As ‘The Koala’ Files Lawsuit Against University of California, San Diego, Public Records Reveal Administration’s Censorship

Last November, a student-run satirical newspaper at the University of California, San Diego (UCSD), The Koala, was one of thirteen student publications whose funding was cut by the UCSD student government—just days after The Koala published an article satirizing “safe spaces.” At the time, Dominick Suvonnasupa, president of the UCSD student government, claimed that “the vote was not about The Koala, but was only about addressing the most efficient use of student funds.” That claim was dubious at best, and now Suvonnasupa—along with UCSD Chancellor Pradeep Khosla—is being sued by The Koala, represented by the ACLU of San Diego & Imperial Counties, asking a court to order UCSD to reinstate The Koala’s funding.

Worse, documents uncovered by a public records request suggest that UCSD administrators caved in to calls to censor The Koala and were using the student government as a means to pull The Koala’s funding while securing funding for the publications they preferred.

As I wrote in February, The Koala has had its funding threatened twice as the UCSD student government fumbled about in trying to find a legal way to censor the paper:

[I]n November 2015[,] the [UCSD] student government and university administrators condemned a student humor publication, The Koala, shortly after it published an article satirizing campus “safe spaces.” This isn’t the first time The Koala has found itself in hot water, having been charged with “disruption” in 2002 until FIRE reminded UCSD of its First Amendment obligations. It’s not even the second time: In 2010, the student government froze funding for all student media until it could try to figure out a way to prevent funding from going to The Koala, later backing down from its position under pressure from FIRE.

Five years later, the student government is trying a similar course. After astutely observing that the First Amendment wouldn’t permit it to selectively de-fund The Koala, the student government decided that it would be preferable to instead defund every publication. This action is no more constitutional than targeting The Koala alone, however, and it has been condemned by FIRE, the Student Press Law Center, and the ACLU of San Diego, among others.

Among the documents filed in connection with the lawsuit are a number of “bias incident” reports, filed by students using UCSD’s online reporting system, calling upon UCSD to ban The Koala. One report noted that The Koala published an article “mocking safe spaces”:

The article says that a “dangerous space” will be created in front of Geisel to contrast the safe spaces such as the black resource center. The article says in such a space people can yell slurs and do whatever they wish. [...] The university needs to stop funding the Koala, and stop endorsing it.

Another similarly noted that The Koala “mocks safe spaces” and “propagates insensitive mindsets [...] masked under cruel humor” before calling on UCSD to “[s]creen works to make sure that there is no propagation of these attitudes.” Another, classifying the newspaper as “online harassment,” again stated that The Koala “mocked students’ need for safe spaces,” and that it “has been known for producing hate speech toward student demographics that are extremely triggering[.]” Yet another called on UCSD to “[d]efund and shut down The Koala.” Another expounded on this idea:

I know that it is hard to get around the freedom of speech obstacle. But saying that we cannot take away their funding is incorrect.

And another:

The University needs to immediately take the initiative to end any hate speech, actions, or crimes that offend any groups represented on campus. Students participating in The Koala should not be able to share their newspapers with the UCSD students on Library Walk if it defies on our UCSD's “main rules” as understood from the Integrity Policy. I demand an end to this newspaper.

Still others would go farther:

I would like the University to shut down the koala [sic] newspaper and the creators of the newspaper should be punished by their college deans.

Another:

Everyone already knew the University administration does not “approve” of it. And we know that the administration itself does not fund the Koala, but rather the students (which is even more troubling.) [The student government] decides where to allocate money. They seemed to have voted to get the funds for the Koala, they can surely take them away. I know you can’t take them away based on content (under 1st amendment), but I would say we have a strong argument when considering that this is hate speech. The definition: hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may INCITE violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group. You and I both know this qualifies.

Students weren’t alone in demanding administrative censorship of The Koala’s content. At least one employee submitted a bias incident report calling on administrators to “set up a system for administrative approval of the content published in the magazine.”

