California Polytechnic State University (Cal Poly) in San Luis Obispo, California will no longer charge student groups security fees for bringing speakers to campus, FIRE has independently confirmed.
The news, first reported by the local San Luis Obispo paper, The Tribune, comes several months after Cal Poly says the policy change took effect. The change was revealed following complaints of inconsistent application from Cal Poly’s Muslim Student Association (MSA) after the school waived security fees for the College Republicans to host Breitbart editor Milo Yiannopoulos. The Muslim Student Association alleged a double standard, saying they were charged $4,888 for a January 2016 conference.
According to The Tribune, “Cal Poly and the CSU system waived the combined $55,400 for their officers to provide security for the Yiannopoulos event. Those costs were absorbed by the university and CSU, using state funds.”
Cal Poly Media Relations Director Matt Lazier confirmed that the policy change took effect on the San Luis Obispo campus in September, after MSA’s January event, but before the College Republicans invited Yiannopoulos.
“We changed our practice in September of 2016 regarding security fees for student club events,” he told FIRE.
We’ve warned before that when public universities charge “security fees” for campus speakers based on expected controversy or protest, it doesn’t simply set schools like Cal Poly up for embarrassment—it violates the First Amendment by imposing an unlawful “speech tax.”
Indeed, security fees force universities to subjectively determine the fee based on how controversial they anticipate a speaker to be. In other words, they tax speech based on viewpoint or content, which violates the First Amendment.
Back in September—right around the time of Cal Poly’s alleged policy change—I explained the legal precedent and the problems with taxing speech:
In Forsyth County v. Nationalist Movement (1992), the Supreme Court determined that government actors—like public college or university administrators—may not lawfully impose security fees based on their own subjective judgments about “the amount of hostility likely to be created by the speech based on its content.” Such fees amount to a tax on speech an administrator subjectively dislikes, or subjectively believes is likely to cause disruption or violence.
“Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob,” the Forsyth Court wrote, noting that “[t]hose wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.”
Speech protected by the First Amendment is “free” speech—in both senses of the word. Content- and viewpoint-based security fees allow the government to arbitrarily affix a price tag to some speech on the basis of the speaker’s viewpoint.
Security fees also serve as an invitation to the “heckler’s veto.” One of the ways a heckler’s veto can manifest itself on campus is when students shout down or interrupt a speaker with whom they disagree, preventing the speaker from exercising their own right to speak. The possibility that groups hosting controversial or unpopular speakers will be subject to burdensome security fees incentivizes those who disagree with a speaker to threaten disruption so as to make those fees come to fruition.
We at FIRE are heartened to see that Cal Poly has updated their policy. Not only does the First Amendment require it, but students benefit from encountering a variety of viewpoints on campus. After all, that should be among the most important reasons they came to college in the first place.
As my colleague Adam Steinbaugh once aptly stated: “When you’re a student at a university, you already pay a fee to be able to hear controversial speakers. It’s called tuition.”