The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lawsuit Over Binghamton University's Alleged Suppression of Lecture by Economist Arthur Laffer Can Go Forward
From Judge Lawrence Kahn's opinion yesterday in Young America's Found. v. Stenger (N.D.N.Y.):
On the morning of the Laffer Event [at a lecture hall in Binghatom], the University's Senior Director of Media and Public Relations forwarded to UPD [University Police Department], [Brian Rose, University VP for Student Affairs], and other members of the University an email from the College Progressives and an online post ostensibly written on behalf of the College Progressives, PLOT [Progressive Leaders of Tomorrow], and other groups, saying that they "will be taking away … the College Republicans' space by disrupting their event." On the afternoon of the Laffer Event, UPD saw a social media post by PLOT promoting the disruption of the Laffer Event.
[UPD Chief John] Pelletier decided to personally meet Dr. Laffer at the airport when he arrived on November 18, 2019, to inform him that his lecture may be protested. In his deposition for this action, Dr. Laffer stated that Pelletier told him the University "did not want [him] to come," asked him to cancel the event, and "intimated" that he should return to his plane.
At the Laffer Event that evening, there were about nine UPD officers, including Pelletier, inside the lecture hall and fourteen officers in the surrounding hallways. YAF and the College Republicans chose for the Laffer Event to be open to the public and not ticketed because they wanted to attract as many people as possible. A large crowd entered the lecture hall. Dr. Laffer entered through a private entrance with his security team and UPD Investigator Joseph Gallagher. College Republicans president John Restuccia introduced Dr. Laffer and told the audience that if they had any disagreements, they should reserve their questions to the end of the lecture.
Seconds after Dr. Laffer began his lecture, a man in the audience stood up and started reading a speech off his phone about economics, racial oppression, President Trump, and the justice system. Someone from the audience gave the disrupter a megaphone. During the disruption, College Republicans walked in front of Dr. Laffer's podium and held up "free speech" signs.
Over a minute into the disruption, UPD officers began to slowly approach the disrupter. As they were approaching, approximately ten to fifteen audience members surrounded the disrupter, forming a human barrier to prevent the officers from reaching him. Gallagher asked Dr. Laffer how he was doing, to which Dr. Laffer replied something to the effect of, "Let's give it ten minutes."
While UPD officers were pushing toward the crowd, Pelletier walked over to Gallagher and exchanged some words. UPD officers removed one protester from the lecture hall. As the disrupter with the megaphone was being removed, Gallagher touched Dr. Laffer's back, said something to him, and then said something to Restuccia. Restuccia nodded, made a hand-waving motion, and then Dr. Laffer, Gallagher, and members of the College Republicans left the lecture hall….
Dr. Laffer left approximately two and a half minutes after the disruption began. For the next several minutes, protesters took turns standing up and reading off their phone, passing around the megaphone, while UPD officers stood at the outskirts of the room and watched. UPD officers arrested the man who originally disrupted the event and the man who handed him a megaphone, charging them with disorderly conduct….
After the Laffer Event, Pelletier had a meeting with [University President Harvey] Stenger, Rose, and other university administrators. Pelletier presented a list of the suspects that UPD was planning to arrest. At first, Rose was in favor of arresting the suspects. Then, Stenger's Chief of Staff communicated Stenger's desire to avoid further arrests. Rose initially pushed back on Stenger's view not to arrest further individuals, but eventually supported the decision. UPD did not make any further arrests….
Young America's Foundation and others sued, and the court held the case could go forward; here's a short excerpt from the long opinion (which also dealt with other controversies and other claims):
[T]he lecture hall is a limited public forum …. "A limited public forum is created only where the government 'makes its property generally available to a certain class of speakers.'" "In limited public fora, strict scrutiny is accorded only to restrictions on speech that fall[] within the designated category for which the forum has been opened." "Such restrictions must serve a compelling government interest and be narrowly tailored to achieve that interest."
"As to expressive uses not falling within the limited category for which the forum has been opened, restrictions need only be viewpoint neutral and reasonable." Here, Plaintiffs argue the "restriction" of speech was removing Dr. Laffer from the lecture hall. Since Dr. Laffer's lecture was indeed the designated category for which the forum had been opened, any restriction of the lecture is accorded strict scrutiny. As explained below, the restriction of speech did not serve a compelling government interest and thus cannot survive strict scrutiny.
