FAN 188 (First Amendment News)UW law profs release letter re applicable law governing security fees on college campuses

The protections of the First Amendment are not limited to liberals, or conservatives, or people with good ideas.The principle at issue here is not a new one. Time and again, during the difficult days of the civil rights movement, the courts held that the government cannot limit or burden speech because it is likely to provoke others to attack a speaker or his or her supporters. It was that principle that protected James Edwards when he marched to the state capitol in Columbia, South Carolina, the Reverend B. Elton Cox when he marched to the state capitol in Baton Rouge Louisiana, John Lewis when he marched to Montgomery, Alabama, Dick Gregory when he marched to the home of Mayor Daley in Chicago Illinois, and Charles Evers and Henry Aaron when they wanted to speak at the University of Mississippi and Mississippi State. However much Mr. Gibson’s views may differ from those of the civil rights heroes who established this principle, the College Republicans are entitled to invoke that same principle when he speaks at the University of Washington. — UW Law Professors’ Letter 

Skirmish at UW Patriot Prayer event (credit: Oregon.live)

The letter below was endorsed by members of the faculty of the Universty of Washington School of Law and was submitted to the President of the University, Ana Mari Cauce. The controversy that prompted the letter involved the University’s attempt to impose a fee of at least $17,000 on the College Republicans, this in connection with an event hosted by them on February 10, 2018. The group invited  Joey Gibson, a controversial speaker who heads an organization known as Patriot Prayer, to speak on that date. 

The University of Washington now plans to change its protocol regarding student-hosted events so that student organizations will not be charged for any security measures needed to protect the students, an invited speaker, or other guests from counter-protesters.

I thought this letter, prepared largely by Professor Eric Schnapper and endorsed by 22 others (including myself), was sufficiently important to post it in its entirety, including endnotes. The letter makes a strong case for First Amendment protection. Equally important, it also reveals how in the past First Amendment law was invoked to protect minority rights in contexts where unruly individuals or crowds sought to silence civil rights demonstrators or where fines or fees were imposed on civil rights groups.  

Finally, the UW Law letter provides an informative guide to much of the existing law concerning free speech rights and security fees. In that regard, it should be useful to college administrators, lawyers representing colleges, lawyers representing students and speakers, and to student organizations in general, among others.

* * * * * * 

April 4, 2018

Dear President Cauce:

President Ana Mari Cauce

We write to urge modification of the policy of the University of Washington regarding the imposition of fees for security measures taken in connection with events on campus.  As now written, the policy provides that the fee charged to a student group or other host can be based in part on the security measures needed to protect that host organization, or its guests, from possible attack by opponents who object to the views of the organization or of a speaker invited by that organization.[1]  The University is currently seeking to impose a fee of at least $17,000 on the College Republicans, in connection with an event hosted by that group on February 10, 2018, at which the invited speaker was Mr. Joey Gibson, who is the head of an organization called Patriot Prayer.  The constitutionality of that proposed fee is currently the subject of litigation pending in federal district court, and that court has already made a preliminary determination that the University’s policy is likely to be held unconstitutional.

We concur in the federal court’s preliminary determination and strongly urge you to voluntarily modify the University’s policy rather than litigating this matter further.  Specifically, we recommend that you modify the policy to preclude the imposition of any fee for security measures taken to protect a host organization, or its guests, from the hostility of others who may disagree with their views. Consistent with such a change in policy, we believe you should withdraw the pending request for reimbursement by the College Republicans insofar as it is based on such security measures.  Our views on this matter do not reflect any agreement with the views of Mr. Gibson, or with the decision to invite him to speak on campus. Below, we explain why we believe that this request is justified by law and the interests of the university.

(1) Supreme Court Jurisprudence

Professor Eric Schnapper (credit: Oyez)

The First Amendment standards applicable to this situation were established by the Supreme Court decision in Forsyth County, Georgia v. Nationalist Movement. [2]  Forsyth County, a primarily rural county near Atlanta, had a particularly troubling racial history.  In 1912 the entire African-American population was driven from the county; 75 years later the population remained 99% white.   In January 1987, Hosea Williams, an Atlanta city councilman and longtime civil rights leader, attempted to march with 90 civil rights demonstrators in the county seat.  They were met by some 400 counterdemonstrators, including members of the Ku Klux Klan, who shouted racial slogans and forced the parade to a premature halt by throwing rocks and beer bottles. Williams organized a return march the next weekend.  It developed into the largest civil rights demonstration in the South since the 1960’s. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, and an Assistant United States Attorney General in a parade and rally.  The 1,000 counter-demonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen.

