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:
- 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.
- 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.
- 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.
- 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.
Adam Coates says:
Can you imagine any other criteria that might pass muster here? E.g., a flat fee, or a fee based on expected attendance?
It seems like a practical necessity to fund security for these things; but if it can’t be funded proportional to “consumption”, I’m not sure what the next most efficient thing would be…
July 29, 2010, 1:19 amKirk Lazarus says:
Maybe the speaker should fund their own security, and be responsible for any damage to the venue.
July 29, 2010, 2:27 amLarryA says:
It’s really too bad that our institutions of higher learning can’t teach students that civilized behavior includes respecting a speaker’s First Amendment rights, particularly if you disagree with their position.
Then the extra security wouldn’t be necessary.
July 29, 2010, 3:28 amdee nile says:
Maybe the people who cause damage to the venue should be responsible for any damage to the venue.
July 29, 2010, 6:48 amBen P says:
While probably ideal, I think it’s not being talked about because it’s just not practical.
Most probably damage to a venue is either
1. discovered after the event and caused by unidentified persons
2. caused by people who are essentially judgment proof (i.e. students)
Some states have laws making it possible to go after the parents money if a kids in a car accident, but the same is rarely true of crimes like vandalism.
July 29, 2010, 8:12 amgeokstr says:
I recall pictures of the Washington Mall after the big tea party rally there. Clean as a whistle, because the participants picked up after themselves. In contrast, look at all the strewn garbage and property damage and arrests after pretty much any large left-wing protest. Just a coincidence, I’m sure.
Also must be a coincidence that nearly all the speakers who need security on college campuses are conservatives, and that all the damage and violence are caused by leftists and/or Muslims. That is, of course, if the conservatives are allowed to speak at all.
Yes, let’s make sure we punish those dastardly conservatives who have the courage to brave the gauntlet when they speak at these bastions of free inquiry by charging them for all the potential damage that the leftists/Muslims may do.
By way of contrast, can anyone cite an instance of violence or property damage caused by conservatives at a speech by a leftist or a radical imam?
Thought not.
July 29, 2010, 8:23 amBama 1L says:
Would this apply to concerts? Parties? If a party gets sufficiently wild, it may cross the line into expressive conduct and gets First Amendment protection, right?
My hope in general is that what is decided in the Fifth Circuit stays in the Fifth Circuit, unless the alternative is the Eleventh Circuit.
July 29, 2010, 8:33 amFedya says:
In theory, you could expel the student and refuse to release the transcript to other schools should the student wish to transfer.
July 29, 2010, 8:46 amShelbyC says:
When I read your comment, I got so mad I smashed somebody’s window. How can they reach you to send you the bill?
July 29, 2010, 8:50 amChrisIowa says:
Maybe the speakers who had respectful crowds and no violence should pay more than those whose speeches were interrupted by violence. After all, the security was more effective for the former than the latter. Why should you pay more for a defective product?
July 29, 2010, 9:25 amerp says:
dee nile says:
Maybe the people who cause damage to the venue should be responsible for any damage to the venue.
What a notion! Next you’ll be saying that people should be responsible for all their actions and not ask the rest of us to pay their bills. Wow! I think I need to lie down now. s/off
BTW – thinking like left wing students couldn’t be made to pay for damage they do is basically one of things wrong with today’s world. They get a pass while conservative students would and have been tossed out of school for minor infractions of the rules nevermind the actual violence to people and property commonplace in leftwing “demonstrations.”
July 29, 2010, 9:25 amrbj says:
Perhaps make it a non-bankruptcy dis-chargeable debt that follows them for life. Angry student vandalizes school property, gets caught (and use cameras) and has to pay, say $10,000 in damages. Insurance company pays, but then gets to pursue the student for the rest of his life to collect. There should absolutely be no heckler’s veto in a country that believes in free speech.
And anyone who disrupts a speech & has to be escorted out of the room should have to pay for the security guard’s time. Signs & silent protest are fine, but the other side gets to have their say.
July 29, 2010, 10:15 amMoneyrunner says:
Discussions like this are interesting on a theoretical level. On a more practical level, disruptive/violent students and college administrators/ faculty appear to be of one mind regarding disruption of free speech when it applies to conservatives.
July 29, 2010, 10:22 amSarcastro says:
We could discuss how to solve the problem, or we could complain how my ideology is the victim here!
July 29, 2010, 11:39 amAngus says:
Shhhh — you’ll disrupt their narrative and make them consider reality: that liberal speakers have also been shut down by death threats. Having to face reality and think is too much for some conservatives to bear!
