The Volokh Conspiracy - Who Should Pay for Security at Controversial University Events?

Last month, the UCLA Objectivist club, L.O.G.I.C., tried to put on a debate about immigration, between Carl Braun of the Minutemen and Dr. Yaron Brook of the Ayn Rand Institute. As it happens, L.O.G.I.C. and Brook are strongly pro-immigration; nonetheless, the event led to a post on IndyMedia aimed at organizing a protest that "shut . . . down" the debate, on the grounds that "[h]ate speech is not free speech." That in turn led to the event being canceled: According to UCLA,

The security arrangements that were made prior to the event with the support of LOGIC were deemed insufficient due to the significant threat posed against one of the speakers and the large amount of off-campus promotion for what was to be a student sponsored event for the UCLA Community. The costs to adequately secure the venue were estimated to be $10 - $12 thousand and it was highly unlikely at such short notice that our UCPD could provide the adequate security coverage.

UCLA's original position was that L.O.G.I.C. had to pay the $10-12,000 in security costs when the event was rescheduled.

To its credit, UCLA has retreated considerably; Acting Chancellor Norm Abrams (a colleague of mine at the law school) wrote,

The university understands its obligation to bear the reasonable security costs relating to demonstrations that might result in response to controversial speech. It was not appropriate for campus representatives to suggest that the student group would be obligated to pay for additional security needed because of a protest that was anticipated. The students will not, in fact, be charged for additional security associated with anticipated demonstrators when the event is rescheduled and occurs.

Unfortunately, this apparently referred only to the police security costs (which I should note are the great majority of the costs). UCLA will still require the student group to pay for private security guards, chiefly to be present inside — to eject hecklers, to deter hecklers and hooligans, and to make other students feel safe. The guards cost about $20/hour per guard, and for a 1.5-hour debate they'd need to be present for about 3 hours. The required number of guards will turn on the protests' likely magnitude and nature of the protests, which in turn flow from the viewpoint of one of the debaters.

I couldn't get a good estimate of how many guards would likely be needed (that apparently won't be available until the school consults again with the club and with the UC Police Department), but if 20 were required, that would end up costing $1200 or so, not a small amount for a student group. The group would have to get outside funding for that, though it's possible that UCLA student government would defray some of that from funds available to student groups. (I'm told by the UCLA people that historically the government has offered anywhere from a very small amount to a bit above $1000 for events generally. In principle the student government must be viewpoint-neutral in its funding decisions, but I'm not sure how it is in practice, and in any event such a requirement is very hard to enforce in discretionary judgment such as student government funding decisions.) L.O.G.I.C. reports that they have rescheduled the debate for May 1, and that they will be able to fund the security guards; but they will bear a cost, and a cost that stems from the possibility that thugs will try to disrupt the event.

So those are what seem to me to be the facts. Now to my thoughts on how the First Amendment and academic freedom principles play out here.

1. If the event took place in a traditional public forum, such as on a sidewalk or in a park, the government would not be allowed to charge organizers money (or require organizers to spend money) when the amount was based on the expected public reaction to the speech. That's the holding of Forsyth County v. Nationalist Movement (1992), which struck down a permitting scheme that did turn on the likely security costs:

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.

Although [the county] agrees that the cost of policing relates to content, it contends that the ordinance is content neutral because it is aimed only at a secondary effect — the cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee's justification "'ha[s] nothing to do with content.'"

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.... This Court has held time and again: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment."

2. Nonetheless, this event would not take place in a traditional public forum, which must remain open for untrammeled public speech. It is to take place in a university building that the university has opened up to student speech. Such a building is a "designated public forum," and while viewpoint-based restrictions are generally impermissible even in a designated public forum, content-based or speaker-based limitations on the forum (e.g., "we'll open this forum only for curriculum-related speech," "we'll open this forum only for student-run groups," or likely "we'll open this forum only for speech that doesn't involve profanity") are permissible.

Would fees or spending requirements based on the likely response to a group's viewpoints be viewpoint-based, and thus unconstitutional even in a designated public forum? Or would they just be content-based limitations on the forum and thus constitutional, since the university doesn't care at all about the debaters' viewpoints as such but only about the possible misconduct that the debaters may arouse among their enemies? I think the answer is that they would be viewpoint-based and therefore impermissible, but the viewpoint-based/viewpoint-neutral distinction is notoriously vague and underdefined in cases such as this one, so the answer is not clear.

3. But it seems to me that regardless of the First Amendment outcome, academic freedom principles should lead the university to pay all the security costs itself. It looks like L.O.G.I.C. will be able to pay for the private security; but many groups might not be able to, and even L.O.G.I.C. might not be able to pay if the expected counterprotest is large enough. Sometimes, the thugs' threatened disruption would get the event shut down, or at least moved off campus to a park.

So the question is: Should the university let the thugs drive debate on important and controversial issues off the university campus? I think the answer is that it should not.

I sympathize with the desire to save money that could be used for other academic purposes. I sympathize with the concern about violence (though I think it's to the university's credit that it will pay the great majority of the costs of deterring and containing the possible violence, rather than blocking the event or requiring student groups to pay for police protection).

Still, it seems to me most important that the university take a stand, even at some cost, in favor of protecting free speech and against those who are threatening to disrupt the speech. If the university doesn't do it, and the thugs win, that will just promote more thuggery in the future. Behavior that gets rewarded gets repeated.

Recall also that, thanks to Chancellor Abrams' sound decision to provide police protection at UC expense, the debate now is over sums that are relatively modest for the university. But the sums are not modest for the groups involved, and may in fact lead to some events' being canceled. If $1000-2000 extra for the relatively rare event that requires a good deal of security is the price to be spent for defending free debate at the university against the goons, that seems to me a price the university should be willing to pay.