The actions taken to protect the demonstrators cost over $670,000.[3]  Three days after the second demonstration, “[a]s a direct result” of the demonstrations, the Forsyth County Board of Commissioners adopted an ordinance providing that individuals participating in demonstrations would be required to pay for the cost of protecting them from others.  The amount of the fee was to be based on “the expense incident to . . . the maintenance of public order in the matter . . . .”[4]   The amount of the fee was later capped at $1,000.

Several years later, The Nationalist Movement proposed to hold a demonstration in Forsyth County in opposition to the federal holiday commemorating the birthday of Dr. Martin Luther King, Jr.  The county described The Nationalist Movement as “a white supremacist group.”[5]   The county imposed a fee of $100.  The Movement did not pay the fee or hold the demonstration; instead, it filed suit challenging the constitutionality of the county ordinance.

When the litigation reached the Supreme Court, briefs in support of The Nationalist Movement were filed by a number of organizations which clearly disagreed with the racial views of the Movement.  They argued that it is unconstitutional to require speakers or groups to pay for the cost of protecting them from individuals who object to their views.  The ACLU, in a brief joined by People for the American Way, pointed out that

[t]he most predictable result of a rule assessing the speaker for the cost of controlling hostile onlookers would be to silence the speaker.  Furthermore, the likelihood of that result will only encourage counterdemonstrators to escalate their threats of violence.  The greater their threatened unlawfulness, the greater the cost to the speaker, and the less likely it is that the speech will ever take place.[6]

Joey Gibson (credit: The Columbian)

The AFL-CIO, in a separate brief, urged that “[a] government-imposed fee . . . that increases as the content of the proposed speech becomes more controversial . . . contravenes the basic principle underlying the proscriptions on content-based economic burdens on speech . . . .”[7]

The Supreme Court held that the Forsyth County ordinance was unconstitutional because the amount of a fee charged for a demonstration or parade permit was greater if the views of those participating were so unpopular that they required police protection.  “[T]he Court’s . . . First Amendment jurisprudence . . . do[es] not . . . permit”  “charging a premium in the case of a controversial political message delivered before a hostile audience.”[8]  “[T]he costs . . . are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation.”[9]  “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”[10]

The Supreme Court decision in Forsyth County rested in part on a long line of Supreme Court decisions holding that the First Amendment rights of civil rights demonstrators may not be curtailed on the ground that the expression of those views angered white onlookers.  “It is only necessary to look back a score of years in our history to find a situation in which speakers who advocated racial equality were denied their freedom of expression because of the angry response of a segment of the community to their message.”[11]  Those earlier Supreme Court opinions establish that the constitutional right of free speech cannot be vetoed by the use or threat of violence by an angry heckler. Three examples make this point.

— First, in Edwards v. South Carolina[12], the Supreme Court overturned the breach of the peace convictions of James Edwards and a group of high school and college students who had marched peacefully to the state capitol in Columbia to protest racial discrimination in the state. The demonstrators carried signs proclaiming “Down with segregation” and sang “We Shall Overcome.”  Police officials objected that the demonstration risked provoking hostile whites[13], and arrested the demonstrators when they refused to disperse.  The Court held that the First Amendment did not permit convicting the demonstrators on the ground that “the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection”[14]The state law was unconstitutional as applied because it permitted a conviction merely because speech “stirred people to anger . . . or brought about a condition of unrest.”[15]

— In Cox v. Louisiana[16], the Court overturned the breach of the peace conviction of the Reverend B. Elton Cox, a Field Secretary of the Congress of Racial Equality, who led a march of students from Southern University to the state capitol in Baton Rouge, Louisiana.  The protesters were objecting to the arrest of twenty-three fellow students who had been jailed for picketing stores in Baton Rouge that maintained segregated lunch counters.  At the end of the demonstration, Cox urged the demonstrators to seek service at segregated counters.  “The Sheriff . . . deem[ed] . . . Cox’s appeal to the students to sit in at the lunch counters to be ‘inflammatory’ . . . .”[17]  Police ordered the students to disperse and fired tear gas when the students did not leave at once; Cox was subsequently arrested.  The state sought to justify prosecuting Cox on the ground that his actions created a risk that he and the other demonstrators would be attacked by angry white onlookers.[18]  The Court held that Louisiana could not punish Cox “merely for peacefully expressing unpopular views” on the ground that his statement might “occasion” “a breach of the peace.”[19]

