Earlier this month, a federal district court in California denied a preliminary injunction request and dismissed the First Amendment claims of a satirical student newspaper at the University of California, San Diego (UCSD) that was stripped of funding last year after publishing a controversial article. The newspaper, The Koala, is represented by the ACLU of San Diego & Imperial Counties, and filed suit in May 2016 after seeing its funding cut in a vote by the UCSD student government that eliminated student activity fee funding for all student print outlets.
As FIRE reported last year, the November 18, 2015, defunding vote came two days after The Koala published an article mocking the concepts of safe spaces and trigger warnings. After receiving numerous student complaints about the paper, Vice Chancellor of Student Affairs Juan Gonzalez attended a meeting of the UCSD Associated Students Council to read into the record a statement by high-ranking university officials condemning The Koala’s “offensive and hurtful language.”
The Council voted on print media funding at the same meeting. As a reporter for UCSD’s independent student newspaper, The Guardian, wrote at the time, council members “explained that since Council cannot selectively discriminate against one publication (the Koala) without infringing upon First Amendment rights, Council should defund all publications currently receiving money from student fees.” However, Associated Students Council President Dominick Suvonnasupa later claimed that the defunding did not target the satirical paper, telling the The San Diego Union-Tribune that “the vote was not about The Koala, but was only about addressing the most efficient use of student funds.”
In its decision, the U.S. District Court for the Southern District of California rejected The Koala’s claims that student government and university officials violated its First Amendment rights by ending student print media funding. Though the court acknowledged that it would be impermissible for university actors to eliminate funding for viewpoint-based reasons, it rejected The Koala’s argument that it was singled out based on its viewpoint because funding for print media was cut to all student organizations. As the court reasoned, “Plaintiff fails to cite legal authorities where the motivation, and not the conduct, of some government actors (the Senate of Associated Students) is determinative on First Amendment issues in context of a limited public forum.”
Under this outcome, it is difficult to imagine how a party might properly allege a claim of viewpoint discrimination in a student fee funding decision if there exists any content- and viewpoint-neutral justification upon which a government actor can hang its hat, whether or not that justification is a pretext for discriminatory motivations.
In a footnote, the court commented on the lack of evidence that the defunding impacted The Koala’s digital publication or that print media was important to disseminating its message to a digitally-savvy student body. As the court’s decision relied on an allegedly neutral funding decision, these comments are concerning in that they pose somewhat of a red herring. If the student government indeed made a content- and viewpoint-neutral decision to end funding for print media for all organizations, it does not matter how the decision impacted The Koala individually. If the decision was instead an attempt to target The Koala for censorship, viewpoint discrimination can’t be justified by the existence of alternative channels of communication alone.
Despite its disappointing ruling, the court gave The Koala leave to amend its complaint, giving the plaintiff an opportunity to restate its claims and allegations in response to the court’s reasoning. We will certainly keep an eye on this important case as it develops.