None of the complaints by students or staff revealed through the records request provide legal justification for censoring The Koala. “Hate speech” is not an exception to the First Amendment. Simply offensive speech isn’t an exception to the First Amendment. A website directed to the public isn’t online harassment. Satire—again—is protected by the First Amendment, even when it’s patently offensive. When public universities distribute funding through student governments, they must do so in a viewpoint-neutral manner. As FIRE wrote at the time:

[A] student government empowered by a public university to distribute mandatory student fees must do so consistently with the First Amendment because it acts with the school’s authority. Just as UCSD, as a public institution bound by the Constitution, is not allowed to discriminate against a group of student organizations because it doesn’t like the viewpoint of one, neither can Associated Students do so in dispensing funds drawn from the whole student body. So, in answer to students asking why their fees should go to organizations with messages they do not support, it’s because government actors can’t withhold resources from you just because they don’t like what you say. It would be pretty scary for everyone if the law said otherwise.

So how did UCSD’s administration respond to the student government’s multiple attempts to censor The Koala? It helped.

Beginning in 2010, when the UCSD student government first sought to eliminate The Koala’s funding, then-vice chancellor Penny Rue cited criticism by the ACLU, FIRE, and the Student Press Law Center, and praised then-student body president Utsav Gupta’s attempts to censor The Koala. Rue solicited a “creative legal solution” to the First Amendment’s prohibition against censorship and encouraged UCSD administrators to assure other student media outlets that, once The Koala was gutted, their own funding would be secure:

Utsav has worked tirelessly to find a way to disestablish the [student government’s] relationship with the Koala, but a concerted effort by other media groups and the spotlight of upcoming elections has hampered his efforts. I cannot tell you how bad a black eye it is for the University that we do not seem to have the power to cut our ties to this body. If you have any influence with campus media groups who fear for their continued funding, anything you can do would be valuable to reassure them that if they care about the University, it would be helpful for them to look at the bigger picture, and that their funding will be secure going forward once we have weathered this difficult patch.

That playbook reappeared in 2015.

Lori Chamberlain, a UCSD administrator charged with handling sexual harassment complaints on campus, forwarded one bias incident report—calling on UCSD to “Stop the Koala”—to several vice chancellors, including Becky Pettit, UCSD’s Vice Chancellor for Equity, Diversity, and Inclusion. The following day, Pettit asked UCSD’s legal counsel to “think creatively about how we can address this.” Pettit noted:

I’m likely in the minority here, but I think this crosses the “free speech” line and I’d like to explore ways we can do something about it. I know it’s a delicate undertaking.

Gary Matthews, a UCSD vice chancellor who signed the UCSD’s public condemnation of The Koala, responded to a student’s complaint:

Please note [the] Koala gets no University funding[.] The Associated Students find [sic] them[.] Pressure should be brought to that organization to end the madness.

Before the student government ultimately voted to cut funding for student media, UCSD Vice Chancellor for Student Affairs Juan Gonzalez appeared before the body to read aloud the administration’s statement condemning The Koala.

After the student government voted to cut funding for all of the thirteen publications at UCSD, administrators began working to find alternative funding for publications other than The Koala. One assistant vice chancellor for student life noted that academic departments could fund several papers. One vice chancellor emailed Juan Gonzalez:

Let’s not ditch the good ones worthy of this funding and work actively on finding ways to encourage and help them financially. I know you are working on this.

UCSD administrators, faced with a student government acquiescing to calls to censor student media, had a duty to step in and prevent them from de-funding The Koala over its content. Instead, they explored ways to pressure the student government to defund the paper and attempted to provide them a roadmap on how to do exactly that. Meanwhile, Suvonnasupa claimed that this wasn’t about The Koala’s content at all.

Obviously, that wasn’t the case. Rather, the student government’s defunding of thirteen publications was a pretext to censor The Koala—a smokescreen supported by UCSD administrators.