What Did You Say?

By: Jonathan Turley | October 1, 2024

Read more at https://jonathanturley.org/2024/10/01/federal-court-rules-against-university-of-new-mexico-in-free-speech-case/

We have been discussing how colleges and universities have been using security concerns as a way to bar conservative and libertarian speakers. Another barrier has been the imposition of prohibitive security fees as a condition for such speakers to appear on campus, fees generally not required for liberal speakers. Now, in a significant free speech victory, U.S. District Judge David Urias has enjoined the University of New Mexico from imposing a $5,400 security fee for former collegiate swimmer and activist Riley Gaines after speaking on campus. UNM has a history of cancellation campaigns against conservative and libertarian speakers, as previously discussed on this blog.

Gaines has become a national figure in her campaign against biologically male students competing in women’s sports. While it is a position that is supported by an overwhelming majority of Americans, faculty and students have repeatedly targeted Gaines with cancel campaigns and disruptive protests. In this case, UNM originally demanded over $10,000. The lawsuit brought by the Leadership Institute named UNM President Garnett Stokes and other UNM officials as defendants. Judge Urias was legitimately suspicious of the demand and found that it violated the First Amendment.

In his 16-page order in Leadership Institute v. Stokes (D.N.M.), Judge Urias noted that Gaines travels with her own security (itself a sad statement about this Age of Rage).  The court noted the rather fluid standard applied to Gaines:

[T]he quote of over $10,000 was for every officer UNM employed—thirty-three officers; nearly one for every three attendees the students expected. When TP-UNM asked why Defendant Stump intended to assign every officer to the Gaines event, and whether it was because of the speaker or the inviting organization, he responded that “it’s all based on individual assessments,” that they were looking at the “individual,” and that “there is not a criteria [sic].”

He also told the students that if an organization were to screen the Barbie movie in a venue on campus, he likely would not require even a single officer because the UNM police were “not worried about the Barbie movie.” He then said that security was “consistent” in how it assessed fees “to Turning Point” in the past. He described past TP-UNM events featuring other conservative speakers that generated protests at UNM. A few times during the meeting, he reiterated that UNM assesses security fees on a “case-by-case basis.” …

Notably, the court detailed how fewer than 10 protesters actually showed up and demonstrated outside of the room. Nevertheless, UNM hit Turning Point with the fee for twenty-seven officers at the event who charged for a total of 95.25 hours.

The court applied the holding in Forsyth County v. Nationalist Movement (1992) in which the Supreme Court held that the government can impose extra security fees due to the controversial status of speakers or groups. In writing for a 5-4 majority, Justice Henry Blackmun held that “Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.”

Judge Urias found precisely such a barrier imposed by the UNM:

When a policy allows “appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted[.]” Forsyth County.… Although the question in this case is closer than that in Forsyth, the Court nonetheless finds that Plaintiffs have demonstrated the security fee policy in this case is similar enough to render it overly broad. Although the policy lists criteria for officials to consider when assessing event security, such as venue size and location, the list ultimately leaves the decision of how much to charge for security up to the whim of university officials. For example, the policy does not explain a method for determining how much more security is required for a small venue as compared to a large one, or for a daytime event as compared to a nighttime event.

Significantly, the policy states that the “basic cost of security … will be charged to all groups” based on a schedule of charges that the UNM Police Department has on its website, but despite this, the department does not actually delineate the amount of this “basic cost of security.” Though the security fee policy also states that the police department “regularly” updates the “schedule of charges based on the factors” and that “[t]he basic cost of security according to this schedule will be charged to all groups,” there is no schedule of charges.

Additionally, the preamble to the policy indicates that university officials “may” assess security fees but does not provide guidance for when they may or may not assess these fees, which contributes to the problem of allowing university officials overly broad discretion. In sum, Plaintiffs have shown a substantial likelihood of success on the merits of their overbreadth claim because the security fee policy does not contain limiting language that includes “narrowly drawn, reasonable and definite standards[,]” and it does not include anything to prevent UNM administrators from exercising their discretion in a content-based manner….

The ruling is a notable victory for free speech in creating additional precedent against the use of security fees as a deterrent to groups in inviting targeted speakers like Riley Gaines. Conservative groups have long complained that far left speakers are rarely targeted by cancel campaigns and even more rarely hit with these security fees.  In past cases, a security deposit is demanded upfront, creating a barrier for many groups.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”