July 29, 2010, 12:01 pmMalvolio says:
The speaker is not the “consumer” of security — he doesn’t control the amount consumed nor is he typically the beneficiary of the security (it’s the owners of nearby plate-glass who most dearly need protection).
Moreover, charging speakers for their security leads to more violence and vandalism. Opponents of the speaker understand the financial mechanism and can easily calculate that the more damage they themselves do (under a speaker-pays regime), the less the speaker can speak. Allowing any sort of heckler’s veto always creates a perverse incentive.
July 29, 2010, 12:15 pmMalvolio says:
Has that really happened? Is there a comparable counter-narrative where serious left-wing or liberal speakers have been hounded or shouted down on American universities?
July 29, 2010, 12:18 pmAngus says:
Both Bill Ayers and Ward Churchill have had campus speaking engagements canceled after death threats and threats of violence.
July 29, 2010, 12:19 pmLarryA says:
It’s university property. The people causing the disruption are almost always university administrators, faculty, or students. The university should pay any damages involved.
But in this case it’s a slam-dunk. Every time students want to do something the university doesn’t like, the administration claims they are “in loco parentis” and therefore can regulate the activity. So they can also pay the bills when their “children” trash the place.
Proposed solution: Equip security officers with cameras. Video any person who causes a disruption. Haul anyone who keeps someone from speaking before a university court on a First Amendment violation. Establish appropriate sanctions ranging from a rap on the knuckles to expulsion. Report anyone who destroys property to the police for vandalism. Rinse, repeat.
July 29, 2010, 12:31 pmJeff Semenak says:
Bill Ayers? My irony meter just exploded.(Intentional choice of word.)
July 29, 2010, 12:51 pmgeokstr says:
Holy cr*p, batman! That’s two whole entire leftists who’ve had one speech each canceled for threats of violence. (One was quoted under oath by an FBI infiltrator as saying that 25 million Americans might have to be killed when his leftist religion takes over. But, what the hey.)
And I already made allowance for the one-off leftist who has had a speech canceled:
But neither of them had their speech disrupted by actual, like, you know, real violence and property damage and being shouted down. Many conservatives don’t even get invited to speak at these fonts of open inquiry strictly because they are conservatives, others get disinvited after having their appearance approved.
Please, how about some cites or sites showing actual violence and disruption by rightwingers at leftist speeches? Maybe some overturned cars, windows smashed, stores looted, etc, that the right perpetrated?
Typical leftist false equivalency. We had two of our speakers get canceled, one of whom is an actual killer (“guilty as sin and free as a bird. What a country.”) with a wife who makes him look like Mother Teresa, so it’s totally OK if we actually inflict violence and disruption, or disinvite several hundreds of yours.
Puke.
July 29, 2010, 12:57 pmMalvolio says:
Don’t make me go all Niemöller on your ass. Terroristic threats — even against terrorists and supporters of terrorism — are still terroristic threats and need to be prosecuted.
That said, people were threatening those two not because they are “leftists”, but because they are jerks: one said that killing innocent people was a good idea, the other actually tried to do so. Presumably, no one is claiming those are core left-wing activities.
And yes, there is more than a whiff of irony that these two jerks already had tenure! The threats to them almost certainly came from outside Academia.
July 29, 2010, 1:28 pmAngus says:
Links to each of the the “several hundreds” of conservative speakers. It’s typical for conservatives to focus on one or two really bad incidents per year and pretend that it represents what happens every time. It’s easier than having to provide real numbers and real evidence. In reality, what I suspect that you’d find if you dug further is that 99% of conservative speakers invited to campuses have their events go on without incident. Is that 1% still unacceptable? Sure. But don’t blow smoke and wave mirrors and pretend that 1% represents the other 99%.
As for your point about Ayers: If I had to choose who was the better person, Bill Ayers or Anne Coulter, I’d find that a pretty impossible decision. Besides, what does the quality of the person have to do with whether or not they are allowed to speak? Are you supporting death threats against people based upon whether you like them?
July 29, 2010, 1:57 pmgeokstr says:
Really Angus??? Really??? You’d have a hard time choosing who is the better person between them?
Let’s see – Coulter loves to ridicule leftists (that’s just her version of Rule #5 that leftists have been using on the right since the 1960s) and is very, very good at it. But…Killed anyone? Bombed anything? Organized any violent protests? Talked seriously about overthrowing the US government to put in a dictatorship of the nomenklatura?
