Earlier this month, FIRE intervened at Boise State University (BSU), where administrators saddled the campus chapter of Young Americans for Liberty (YAL) with an unconstitutional security fee for hosting an event featuring gun rights activist and former Supreme Court litigant Dick Heller. BSU attempted to justify the fee by pointing to alleged concerns about a non-student encouraging attendees to openly carry firearms at the event—despite the fact that YAL had publicly cautioned that such behavior was prohibited. We warned BSU that its policies allowing the imposition of security fees on speech based on the potential reaction of listeners violate the Supreme Court’s longstanding First Amendment jurisprudence.
In addition to FIRE’s letter, the nonprofit organization Idaho Freedom Foundation (IFF) also wrote to BSU, outlining the constitutional deficiencies (PDF) in the university’s policies and their implementation. And most recently, the American Civil Liberties Union of Idaho (ACLU-ID) added its voice to the chorus last Friday with a letter of its own (PDF), demanding that BSU refund the fee charged to YAL and work to revise its policies. Noting that ACLU-ID had recently been successful in challenging an Idaho law similar to BSU’s policy, Legal Director Richard Eppink wrote:
The policies and the charges that BSU imposed on the YAL group are especially troubling because of how clearly they seem to violate established First Amendment requirements. The ACLU of Idaho litigated similar State of Idaho policies just last year and prevailed. In a case called Watters v. Otter, Chief Judge Winmill of Idaho’s federal district court held that a rule providing that “[i]ndividuals, entities, and organizations may be charged for direct costs . . . including . . . security services” was unconstitutional. ___ F. Supp. 2d ___, ___, No. 1:12-CV-00076-BLW, 2013 WL 6446251, at *11 (D. Idaho Dec. 9, 2013). A rule that used the word “may,” the court held, allows officials “to encourage some speech by not imposing costs while discouraging other views through the arbitrary application of costs.” Id. Boise State University’s policies have the same serious problem.
The ACLU of Idaho joins in IFF’s and FIRE’s call for BSU to fix its policies and refund the money it forced YAL to pay under those policies. The refund should be given promptly, and then the policies should be revised after IFF, FIRE, the ACLU of Idaho, the BSU community, and the general public have a meaningful opportunity for comment. Would you meet with IFF, FIRE, and the ACLU of Idaho to discuss those policies soon?
As FIRE noted in our press release, BSU is currently facing a First Amendment lawsuit from a pro-life student group (represented by Alliance Defending Freedom) challenging the constitutionality of the university's “free speech zone.” With the spotlight shining on BSU’s adherence to the First Amendment, we hope that administrators will think better of digging in their heels and will instead work with FIRE, IFF, and ACLU-ID to ensure that its community’s fundamental rights are upheld. We would certainly welcome the opportunity to work with BSU to that end.