Case Summary and Outcome

A United States Court of Appeal found that a student newspaper’s First Amendment rights were violated when its funding was revoked by a University, allegedly in retaliation for a satirical article it published.  In 2015, The Koala published an article satirizing “safe spaces” and “trigger warnings” on U.S. campuses which resulted in significant complaints and an official condemnation by the University due to its employment of stereotypes and racial epithets. In quick succession, the student government passed a Media Act which dissolved a subsidy for all student print newspapers, thus preventing The Koala from printing its paper for the remainder of the academic year. The Court found the University singled out the paper for offensive speech in an effort to silence it, resulting in a chilling effect. The Court remanded the case based on its conclusion that The Koala’s Free Press Clause, Freedom of Speech, and First Amendment retaliation claims had merit to proceed.

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Facts

The Plaintiff in the case was The Koala, a registered student organization at the University of California, San Diego (UCSD) which published a satirical student newspaper that was available online and in print.

The Koala, along with numerous other student organizations, received funding for its operations from the Associated Students, a student government organization that managed subsidies for student activities. All students are required to pay fees which go into a fund designated to support student organizations and their related activities which “stimulate on-campus discussion and debate on a wide range of issues from a variety of viewpoints,” among other things. [p. 7] According to the guidelines for media related activities, funding must be distributed on a “content-neutral basis” and that “neither the Associated Students nor UCSD would be ‘responsible for the content of student media publications.’” [p.8]

The action stemmed from an article published in November 2015 titled “UCSD Unveils New Dangerous Space on Campus” which satirized “safe spaces” and “trigger warnings.” The article included “ethnic and sexist stereotypes and racial epithets” which generated numerous complaints from students and administrators. In response, Pradeep Khosla, Chancellor of the University, issued a formal statement denouncing the article and it “call[ed] on all students, faculty, staff[,] and community members to join [the administration] in condemning [The Koala’s] publication and other hurtful acts.” [p. 9]

The same day, the Associated Students introduced and passed a new Media Act (Act) at their regularly scheduled meeting. The Act eliminated the media fund, the category of funding for press related activities which resulted a loss of $452.80 for The Koala and prevented them from printing planned issues for the remainder of the academic year.  However, the Koala claimed that at least one other student newspaper continued to receive funding after the passage of the Act.

The Act did not prevent The Koala from publishing online, but The Koala argued that it was not a substitute for the print version which enabled them to feature student artwork on its cover and fully reach its intended audience.

The Koala brought the lawsuit claiming UCSD violated its First Amendment rights under:

1. the Free Press Clause on the ground that the Media Act “singled out and financially burdened” the Koala; and
2. Freedom Speech on the grounds that the fund for student organizations was a limited public forum and that their disqualification due to the Media Act was intentional viewpoint discrimination.

The Koala further submitted a First Amendment retaliation claim that the Media Act was in direct response to the publication of their article and was designed to silence them. The Koala requested an injunction to prevent the University from implementing the Media Act as well as an order to restore their eligibility to apply for future funding.

The Defendants representing the University included, Pradeep Khosla, in his official capacity as Chancellor of the University of California, San Diego; Daniel Juarez, in his official capacity as President of the Associated Students of the University of California, San Diego; and Justin Pennish, in his official Capacity as Financial Controller of the Associated Students of the University of California, San Diego.

The District Court ruled in favor of the University finding that the Eleventh Amendment barred the claim for the injunction. It further found that the Media Act applied to all student organizations, was content and viewpoint neutral, and therefore it dismissed the Free Press Clause and retaliation claims. It also dismissed the Free Speech claim finding that the “media funds category” was a limited public forum which the University was fully within its rights to close. [p. 6]

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Decision Overview

Judge Christen delivered the opinion of the three-judge bench of the U.S. Court of Appeals for the ninth circuit.

The Court began by stating that the Eleventh Amendment[1] did not bar The Koala’s request for prospective injunctive relief, thus reversing the district court’s order. It relied on Ex parte Young, 209 U.S. 123 (1908), to establish that “private individuals may sue state officials in federal court for prospective relief from ongoing violations of federal law, as opposed to money damages, without running afoul of the doctrine of sovereign immunity.” [p. 13] The Court reasoned that The Koala only requested that their eligibility to apply for funding be restored, which would not result in an order for the state to fund it or any financial burden on the state.

Free Press Clause

The Court next addressed the claim that the Media Act violated the Free Press Clause by dissolving the media fund in an effort to single out the paper and prevent its publication. The Court rejected the defendant’s argument that the Act did not run afoul of the Free Press Clause because it affected all the student organizations. The Court recognized that the government has a “broad discretion in granting or denying subsidies’ and that denying a subsidy does not necessarily lead to an infringement of the right.” However, Supreme Court case law does establish that the government may not withhold benefits “for a censorious purpose” or as “a penalty on disfavored viewpoints” under the Free Speech Clause. [p. 20] The Court found there was sufficient evidence that the Media Act intentionally targeted and burdened the newspaper in order to shut it down.

Freedom of Speech

The Court then turned to whether the student activity fund constituted a limited public forum, and if so whether the University violated Freedom of Speech by dissolving the media fund. The Court defined a limited public forum as a space the government opened for specific purposes, topics or to certain groups. In limited public forums the government may “regulate speech so long as the restriction is reasonable and viewpoint neutral.” [p. 25] It then conducted a forum analysis to determine that the student activity fund was in effect a “metaphysical forum,” a category of limited public forums. The scope of the forum would be determined by the policy which created it. Since UCSD’s policies did not breakdown the student activity fund into distinct funding categories, the Court agreed with The Koala’s argument that the limited public forum referred to the total student activity fund, rather than just the allocation for the press.

The Court rejected the University’s claim that they acted within their rights to close the forum in the manner that they did. While the government is under no obligation to support limited public forums in perpetuity, it is not allowed to alter them in order to restrict speech it does not favor. UCSD’s abrupt policy shift, the Court found, ran the “real risk of silencing divergent views by slicing off just enough of an existing forum (the student activity fund) to isolate offensive speech, then closing the redefined forum (the Media Funds category of the student activity fund) under the guise of content neutrality.” [p. 31] The Court concluded that the district court applied the wrong framework to determine the forum and thus remanded The Koala’s Free Speech claim for reconsideration.

First Amendment Retaliation

Lastly, the Court had to determine whether the Media Act was passed “in retaliation for, and with the intent to silence, The Koala’s satirical content.” [p. 32] In order to succeed in a First Amendment retaliation claim, a plaintiff must show “(1) it engaged in constitutionally protected activity; (2) the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and an intent to chill speech.” Ariz. Students’, 824 F.3d at 867 (internal quotation marks omitted). [p. 33-34]

The Court found The Koala met the first two prongs of the test; the article was clearly protected speech and the Media Act chilled the newspaper’s speech by preventing it from publishing. Relying on a statement made by the Executive Vice Chancellor of Academic Affairs and the fact that the Media Act only impacted a targeted subset of the student organizations, the court found the third prong was also met and therefore there were sufficient elements to plead a First Amendment retaliation claim.

The Court remanded the case for reconsideration based on its conclusion that the Free Press Clause, Freedom of Speech, and First Amendment Retaliation claims had sufficient merit to proceed.

Concurring Opinion

Judge Fisher found the Free Press Claus claim sufficient to resolve the case on the ground that the defendants clearly discriminated against the press, and therefore determining a “censorial motive” was unnecessary.

[1] The Eleventh Amendment “generally prevents a state and state government actors from being sued in federal court without the state’s consent.” [P. 13]

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