The Heckler’s Veto at Virginia Commonwealth University:

Meryl Yourish reports:

A student group called Supporters of a Safe Israel at Virginia Commonwealth University wants to bring the [very controversial] Daniel Pipes to VCU for a lecture. However, due to the current anti-Israel climate on many college campuses, whenever a group brings a pro-Israel speaker, the colleges demand extra security due to the protests and controversy that will ensue. SSI needs to raise an extra $5,000 [UPDATE: Meryl has update her blog to reflect that only $350 of the money the organization needs to raise is for the extra security], and they’ve only got about a month.

VCU policy (see p.9) grants the university discretion to require security for student-sponsored events, either for crowd control purposes, “or for other circumstances.” I suspect that as applied to the Pipes visit, where the security will be because of the controversial nature of Pipes’ views (among other things, he is often–and falsely–accused of being “anti-Muslim”), and not for crowd control, VCU’s policy is unconstitutional. The closest case on point is Forsyth County v. Nationalist Movement, in which the Supreme Court invalidated a county rule that allowed the county to condition a demonstration permit on the organizers paying the county in advance for security. The Court noted:
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.

VCU seems to be doing something very similar here, requiring Supporters of a Safe Israel to commit to spending more on security based on its assessment of how it perceives Pipes’ speech will be received.

The Court added: “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.” See also Judge Posner’s opinion in Church of the American Knights of the Ku Klux Klan v. City of Gary, Ind., emphasizing that parade organizers cannot be charged a security bill based on the controversy of their message even if the bill is determined with exactitude by “an army of cost accountants.”

VCU’s policy is not only allowing but encouraging a heckler’s veto-anti-Israel activists know that if they just make a few threatening gestures, VCU will impose extra costs on the pro-Israel community anytime it wants to bring in a pro-Israel speaker. The “hostile mob” is thus rewarded.

This is not, it should be noted, a case in which the student group is demanding that VCU provide it with free extra security, which would raise the separate additional issue of what obligations a public university has to provide security for speakers brought by student groups. Rather, it appears that VCU is going to provide the extra security whether the students think it necessary or desireable or not. The question is whether VCU can force the students to pay for this security.

I should also note that VCU does not seem to be discriminating against Supporters of a Safe Israel, but is rather applying its seemingly unconstitutional policy in a context in which its deficiencies are glaring. I’ll forward this information to FIRE and the Virginia ACLU on Monday, and see what they have to say.

UPDATE: A $350 “tax”on speech does not have the same chilling effect on speech that $5,000 has, but the constitutional principle is the same: neither VCU, nor any other public university, should require student organizations bringing in controversial speakers to pay for extra security based on the controversial nature of the speech.

Comments are closed.

Powered by WordPress. Designed by Woo Themes