By Nancy W. Hamilton

Last summer, I wrote an article titled “The Crisis of Free Speech on Campus: Not Fake News,” which commented on the growing intolerance of free speech on college and university campuses that has resulted in incidents of violence, including riots, extensive property damage, and physical assaults. Colleges and universities understandably have grave concerns over disruption and anticipated violence in connection with the appearance of controversial speakers, including public safety and the concomitant expenses resulting from additional security and potential property damage. Faced with such a dilemma, many such events are cancelled or, alternatively, security fees are charged to the groups hosting the speakers for the costs associated with providing additional security and safety. Either of these “solutions,” however, is imperfect as one results in censorship and the other, depending on the process by which fees are assessed, risks chilling free speech.

Indeed, as recently as February 9, United States District Court Judge Marsha Pechman of the Western District of Washington, recognized “the difficult position faced by…public universities across the country, many of which have recently expended millions of dollars in public funds to ensure safety and security at campus events featuring controversial or provocative speakers. At the same time, the Court observes that college and university campuses are where many students encounter for the first time, viewpoints that are diverse and different from their own. For this reason, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” See College Republicans v. Ana Mari Cauce, in her official capacity as president of the University of Washington, et. al., 2018 WL 804497 at *3 (W.D. Washington) quoting Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2346 (1972).

In College Republicans, the student group College Republicans applied to the University of Washington (“University”) for use of the on-campus location known as Red Square for the appearance of Joey Gibson (“Gibson”), the leader of the controversial conservative political group Patriot Prayer. The College Republicans were told the cost of security would be $17,000 due to expected violent protests. [Pltf’s motion at 6]. They filed suit against the University, several administrators and two officials of the University police department seeking damages and a temporary restraining order enjoining the University (1) from assessing the security fee arising from their application to use the on-campus Red Square location to engage in peaceful speech and assembly, and (2) from denying them a permit to use the location or otherwise prohibiting them or preventing them from hosting the event. The College Republican’s complaint alleged the $17,000 fee was excessive and unreasonable and that the University’s “Safety and Security Protocols for Events” policy (“Security Fee Policy”), which requires student organizations to pay the anticipated costs of security for on-campus events, violates the First and Fourteenth Amendments by regulating the student organization’s expression based on its conservative viewpoints and the anticipated reactions of supporters and protesters of Gibson and Patriot Prayer.

In its Opposition to the TRO (the “Opposition”), the University contended that it applied written protocol and analyzed appropriate objective information about security and safety risks associated with the planned Patriot Prayer rally, determined an enhanced University police presence was necessary and calculated a security fee of $17,000 based on the enhanced costs. Noting that Red Square is an undisputed limited public forum, the University argued that assessment of the security fee in conjunction with the student hosted on-campus event was both reasonable and viewpoint neutral and, therefore, constitutional. The University further noted that the University, like public universities across the nation, is facing unprecedented challenges in honoring free speech while ensuring safety and security at campus events with limited public funds to carry out the University’s educational mission.

The University also noted that in 2017, when the College Republicans hosted a talk on campus by Milo Yiannopolous, enhanced security was provided, yet protests turned violent – one person was shot and critically wounded and others were injured. Id. at 1. The University invoiced the College Republicans $9,120 for security costs, which they paid, but the University estimated about $45,000 was ultimately spent in addition to large expenditures by the Seattle Police Department. Id. at 5. Thereafter, the University memorialized Protocols applicable to campus groups that want to host events that have the potential to disrupt safety and security. Id. at 1.

According to the University’s Opposition, the Protocol required student organizations wishing to host outside speakers to submit information on the event, including date, time, place, as well as biographical information about the speaker and topics to be discussed. When “proposed events are ‘likely to significantly affect campus safety, security and operation,’” the Protocol required additional details to be analyzed, including “past violence, bodily harm, property damage, significant disruption of campus operations,’ and ‘violations of the University code of conduct or state or federal laws.” Id. at 4. The University stated its “Protocols expressly prohibit making determinations on the content or viewpoints anticipated to be expressed during the event.” Id. at 4. The host organization is provided with an estimate of anticipated security fees in advance of the event and after the event the University calculates and assesses total fees owed by the host group. Id. at 4.

