PASADENA, Calif. (CN) – Securing a win for collegiate free press, a Ninth Circuit panel ruled Wednesday that a case involving the University of California, San Diego’s satirical student newspaper The Koala, free speech and student organization funding should not have been dismissed.
In a 46-page order, U.S. Circuit Judge Morgan Christen reversed a federal judge’s dismissal of The Koala’s First Amendment case which claims the student government’s passage of the Media Act – eliminating registered student organization for all print media – was in retaliation for an article the newspaper published two days earlier satirizing “safe spaces” and “trigger warnings” on college campuses and included “ethnic and sexist stereotypes and racial epithets,” according to Christen’s summary of the case.
The article generated immediate public backlash – including an official statement by the university denouncing the article’s offensive language and calling on other members of the university community to “join us in condemning this publication and other hurtful acts.”
The Koala does not appear to currently publish its newspaper online, with the last article – “The Motherfucking Koala’s A.S. President Endorsements” – posted to its website on April 10, 2018. Its website tagline: “The Worst in Collegiate Journalism Since 1982!”
The Ninth Circuit panel considered a novel question: whether withdrawing of the press subsidy violated the First Amendment. While other cases had successfully challenged the imposition of taxes or elimination of tax credits on media organizations’ rights under the Free Press Clause, there is no Supreme Court precedent regarding the withdrawing of a subsidy like The Koala received from Associated Students to fund its publication.
“We see no reason why the rule articulated in the Free Speech cases cited above – that the government may not withhold benefits for a censorious purpose – should not apply when the state singles out and burdens the press by revoking a subsidy, particularly where, as here, the record includes unusually compelling allegations that the government acted with discriminatory intent,” Christen, a Barack Obama appointee, wrote for the panel.
As for the issue of a limited public forum for free speech purposes, the panel found UC San Diego had created a limited public forum encompassing all student activity funding and that the university could not define the contours for obtaining student funding “one way at its inception, then redefine its scope in response to speech it disfavors.”
“UCSD’s newly defined forum, proposed ex post during contentious litigation around sensitive cultural and political topics, runs the real risk of silencing divergent views by slicing off just enough of an existing forum (the student activity fund) to isolate offensive speech, then closing the redefined forum (the Media Funds category of the student activity fund) under the guise of content neutrality,” Christen wrote.
The Ninth Circuit panel also found The Koala’s claims are not barred under the 11th Amendment, which prevents the state from being sued in federal court without its consent. Because The Koala seeks a return to eligibility to apply for Associated Students funding – which is culled from student fees – not an order directing the state to fund its publication, the panel found the second amended complaint doesn’t violate the sovereign immunity doctrine.
“The outcome of this lawsuit will not increase or decrease the overall financial burden on the state; it will affect only which [registered student organizations] may apply for student activity fees and, potentially, how the total student activity fund is distributed,” Christen wrote.
The Koala did not return an email request for comment. It is represented by David Loy of the American Civil Liberties Union of San Diego and Imperial Counties, who said he “understands people’s concerns with the content” of The Koala but that the same problem with censorship could have happened with another student publication investigating corruption at the school.
"The government cannot use subterfuge to do a run around of the First Amendment. You can’t discriminate against the press, target the press, silence the press or target student organizations for their speech,” he said, adding: “There’s a real problem around the country of abusing their powers to silence student speech.”
A UC San Diego spokesperson said the university does not comment on pending litigation.
U.S. Circuit Judge Raymond Fisher, a Bill Clinton appointee, concurred except for Christen’s findings regarding the Free Press Clause claim.
U.S. District Judge Edward Shea, also a Clinton appointee sitting by designation from the Eastern District of Washington, rounded out the panel.
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