Victory for Free Speech at Temple University As Unconstitutional Security Fee is Withdrawn; Policy Still Troubling
February 11, 2010
by Adam Kissel
After two months, Temple University has withdrawn an unconstitutional, after-the-fact security fee levied by the university on a student group for hosting a presentation last October by Dutch politician Geert Wilders, who is on trial in his native country for his controversial remarks about terrorism and Islam. Temple, which at first defended the fee and argued that it could have charged the group, Temple University Purpose (TUP), over $6,000, dropped its demand for an extra security fee only after FIRE publicized the fee and pointed out that the school's actions were arbitrary and unconstitutional. Meanwhile, Temple's policy for controversial events remains ambiguous and unacceptably arbitrary.
As Robert states in today's press release, "Temple University has finally acquiesced to the First Amendment and has accepted that, unlike in the Netherlands, controversial speech is protected in the United States. Unfortunately, Temple's responses only show how arbitrary Temple administrators have been, abusing their discretion and failing to explain why the fee was levied and then ultimately waived. While we applaud Temple's decision to abandon the unconstitutional fee, more work must be done to make sure that the university's policies do not unfairly burden controversial speech on campus again."
TUP hosted the Wilders event in Temple's Anderson Hall on October 20, 2009. Wilders came to notice in the United States largely through the controversy surrounding his short 2008 film Fitna, which was shown during his presentation at Temple. Extra security was provided for the event, which proceeded without disturbance.
Six weeks later, on December 3, Temple surprised TUP with a bill for $800 for "Security Officer," apparently for the costs "to secure the room and building." TUP Interim President Brittany Walsh pointed out in an e-mail to administrators that Temple had agreed, before the event, to pay for any extra security costs. She received no substantive reply, even after repeated e-mails. Frustrated with the university's demand for payment and subsequent lack of explanation, Walsh and TUP turned to FIRE.
In a letter to Temple University President Ann Weaver Hart, FIRE described the university's constitutional responsibility to pay for any extra security it deemed necessary for the event. FIRE cited the U.S. Supreme Court's decision in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), which struck down a local government's increased fee for police protection for controversial events because "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." As a public university, Temple is bound by the Supreme Court's decision. Four other public universities—the University of Colorado at Boulder; University of Massachusetts Amherst; University of California, Berkeley; and University of Arizona—abandoned such security fees after being contacted by FIRE in separate incidents last year.
Temple did not respond to FIRE's letter until FIRE publicized the case last month. In a January 21 response, Temple misrepresented its responsibilities by arguing that TUP could have been charged more than $6,000 for the additional security deemed necessary by Temple. FIRE replied on January 26, noting that Temple's apparent policy vested unconstitutional discretion on administrators who apparently were acting arbitrarily in determining security fees that groups would have to pay for controversial events.
In Temple's second response dated February 8, Associate University Counsel Valerie I. Harrison notified FIRE that any remaining security fee demands had been "withdrawn," but did not explain why Temple reversed course.
Harrison's letter also referred FIRE to a Temple policy that does not clarify who is responsible to pay for added security. One of the criteria for determining security needs at Temple includes "Increased risks (e.g., threats received)," a criterion that Temple may not use when charging security fees to students.
This kind of consideration, however, is not content neutral, and it is exactly what was contemplated by the Supreme Court in the Forsyth decision. By failing to clarify this and other ambiguous elements of its policy and by failing to explain its actions in the Wilders case, Temple has left all student organizations in the dark about whether their rights will be respected on campus. Furthermore, according to TUP President Alvaro Watson, Temple has not even notified TUP that the fee for the Wilders event has been waived. (Temple is closed today because of the recent blizzard.)
Temple should reform and clarify its policies, consistent with its obligations under the First Amendment, to ensure that robust debate is welcomed and not burdened on Temple's campus. Temple University still has quite a way to go to earn the trust of First Amendment advocates, given Temple's stubborn defense of its unconstitutional speech code all the way up to the United States Court of Appeals for the Third Circuit, which found the policy unconstitutional in DeJohn v. Temple University in 2008.
In the meantime, TUP should be congratulated for standing firm and refusing to let Temple violate the group's First Amendment rights.