Amounts to ‘elevated fees for speech that is likely to draw opposition’
Ana Mari Cauce developed a reputation as a free-speech defender in the runup to anti-feminist provocateur Milo Yiannopoulos’s appearance at the University of Washington a year ago.
Even after someone got shot in the brawl outside the event, the UW president continued to defend her choice to let him on campus, telling her impressionable students that public universities can’t be ideological “gated communities.”
Cauce’s reputation has taken something of a hit following a scathing judicial order against the university Friday.
The taxpayer-funded institution said it would impose a $17,000 security fee on the College Republicans as a condition of allowing their Saturday event with Patriot Prayer, whose rallies at the University of California-Berkeley last fall drew leftist counterprotests.
The CRs sued, and a federal judge in Seattle issued a temporary restraining order:
Plaintiffs have demonstrated that they are entitled to a TRO based upon their claims that the UW’s Security Fee Policy violates their First Amendment rights to freedom of speech and expression. … The Court further finds that protection of First Amendment rights should not be contingent upon Plaintiffs’ ability to pay, and declines to order a bond.
We have assigned extra police officers at & near the #uwprotest today at the request of @uw. We’ll be supporting @uw_police in providing a safe place for all. If you need anything from our officers, please let us know.
— Seattle Police Dept. (@SeattlePD) February 10, 2018
Judge Marsha Pechman ridiculed the public university’s claim that there was anything “objective” about its security-fee policy.
“There is no dispute” that the event venue, Red Square, is a limited public forum and any speech restrictions there must be “reasonable and viewpoint neutral,” but UW’s policy is problematic, according to the judge.
“In order to maintain the safety and security of all organizing parties, guests attending, and the broader campus community,” the university can evaluate “history or examples of violence, bodily harm, property damage, significant disruption of campus operations, and those actions prohibited by the campus code of conduct and state and federal law,” according to the policy.
It will then require the host to pay security fees based on “an assessment of credible information other than the content or viewpoints anticipated to be expressed during the event.”
This policy “gives administrators broad discretion to determine how much to charge student organizations for enhanced security, or whether to charge at all,” Judge Pechman said.
UW was advised by law enforcement canceling the event, if not done voluntarily by organizers — which they declined to do — would likely pose greater safety risks, as both supporters of Patriot Prayer and counter-protesters were likely to confront one another elsewhere on campus.
— U. of Washington (@UW) February 10, 2018
The UW’s explanation for the CRs’ fee – particularly the anticipated response to Patriot Prayer founder Joey Gibson – doesn’t wash:
Apparently, the $17,000 fee assessed upon the College Republicans reflected the UW Police Department’s estimate that the Freedom Rally would require 24 officers over 4.5 hours, at an hourly rate of $157.52 per officer. … While the Chief of Police offers a lengthy discussion of the “objective facts” he considered (e.g., the fact that Mr. Gibson was assaulted and pepper sprayed at recent rallies, the fact that Patriot Prayer has “members who have engaged in.open carry in the past,” etc.), nowhere does he explain how these facts support his determination as to the number of officers needed. … Nor does he identify the “open-source websites” that the UW Police Department referenced to corroborate information about the event.
Judge Pechman also blasted university policy for considering “instances of past protest” in judging how much to charge organizations for security:
[That] will inevitably impose elevated fees for events featuring speech that is controversial or provocative and likely to draw opposition. Assessing security costs in this manner impermissibly risks suppression of “speech on only one side of a contentious debate.”
It is “irrelevant” that UW promises the CRs won’t have to pay the $17,000 fee until after the event, the judge continued.
She further suggested the entire UW security fee policy is unconstitutional in part because it sticks hosts with the final unforeseen bill for damage caused by “members of their organization or other invitees,” which raises “associational concerns”:
The College Republicans currently must choose whether to cancel the Freedom Rally or face the prospect of a fee. Similarly, while the UW speculates that the College Republicans will be able to pay the fee, nothing in the record supports this conclusion. …
[H]ow does the UW intend to distinguish between members, invitees, and non-invitees, or to identify the cause of damage to the venue? Finally, even assuming that the College Republicans have access to donors and other funding sources that could assist in covering their costs, other student organizations with controversial viewpoints may not be so situated. Regardless of whether a student organization can satisfy the fee assessment, the Security Fee Policy chills protected speech, and thereby threatens irreparable harm.
It’s not enough that universities across the country “have recently expended millions of dollars in public funds to ensure safety and security at campus events featuring controversial or provocative speakers,” Judge Pechman continued:
[C]ollege and university campuses are where many students encounter, for the first time, viewpoints that are diverse and different from their own. … Allowing the UW to enforce its Security Fee Policy would infringe not only the rights of the College Republicans, but also the rights of others – including supporters and protesters – who wish to attend the Freedom Rally.
— Seattle Police Dept. (@SeattlePD) February 11, 2018
The Seattle Times reports that five arrests were made at the Saturday rally – no names released – “despite officers’ efforts to keep at a distance a couple of hundred protesters who far outnumbered” the rally hosts and their supporters:
At one point, people with the Patriot Prayer gathering exited their sectioned-off area of Red Square — where leaders gave speeches and performed music — to walk into the opposing crowd. Swearing, spitting, shouting and fighting followed.
“They were pretty belligerent, but I wouldn’t say I wasn’t either,” said Mikaele Baker, 20, a UW sophomore and self-described anti-fascist, referencing those supporting the Patriot Prayer rally.
IMAGE: James Allsup/YouTube