— Finally, in Gregory v. City of Chicago, a group of demonstrators led by Dick Gregory “marched in a peaceful and orderly process from city hall to the mayor’s residence to press their claims for desegregation of the public schools.”[20]  Gregory told marchers, “If anyone hits you or anything, try to remember what they look like, but above all means, do not hit them back.”[21]Gregory other marchers were convicted of disorderly conduct because they had provoked an angry response by white onlookers.[22]  The Supreme Court reversed, explaining that peaceful demonstrators could not be punished merely because hostile onlookers became violent.[23]  The constitutional problem, one Justice explained, was that it was “entirely possible that the jury convicted the [defendants]on the ground that Gregory and the others who demonstrated with him . . . simply because the form of their protest displeased some of the onlookers.”[24]

                       Video by David Neiwert (credit: Southern Poverty Law Center)

Edwards, Cox, and Gregory are, in turn, part of a larger and long line of Supreme Court decisions holding that constitutional rights cannot be curtailed because of the danger of violent opposition.  In the fall of 1957, a federal court ordered the admission of nine African-American students to Central High School in Little Rock.  When the students arrived on September 23, 1957, a mob of angry whites besieged the school; local police officers, unable (or perhaps unwilling) to control the crowd, decided to remove the African-American students from the school. Two days later, the President of the United States dispatched federal troops to Little Rock High School to protect the African-American students; the troops were later replaced by federalized National Guardsmen, who remained in the school protecting those students throughout the remainder of the school year. In early 1958, school officials asked the federal court to suspend desegregation of Little Rock High School because of that vehement public opposition.[25]

The Supreme Court emphatically rejected that argument.  “[L]aw and order are not here to be preserved by depriving Negro children of their constitutional rights.”[26]  In Watson v. City of Memphis[27], the Court rejected a similar justification for postponing the desegregation of city parks.  “The city asserted . . . that gradual desegregation on a facility-by-facility basis is necessary to prevent interracial disturbances, violence, riots, and . . . turmoil.  The compelling answer to this contention is that constitutional rights may not be denied simply because of hostility to their assertion or exercise.”[28]

In Taylor v. Louisiana[29], the Court overturned the breach of the peace convictions of several African-American travelers who had used the white waiting room in Shreveport, Louisiana, rejecting the reasoning of the state court trial judge “that the mere presence of Negroes in a white waiting room was likely to give rise to a breach of the peace.”[30]  Similarly, in Wright v. Georgia[31], several African-American young men were convicted of disorderly conduct because they had played basketball at a public court “customarily used only by whites”[32]    The Supreme Court, in overturning those convictions noted that “it is argued that petitioners were guilty of a breach of the peace because their activity was likely to cause a breach of the peace by others. . . . [T]he possibility of disorder by others cannot justify the exclusion of persons from a place they otherwise have a constitutional right (founded upon the Equal Protection Clause) to be present.”[33]  In Garner v. Louisiana[34], the Court overturned the breach of the peace conviction of several African-Americans who were sitting in at white lunch counters.  One member of the Court acknowledged that  “[i]n the environment of a segregated community I can understand how the mere presence of a Negro at a white lunch counter might inflame people as much as fisticuffs would in other places.” [35]“[But] [t]his does not mean that the police were justified in making these arrests.  For the police are supposed to be on the side of the Constitution, not on the side of discrimination.”[36]  More than a century ago, the Supreme Court held that a state may not justify requiring racial segregation in housing on the ground that such discrimination is needed to avoid violence.  “It is urged that this proposed segregation will promote the public peace by preventing race conflicts.  Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.”[37]

(2)  Lower Court Decisions

Two lower court decisions are particularly important illustrations of the principle that when individuals exercising their First Amendment rights are, or maybe, at risk because of the unpopularity of their views, the responsibility of the government is to protect that speech, not to invoke the risk of violence to curtail or burden the exercise of constitutional rights.

