Acknowledging that speech may sometimes provoke and offend, the San Diego ACLU filed a lawsuit today against UCSD administrators to enforce core First Amendment rules against targeting the press or taking action based on the viewpoint of speech.
The Koala publishes a satirical newspaper that routinely provokes outrage and offense. In response to a Koala article mocking “trigger warnings” and “safe spaces,” UCSD’s student government eliminated all funding for student media.
However, the student government continues to fund other speech on numerous topics, including Acts 2 Fellowship (“foster community and Christian values”), Students Against Mass Incarceration, and the College Democrats of UCSD (“Presidential Primaries Update”), among many others.
The student government violated the First Amendment in two ways. First, it targeted the student press by stripping it of revenue that remains available to support other student speech. Second, it retaliated against the editorial viewpoint of The Koala, an action that is not immunized by inflicting collateral damage on all student media.
“However offensive and outrageous The Koala may be, its authors are writing about topical issues of public concern, and it is classic protected speech,” said David Loy, legal director of the ACLU of San Diego & Imperial Counties. “No matter how offended I may be, it is still much worse to give government the power to decide what speech to censor. Once granted, that power will inevitably stifle protest and dissent.”
University officials had the right to speak out against The Koala by releasing a statement denouncing the publication. “The Koala is profoundly repugnant, repulsive, attacking and cruel,” the statement read in part. But the student government, endorsed if not encouraged by administrators, crossed the First Amendment line by deleting all funding for the publication of student print media.
With the withdrawal of student media funding, The Koala has been hindered in its ability to publish, preventing it from publishing three of its six planned issues this academic year. The UCSD administration has also refused to allow The Koala to participate in Crowdsurf, UCSD’s crowd-funding platform for student and campus projects.
The ACLU sympathizes with students who are concerned about the reactions to The Koala’s content, especially by those who have suffered violence, racism, sexual abuse, or other traumas. We find this content disturbing too. But the First Amendment protects “outrageous and outlandish” speech that is often contained in publications such as The Koala, however vulgar and offensive they may be.
“Trauma is real,” said Loy, “but censorship is not the cure, because it inevitably blows back on those it purports to protect.”
The lawsuit calls for a preliminary and permanent injunction to prohibit UCSD and any of its agents from categorically refusing to provide campus activity fee funding for publication of student media or from otherwise preventing The Koala from exercising its First Amendment rights to freedom of press and speech. It also asks that the university’s actions be declared unlawful.
“As always, the best antidote to offensive speech is more speech,” said Ryan T. Darby, co-counsel with the San Diego ACLU. “The Supreme Court could not be clearer about how fundamentally important free speech is to a functioning democracy. It has ruled many times over that government may not prohibit expression of an idea because society finds it offensive.”