FIRE files amici brief in Koala’s appeal of UCSD funding cut

Today, FIRE and the Cato Institute filed an amici curiae brief in the United States Court of Appeals for the Ninth Circuit, requesting that the federal appellate court review and reverse a district court’s dismissal of Koala v. Khosla, in which the long-running humor publication The Koala sought to reverse a funding cut by the University of California, San Diego. If permitted to stand, the district court’s ruling could undermine college students’ speech rights in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington State.

This was not UCSD’s first attempt at de-funding The Koala. Having been reminded by FIRE and others on multiple occasions that it was unconstitutional to target the publication for its content, UCSD decided to withdraw funding from The Koala in late 2015 by withdrawing student activities funding for all student publications. The Koala, represented by the ACLU of San Diego & Imperial Counties, sued UCSD last June in the United States District Court for the Southern District of California.

In February, the district court dismissed the lawsuit, accepting UCSD’s argument that, if a rule was facially viewpoint-neutral, a court could not analyze whether the rule was intended to have an unconstitutional effect or purpose. The Koala appealed that decision this week, and FIRE’s brief supports that appeal.

As we explain in the brief, the district court’s decision presents a serious threat to free expression on college campuses because universities regularly attempt to threaten speech with facially viewpoint-neutral rules:

As appellants point out, the district court’s opinion “drew a roadmap for immunizing censorship” of almost any speech on any Campus.” In FIRE’s experience, universities will take advantage of any rationale they can to suppress unpopular or controversial speech, particularly given the well-established constitutional infirmity of explicitly viewpoint-discriminatory speech codes. If a university is free to employ viewpoint-neutral regulations in an obviously pretextual way to silence controversial speech, then no speech is safe from censorship. We know this to be true because universities attempt to do so all the time.

The district court’s decision is inconsistent with a large body of precedent that says, in fact, a court can analyze whether a viewpoint-neutral decision is a pretext designed to hide a targeted effort to censor, and should do so when the primary effect of that decision is to disadvantage certain speakers more than others. As we explain in the brief:

The opinion below describes the [changed funding policy] as “a content neutral policy of general applicability affecting all RSOs seeking media publication funds.” This reasoning simply ignores that only media publications were impacted by the rule of supposedly “general applicability.” The Supreme Court has routinely rejected purportedly generally-applicable laws intended to have an adverse effect on media…. Following the district court’s reasoning, a university could pass a rule prohibiting the observance of Catholicism; instead of recognizing it as a targeted suppression of a
First Amendment right, a school could meet the district court’s standard by describing its discriminatory rule as “a neutral policy of general applicability affecting all students seeking to take communion.”

FIRE’s brief was filed by Jean-Paul Jassy and Kevin L. Vick of Jassy Vick Carolan LLP, and we thank them for their generous assistance.

We hope that our experience with university attempts to censor student speech provides perspective to the Ninth Circuit and that the appellate court decides to hear out The Koala’s appeal. The alternative would be to leave in place a ruling that functionally leaves student publications in Southern California vulnerable to the crudest forms of censorship.