Alabama state troopers swing nightsticks to break up a civil rights voting march in Selma, Alabama, March 7, 1965 (AP)

In 1965, during the civil rights march from Selma to Montgomery, the demonstrators were viciously attacked at the Edmund Pettus Bridge by Alabama state troopers and Dallas County sheriff’s deputies. Several leaders of that march, including Hosea Williams (who later led the Forsyth County march) and John Lewis (now a member of the House of Representatives), went to federal court seeking an injunction permitting that march to continue.  They also sought, and obtained, an injunction requiring state and local officials to protect the marchers.[38]  The day the injunction was issued, Governor George Wallace sought a stay of that order, warning that if the march resumed “there is a danger of violence on the part of white citizens in opposition to the proposed march.”  The district judge summarily rejected that argument.  “Such a contention will not justify the stay of an otherwise uncontested court order.”[39]

During the years following the decision in Brown v. Board of Education, the Board of Trustees of the Institutions of Higher Learning of the State of Mississippi adopted a series of regulations regarding outside speakers.  One of those regulations concerned speakers whose views might provoke a hostile reaction.  It forbad any speech by a person “whose presence will constitute a clear and present danger of inciting a riot on any campus . . . .”  The regulations were challenged by the Mississippi University and Mississippi State Chapters of the Young Democratic Clubs of Mississippi, and the American Association of University Professors.[40]  The litigation was triggered by the refusal of state officials, relying on the disputed regulations, to permit speeches at the University of Mississippi and Mississippi State by Charles Evers, a local NAACP official and brother of the slain Medgar Evers, and Aaron Henry, another major civil right leader.  In striking down that limitation on outside speakers, the district court explained:

it is fundamental that one may not be barred from speaking merely because his presence alone provokes riotous conduct among the audience.  One simply cannot be restrained from speaking, and his audience cannot be prevented from hearing him, unless the feared result is likely to be engendered by what the speaker himself says or does.  In such circumstances envisioned by the regulation, attendant law enforcement officers must quell the mob, not the speaker. . . . That the speaker may hold views disliked by the campus community is not a permissible basis for denial of the students’ right to hear him.[41]

 (3)The Application of These Precedents to the University of Washington Policy

The current University of Washington policy of charging student groups a substantial fee for events at which extremely unpopular ideas are expressed is a classic example of the viewpoint-based burden that Forsyth County forbids.  Whether a student group is charged such a fee, and the amount of that fee, depend entirely on whether the views to be expressed at an event are likely to attract a hostile audience.  If, instead of inviting a speaker from Patriot Prayer, the College Republicans had arranged for a speech by the head of the NAACP or Planned Parenthood, there would have been no hostile audience, and no $17,000 fee imposed by the University.  The College Republicans cannot be required to pay a fee that would not be imposed on other organizations which invite speakers whose views on controversial issues such as race, abortion, or gender discrimination, are more liberal and thus, in this region of the nation, more popular.[42]

The University represents that in deciding what police protection, if any, to provide, and thus what fee to impose, it does not consider the views of the speaker at issue, but instead assesses only how possibly hostile groups or organizations have indicated they will respond, or have responded in the past, to the speaker in question.  But that simply is a more direct way of measuring or predicting “[l]isteners’ reaction to speech,” which Forsyth County makes clear is not a constitutionally permissible basis for burdening otherwise protected freedom of expression.[43]  In this instance, the University has explained that its assessment of the amount of police protection needed, and thus of the amount of the fee to be charged to the College Republicans, was based in particular on the fact that “Gibson had been assaulted at prior rallies and threatened with death.”[44]  The fact that Mr. Gibson had, because of his actual or perceived views, been the victim of prior criminal attacks and threats is a particularly unseemly basis for charging a student group for the cost of protecting him while on campus. Hosea Williams, who led the demonstrations that prompted Forsyth County to adopt the ordinance condemned by the Supreme Court, was among the marchers attacked during both of those demonstrations, and among the marchers attacked by Alabama state troopers on the Edmund Pettus bridge.[45]

The $17,000 which the University proposes to charge the College  Republicans is far higher than the maximum $1,000 fee authorized by the Forsyth County ordinance.  As a practical matter, few student political or academic organizations would have funds of that magnitude.  The financial risk posed by potential fees of that magnitude would doubtless deter at least most student organizations from inviting a speaker likely to attract a hostile crowd. The University’s imposition and enforcement of such a fee would wipe out the financial resources of virtually any student group.  In this instance, perhaps, the College Republicans might be able to rely on their affiliation with a national political party to raise the amount in question.  But student organizations should not be conscripted into becoming fundraisers for the University because they invite a highly controversial speaker.

