You Can't Charge for Controversy

August 3, 2010

Let's say a student group wants to invite Sarah Palin to campus, or Bill Ayers for that matter. Can a public university say that approval is contingent on the student group paying all extra security costs associated with such a visit?

The issue of whether charging for security keeps some views from being heard on campuses has come up at many institutions in recent years -- and a federal appeals court ruling last week may make it more difficult for public colleges and universities to assert blanket authority to permit only speakers whose security costs will be covered by student groups or some sponsor. The ruling, by the U.S. Court of Appeals for the Fifth Circuit, found that such a policy at Southeastern Louisiana University was unconstitutional. Some legal observers think this could be a key ruling outside the Fifth Circuit, given the limited number of courts that have considered the question.

At the same time, the appeals panel, in a 2-to-1 vote, upheld a number of other provisions of the speaker policy at Southeastern Louisiana. But an appeal to the full Fifth Circuit court is possible -- and could lead to a review of other speaker policies that exist at many public institutions. Those provisions covered such matters as where an outside speaker can appear, how far in advance permission must be requested, and so forth.

The challenge to Southeastern Louisiana's policies came from Jeremy Sonnier, a nondenominational Christian preacher who visits many college campuses to offer his views and frequently to disagree with conventional thinking about many moral issues. (A YouTube video of one of Sonnier's campus visits may be found here.)

Sonnier was turned away from Southeastern Louisiana when he showed up on campus one day in 2007, without having asked for permission in advance. Campus police explained that rules governed outside speakers, and a university official told Sonnier that since one requirement was to obtain permission seven days in advance, there was no way he could start speaking to a group on campus that day. He left, but sued -- represented by the Alliance Defense Fund, which backs the rights of religious students and professors (and in this case speakers without direct campus ties).

A district court rejected the suit's request to bar enforcement of the rules as a violation of Sonnier's constitutional rights to free expression. And while the Fifth Circuit panel upheld most of that ruling, it found that the rules governing security expenses were inappropriate -- even though the university said that it never invoked them.

The university rules in question state the following: "The use of Southeastern Louisiana University Administration staff; University Police, city of Hammond Police, Tangipahoa Sheriffs Deputies, Louisiana State Police, or a private security company in connection with the event is at the sole discretion of the University in determining both the need for, and the strength of the security detail. The sponsoring individual(s) or organization is responsible for the cost of this security beyond that normally provided by the university, specifically those administrators/officers who must be assigned directly to the event and/or away from their normal operational duties."

The court's ruling said that this provision gives too much power to the university. "As the policy states, determining the additional amount of security needed is at the 'sole discretion' of the university; no objective factors are provided for the university to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the university, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee."

Nate Kellum, senior counsel for the Alliance Defense Fund, said that the problem with requiring outside speakers to cover security costs is that "you are attaching a cost to speech, and that's inappropriate."

The court's decision does not rule out the possibility that legitimate criteria might be developed related to who pays for security costs. Kellum said, for example, that if an outside speaker made large demands for security to cover an appearance, and the university saw no need for such security, it might legitimately say that it wouldn't pay. But the problem with not having criteria and just letting the university decide, he said, is that college and university administrators can then look at any outside speaker and judge security needs not on legitimate analysis but on the chance that someone will be outraged.

"You are judging on content," and raising fees "for having the prospect of a controversial speech," Kellum said.

"There's a price of free speech and of having a market place of ideas," he added, and public colleges and universities should be ready to pay that cost (if indeed security is needed).

While Sonnier has appeared on many campuses without security and didn't request any of Southeastern Louisiana, the issue raised by Kellum -- about security fees being used to justify blocking a visit or add costs to student organizations -- is hardly hypothetical.

Security costs were used last year, for example, by officials at Georgia Southern University to justify calling off a visit by William Ayers, a professor of education at the University of Illinois at Chicago who was once a leader of the Weather Underground. Attempts to charge student groups large fees for security for campus speakers have also been controversial (even after officials backed away from some charges) at the University of Colorado at Boulder (over another Ayers talk and one by Ward Churchill), and at the University of California at Los Angeles (over a planned visit by a leader of an anti-immigrant group).

Eugene Volokh, a law professor at UCLA who writes frequently about constitutional issues related to free speech, blogged that the issues raised in the Southeastern Louisiana case are "pretty important" because "my sense is that many universities do require security fees, sometimes based on the likely public reaction to the speech." He predicted that the decision on security charges will "be influential even outside the Fifth Circuit."

Officials at Southeastern Louisiana did not respond to requests for comment on the ruling.

Much of the ruling outside the issue of security fees would probably please the university, as its rules were largely upheld.

On these issues, courts evaluate "time-place-manner" rules. The idea is that some limits on the time, place or manner of public speech are appropriate if a public university is to operate. So a university would be within its rights to bar an outside speaker from announcing a rally in a laboratory or the library, but not keeping the person totally away from campus. And public institutions can't discriminate based on the ideas of a given speaker. The legal debates tend to focus on just what is reasonable -- and several court decisions have been prompted by itinerant preachers at public colleges. In 2006, for example, the U.S. Court of Appeals for the Eighth Circuit rejected strict limits on the number of times a visiting preacher could appear at the University of Arkansas at Fayetteville, but upheld many other Arkansas rules about such appearances.

The rules challenged at Southeastern Louisiana (and upheld 2-1 by the appeals panel) required an application seven days in advance, basic information about the speaker or speakers, and limits on where someone could appear on campus. A dissent found that the way Southeastern Louisiana defined those limits was too broad. The decision noted that nothing in the rules prevents someone from simply walking around campus and engaging in discussion, and that Sonnier could have tried to follow the rules and won the right to speak to a crowd.

Kellum, however, said that there are numerous problems with the way the rules are set up, and that more "commonsense considerations" were needed. For example, he said that seven days might be needed for someone trying to reserve an auditorium for a large event, but that this wasn't necessary for someone like Sonnier. He noted that the seven-day requirement means someone who plans to speak outside "doesn't know what the weather is going to be" and that "spontaneous speech" prompted by a current event is "completely eliminated."

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