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First Amendment Victory at Montclair State: Ayers Speech Escapes 'Heckler's Veto'

Montclair State University (MSU) has averted a First Amendment crisis on campus by backing down from an unconstitutional plan to levy extra fees on a student group that had invited education theorist and former Weatherman Bill Ayers to lecture on campus, as described in today's press release. After the university told Students for a Democratic Society (SDS) that it would be responsible to pay for an unspecified number of extra security officers because of the possibility of hostile protesters, the students came to FIRE. After we intervened, MSU abandoned its efforts to levy any extra fee.

"Universities like Montclair State seem to think they've come up with a new way to keep controversial views from campus: force student groups to pay a lot more to bring in controversial speakers. Thankfully, you can't do an end run around the First Amendment," Greg says in our press release. "This strategy has been used to discourage student groups from bringing speakers from the left and the right. But such security fees are unconstitutional, and it's time for them to stop."

On February 14, 2011, SDS properly notified Montclair State University (MSU) of the group's intention to hold a lecture event titled "Bill Ayers on Education and the New Activism" on March 24. The event was approved by MSU. On March 22, however, an unnamed representative from the university's Center for Student Involvement emailed SDS to notify the group that "at least 2 officers" would be needed for its event. The email stated: "[W]e have received a number of concerned phone calls and emails regarding this speaker, and are likely going to have University Police establish a protest area. You will be responsible for the cost of any additional officers assigned to that area."

FIRE wrote MSU President Susan A. Cole on March 24 prior to the event, explaining that it would be unconstitutional to require SDS to provide funding for extra security due to the controversial content of the presentation and the prospect of angry protesters. The First Amendment, by which MSU is legally bound as a public university, does not permit affixing a price tag to events on the basis of their expressive content. That would be a form of the "heckler's veto" whereby the least tolerant, most violent people in the community get to decide who may speak unmolested, simply by threatening violence and raising the cost of security out of reach for the speaker.

The Supreme Court addressed precisely this issue in Forsyth County v. Nationalist Movement (1992), explaining that it is unacceptable if "[t]hose wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit." The Court stated 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."

MSU did not respond directly to FIRE's letter, but SDS has confirmed that it has not been charged for the extra security that was present at the event.

This is the second time in recent years that FIRE has intervened to ensure that MSU met its constitutional responsibilities. In 2008, FIRE explained to President Cole that MSU's Student Government Association (SGA) had brazenly violated the First Amendment when the SGA froze funding to The Montclarion, MSU's student newspaper, because of a dispute regarding press access to closed SGA meetings. As a result, MSU restored funding to the paper and initiated efforts to make it independent of the SGA.

FIRE also has successfully intervened at several universities to prevent schools from assessing unconstitutional "security" fees for controversial speakers, including conservative writer Don Feder at University of Massachusetts Amherst and Ayn Rand Institute Fellow Elan Journo at the University of California at Berkeley.

FIRE is pleased that MSU has met its First Amendment obligations once again. Now, if MSU would only reform its speech-restrictive policies to pass First Amendment muster, free speech really would be safe at MSU. FIRE would be happy to help with those revisions.

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