The constitutional protection afforded speech on campus is in some circumstances different from speech in a march on city streets, or in a public park.  But even in a limited public forum, viewpoint-based burdens are clearly impermissible, and that is what the University’s current practice establishes. The University does not impose a standard fee on all events discussing, for example, abortion or immigration, but charges a fee only to the extent that an event involves a speaker whose viewpoint is likely to attract and provoke a hostile audience.  For university students, moreover, a campus itself is the forum that really matters; this is the place where students normally meet, hold rallies, and listen to outside speakers.  It would seriously obstruct the ability of a student group to attract an audience to its events if meetings with highly controversial, and thus fee-inducing, speakers had to be held, for financial reasons, at Magnuson Park (where there would be no significant fee) rather than at the University itself.

The University has objected that the cost of protecting highly unpopular speakers will divert funds from other educational purposes.[46]  Yet the Supreme Court decision in Forsyth County necessarily rejected the county’s argument[47]that protecting controversial demonstrations could be expensive; the county’s share of the cost of protecting the 1987 civil rights demonstrations was undoubtedly a far greater portion of that rural county’s budget than the proposed $17,000 fee would be of the University’s overall budget of approximately $ 7 billion.  More fundamentally, requiring an individual to pay for the law enforcement costs of protecting the exercise of First Amendment rights is not a constitutionally permissible method of saving, or raising, money.  In 1965, despite the vehement opposition of Governor Wallace and other segregationists to the efforts of African-Americans to register to vote, the state of Alabama never attempted to charge John Lewis, Hosea Williams or the others who marched from Selma to Montgomery for the salaries of the law enforcement officers who under court order protected them during that historic event.

(4)  The Interests of The University

Over and above these constitutional concerns, we believe that the current policy is inconsistent with the interests of the University.  That policy permits a hostile outside group to impose substantial, perhaps prohibitive costs on the activities of any University of Washington student organization with whose views it vehemently disagrees.  In time, that would enable such outside groups to exercise a degree of control over which speakers can appear on our campus.  If the University succeeds in forcing the College Republicans to pay $17,000 to protect Mr. Gibson or its guests at the rally, that “success” will rightly be celebrated by many who disagree with the College Republicans and Mr. Gibson.  The group or individuals whose credible threats to Mr. Gibson or the College Republicans led to that $17,000 bill will be emboldened to attempt to repeat their victory.  And that “success” will inevitably encourage other outside groups to issue their own threats in the hope of obstructing or penalizing the appearance of different speakers to whom they may object.  The Ku Klux Klan might issue threats in order to prevent or penalize the appearance here of a Jewish or Muslim speaker.  A militant anti-abortion group might warn of outraged protestors if a Planned Parenthood official was invited to speak.  The risk of a $17,000 fee would assuredly deter other University of Washington organizations from inviting speakers whose presence would raise such security issues. A literary society would likely avoid inviting Salman Rushdie, who remains the target of a fatwa issued by clerics far from Seattle.

The University should not wage a legal campaign seeking judicial approval of the practice of imposing security fees for the protection of unpopular speakers on campus.  Not unlike the Civil Rights era, this problem arises at a time when there is throughout our nation an extraordinary and growing degree of intolerance towards speakers and organizations with whom particular members of the public disagree.  Judicial approval of this practice, if obtained, would not be limited to campuses in the Seattle area, or in other moderate regions of the country.  The same rule would apply in far more conservative areas, where speakers who would be warmly welcomed at the University of Washington might be the object of intense local opposition.