The University noted that Gibson, the proposed keynote speaker for the event, had been previously assaulted at multiple rallies, received death threats, and was pepper sprayed. The University evaluated the likely security needs for the Patriot Prayer event and estimated security would cost $17,000 after considering additional factors including the event’s location, the estimated number of supporters, and “after action” reports provided by local law enforcement in other jurisdictions for prior events involving Patriot Prayer. The University also concluded that a group of Patriot Prayer supporters known to carry weapons, including firearms, might attend the event but stated that its analysis did not consider either the political viewpoints of Gibson or Patriot Prayer nor did it base its estimate on past actions of groups anticipated to protest the event. Id. at 6. The University contended that because Red Square is a limited public forum, the “heckler’s veto concerns do not carry the same weight” as in traditional public forums which are subject to strict scrutiny, and instead, that administrators may exclude speech based upon “anticipated violent reaction of the audience.” Id. at 15. The University also argued that that it would not charge the College Republicans any fee until after the event and, therefore, the Freedom Rally would be permitted to occur regardless of whether the College Republicans paid the fee in advance of the Saturday event. Id. at 6.

The Honorable Judge Pechman disagreed with the University and granted a TRO prohibiting the University’s assessment of a $17,000 security fee on the College Republicans for reimbursement of the anticipated costs of enhanced security in connection with a “Freedom Rally” featuring Joey Gibson, finding the Security Fee Policy “neither reasonable nor viewpoint neutral.” [Order at *2] The Court found the Security Fee Policy failed to provide narrowly drawn, reasonable and definite standards and instead “gives administrators broad discretion to determine how much to charge student organizations for enhanced security, or whether to charge at all.” Id. Secondly, the Court found the Policy “directs administrators to assess fees based upon ‘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.” Id. at *2. The Court wrote, “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 only on one side of a contentious debate.”

The Court held the $17,000 security fee, which was based on criteria set forth in the University of Washington Security Fee Policy, was (1) neither reasonable nor viewpoint neutral, (2) was based on a process that “chills the exercise of First Amendment speech and expression, thereby threatening irreparable harm, and (3) deprived not only the rights of the host university group but also the rights of others-including supporters and protesters-who wished to attend the rally [Order at *3].

The Patriot Prayer rally went forward as scheduled on February 10, 2018. According to news reports, there was a heavy police presence and barricades were set up to create a buffer zone between protesters and counter-protesters. KUOW also reported that the University president, Ana Mari Cauce, sent a letter to the university community, encouraging people to stay away from Red Square during the rally, saying “UWPD obtained credible information that groups outside the UW community are planning to join the event to instigate violence.” On the other hand, College Republicans President Chevy Swanson said that it was important that the rally went ahead, “because we proved that we cannot be intimidated by these people who are out here protesting us or threatening us online.” See also CBS News’ “College Republican ‘freedom rally’ leads to several arrests” and The Seattle Times‘ “Real time updates from the UW Patriot Prayer Rally and counter-protests.” Only five people were taken into police custody.

Under the present climate, it’s a given that universities and colleges have to be concerned about potential violence and take reasonable and prudent steps to ensure safety and security at campus events. But the assessment of security fees based on subjective criteria for events featuring speech that is deemed controversial is inconsistent with First Amendment principles, which draw a line between advocacy, which is entitled to full protection, and action, which is not. See Healey, 92 S.Ct. at 2351. Imposing security fees on the student organization or speaker risks suppressing contentious speech while rewarding the conduct of those who are opposed. As the Supreme Court stated in Healey, “the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” Id. at 180, 92 S.Ct. 2346.

Thus, we must remain vigilant in protecting constitutional freedoms and mindful of attempts to trade First Amendment rights in return for safety and security on campus.

Meet Nancy

Houston partner Nancy W. Hamilton has appeared in federal and state courts for clients such as CNN, Oprah Winfrey, and CBS, Inc. Her practice experience involves First Amendment, intellectual property, complex commercial, and media litigation. Nancy is a frequent writer and lecturer on trial tactics and media law, including What to do When the Media Calls and Building Rapport in the Courthouse for the Texas State Bar and Trial Techniques for the Media Law Resource Center Annual Conferences in 2006 and 2008. She has also appeared on PBS Houston’s KUHT-TV program The Connection on videotaping jury deliberations.

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The Crisis of Free Speech on Campus: Not Fake News »
July 27, 2017 | A recent column in the Detroit News, by John Patrick Leary, an Associate Professor of English at Wayne State University, advanced the proposition that concern over the recent protests on campus over free speech is a “manufactured crisis.”