UCSD Student Paper May Pursue 1st Amendment Suit Over Defunding

A University of California San Diego student newspaper defunded after running an article satirizing the concept of safe spaces can proceed with First Amendment claims, the Ninth Circuit ruled.

A lower court erred in dismissing claims by The Koala newspaper that the student government violated the free press and free speech clauses when it eliminated student organization funding for all print media, the U.S. Court of Appeals for the Ninth Circuit said July 24.

The Koala may go forward with its free press claim, having alleged that the state singled out the press by withholding a subsidy in response to disfavored speech, the court said.

And the paper sufficiently alleged that the student government violated its right to free speech by creating a limited public forum consisting of the student activity fund, and then closing a portion of the forum in order to deny The Koala access to it, the court said.

The suit didn’t violate the state’s sovereign immunity because the paper is seeking only to be eligible once again for funding, not an order that the state must fund it, the court said, reversing the lower court.

In a concurring opinion, Judge Raymond C. Fisher said the complaint doesn’t need to allege a “censorial motive” to proceed with a free press clause claim.

It was sufficient that the paper alleged it was singled out for disparate treatment, he said.

The Koala published an article in November 2015 entitled “UCSD Unveils New Dangerous Space on Campus.”

The article satirized the concepts of “trigger warnings” and safe spaces on college campuses, using ethnic and sexist stereotypes and racial epithets.

UCSD Chancellor Pradeep Khosla denounced the publication, and the student association passed a measure called the Media Act, eliminating the media funds category from student activity funding available to student organizations.

The suit names Khosla in his official capacity as chancellor, Daniel Juarez, in his official capacity as president of the Associated Students of U.C. San Diego, and Justin Pennish, in his official capacity as financial controller of the Associated Students of U.C. San Diego.

Judge Morgan Christen wrote the opinion, joined by Edward F. Shea. Judge Raymond C. Fisher concurred in the result.

ACLU Foundation of San Diego & Imperial Counties and The Law Office of Ryan T. Darby represent The Koala. Schiff Hardin LLP represents the defendants.

The case is The Koala v. Khosla, 9th Cir., No. 17-55380, 7/24/19.