Milo Yiannopoulos spoke at the University of Washington’s Kane Hall on Jan. 20. (Dean Rutz/The Seattle Times)

Administration of the current policy will embroil the University in the unseemly task of calculating and imposing different fees for each controversial speaker, based on the University’s assessment of the amount and nature of the opposition which that speaker would generate.  Earlier this year, the University charged the College Republicans $9,121 for security provided for another speaker whom they had invited, Milo Yiannopolous.[48]  Recently, a University official indicated that the security fee that would be imposed for a particular Black Lives Matter activist would be about $4,000.[49]It might be unsurprising if officials in some other countries were authorized to determine the amount of fees of such magnitude imposed for hosting controversial speakers.  But no American government official, and most assuredly no official at an American public college or university, should be asked or empowered to make such determinations.

Speech is the very essence of the mission of higher education.  The exchange of ideas which we exist to promote is not limited to lectures given in our classrooms, or to articles published in scholarly journals.  The University fosters student organizations because we understand the value of enabling students to explore ideas on their own, and to invite outside speakers who may have views and experiences quite different from those of faculty members, or of the outside speakers whom the University itself selects.  The ready availability of police protection for unpopular speakers on campus is an essential part of this system.  When the police are called upon to play that role, they protect not only the particular speaker whose unpopularity has triggered exceptional protest, but also the broader principle that the ability of students to speak their minds or hear controversial ideas is not subject to veto by others.  The University Police who separated the various factions on February 10 were doing the same essential work as the National Guard members who enabled James Meredith to attend class at the University of Mississippi, the United States Army troops who patrolled the halls of Central High School in Little Rock, and the countless United States Marshals who escorted African American children into newly integrated southern schools.[50] The views of Mr. Gibson and the College Republicans may differ significantly from those earlier students, but they are protected by the same Constitution.

The free exchange of ideas on our campus is not limited to ideas that are thoughtful, well informed, peer-reviewed, or fair. Particularly in a university community, we understand that the best antidote to ill-considered speech is more speech: persistent reasoning, a sound marshaling of actual facts, and an appeal to the values that are the essence of the American idea.  We understand as well the importance of avoiding the practice, now all too common in the political sphere, of summarily branding as evil or malicious anyone with whom we disagree.  When members of the university community believe that the views of an invited speaker, or a speaker’s host, are unsound or even malicious, the appropriate response is to air that disagreement and demonstrate that error, not to impose a prohibitive fee that punishes or muzzles those views.

(5)  The Challenges Ahead

We do not urge the University to alter its policy, and to rescind its request for reimbursement, because we agree with the views of Mr. Gibson, or with the decision of the College Republicans to invite him to speak on the campus.  We have not attempted to determine where Mr. Gibson actually stands on issues such as racial and national origin discrimination, religious tolerance, or equal rights for women or members of the LGBTQ community.  Mr. Gibson has insisted that his views have been misunderstood.  However others may resolve that controversy, we are prepared to assume, for the purposes of the issue at hand, that we would disagree with every position of Mr. Gibson and of the group which he heads.  Any such disagreement, however, would be irrelevant to whether the College Republicans should be charged a security fee for the measures taken by the University to protect its student members, or Mr. Gibson himself, from those who may vehemently object to their views.  The protections of the First Amendment are not limited to liberals, or conservatives, or people with good ideas.

The principle at issue here is not a new one. Time and again, during the difficult days of the civil rights movement, the courts held that the government cannot limit or burden speech because it is likely to provoke others to attack a speaker or his or her supporters.  It was that principle that protected James Edwards when he marched to the state capitol in Columbia, South Carolina, the Reverend B. Elton Cox when he marched to the state capitol in Baton Rouge Louisiana, John Lewis when he marched to Montgomery, Alabama, Dick Gregory when he marched to the home of Mayor Daley in Chicago Illinois, and Charles Evers and Henry Aaron when they wanted to speak at the University of Mississippi and Mississippi State.  However much Mr. Gibson’s views may differ from those of the civil rights heroes who established this principle, the College Republicans are entitled to invoke that same principle when he speaks at the University of Washington.

That, to be sure, is not the only important value potentially at issue in these situations.  The University of Washington has an obligation to protect the right of all of our students to study, live, and exchange ideas of their own, without fear, intimidation, or discrimination.  Members of the university community are expected to treat one another with respect.  Under certain exceptional circumstances, the free speech interests of various groups of students may collide, forcing the University to strike a balance between them.  The University should not tolerate neo-Nazi rallies in dormitory common rooms, or racist taunts directed at students, and it should not wait until things have reached such dire straits.   If exceptional circumstances were to arise in which an event posed a serious threat to the rights or well-being of any members of the university community, the University should address that problem directly, but not by imposing a large security fee in the hope or expectation that such a fee will pressure a student organization to cancel an event, or to avoid inviting controversial speakers in the future.

