Unconstitutional Security Fee Defeated at Middle Tennessee State University
February 3, 2010
by Luke Sheahan
The Alliance Defense Fund has announced a victory for free speech against yet another unconstitutional security fee. Pro-Life Collegians, a student group at Middle Tennessee State University, was required by the university to pay a fee for campus security to place exhibits through "Justice for All," a pro-life advocacy group. According to ADF, no university policy requires a group to obtain such security and other groups holding comparable events were not charged a security fee. ADF makes the case for the unconstitutionality of such a fee:
In the letter submitted to MTSU officials, ADF attorneys argue that such a vague and unwritten standard empowers the university to enforce or waive the fee requirement based upon their approval or disapproval of a student group's message. The letter also states that allowing the uncapped fee gives MTSU officials unlimited authority to silence and charge any disfavored group as they see fit, in violation of the free speech rights of students protected by the First Amendment.
Following the victory, David Fowler, president of the Family Action Council of Tennessee, made the point that "the University's arbitrary application of a security fee requirement could have ‘chilled' the rights of student groups on campus because of the burden a fee would impose on presenting their group's views." That is absolutely true. As the Supreme Court ruled in Forsyth County v. Nationalist Movement, "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." Charging such a fee is essentially a tax on controversial speech, or speech that the administration just doesn't like.
At the end of his column, Mr. Fowler notes, "There may just be someone watching who is big enough and willing to take them on."
Well, the good news is that FIRE is watching—and we've been quite successful at taking on these unconstitutional security fees. We defeated such requirements at four universities in 2009. As Peter reported,
- In February, the Objectivists Club of Berkeley (OCB), a student group at the University of California, Berkeley, was charged over $3,000 by the university to pay for security at a planned speech by Elan Journo of the Ayn Rand Institute. The group was expected to pay for up to twelve police officers to be present solely because of the controversial content of the speech—"America's stake in the Arab-Israeli conflict"—and the fact that there had previously been tension between Israeli and Palestinian student groups on campus. For this, OCB was expected to pay $3,220.63.
- Also in February, the Republican Club at the University of Massachusetts-Amherst learned that another group planned to protest an upcoming speech by conservative columnist Don Feder. In light of this, the UMass Police Department pressured the group to accept increased security fees on top of those it had already agreed to pay. Reluctantly, the Republicans agreed to pay the extra fee of $444.52. Protesters disrupted Feder's speech anyway.
- In March, the University of Colorado at Boulder group Students for True Academic Freedom was billed for extra security for an event featuring Ward Churchill and William Ayers, partly on the basis of the potential for hostile audience reactions. The bill: $2,203.42.
- In April, the University of Arizona Police Department forced UA's College Republicans to request security for an upcoming lecture by conservative author and activist David Horowitz. A later e-mail by an administrator with the UAPD spoke volumes about its reasons for charging the group: "If you're planning on having an event in the future which involves someone who may be controversial, please notify us so we can assess what security needs to be present." The College Republicans were charged $384.72.
Making speech too expensive to be heard may be a clever form of censorship, but it's still unconstitutional and still wrong. We're here to keep proving that.