Now Ayers – split from the SDS and formed the Weather Underground because the SDS wasn’t violent enough. A bomb planned for planting at an Army cadet dance, filled with nails and other happy, happy stuff, goes off and shreds his girlfriend and two other WU members instead in a townhome owned by his old man. His wife was implicated in a million dollar robbery resulting in the deaths of cops and security guards and talked with glee about how cool it must have been to stick a fork in a pregnant Sharon Tate’s belly. (I really doubt if he knew nothing about her activities.) There were other bombings as well, and the WU also organized the infamous “Days of Rage”, for which he has said as recently as September 11, 2001, that he is sorry he didn’t do more. He offhandedly (ignored by you in my previous post) says he will kill 25 million Americans in rehabilitation camps in order to implement his New Order when the WU takes over. Worked with your demi-god to waste 100 million dollars in the Annenberg Project to politicize the grade schools of Chicago, resulting in zero – that’s as in zilch, nada, nil, zip, none – improvement in student performance. To this day is proud to call himself a communist, and loves Hugo Chavez. No remorse whatsoever for any of the above.
All the above is common knowledge and well documented. Look it up yourself – I’m tired of finding cites and sites for you that you then refuse to read.
Yes, I can see how it might be difficult for a committed leftling to choose who is a better person between them. Based on most of the comments you post here, that doesn’t come as much of a surprise.
July 29, 2010, 4:28 pmMalvolio says:
Wow, we have a new winner for Stupidest Remark Ever on Volokh.
On the one hand we have an unrepentant terrorist; on the other, an unrepentant columnist. Apparent some people find this a tough choice.
July 29, 2010, 5:00 pmAngus says:
Coulter has advocated the mass murder of Muslims based on their religion. Yes, I conclude that such a thing makes her just as thoroughly as vile and evil human being as Ayers. Your “defense” of her is by far more stupid.
July 29, 2010, 8:44 pmwhit says:
and randy newman said fat people have no reason to live!
oh the horror!
bill ayers just assisted in actual violent terrorist crimes.
July 29, 2010, 11:25 pmwhit says:
angela davis advocated mass murder of “the rich” based on their income.
oh, the horror.
July 29, 2010, 11:34 pmSarcastro says:
Sweet, an Ayers 10 minutes of hate! Can we also add the evil of Soros to the pile?
July 29, 2010, 11:50 pmMoneyrunner says:
Oh no! I have learned my lesson. Love the terrorist, hate the bomb. (Or is that love the bomb?) My moral betters are always ahead of me.
OK, I’ll start the Soros time, reminding us how he aided the Nazis; but that was long ago and far away when he was a mere lad. And it’s really hard to know who was worse, the Nazis or the Jews.
July 30, 2010, 7:39 amMoneyrunner says:
Who is worse, Castro or Sarcastro? Both kill.
July 30, 2010, 7:41 amMoneyrunner says:
You know, I can’t decide who is worse, the person who wants Angus dead or the person who kills him.
July 30, 2010, 7:43 amMoneyrunner says:
They told me that if I voted for McCain, the Fascist Republicans would off McCain so that the evil Palin would take over and set up a police state, invade our bedrooms forcing us to have heterosexual sex … and set up a theocracy all the while pretending that her grandson was really hers.
Feds want to let FBI access people’s Internet data without probable cause
July 30, 2010, 7:57 amVirginian says:
Short people got no reason to live.
July 30, 2010, 10:44 amAngus says:
Right to the death threats/death wishes? Usually you right-wingers wait a little longer than that in a thread…
July 30, 2010, 10:51 amwhit says:
ugh. my bad.
July 30, 2010, 5:56 pmKirk Lazarus says:
They are unlikely to be the people who have hired the venue. If I hire a car and return it damaged I am liable, regardless whether the damage was my fault or done by someone who didn’t like the opinions I was shouting out the window. Why should hall hire be different?
July 31, 2010, 1:28 amDavid Schwartz says:
Because cars are neither rented by the government nor public fora. If a private company wants to charge atheists more than theists to rent their hall, they can. But the government may not, even if it uses neutral criteria to do so.
July 31, 2010, 4:45 amMoneyrunner says:
Angus, sweety, so far as I know, no one on this site has made a death threat. I was merely using your brand of moral equivalence to ridicule you.
But, as your friends on Journolist suggested, maybe someone should send you a Christmas card.
Cheers.
July 31, 2010, 8:09 am