Yours sincerely,

  • Eric Schnapper
  • Lea Vaughn
  • Peter Nicolas
  • William R. Andersen
  • Robert A. Anderson
  • Robert Aronson
  • Karen E. Boxx
  • Ronald Collins
  • Robert Gomulkiewicz
  • Michael W. Hatfield
  • Penny A. Hazelton
  • Mary A. Hotchkiss
  • Clark Lombardi
  • Lisa M. Manheim
  • Katherine M. O’Neill
  • Elizabeth G. Porter
  • Anita Ramasastry
  • Sallie Thieme Sanford
  • Scott A. Schumacher
  • Hugh D. Spitzer
  • Kellye Y. Testy
  • Walter Walsh
  • Kathryn A. Watts

Endnotes

[1] College Republicans v. Cauce, No C18-89-MJP, W.D.Wa., Doc. 19, p. 4

When the use of campus facilities involves events, activities, and programs that are likely to significantly affect campus safety . . . , the University will perform an analysis of all event factors.  . . . .The University . . . may review all event details and logistics to determine necessary safety and security protocols. . . . The host organization or group will be required to pay costs of reasonable event security as determined by the University.

In a brief filed in the pending litigation, the University explained that it assesses “whether enhanced security is necessary to ensure the safety and security of speakers and the campus groups hosting an event.  If enhanced security is necessary, the hosting campus group is assessed a security fee reflecting the additional cost.”  Doc. 12, pp. 1-2.

[2] Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992).

[3] Most of that cost was borne by the state of Georgia and other government entities.  505 U.S. at 126 n. 4.

[[4] 505 U.S. at 127.

[5] 1992 WL 525738 at *1.

[6] Motion for Leave to File and Brief Amicus Curiaeof the American Civil Liberties Union, No. 91-538, Forsyth County v. The Nationalist Movement, 14; see id.at pp. 12-13 (“police fees inevitably discriminate among political associations, by penalizing those addressing the most current and controversial issues.”),  p. 14 n. 14 (“the higher the cost, the more inequitable it is to assess it entirely against an innocent speaker whose only ‘offense’ is to hold unpopular views.”).

[7] Brief for the American Federation of Labor and Congress of Industrial Organizations As Amicus Curiae In Support of Respondent, p. 12.

[8] 505 U.S. at 136.

[9] 505 U.S. at 134.

[10] 505 U.S. at 134-35.

[11] Invisible Empire Knights of the Ku Klux Klan v. City of West Haven, 600 F.Supp. 1427, 1435  (D.Ct. 1985).

[12] 372 U.S. 229 (1963).

[13] Brief for Respondent, Edwards v. South Carolina, 1962 WL 115493 at *1 (“a large crowd containing unpredictable troublesome elements had gathered.”), *3 [T]here was imminent danger of further disruption of the public peace.  Known ‘troublemakers’ were recognized in the crowd of onlookers.”), *4 “[Among the] persons attracted to the scene . . . were some recognized by experienced police authorities to be ‘troublemakers.’  There was considerable racial tension in the City at this time.”); see372 U.S. at 244 (Clark, J. dissenting) (“anyone conversant with the almost spontaneous combustion in some Southern Communities in such a situation will agree that the City Manager’s action may well have averted a major catastrophe.”).

[14] 372 U.S. at 237.

[15] 372 U.S. at 237 (quoting Terminiello v. Chicago, 337 U.S. 1, 5 (—-)).

[16] 379 U.S. 536 (1965).

[17] 379 U.S. at 543.

[18] 379 U.S. at 550:

[T]he State contends that the conviction should be sustained because of fear expressed by some of the state witnesses that “violence was about to erupt” because of the demonstration.  It is virtually undisputed, however, that the students themselves were not violent and threatened no violence.  The fear of violence seems to have been based upon the reaction of the group of white citizens looking on from across the street.  One state witness testified that “he felt the situation was getting out of hand” as on the courthouse side of [the] [s]treet “were small knots or groups of white citizens who were muttering words, who seemed a little agitated.”  A police officer stated that the reaction of the white crowd was not violent, but “was rumblings.”  Others felt the atmosphere because “tense” because of “mutterings,” “grumbling,” and “jeering” from the white crowd.

