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University of Washington law professors condemn school for speech tax on conservative event

Don’t encourage the KKK to try the same thing

After a federal judge blocked the University of Washington from assessing a $17,000 security fee on a student club’s event featuring a conservative speaker, its own law professors gave the school some free legal advice: Capitulate now.

In a letter posted last month by one of those professors, Ronald Collins, the 23 signatories gave President Ana Mari Cauce some light reading.

They laid out a sweeping history of Supreme Court jurisprudence and lower-court decisions – 50 citations in all, many related to civil-rights cases – to argue that the taxpayer-funded institution should junk the policy used to levy a hefty security fee (sometimes called a speech tax) on the College Republicans’ event with Patriot Prayer leader Joey Gibson.

The policy lets UW charge event hosts for security measures based on “possible attack by opponents who object to the views of the organization or of a speaker invited by that organization”:

Consistent with such a change in policy, we believe you should withdraw the pending request for reimbursement by the College Republicans insofar as it is based on such security measures. …

Whether a student group is charged such a fee, and the amount of that fee, depend entirely on whether the views to be expressed at an event are likely to attract a hostile audience.  If, instead of inviting a speaker from Patriot Prayer, the College Republicans had arranged for a speech by the head of the NAACP or Planned Parenthood, there would have been no hostile audience, and no $17,000 fee imposed by the University.  The College Republicans cannot be required to pay a fee that would not be imposed on other organizations which invite speakers whose views on controversial issues such as race, abortion, or gender discrimination, are more liberal and thus, in this region of the nation, more popular. …

MORE: Judge blasts speech tax on Joey Gibson event

In this instance, the University has explained that its assessment of the amount of police protection needed, and thus of the amount of the fee to be charged to the College Republicans, was based in particular on the fact that “Gibson had been assaulted at prior rallies and threatened with death.” The fact that Mr. Gibson had, because of his actual or perceived views, been the victim of prior criminal attacks and threats is a particularly unseemly basis for charging a student group for the cost of protecting him while on campus.

This legal analysis, dated April 4, directly undermines a ruling last week by a federal judge in California – also bound by the 9th U.S. Circuit Court of Appeals – on the subject of wildly varying security fees imposed on conservative and liberal events.

That judge said the University of California-Berkeley did not discriminate against conservative speakers “because of” their viewpoints, but rather because of “safety concerns” stemming from the predicted reaction to their speech.

MORE: Judge says it’s OK to treat conservatives differently for ‘safety concerns’

The UW law professors said the administration’s position was even worse than elected segregationists:

More fundamentally, requiring an individual to pay for the law enforcement costs of protecting the exercise of First Amendment rights is not a constitutionally permissible method of saving, or raising, money.  In 1965, despite the vehement opposition of Governor [George] Wallace and other segregationists to the efforts of African-Americans to register to vote, the state of Alabama never attempted to charge John Lewis, Hosea Williams or the others who marched from Selma to Montgomery for the salaries of the law enforcement officers who under court order protected them during that historic event.

They warned President Cauce about the precedent she’s setting and how it could be coopted by groups who aren’t left-wing agitators:

The Ku Klux Klan might issue threats in order to prevent or penalize the appearance here of a Jewish or Muslim speaker.  A militant anti-abortion group might warn of outraged protestors if a Planned Parenthood official was invited to speak.  The risk of a $17,000 fee would assuredly deter other University of Washington organizations from inviting speakers whose presence would raise such security issues. A literary society would likely avoid inviting Salman Rushdie, who remains the target of a fatwa issued by clerics far from Seattle. …

The principle at issue here is not a new one. Time and again, during the difficult days of the civil rights movement, the courts held that the government cannot limit or burden speech because it is likely to provoke others to attack a speaker or his or her supporters.

Read the letter.

MOREUC-Berkeley forces Shapiro hosts to pay $15,000 for police that ‘forego arrests’ 

h/t Foundation for Individual Rights in Education

IMAGE: James Allsup/YouTube

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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