By David Loy
The ACLU Foundation of San Diego & Imperial Counties recently scored a major victory for freedom of speech when the Ninth Circuit Court of Appeals overturned a lower court ruling dismissing our First Amendment case against the University of California, San Diego (UCSD).
The Ninth Circuit held that we state a valid claim that the school retaliated against The Koala, a student-run newspaper that published a controversial article. The story satirized “safe spaces” and “trigger warnings.”
Although many students and administrators understandably found the article repugnant and condemned it as such, UCSD correctly did not dispute the fact that it was protected by the First Amendment.
Nevertheless, the school attempted to sidestep the First Amendment and punish the newspaper by cutting part of its funding. UCSD disqualified student newspapers from the campus activity program, which is funded by student fees and aims to promote extracurricular participation and robust debate by student organizations.
The program’s funds are supposed to be allocated regardless of viewpoint.
UCSD tried to justify the disqualification by claiming it was “neutral;” even though the change was adopted immediately after the article was published and the student government had previously planned to maintain and streamline funding for campus newspapers.
The court rejected this obvious pretext. As it noted, the case presents “unusually compelling allegations that the government acted with discriminatory intent,” based on documents showing that administrators colluded with student government representatives to target The Koala “under the guise of content neutrality.”
The importance of this case transcends its particular facts. College and university administrators routinely devise creative pretexts for censorship. The student press is a vital institution, both as a training ground for professional journalism and a source of news in its own right.
Student organizations and newspapers play a vital role in advocating for change, speaking truth to power and holding officials accountable. To uphold UCSD’s tactics would have licensed public college and university administrators to stifle student speech with impunity.
It would be easy to dismiss the article in question as worthless, but popular or pleasant speech is rarely attacked. As the U.S. Supreme Court has said, “[t]he history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly,” and the freedoms “guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”
Students and administrators were free to protest and condemn the article, but the school crossed the constitutional line by retaliating against protected speech. The First Amendment protects civil society from suffocation by the power to declare speech unlawful. History shows that this is not a power government can be trusted to exercise.
David Loy is the legal director of the ACLU Foundation of San Diego & Imperial Counties.