When controversial speakers (usually from the right) appear on campus, they frequently trigger violent and destructive demonstrations, sometimes leading to physical injuries and inevitable police arrests. The cost of securing the site from this violence poses an enormous problem for university officials. When they attempt to curtail or pass them on to the host, they run into the First Amendment free speech guarantee. In a limited public forum, such as a college campus, restrictions on speech such as a security cost assessment, must be reasonable and viewpoint neutral…“based on a standard that is definite and objective …, one that does not suppress speech merely because public officials oppose the speaker's view.” In a “designated or traditional public forum” such as public parks, streets and other areas which the government designates as public forums, the burden is stricter. (Seattle Mideast Awareness Campaign v. King County, 781 F. 3d 489 (9th Cir. 2015)). The issue becomes complicated when the colleges evaluate and attempt to assess and pass on security costs based largely on their anticipation of disruption caused by opponents of the host event; they far outweigh the expense required to protect the venue itself, and when passed on threaten to make conservative speeches prohibitively expensive. This “heckler's veto” runs into the First Amendment free speech guarantee.

The seminal authority is Forsyth County v. Nationalist, 505 U.S. 123 (1992). In the wake of two previous demonstrations, Forsyth County enacted an ordinance requiring that every applicant for a speech on public property pay a fee, not more than $1,000, which could be adjusted by the country administrator “in order to meet the expense incident to (the event) and to the maintenance of public order in the matter licensed.” There were little or no specific criteria guiding imposition of this fee or how much to charge. The Nationalist Movement sought a permit for a parade on public property in opposition to the federal Martin Luther King Jr. holiday. Rather than pay, it successfully challenged the constitutionality of the ordinance because in the first place there were no narrowly drawn definite standards for the administrator to apply. His decision would depend on his measure of the amount of hostility likely to be created by the speech's content, which he would necessarily have to examine and evaluate. Speaking for the five-person majority, Justice Blackman wrote: “The costs to which petitioner refers are those associated with the public's reaction to the speech. Listener reaction to a speech is not a content neutral basis for regulation,“ and further: “Regulation which permits the Government to discriminate based on the content of the message cannot be tolerated under the First Amendment.”

Last year Padgett v. Auburn (M.D. Ala.) summarily enjoined Auburn University from cancelling a speech by the notorious Richard Spencer, “a white nationalist member of the far right.” There was no formal protocol for such action. The court found that the cancellation was based on the apprehension that “protest groups opposed to Mr. Spencer's ideology would react to the speech by engaging in protests that could cause violence or property damage,” a rationale specifically rejected by Forsyth.

Confronted by these situations, colleges can react in three ways. They can provide necessary security and absorb the cost; or they can attempt to seek contribution from the host, not just for the cost to protect the venue but also for the expected expense to protect against the havoc anticipated when hostile opponents show up; or they can provide the necessary security without cost to the host, as did the University of Florida last October. In the light of Forsyth and Auburn, it absorbed $500,000 to provide what it deemed necessary to protect against expected disturbances.

Most recently, the University of Washington chose another path and walked into a hornet's nest when it projected $17,000 in security costs for the College Republicans hosting activist Joey Gibson of the Patriot Prayer Group. The university had established protocols for events “likely to significantly affect campus safety, security and operation.” “After analyzing all event details and logistics”, the protocols permit appropriate conditions and restrictions to “maintain the safety and security of participants and the campus community.” In determining such restrictions, the university is required to analyze “(past) violence, bodily harm, property damage, significant disruption of campus operations,” but determinations cannot be based on the “content or viewpoints anticipated to be expressed.” If there are legitimate risks to safety, the University may “administer enhanced security measures” which host organizations would be required to pay. The university had experienced trouble in January 2017 when the College Republicans sponsored an event for self-proclaimed provocateur Milo Giannopoulos, which provoked disorder and security expenses of about $45,000. This time the university estimated bringing Gibson to the campus would require security costing $17,000, for which it would hold them responsible. Three days before the event, on two days' notice, College Republicans of the University of Washington v. Cauce, et als, (Docket No. C18-189)(W.D. Wash), granted a TRO barring the security charge because “the guidelines of how the bill was calculated run afoul (by) chilling speech.” The court held that “the Security Fee Policy is neither reasonable nor viewpoint neutral” because, among other things “it fails to provide 'narrowly drawn, reasonable and definite standards' and thereby gives administrators broad discretion to determine how much to charge for enhanced security or whether to charge at all.” To do so, they “must necessarily examine the content of the message that is conveyed, estimate the response of others to that content and judge the number of police necessary to meet that response. The fee assessed will depend on the administer's measure of the amount of hostility likely to be created by the speech based on its content.” That of course would be in violation of Forsyth.

The constitutionality of the University of Washington's protocol and its application to the event in question was a tough call. In Seattle, King County had opened the sides of Metro buses (a limited public forum) to advertising from outside speakers, but rejected proposed advertisements concerning the Israeli-Palestinian conflict because they likely would trigger violent reactions from both sides, threats to passengers, and clashes between passengers, all of which of course would distract the drivers. This action was pursuant to an ordinance which excluded speech “that is so objectionable under contemporary community standards as to be reasonably foreseeable that it will result in harm to, disruption of, or interference with the transportation system.” The Ninth Circuit held this was a reasonable standard if “reduced to objective criteria set out in advance.” Implementation of the ordinance was found to be “both reasonable and viewpoint neutral and thus did not violate the First amendment.” Nonetheless, Seattle held, “that does not mean heckler's veto concerns have no relevance in a limited public forum: A claimed fear of hostile audience reaction could be used as a mere pretext for suppressing expression because public officials oppose the speaker's point of view. That might be the case where the asserted fears of a hostile audience reaction are speculative and lack substance.”

The “heckler's veto” poses a perplexing problem. Security costs to control disruption anticipated when opponents show up, if passed on, certainly are an incentive to create as much chaos as possible with the aim to make the event so expensive that it will be cancelled. However, we question whether this issue can be determined immediately on application for a TRO, like that issued by the Washington University district judge. Seattle held that the court “must independently review the record without deference to the threat assessment made by the Country officials, to determine whether it 'shows that the asserted risks were real.'” At the very least, we think the court should have deferred its ruling until the event unfolded. The hearing at the oncoming preliminary injunction motion will ferret out whether “the asserted fear of disruption [was] speculative and lack[ed] substance” and “whether apprehended audience reaction (is being) used as a mere pretext for suppressing expression because public officials oppose the speaker's point of view.”