The Koala at the University of California-San Diego is likely the most offensive student publication in higher education, and a years-long thorn in the side of student leaders who have sought a constitutional way to yank its funding.
But when the student government cut all student publication funding in order to kill The Koala a year ago (the move backfired), the publication and its lawyers at the ACLU still thought it had a slam-dunk First Amendment case.
Not so, according to an early ruling by a federal judge in San Diego that denies The Koala its request for injunctive relief – meaning student-fee money to continue printing while the suit continues.
The judge also swats down the publication’s reliance on a recent ruling by the controlling U.S. appeals court, the 9th Circuit, that said an organization of Arizona public university students could sue state officials for First Amendment retaliation (defunding their organization).
The Guardian, an independently funded UCSD student publication, reports that Judge Jeffrey Miller said injunctive relief would violate another part of the U.S. Constitution:
Reviewing the merits of the Koala’s argument, Miller cited the Eleventh Amendment, which guarantees that states cannot be sued by private individuals in federal court, as reason for denying their request to continue receiving funding while the lawsuit is pending.
Although the defendants in the lawsuit are named individuals — Chancellor Pradeep Khosla, A.S. President Daniel Juarez and A.S. Financial Controller Justin Pennish — the order states that, since “[The Koala] and other Recognized Student Organizations who had their funding eliminated when the Associated Students determined to no longer fund any print media request,” to resume funding the Koala would require “direct payments by the state from its treasury,” thus violating the Eleventh Amendment.
— Student Press Law (@SPLC) November 8, 2016
Regarding the 9th Circuit ruling, Miller said:
The Ninth Circuit affirmed the dismissal of [the Arizona Board of Regents under the Eleventh Amendment] but held that the district court erred by not granting plaintiff leave to amend to name appropriate state officials and to assert claims for prospective relief to conform to the Ex parte Young doctrine [an Eleventh Amendment workaround].The district court also erred in determining that the plaintiff failed to state a claim for First Amendment retaliation – a claim not asserted by The Koala. …
Finally, Plaintiff asserts that it states a claim for retaliation under the First Amendment. The difficulty with this argument is that Plaintiff does not allege a retaliation claim.
It’s not clear what Miller means by this, but it may have to do with his contention that the defunding appeared to be “content and viewpoint neutral”:
While Plaintiff has cited negative complaints and comments made by the public, students, and certain Defendants for the proposition that it was singled out for its satirical expression, Plaintiff fails to cite legal authorities where the motivation, and not the conduct, of some government actors (the Senate of Associated Students) is determinative on First Amendment issues in context of a limited public forum.
The judge is giving The Koala and its lawyers until Nov. 15 to file an amended complaint that might pass muster with him.
Both ACLU and outside lawyers think the judge botched the issue:
“We are disappointed in the court’s ruling, which we believe misunderstood both the nature of the relief we seek and the First Amendment issues at stake,” [David] Loy told the UCSD Guardian. …
“If we prevail, the student government would be required to reinstate the process for the student press to seek campus activity funding on the same basis as other student organizations,” he added.
San Diego attorney and UCSD Guardian alumnus Daniel Watts also voiced his discontent with the court’s decision to dismiss the Koala’s request for injunctive relief.
“The court completely ignores the Koala’s argument that the A.S. Council treated the press differently than other forms of media,” Watts said. “The judge appears to have confused ‘freedom of the press’ with ‘freedom of speech,’ and treated them as one and the same, when they’re actually distinct claims.”
Amusingly, a student quoted by The Guardian says the defunding was completely driven by animus toward The Koala – and that’s a good thing, regardless of any legal issue:
“The fact that A.S. Council does not want to continue funding [The Koala] demonstrates UCSD’s willingness to stop hateful, racist, discriminatory media, at least on campus,” [freshman Valerie Garcia] told the UCSD Guardian. “This past week we had students writing with chalk all over campus their support for a politician who uses hate speech. It is freedom of speech and we must respect it, but having a newspaper that spreads even more racism across campus and demands funds from the university seems unacceptable.”
IMAGE: The Koala screenshot