Temple University’s irreconcilable actions regarding a student group that brought Dutch politician Geert Wilders to campus have left students utterly in the dark about what Temple will do the next time a controversial speaker comes to campus. Temple unconstitutionally charged the group, Temple University Purpose, for extra security after the event, but after FIRE intervened, Temple claimed that it could have charged the group thousands of dollars more. Temple arbitrarily offered to withdraw the extra fee, then unilaterally withdrew it. In its latest letter, Temple merely states that the matter is closed and makes no promise to ensure that controversial but protected speech is not silenced on campus.
These actions chill speech at Temple because groups will not want to risk similarly strange treatment of their events. Who would bring another controversial speaker to campus, risking thousands of dollars of after-the-fact security fees? Charging an extra security fee because of a potentially hostile audience is unconstitutional because it burdens the speech, but many student groups will likely be unwilling to push their luck to vindicate their rights.
In our most recent letter to Temple, we point out not only that Temple’s random actions have a chilling effect on campus expression, but also that Temple maintains a constitutionally unacceptable policy of burdening speech. We wrote on March 18:
While we are pleased that Temple University has withdrawn the bill for this event, it is disappointing that Temple has failed to acknowledge the legal principle under which it was required to do so. In addition, Temple’s actions to date—imposing a fee, offering to withdraw it, and then finally withdrawing it—have been without any explanation on which student organizations can rely when hosting controversial events in the future. Since Temple has not acknowledged its error, for example, in stating that it could have charged $6,000 to TUP for the extra security for the event, students have a reasonable fear of arbitrary imposition of such fees that is likely to have a persistent chilling effect on speech at Temple. Student organizations are likely to avoid bringing a controversial speaker to campus lest they face the vacillating treatment to which TUP was subjected, as well as the prospect of thousands of dollars in extra security fees.
Again, the Supreme Court in Forsyth County v. Nationalist Movement, 505 U.S. 123, 132-33 (1992) found that the implementation of the county’s ordinance showed no "narrowly drawn, reasonable and definite standards guiding the hand of the Forsyth County administrator" in assessing fees (citation omitted) (internal quotation marks omitted) and that "[n]othing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees" (emphasis added).
In addition, your response directed FIRE to the Web page regarding Temple’s "guidelines regarding student run programs," available at http://www.temple.edu/studentaffairs/studentactivities/studentorgs/blackbook-programming.asp. […] [U]nder "Security for Events," while the policy does appear to employ a variety of reasonable and definite standards, it does not clarify who is responsible to pay for any added security, leaving students further in the dark about their financial responsibilities under Temple’s policy.
In particular, one of the criteria for determining security needs at Temple includes "Increased risks (e.g., threats received)," a criterion that Temple may not use when charging security fees to students. This criterion is not content neutral, and it is exactly what was contemplated by the Supreme Court in Forsyth, as FIRE pointed out in our first letter to President Ann Weaver Hart on January 4, 2010.
Temple must clarify that it will not financially burden the speech of student organizations, or their invited guests, because of "threats received" or other potentially hostile actions by protesters or audience members. In addition, we request that Temple refrain from arbitrarily assessing or waiving security fees in the future. All registered student organizations at Temple deserve equal treatment from Temple regardless of viewpoint, especially regarding matters of their First Amendment rights.
Unfortunately, Temple doesn’t seem to care about its policy or its actions. Temple’s April 7 response merely stated:
We appreciate your concern for student rights and for alerting us to FIRE’s position on the matter. We have withdrawn the fee and now consider the matter closed.
Apparently Temple thinks it is appropriate to assess a fee unconstitutionally and then withdraw it unilaterally without any acknowledgment of its constitutional obligation not to burden speech in this way. Temple should know better. In fact, the free speech principle here is so clearly established that Temple administrators risk losing qualified immunity in lawsuits if they try such shenanigans again. That means that the administrators could be liable for damages as individuals and not just in their professional capacities as administrators. In the meantime, let us hope that student organizations will be brave enough to fully exercise their rights on campus in spite of Temple’s missteps.