(By Justefrain/CC BY-SA 3.0, modified from original.)
Ten months ago, conservative author and political commentator Ben Shapiro spoke at California State University, Los Angeles (CSULA). Shapiro’s speech was not without obstacles: CSULA attempted to charge the event’s sponsor, the Young America’s Foundation (YAF), more than $600 in security fees before unilaterally canceling (and then un-canceling) the event. When Shapiro finally spoke, some protesters interrupted the speech and even blocked the entrance to the event.
In May, YAF and Shapiro filed a lawsuit against CSULA—as well as several administrators and professors—arguing that both the university’s security fee policy and its staff’s alleged contributions to protesters’ disruptive tactics violated the First Amendment. Last July, after revising its security fee policy, CSULA moved to dismiss the lawsuit. As my colleague Adam Steinbaugh wrote at the time, that new policy still granted administrators wide discretion to charge speaker hosts security fees based on subjective and vague standards—a classic recipe for viewpoint-based discrimination. CSULA, in a bid to duck YAF’s lawsuit, appears to have modified its policy further in order to rely on content-neutral criteria.
While most of YAF’s claims were dismissed earlier this week, the case is proceeding on narrow grounds; plaintiffs might still be able to recover nominal damages for injury relating to the university’s former security fee policy. Even though the fee for the Shapiro event was eventually rescinded, YAF had to spend resources to have counsel write a letter in opposition to the fee. The court’s ruling on this claim is a positive result. Students should not have to begin a legal battle just to exercise their free speech rights on a public college campus—policies should be speech-protective and clear from the start.
YAF’s other claims were less successful. In his ruling, Judge Dale S. Fischer dismissed YAF’s challenge to CSULA’s revised security fee policy, concluding that YAF did not adequately show injury from that policy. Judge Fischer also rejected YAF’s argument that the failure to intervene in protesters’ disruption of the Shapiro event amounted to a First Amendment or Equal Protection Clause violation. He noted that because the law does not clearly establish that security officers had an obligation to remove the protesters blocking the event, CSULA administrators are also protected by qualified immunity.
Granting qualified immunity is indeed the correct choice when the law isn’t clear. But it is unfortunate that the law doesn’t better incentivize institutions to ensure all voices can be heard. The fact that schools often make students pay for security fees at events deemed controversial is made even worse by the real possibility that security officers won’t even do anything when a disruption occurs. The university’s “marketplace of ideas” would be better served if officers took action not just to protect students’ safety but also to prevent protesters from effectively silencing a speaker or preventing the audience from hearing him or her.
The court also appropriately rejected YAF’s claims against faculty members who allegedly aided the protesters in blocking the event. The professors, relying on California’s anti-SLAPP statute, challenged YAF to provide admissible evidence that they were responsible for particular conduct during the protests of Shapiro’s speech. According to the ruling, plaintiffs’ proffered evidence fell short of demonstrating any unlawful conduct by the faculty members, or showing that they were “acting under color of state law, as opposed to as part of a personal pursuit.” While university professors are certainly capable of violating students’ First Amendment rights, it is also important to ensure that professors’ rights are not curtailed unnecessarily. That includes both allowing professors to speak out against viewpoints with which they disagree and not punishing them without evidence of their participation in unlawful actions. Simply encouraging students to engage in protests, or engaging in protests alongside students, does not amount to unprotected speech.
This case should serve as a reminder that while First Amendment jurisprudence is generally very strong, courts can’t fix all the free speech problems on campus. Where they fail to do so, students and professors who understand the importance of unfettered discourse on campus must explain to administrators and the rest of the campus community that allowing even expression that offends is a critically important part of the educational experience. FIRE hopes that despite this ruling, CSULA will take steps to better protect free expression on campus.