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
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.
- Joey Gibson Speaks / Prays at Republican Rally at Washington University Seattle, YouTube, April 10, 2018
- Steven Hsieh, Court Blocks UW from Charging College Republicans $17,000 Security Fee for Far Right Rally, The Stranger, Feb. 9, 2018
- Nathalie Graham & Steven Hsieh, Police Made Five Arrests and Deployed Pepper Spray at the UW Patriot Prayer Rally, The Stranger, Feb. 10, 2018
- Katherine Managan, Security Costs Loom Larger in Campus Free-Speech Fights. A Lawsuit Shows Why, Chronicle of Higher Education, Feb. 7, 2018
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:
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. 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
The First Amendment standards applicable to this situation were established by the Supreme Court decision in Forsyth County, Georgia v. Nationalist Movement.  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. 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 . . . .” 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.” 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.
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 . . . .”
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.” “[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.” “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”
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.” 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, 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, 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”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.”
— In Cox v. Louisiana, 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’ . . . .” 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. 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.”
— 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.” 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.”Gregory other marchers were convicted of disorderly conduct because they had provoked an angry response by white onlookers. The Supreme Court reversed, explaining that peaceful demonstrators could not be punished merely because hostile onlookers became violent. 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.”
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. Read More