Metropolitan News-Enterprise


Thursday, July 25 2019


Page 1


Ninth Circuit:

Action for Retaliation Against Student Newspaper Wrongly Axed

Panel Reinstates Lawsuit Challenging Termination of Subsidy Based on Offense Taken to Article


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed the dismissal of an action by a student organization at the University of California at San Diego contesting an act by the student government which renders it ineligible for funding for its campus newspaper in response to an article that was regarded as offensive.

Umbrage was taken at a satirical article in the Nov. 16, 2015 edition of The Koala, a publication self-proclaimed to be “The Worst In Collegiate Journalism Since 1982!” Deriding “safe spaces,” it said:

“Administrators at UC San Diego are creating an all new, state-of-the-art Dangerous Space for UCSD students who just don’t feel like their needs have been met on campus. In the past few weeks, the lack of dangerous space at UCSD has become increasingly apparent; students have been lashing out with puppy parades, non-violent protests, and other equally safe gimmicks. Safe spaces at UCSD are commonplace, and threaten individuals who do not like feeling safe. The logical next step has been taken by the university in creating a place to fairly support all UCSD students, continuing the university’s theme of inclusion and equality.”

The student government—which allocates moneys from a fund consisting of mandatory student fees—responded with the “Media Act,” cutting off subsidization of student organizations’ publications. This precluded continued publication of The Koala’s print edition, though it continues to exist online.

The Koala—the name of the organization publishing the newspaper, as well as the name of its publication—brought suit in the U.S. District Court for the Southern District of California.

District Court’s Dismissal

Judge Jeffrey T. Miller dismissed the action, rejecting the First Amendment claims on the merits while holding the suit was barred by the Eleventh Amendment.

Circuit Judge Morgan Christen wrote yesterday’s majority opinion which reinstates the action, and Senior Circuit Judge authored a concurring opinion.

 “Though the Supreme Court has not addressed whether the withdrawal of a press subsidy violates the First Amendment, other Supreme Court case law teaches that the government can violate the First Amendment by withholding benefits for a censorious purpose, at least in the Free Speech Clause context,” Christen wrote.

Revocation of Subsidy

She said there was no reason those cases “should not apply when the state singles out and burdens the press by revoking a subsidy, particularly where, as here, the record includes unusually compelling allegations that the government acted with discriminatory intent.”

The allegations in the operative pleading, the judge declared, are “sufficient to survive defendants’ motion to dismiss because it alleges that the Media Act was passed for the express purpose of silencing a newspaper.”

The complaint also adequately alleged that the act of the student government violated its free-speech rights by shutting it out of a forum, Christen said, defining the forum as “the student activity fund in its entirety.” She also stated that the complaint “plausibly alleges the elements necessary to plead a First Amendment retaliation claim.”

Eleventh Amendment Inapplicable

Christen disagreed with Miller that the Eleventh Amendment bars the action. That amendment says:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

That amendment has been interpreted by the Supreme Court to bar actions by an individual against a state without its consent, the judge noted. However, she pointed out, “private individuals may sue state officials in federal court for prospective relief from ongoing violations of federal law, as opposed to money damages, without running afoul of the doctrine of sovereign immunity.”

The complaint does not seek restoration of funding, but only the eligibility for funding, Christen said, which, she concluded “does not run afoul of the sovereign immunity doctrine.”

Fisher said in his concurring opinion:

“Although I agree with the majority that a censorial purpose theory would be viable here if raised, I would prefer not resolve the Free Press Clause issue on a theory that it has not been pled, relied on or briefed.”

He went on to say:

“I would hold that the complaint, irrespective of censorial motive, adequately alleges a claim under the Free Press Clause on the theory that the defendants singled out the press for disparate treatment.”

The case is The Koala v. Khosla, 17-55380.


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