������ýapp�ٷ�

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’s Foundation and the Berkeley College Republicans, alleges that Berkeley adopted a series of policies that interfered with the organizations’ 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’ 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 “major events,” 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’ 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, “the campus facilities made available to and/or requested” by the plaintiff organizations, was a limited public forum. The court then examined the plaintiffs’ 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’ claim that the defendant university administrators had engaged in viewpoint discrimination by applying the policies to the plaintiffs’ 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 ’90s, Berkeley had David Irving speak in a “a small, really out-of-the-way room” 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’s statements may have indicated that Berkeley engaged in viewpoint discrimination in the past, she had made clear that viewpoint discrimination is “inconsistent with the University’s current policy.” The court also found that statements made by other university administrators did not support the plaintiffs’ allegations because those administrators did not have the authority to restrict the plaintiffs’ speech and the comments reflected what the court described as a “a not unfounded concern for safety.” 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 “asserts an as-applied challenge predicated on the alleged unreasonableness of the restrictions imposed.”

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’ retaliation claims as implausible given the defendants’ 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’ 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’ assertion of qualified immunity and the plaintiffs’ request for punitive damages. The court ruled that the administrators are currently entitled to qualified immunity related to one portion of the plaintiffs’ 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 “plaintiffs have failed to plead facts sufficient to show defendants were motivated by viewpoint discrimination or retaliatory animus,” an improper motive, or reckless indifference to the plaintiffs’ rights.

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