	[Eugene Volokh, March 19, 2007 at 7:25pm] Trackbacks Who Should Pay for Security at Controversial University Events? Last month, the UCLA Objectivist club, L.O.G.I.C., tried to put on a debate about immigration, between Carl Braun of the Minutemen and Dr. Yaron Brook of the Ayn Rand Institute. As it happens, L.O.G.I.C. and Brook are strongly pro-immigration; nonetheless, the event led to a post on IndyMedia aimed at organizing a protest that "shut . . . down" the debate, on the grounds that "[h]ate speech is not free speech." That in turn led to the event being canceled: According to UCLA, The security arrangements that were made prior to the event with the support of LOGIC were deemed insufficient due to the significant threat posed against one of the speakers and the large amount of off-campus promotion for what was to be a student sponsored event for the UCLA Community. The costs to adequately secure the venue were estimated to be $10 - $12 thousand and it was highly unlikely at such short notice that our UCPD could provide the adequate security coverage. UCLA's original position was that L.O.G.I.C. had to pay the $10-12,000 in security costs when the event was rescheduled. To its credit, UCLA has retreated considerably; Acting Chancellor Norm Abrams (a colleague of mine at the law school) wrote, The university understands its obligation to bear the reasonable security costs relating to demonstrations that might result in response to controversial speech. It was not appropriate for campus representatives to suggest that the student group would be obligated to pay for additional security needed because of a protest that was anticipated. The students will not, in fact, be charged for additional security associated with anticipated demonstrators when the event is rescheduled and occurs. Unfortunately, this apparently referred only to the police security costs (which I should note are the great majority of the costs). UCLA will still require the student group to pay for private security guards, chiefly to be present inside — to eject hecklers, to deter hecklers and hooligans, and to make other students feel safe. The guards cost about $20/hour per guard, and for a 1.5-hour debate they'd need to be present for about 3 hours. The required number of guards will turn on the protests' likely magnitude and nature of the protests, which in turn flow from the viewpoint of one of the debaters. I couldn't get a good estimate of how many guards would likely be needed (that apparently won't be available until the school consults again with the club and with the UC Police Department), but if 20 were required, that would end up costing $1200 or so, not a small amount for a student group. The group would have to get outside funding for that, though it's possible that UCLA student government would defray some of that from funds available to student groups. (I'm told by the UCLA people that historically the government has offered anywhere from a very small amount to a bit above $1000 for events generally. In principle the student government must be viewpoint-neutral in its funding decisions, but I'm not sure how it is in practice, and in any event such a requirement is very hard to enforce in discretionary judgment such as student government funding decisions.) L.O.G.I.C. reports that they have rescheduled the debate for May 1, and that they will be able to fund the security guards; but they will bear a cost, and a cost that stems from the possibility that thugs will try to disrupt the event. So those are what seem to me to be the facts. Now to my thoughts on how the First Amendment and academic freedom principles play out here. 1. If the event took place in a traditional public forum, such as on a sidewalk or in a park, the government would not be allowed to charge organizers money (or require organizers to spend money) when the amount was based on the expected public reaction to the speech. That's the holding of Forsyth County v. Nationalist Movement (1992), which struck down a permitting scheme that did turn on the likely security costs: 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. Although [the county] agrees that the cost of policing relates to content, it contends that the ordinance is content neutral because it is aimed only at a secondary effect — the cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee's justification "'ha[s] nothing to do with content.'" 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.... This Court has held time and again: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." 2. Nonetheless, this event would not take place in a traditional public forum, which must remain open for untrammeled public speech. It is to take place in a university building that the university has opened up to student speech. Such a building is a "designated public forum," and while viewpoint-based restrictions are generally impermissible even in a designated public forum, content-based or speaker-based limitations on the forum (e.g., "we'll open this forum only for curriculum-related speech," "we'll open this forum only for student-run groups," or likely "we'll open this forum only for speech that doesn't involve profanity") are permissible. Would fees or spending requirements based on the likely response to a group's viewpoints be viewpoint-based, and thus unconstitutional even in a designated public forum? Or would they just be content-based limitations on the forum and thus constitutional, since the university doesn't care at all about the debaters' viewpoints as such but only about the possible misconduct that the debaters may arouse among their enemies? I think the answer is that they would be viewpoint-based and therefore impermissible, but the viewpoint-based/viewpoint-neutral distinction is notoriously vague and underdefined in cases such as this one, so the answer is not clear. 3. But it seems to me that regardless of the First Amendment outcome, academic freedom principles should lead the university to pay all the security costs itself. It looks like L.O.G.I.C. will be able to pay for the private security; but many groups might not be able to, and even L.O.G.I.C. might not be able to pay if the expected counterprotest is large enough. Sometimes, the thugs' threatened disruption would get the event shut down, or at least moved off campus to a park. So the question is: Should the university let the thugs drive debate on important and controversial issues off the university campus? I think the answer is that it should not. I sympathize with the desire to save money that could be used for other academic purposes. I sympathize with the concern about violence (though I think it's to the university's credit that it will pay the great majority of the costs of deterring and containing the possible violence, rather than blocking the event or requiring student groups to pay for police protection). Still, it seems to me most important that the university take a stand, even at some cost, in favor of protecting free speech and against those who are threatening to disrupt the speech. If the university doesn't do it, and the thugs win, that will just promote more thuggery in the future. Behavior that gets rewarded gets repeated. Recall also that, thanks to Chancellor Abrams' sound decision to provide police protection at UC expense, the debate now is over sums that are relatively modest for the university. But the sums are not modest for the groups involved, and may in fact lead to some events' being canceled. If $1000-2000 extra for the relatively rare event that requires a good deal of security is the price to be spent for defending free debate at the university against the goons, that seems to me a price the university should be willing to pay.