Temple Misunderstands First Amendment Obligations, Continues to Seek Extra Security Fee from Student Group
January 27, 2010
Temple University has addressed FIRE's concerns over the university's decision to charge $800 in extra security fees for a presentation by controversial Dutch politician Geert Wilders this past October, hosted by the student group Temple University Purpose (TUP). Unfortunately, in her January 21 letter—arriving the day after FIRE's press release criticizing the action—Temple Associate General Counsel Valerie I. Harrison confuses binding Supreme Court precedent, reveals an arbitrary decision-making process, and misrepresents TUP's "request" for extra security as giving Temple carte blanche to pass the cost of security for the event on to the group. FIRE responded yesterday with a second letter to Temple President Ann Weaver Hart.
As we've done with multiple public universities recently, FIRE plainly laid out the Supreme Court precedent that binds the university not to charge groups like TUP extra security fees on the basis of the content of a speaker's expression. In FIRE's January 4 letter Adam wrote:
The Supreme Court addressed precisely this issue in Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-135 (1992), when it struck down an ordinance in Forsyth County, Georgia, that permitted the local government to set varying fees for events based upon how much police protection the event would need. Criticizing the ordinance, the Court wrote that "[t]he fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit." In deciding that such a determination required county administrators to "examine the content of the message that is conveyed" (citation omitted), the Court stated that "[l]isteners' reaction to speech is not a content-neutral basis for regulation. ... Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." (Emphasis added.)
This reminder was enough to persuade the University of Colorado at Boulder, University of Massachusetts Amherst, University of California, Berkeley, and University of Arizona to do the right thing and eliminate extra security fees charged to student groups, some of which reached into the thousands of dollars. Harrison, however, contended that not all—only some—of the $800 charged to TUP counted as extra. Further, Harrison argued that at any rate, Temple was giving TUP a break because the total cost for securing the event was far higher, and Temple would have been within its rights to shift the entire charge onto TUP. She wrote:
TUP was initially charged $576 for the event, the standard charge for an event of this type regardless of program content. A charge of $224 was assessed for the additional security requested by TUP even though the cost of the requested added security amounted to more than $6,000. ... As you know, the $6,000 could have legally been imposed upon TUP because it was based not on program content, but upon the request of the student organization.
When weighing legitimate requests for extra security, Temple can come to its own conclusions as to what is and is not needed, and charge student groups the balance if their request goes above and beyond what Temple deems necessary. For example, if a student group invites, say, celebrity chef Rachel Ray to campus and requests metal detectors, a bomb squad, and a sniper detail for security—well, in the absence of specific intelligence indicating a real threat, the hosting college doesn't have to meet these unreasonable (and expensive) security demands. But if a school agrees and complies with a student group's request for extra security because of the hostile mob the speaker may draw, the school can't then pass the fee on to the group.
But that's exactly what Temple did: it agreed with the need for extra security, and then tried to pass it on to TUP. In paying what "amounted to more than $6,000" for TUP's event, Temple accepted that such security was required for the event. So no, Temple can't charge the whole $6,000 fee to TUP, as Will points out in yesterday's letter to President Hart:
Temple is prohibited by the First Amendment from imposing a financial burden on TUP for hosting a controversial speaker whether or not TUP requested the extra security, since that security was ultimately deemed necessary by Temple. Otherwise, Temple would be free to impose prohibitively expensive security fees on student groups hosting controversial speakers based solely on the university's perception of the need for security, thus unfairly penalizing student groups for inviting certain speakers to campus.
So after the "standard" $576 fee, where did that last $224 come from? Will illustrates Temple's arbitrary reasoning:
Harrison asserts that the actual cost of the added security "amounted to more than $6,000." Although TUP was charged $576, "the standard charge for an event of this type regardless of program content," and subsequently paid this amount to Temple, TUP later received a bill for $1,000 minus a 20% discount—much less than the actual cost. Subsequently, TUP learned that the bill was in error in that it did not show the $576 payment. Temple still seeks the $224 balance for an unexplained portion of the extra security provided. Temple administrators thus have acted arbitrarily and without explanation in charging TUP for the extra security.
And as he points out, this too is at odds with the precedent set forth in Forsyth:
The Forsyth Court noted that "[a] government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view." Forsyth at 130 (emphasis added) (internal quotation marks omitted). In Forsyth, "the administrator based the fee on his own judgment of what would be reasonable." Id. at 132 (emphasis added). The Court found that the county's implementation of the ordinance showed no "narrowly drawn, reasonable and definite standards guiding the hand of the Forsyth County administrator." Id. at 132-33 (citation omitted) (internal quotation marks omitted). The Court found that "[n]othing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees." Id. at 133 (emphasis added).
Temple, at least, has offered to waive the final $224 if TUP is unable to pay it. This belated benevolent act, however, does little to answer the fact that Temple believes it has the right to charge the extra fee to TUP, and does nothing to guarantee that it won't do the same thing to other Temple student groups in the future. Until Temple revises its policies to ensure that student groups won't be charged extra fees for security because of the speaker's expression, and removes from administrators' hands the nearly unbridled discretion to levy such fees, FIRE will continue to press Temple for reform.