Important Case on Public Universities’ Charging Speakers Security Fees (Especially in Anticipation of Possible Hostile Reaction by the Audience)

From Sonnier v. Crain (5th Cir. July 27):

Sonnier argues … that SLU’s speech policy violates the First Amendment because it gives the University the “sole discretion … in determining both the need for, and the strength of the security” at the public assembly or demonstration, and assesses the cost of additional security on the sponsoring individual or organization. In response, the defendants assert that the fee has never been charged. Regardless of whether the fee has ever been charged, we agree with Sonnier.

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for “the cost of necessary and reasonable protection [for assemblies] … [that] exceeds the usual and normal costs of law enforcement ….” The Forsyth County Court found the security fee unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.”

The SLU security fee provision has the same shortcomings as the ordinance struck down in Forsyth County. As the policy states, determining the additional amount of security needed is at the “sole discretion” of the University; no objective factors are provided for the University to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the University, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

The court had no occasion to discuss the second basis for the Forsyth County decision, which was (and here I quote the Supreme Court’s decision as to parades on public streets in Forsyth, rather than the Fifth Circuit’s decision as to demonstrations at public universities in Sonnier),

The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.

The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said … activit[y].” In order to assess accurately the cost of security for parade participants, the administrator “‘must necessarily examine the content of the message that is conveyed,'” estimate the response of others to that content, and judge the number of police necessary to meet that response. 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….

The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ 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.

But I think this prong of Forsyth would likewise apply to universities, under the Fifth Circuit’s logic:

1. The Supreme Court in Forsyth held that security fees (A) couldn’t be imposed using the administrator’s unfettered discretion, because of the risk of content discrimination when such discretion is exercised, and (B) couldn’t be imposed even using nondiscretionary rules when those rules turned on the likely public reaction to the content of the speech.
2. The Fifth Circuit in Sonnier concluded that precedents related to content-neutral restrictions on speech on public streets did not apply fully to speech on public university land, and that universities should have more latitude (though not unlimited latitude) to impose such content-neutral restrictions.
3. But the Fifth Circuit nonetheless held that prong A of Forsyth applies automatically to speech on public university campuses, without any talk of more latitude being given to universities where discretionary fee policies were involved.
4. This suggests that prong B of Forsyth would likewise apply automatically to speech on public university campuses, since both prong A and prong B are animated by the same concern — the worry that the fees might be imposed based on content, either because of the administrator’s exercise of his unfettered discretion, or because of the likely public hostility to the content of the speech.

This is a pretty important issue, since my sense is that many universities do require security fees, sometimes based on the likely public reaction to the speech; see, for instance, here and here. And to my knowledge the Fifth Circuit opinion is the first appellate court decision to deal with public universities’ potentially content-based security fee policies; so I expect it to be influential even outside the Fifth Circuit.