Have you ever been a participant in, or vocally supportive of, the “Occupy” movement? Have you ever spoken in favor of (or against) a controversial cause or idea? Is there something about you that is susceptible to being unreasonably interpreted as even mildly suspicious? If you answered any of these questions in the affirmative, good luck speaking your mind on Western Michigan University’s (WMU’s) campus—at least without the watchful gaze of law enforcement constantly surveilling you and your listeners.
That’s the lesson learned by members of the Kalamazoo Peace Center (KPC) student group over the past month, when they invited activist and rapper Boots Riley to give a performance at their annual “Peace Week” event.
After receiving funding for the event from the Western Student Association and booking Riley, KPC set out to reserve a lecture hall for the performance. To the students’ surprise, the administrator in charge of reservations informed KPC that it could not book a room, giving no further explanation. When pressed for a reason, she told KPC that previous events at WMU involving Riley had caused disruption requiring police intervention.
This came as news to Riley’s booking manager, who informed KPC that Riley had never previously set foot on WMU’s campus. When confronted with this fact, the WMU administrator shifted gears, claiming that it was Riley’s “affiliates” who had caused the prior disruption. KPC eventually came to learn that these so-called “affiliates” were people who had participated in the “Occupy” movement on WMU’s campus in 2011 and 2012.
That’s right—WMU decided that Boots Riley should be held responsible for the actions of anyone participating in a famously decentralized movement, one that Riley says he initially didn’t even support. Still more astonishing is the fact that when Riley did become involved in the movement, he did so thousands of miles away from Kalamazoo: in Oakland, California, to be precise.
If this all sounds crazy, that’s because it is.
Eventually, after KPC submitted detailed plans for Riley’s performance and testimonials from similar events in which he had participated, WMU relented and informed KPC that it could reserve a room for Riley’s appearance—but only if it footed the $62-per-hour bill for an undercover police officer to be present the entire time. Having not received funding for this unforeseen expense, and feeling that paying for police presence would be contrary to the group’s mission and values, KPC was forced to take the event off campus. Fortunately, WMU’s Wesley Foundation, a Methodist campus group that owns a facility located on private property, stepped in and invited KPC to use its basement for the event. As it turns out, the event, which took place on April 3, involved peaceful performance and discussion, with nary a hint of rioting or any other type of disruption. WMU should be profoundly embarrassed that a student group had to provide a forum for free expression that WMU, a state institution, denied.
Putting aside the obvious absurdity of the claim that Riley’s ability to speak on a public university campus should be conditioned on the conduct of independent actors thousands of miles away, WMU’s actions here are patently unconstitutional. As we have repeatedly explained, public universities may not saddle student groups with extra security fees for events based on the controversial nature of a speaker and fears of disruption that the speaker’s views might cause. The Supreme Court addressed precisely this issue in Forsyth County v. Nationalist Movement, 505 U.S. 123, 134–135 (1992), when it struck down an ordinance in Forsyth County, Georgia, that permitted the local government to set varying fees for events based upon how much police protection the event would need. Criticizing the ordinance, the Court wrote:
The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.
In deciding that such a determination required county administrators to “examine the content of the message that is conveyed” (citation omitted), 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.”
Of course, this is precisely what WMU did here, as WMU Department of Public Safety Chief Blaine Kalafut was all too willing to admit:
“It’s on a case-by-case basis,” said Kalafut, explaining that there is no specific guidelines for RSOs when it comes to speakers, and that it depends on the history of the speaker, and possible disruptions that may be caused on campus.
Kalafut explained that the university does background checks on everyone who speaks on campus, and that it is a practice that originates from when conservative political commentator Patrick J. Buchanan spoke at WMU in 2005, and a non-WMU student assaulted Buchanan. “[Riley] has a [political] stand, a message,” said Kalafut. “And there are dissenting views.”
It is difficult to imagine a statement that more clearly exhibits every hallmark of unconstitutionality recognized by the Supreme Court. The security policy is admittedly absent from WMU’s written policies pertaining to student organizations, giving the administration unbridled discretion to impose security fees. When that discretion is exercised, WMU acknowledges that it imposes fees on events featuring speakers who convey controversial or unpopular messages. By holding student organizations hosting expressive events responsible for whatever disruptive activity results from the controversy of these events, WMU allows anyone to burden or censor speech with which they disagree by threatening a disturbance and forcing the event host to pay a security fee. In such a situation, disruptive protests win out over responsible expressive activity. That result cannot stand at a public institution of higher education—not morally, and certainly not legally. Controversial speech cannot be unduly burdened simply because it is controversial.
WMU has gotten away with these constitutional violations—until now. It’s time for those who value robust debate and the free exchange of ideas to ensure that WMU acts as a true marketplace of ideas moving forward. We call not only upon the university to reverse its clearly unconstitutional behavior, but also upon all WMU students to take back their education and invite speakers of their choosing—no matter how controversial. FIRE stands ready to help, so be sure to contact us at firstname.lastname@example.org if you encounter censorship on campus.