Victory for Free Speech at University of Wisconsin: Antiwar Panel to Be Held Tonight

By April 26, 2010

After cancelling a panel of antiwar speakers last Friday, University of Wisconsin – Madison (UW) has reversed its decision, and the event will proceed tonight as planned. The university also will not charge an unconstitutional security fee to any of the student or academic sponsors of the event. Steve Horn, president of the UW chapter of the Campus Antiwar Network (CAN), had come to FIRE for help, and FIRE advised the event’s sponsors about how to advocate for speech rights on campus.

About two weeks ago, according to Horn, space was formally reserved in UW’s Wisconsin Union for today, April 26, 2010, at 7:00 pm for an "antiwar panel" composed of prominent speakers from outside organizations. On the evening of Friday, April 23, however, shortly after the main student group cosponsor, the International Socialist Organization, withdrew its sponsorship of the event, Roger Vogts, Assistant Facilities Director of The Wisconsin Union at UW, phoned and e-mailed Patrick Barrett, Administrative Director of UW’s Havens Center for the Study of Social Structure & Social Change in UWM’s Sociology Department (Havens). Vogts alleged that the event actually was being "planned" by an outside organization called Free and Equal, necessitating departmental sponsorship for the event to proceed per UW’s alleged protocol, despite the fact that the CAN student group continued to be engaged in preparing for tonight’s event. Horn even sent out a press release on Sunday protesting the cancellation of the event.

A second reason that Vogts reportedly gave for the cancellation was that one of the speakers, noted antiwar demonstrator Cindy Sheehan, was "controversial" and there would be security issues because of her presence. Vogts also wrote to Barrett that because Sheehan was nationally known and because Free and Equal had widely advertised the event, Havens would be responsible to pay about $400 to $600 in additional security fees if it chose to cosponsor the event. If Havens refused to cosponsor the event or to pay for such expenses, the event would remain cancelled.

I contacted Barrett and learned that these requirements were unusual in his experience, if not unique. I explained that the Supreme Court addressed the issue of additional security fees in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), when it struck down an ordinance in Forsyth County, Georgia, that permitted the local government to set varying fees for events based upon how much police protection the event would need. Criticizing the ordinance, the Court wrote that "[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit." Deciding that such a determination required county administrators to "examine the content of the message that is conveyed" (citation omitted), the Court wrote that "[l]isteners’ 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." (Emphasis added.)

After speaking with University of Wisconsin System General Counsel Patricia A. Brady and then UW attorneys and noting the burden that such a fee placed on speech, Barrett offered to cosponsor the event but without paying for any of the security involved. Wisconsin Union Communications Director Marc Kennedy agreed, so the event is now back on as previously scheduled.

This is a superb example of students and administrators taking action to correct an error quickly and efficiently by consulting with FIRE about their free speech rights and then advocating for those rights to be protected on campus. The university’s stated commitment to the "continual and fearless sifting and winnowing of ideas" is without value if "controversial" events are canceled at the eleventh hour due to easily managed "security" concerns or unnecessary bureaucratic hurdles. Key people at the university learned this lesson quickly and put the university back on the right track.

What UW needs now is a clear, content-neutral set of guidelines for assessing both normal and extra security fees for events. After FIRE wrote the University of California at Berkeley regarding this very issue in 2009, Berkeley acknowledged its legal responsibility not to burden controversial speech. The school subsequently agreed to apply only content-neutral criteria when assessing the security charge for events, regardless of the expected audience reaction and the university’s assessment of the amount of security needed. Such criteria reportedly include the expected number of attendees, the nature of and number of exits from the room for the event, whether money is to be exchanged, and so on. We commended Berkeley for its model reaction, and we suggest this and similar examples to UW in the interest of promoting best practices on campus.

Schools: University of Wisconsin – Madison Cases: University of Wisconsin – Madison: Cancellation of Antiwar Event