[19] 379 U.S. at 561.

[20] 392 U.S. 111 (1969).

[21] Id. at 126-27.

[22] Id. at 128:

[After 9:00 p.m.] the people just seemed to come from everywhere until it reached between 1,000 and 1,200.  During this time the crowd became unruly.   There were shouting and threats.  “God damned nigger, get the hell out of here:” “Get out of here niggers—go back where you belong or we will get out of here” and “Get the hell out of here or we will break your blanket-blank head open.”  Cars were stopped in the streets with their horns blowing.  There were Ku Klux Klan signs and there was singing of the Alabama Trooper song . . . . Rocks and eggs were also being thrown at the marchers from the crowd.  The police were dodging rocks and eggs . . . .

[23] Id. at 111-12.

[24] Id. at 123 (Black, J., concurring).

[25] Cooper v. Aaron, 358 U.S. 1, 12-13 (1958) (“Their position in essence was that because of extreme public hostility . . . the maintenance of a sound educational program at Central High School, with Negro students in attendance, would be impossible.  The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools . . . .”).

[26] 358 U.S. at 16.

[27] 373 U.S. 526 (1963)

[28] 373 U.S. at 535.

[29] 370 U.S. 154 (1962).

[30] 370 U.S. at 155.

[31] 373 U.S. 284 (1963).

[32] 373 U.S. at 285.

[33] 373 U.S. at 292-93.

[34] 368 U.S. 157 (1961).

[35] 368 U.S. at 177.

[36] Id.

[37] Buchanan v. Worley, 245 U.S. 60, 81 (1917).

[38] Williams v. Wallace, 240 F.Supp. 100, 109-10 (N.D.Ala. 1965) (“These plaintiffs and the members of the class they represent are entitled to police protection in the exercise of their constitutional right to march . . . from Selma to Montgomery. . . . They are to be protected by the law enforcement agencies of the State of Alabama . . . . This Court recognizes that, to afford the necessary protection for these marchers, there will be a considerable burden upon the law enforcement agencies of the state of Alabama . . . .”).

[39] 240 F.Supp. at 111.

[40] Stacy v. Williams, 306 F.Supp. 963, 967 n. 1 (N.D.Miss. 1969).

[41] 306 F.Supp. at 977.

[42] See Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1525 (11th Cir. 1985) (“This does not comport with the First Amendment principle of equality of expression under the Constitution.  The principle of equality of expression, inherent in the First Amendment, means that in the context of a public forum, the government must afford all points of view an equal opportunity to be heard.”).

[43] 505 U.S. at 134.

[44] Doc. 12, p. 6.

[45] Upon returning from military service in World War II, and while still in uniform, Mr. Williams was badly beaten by angry whites because he drank from a water fountain marked “Whites Only.”

[46] Doc. 12 pp. 2 (“Because the safety and security of the campus community is of paramount concern, the University must divert whatever public funds are needed to maintain safety where an even poses a credible risk of disruption or violence. . . . Yet, higher education funding is limited. . . . Every dollar that is spent on security for a campus event takes away from other educational priorities.”), 15 (“the University’s objective [is] to prevent the diversion of the enormous resources needed to maintain safety at a handful of campus events away from other University educational priorities.”).

[47] Brief for Petitioner, pp. 6-7 (Board of County Commissioners made findings that “the cost of necessary and reasonable protection of persons participating on or observing [demonstrations] exceeds the usual and normal costs of law enforcement for which those participating should be held accountable and responsible . . . .”), 16 (“[the] fee related to . . . the maintenance of public order represents an accommodation of freedom of speech with the needs of the community to protect that speech and not unduly burden the public fisc.”).

[48] Doc. 23, p. 7.

[49] Doc. 25, p. 2.

[50] The actions of those Marshals were famously depicted in Norman Rockwell’s painting, “The Problem We Live With.”

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2 Responses

  1. Greg says:

    What’s the date on the letter? Am I missing it? I don’t see Judge Pechman’s February ruling mentioned here.