the Barbie movie in a venue on campus, he likely would not require even a single officer because the UNM police were "not worried about the Barbie movie." He then said that security was "consistent" in how it assessed fees "to Turning Point" in the past. He described past TP-UNM events featuring other conservative speakers that generated protests at UNM. A few times during the meeting, he reiterated that UNM assesses security fees on a "case-by-case basis." …
Ms. Gaines visited the UNM campus on Wednesday, October 4, at 7:00 p.m. and spoke to a crowd of around 200 people until 9:00 p.m. The event was open to members of the public; the tickets were free. Fewer than ten protestors showed up after the event started and demonstrated outside the event room. The demonstration was peaceful and non-disruptive. No police action was taken or needed.
After Ms. Gaines' event, on October 9, 2023, Defendant Stump issued a final invoice to TP-UNM for the event totaling $5,384.75. According to the invoice, the university staffed twenty-seven officers at the event who charged for a total of 95.25 hours. Only four of the twenty-seven officers were stationed inside the event venue. Fifteen officers were stationed in other areas of the building or in nearby buildings; two officers roamed outdoor areas of campus on bike; three were stationed on a nearby rooftop; three were specifically designated as an "Arrest Team."
Forsyth County v. Nationalist Movement (1992) held that the government couldn't charge extra security fees for speech in traditional public fora (streets, sidewalks, and parks) based on the controversial nature of the speech, and it couldn't use vague security fee criteria that left room for such viewpoint discrimination. And the court in this case applied Forsyth County to public universities as well:
When a policy allows "appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted[.]" Forsyth County.… Although the question in this case is closer than that in Forsyth, the Court nonetheless finds that Plaintiffs have demonstrated the security fee policy in this case is similar enough to render it overly broad. Although the policy lists criteria for officials to consider when assessing event security, such as venue size and location, the list ultimately leaves the decision of how much to charge for security up to the whim of university officials. For example, the policy does not explain a method for determining how much more security is required for a small venue as compared to a large one, or for a daytime event as compared to a nighttime event.
Significantly, the policy states that the "basic cost of security … will be charged to all groups" based on a schedule of charges that the UNM Police Department has on its website, but despite this, the department does not actually delineate the amount of this "basic cost of security." Though the security fee policy also states that the police department "regularly" updates the "schedule of charges based on the factors" and that "[t]he basic cost of security according to this schedule will be charged to all groups," there is no schedule of charges.
Additionally, the preamble to the policy indicates that university officials "may" assess security fees but does not provide guidance for when they may or may not assess these fees, which contributes to the problem of allowing university officials overly broad discretion. In sum, Plaintiffs have shown a substantial likelihood of success on the merits of their overbreadth claim because the security fee policy does not contain limiting language that includes "narrowly drawn, reasonable and definite standards[,]" and it does not include anything to prevent UNM administrators from exercising their discretion in a content-based manner….
Seems correct to me, especially since the vague standards allow discrimination not just based on content but also based on viewpoint. For a similar holding from another court, see Sonnier v. Crain (5th Cir. 2010).
Benjamin Isgur, Braden Boucek & Carter B. Harrison, IV (Southeastern Legal Foundation) represent plaintiffs.