There is a genuine dispute of fact as to whether this was a Government-induced "restriction"—whether Pelletier "ordered" Dr. Laffer to leave, or whether Dr. Laffer left on his own accord. Multiple witnesses, including Dr. Laffer, affirm a Government-induced restriction, and the Laffer Video does not contradict this characterization. Indeed, if a jury credits the witnesses' testimony, the Laffer Video could confirm the story that Pelletier told Gallagher to escort Dr. Laffer out, followed by Gallagher ordering Dr. Laffer and the College Republicans to leave. Construed as such, Pelletier's action effectively amounted to a cancellation of the Laffer Event. In light of this evidence, Plaintiffs have met their burden of presenting a genuine dispute of fact that Pelletier and UPD ordered Dr. Laffer to leave.
Given the restriction of speech, Defendants cannot establish that this restriction served a compelling government interest; thus, this restriction cannot survive strict scrutiny. See Bible Believers v. Wayne Cnty., Mich. (6th Cir. 2015) ("[R]emoving[] or by other means silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose."). Pelletier argues "[h]is actions and those of his officers were for the safety of everyone at the Laffer Event." But the record does not establish any imminent danger or immediate threat to public safety. The protesters, while loud and disruptive, were not approaching Dr. Laffer or the College Republicans, but instead formed a wall in front of the disrupter. Dr. Laffer remained at the podium next to his security officer away from the protesters. The protesters were physical with UPD officers, but only to the extent of protecting the disrupter with the megaphone. The fact that Dr. Laffer said, "Let's give it ten minutes" further supports the fact that there was no immediate threat to their safety. As such, it can hardly be said that there was any sort of danger or other immediate threat to public safety that could present a compelling government interest in canceling the lecture.
Since the restriction did not serve a compelling government interest, it does not survive strict scrutiny. Accordingly, there is a genuine dispute of material fact as to whether Pelletier suppressed Plaintiffs' speech.
Nevertheless, Pelletier argues that he is entitled to summary judgment because the restriction of speech was reasonable and viewpoint-neutral. As noted above, the restriction of speech falls within the designated category for which the forum has been opened, and thus strict scrutiny (and not the lower standard) applies. Nevertheless, the Court finds that even under the lower standard, Plaintiffs have presented a genuine dispute of fact that this cancellation was not "reasonable or viewpoint-neutral." Under this standard, "government officials may stop or disperse public demonstrations or protests where clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears." Yet even under this standard, this restriction would not survive.
As explained above, there was no clear and present danger of riot or an immediate threat to public safety, so the harsh action of cancelling the lecture—if credited—was far from reasonable.
Nor was this cancellation viewpoint-neutral. The protestor was allowed to disrupt the lecture for a minute before anyone attempted to intervene. Then, once Dr. Laffer and the College Republicans left the lecture hall, UPD officers abandoned all attempts to control the other disrupters. The disrupters continued to exercise their opposing viewpoint for almost eight minutes, while Pelletier and UPD officers stood on the outskirts of the room and watched. See Ctr. for Bio-Ethical Reform, Inc. v. Black (W.D.N.Y. 2017) (finding Plaintiffs stated a First Amendment claim when a university did nothing to stop a "counter-demonstrators' disruption" from burdening students' exercise of protected speech). Crediting Plaintiffs' evidence, Pelletier excluded the College Republicans' speech but allowed the College Progressives' speech to remain. As such, the restriction was not reasonable or viewpoint-neutral….
Pelletier is [also] not entitled to qualified immunity. It is clearly established that cancelling or excluding speech "will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose." Moreover, the Second Circuit has clearly established that restrictions of speech falling within the designated category for which the limited public forum was opened is subject to strict scrutiny. There is no question that Dr. Laffer's lecture fell into the limited purpose category for which the forum was opened—it was the very reason the forum was opened. As such, it was not objectively reasonable to obstruct the very speech for which the forum was opened.
Pelletier argues that "[i]t would have been objectively reasonable for Pelletier to believe that [Dr.] Laffer could be escorted away for everyone's safety." But as explained above, there was no threat to public safety, so Pelletier's actions were not objectively reasonable.
Indeed, the jury must decide whether to credit any of Plaintiffs' evidence, but the Court finds there to be a genuine dispute of material fact as to whether Pelletier suppressed Plaintiffs' First Amendment rights by effectively cancelling the Laffer Event. Summary judgment against Pelletier in his individual capacity is denied.
