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Lawsuit against Berkeley speaker policies to proceed

Last week, the Honorable Maxine M. Chesney of the United States District Court for the Northern District of California allowed a First Amendment lawsuit against the University of California, Berkeley, to proceed. The suit, filed last April by Young America鈥檚 Foundation and the Berkeley College Republicans, alleges that Berkeley adopted a series of policies that interfered with the organizations鈥 ability to host conservative speakers on campus. We last wrote about the suit in January when the U.S. Department of Justice filed a in the case.

In their amended complaint, the plaintiffs first allege that in March 2017, Berkeley adopted an unwritten High-Profile Speakers Policy (HPSP). The plaintiffs claim that most events governed by the policy were forced to conclude by 3:00 p.m. and be held in a secured location. Ultimately, according to the plaintiffs鈥 suit, the application of this policy resulted in them being unable to host events with David Horowitz and Ann Coulter last spring.

Berkeley then adopted a draft Major Events Policy (MEP) over the summer which the plaintiffs argue vaguely defines 鈥渕ajor events,鈥 while also granting university administrators unbridled discretion over the types of security to implement which permits administrators to impose unconstitutionally high security fees. This policy was then used to justify charging the plaintiffs more than $15,000 to . (The charges were reduced to about $9,000 after the plaintiffs were told they could not use the top two floors of the venue due to security concerns.) In addition to arguing that the policies are facially unconstitutional and were applied unconstitutionally, the plaintiffs also allege that Berkeley engaged in retaliation, violated the plaintiffs鈥 right to due process by enacting vague policies, and violated their Fourteenth Amendment right to equal protection.

The court first held that the forum at issue, 鈥渢he campus facilities made available to and/or requested鈥 by the plaintiff organizations, was a limited public forum. The court then examined the plaintiffs鈥 facial challenges. The plaintiffs will be permitted to proceed with their facial challenge against the HPSP because it has no standards delineating which events were governed by the policy, where events could be held, and how to assess security fees.

The court next examined the plaintiffs鈥 claim that the defendant university administrators had engaged in viewpoint discrimination by applying the policies to the plaintiffs鈥 events. To support this claim, the plaintiffs pointed to statements made by Berkeley Chancellor Carol Christ and other university administrators. In particular, the plaintiffs with the Los Angeles Times, Christ had said that in the 鈥90s, Berkeley had David Irving speak in a 鈥渁 small, really out-of-the-way room鈥 to protect the campus. The plaintiffs also pointed to statements in which other administrators described concerns related to the Shapiro event.

The court disagreed with the plaintiffs and held that while Christ鈥檚 statements may have indicated that Berkeley engaged in viewpoint discrimination in the past, she had made clear that viewpoint discrimination is 鈥渋nconsistent with the University鈥檚 current policy.鈥 The court also found that statements made by other university administrators did not support the plaintiffs鈥 allegations because those administrators did not have the authority to restrict the plaintiffs鈥 speech and the comments reflected what the court described as a 鈥渁 not unfounded concern for safety.鈥 While the plaintiffs had also alleged that the court could infer viewpoint discrimination from the fact that Berkeley had treated two liberal speakers differently from Horowitz and Coulter, the court distinguished the events featuring liberal speakers because they did not raise similar security concerns. Accordingly, the the court permitted the plaintiffs to proceed on the basis that their complaint 鈥渁sserts an as-applied challenge predicated on the alleged unreasonableness of the restrictions imposed.鈥

The court then turned to the question of whether the assessment of security fees was reasonable. The court held that the plaintiffs can challenge the assessment of fees related to their Horowitz event because the fees were assessed pursuant to the standardless HPSP. The plaintiffs will also be permitted to pursue claims related to the security fees that were assessed as a result of the Shapiro event because they alleged that an event featuring Justice Sonia Sotomayor was assessed nearly $5,000 less in security fees even though that event had a larger potential audience.  

The court dismissed the plaintiffs鈥 retaliation claims as implausible given the defendants鈥 safety concerns. The court then ruled that the plaintiffs can bring a vagueness challenge against the HPSP because it is unwritten and so lacks any standards to guide enforcement; however, the vagueness claim against the MEP was dismissed. The plaintiffs鈥 equal protection claim will proceed because the plaintiffs alleged that their Shapiro event was treated differently than .

The court concluded by analyzing the defendant administrators鈥 assertion of qualified immunity and the plaintiffs鈥 request for punitive damages. The court ruled that the administrators are currently entitled to qualified immunity related to one portion of the plaintiffs鈥 claim regarding the MEP; however, the court deferred its decision on qualified immunity of the remaining claims until the record was more fully developed. The court then dismissed the claims for punitive damages because 鈥減laintiffs have failed to plead facts sufficient to show defendants were motivated by viewpoint discrimination or retaliatory animus,鈥 an improper motive, or reckless indifference to the plaintiffs鈥 rights.

Overall, this is a favorable decision for the plaintiffs who will be able to pursue their suit, albeit on more limited grounds.

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