BY JOHN K. WILSON
Yesterday, the 9th Circuit Court of Appeals issued an important decision for freedom of the press and free speech on campus in The Koala v. Khosla, reversing a deeply mistaken lower court ruling.
The 9th Circuit ruled that a public university cannot ban funding to student publications, particularly not in reaction to offensive content in one publication. FIRE, the Student Press Law Center, and other organizations filed amicus briefs in this case on behalf of free speech.
This case began in November 2015, when The Koala (a humor magazine at the University of California at San Diego) published an article “UCSD Unveils New Dangerous Space on Campus” that offended people with its racial language.
The Koala’s article began, “Too long have trigger warnings plagued the airwaves. Too long has the no-blacks rule been removed from our campus. Too long have students not been free to offend their hypersensitive peers.” Was The Koala satirizing “trigger warnings” and “safe spaces” or was it mocking those who oppose them by suggesting they were racists who want a “no-blacks rule” and wish to shout racial slurs? The piece went on to propose “Dangerous Spaces” on campus that would allow “guns, opinions that might be different than yours, drug paraphernalia, sharp writing instruments, and explicit pornography” and “will probably end like all good things do, with body mutilation and feelings of remorse.” This is not exactly an unambiguous attack on safe spaces, and it’s a reminder that satire, humor, and art sometimes cannot be easily categorized.
But ultimately it does not matter if The Koala is liberal or conservative, hateful or woke, funny or terrible, insightful or idiotic. We protect all speech because allowing the censorship of one publication can lead to the censorship of all of them.
That’s literally what happened at UCSD. In order to punish The Koala while pretending that it wasn’t, UCSD decided to ban all funding for student publications. The Koala had faced several previous efforts to abolish it and defund it (including a very similar but short-lived 2010 attempt to eliminate its funding by banning fee allocations to all student media).
This time, Chancellor Pradeep Khosla denounced the Koala as “profoundly repugnant, repulsive, attacking and cruel,” and according to the 9th Circuit ruling,
The Associated Students held a regularly scheduled meeting on the same day the Chancellor issued his statement. The Vice Chancellor of Student Affairs attended the meeting and read Chancellor Khosla’s statement, and a member of the Associated Students introduced the Media Act. Consideration of the Media Act was not listed on the Associated Students’ agenda prior to the day of the meeting, but after some discussion and debate, it was approved. The Media Act eliminated the media funds category from the student activity funding available to RSOs.
Colleges are not obligated to have separate budgets for campus publications. But if they choose to eliminate such a separate budget, they must continue to allow student publications to seek funding like any other student organization. It is difficult to imagine a clearer attack on freedom of the press than a government agent announcing that the press is banned from applying for benefits that anyone else can use. The Court found, “The Media Act discriminates based on the identity of the speaker—here media organizations—and singles them out for disfavored access to student activity fee funding.”
Eliminating funding for the print edition of a student newspaper is often sufficient to destroy it in a short time. The last post on the Koala’s website was more than a year ago, and the last print edition was in 2016.
At UC-San Diego, student government and administrators believed that they could get away with the illicit act of punishing one offensive newspaper by defunding all the newspapers on campus. But harming a lot of innocent victims in order to punish one newspaper’s speech is a greater attack on freedom of the press, not a lesser one.
The 9th Circuit declared, “Supreme Court case law establishes that it is sufficient to show the government acted with the intent to burden the press in order to plead a viable Free Press Clause claim.”
No one has a right to student fee funding. But no one has a right to deny student fee funding simply because they disagree with a student group’s opinions, nor can they punish all publications to disguise their real goals.
The majority opinion (one concurring judge supported the ruling on narrower grounds, but there was no dissent) concluded:
We are sensitive to the challenges facing educational institutions seeking to steer a difficult course between free expression and civil discourse. Nevertheless, we are equally mindful of that fact that, in the university setting, “the State acts against a backdrop and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.”
I see no difficult course to steer between free expression and civil discourse. Civil discourse is what you do in response to free expression, not a tool to destroy free expression. But as the 9th Circuit ruling shows, censorship is ultimately a failed strategy for guiding us on the path to civil discourse.
