Lawsuit Targets Campus ‘Speech Tax’
A civil liberties organization is taking a Michigan university to court as part of its aggressive campaign to check speech limitations on America’s college campuses.
The Foundation for Individual Rights in Education (FIRE) has filed a federal lawsuit against Western Michigan University (WMU) in Kalamazoo over what it alleges is an illegal “speech tax” the school levies on speakers whose views are deemed extreme or controversial.
The plaintiff in the case is the Kalamazoo Peace Center, a self-described “hub for progressive activities” at WMU that refers to its general membership as “the Collective.” For the group’s annual Peace Walk event last spring, it hoped to bring in activist rapper and self-identified Communist Boots Riley to deliver the keynote address on campus. According to the lawsuit, the university first attempted to deny him permission to speak entirely due to safety concerns, and then relented on the condition that the group pay $62 per hour for security expenses, a fee the group had not budgeted for.
That fee, FIRE argues, amounts to a tax on views that are believed to be too controversial or unpopular. To back up their point, they cite statements by the school’s chief of security, who told the school paper last spring there are no rules governing what speakers are assessed a security fee, and that the decision is made on a “case by case” basis that includes an evaluation of the speaker’s personal history.
The lawsuit is a part of a recent aggressive shift in policy by FIRE. Since its foundation in 1999, FIRE has focused on advocacy actions such as grading college campuses on how well they protect student and faculty speech. Last summer, however, they announced a new Stand Up For Speech Litigation Project, in which they pledged to dramatically step up legal activity in an effort to stamp out what they say are widespread unconstitutional practices around the country.
The WMU case, FIRE told The Daily Caller News Foundation, is the first suit involving what they say is a frequent practice of discriminating against certain forms of speech by requiring extra fees for speech that is deemed “radical.”
“Universities do this, what I call, ‘stealth censorship’ on controversial speakers all the time,” said FIRE’s Associate Director of Litigation Catherine Sevcenko. But just because it’s common, she said, doesn’t mean it’s acceptable at public universities. “The government can’t tax speech in this manner…there are no guidelines, and it’s just guesswork based on the perceived radicalness of a speaker.”
Sevcenko said that determining security fees through an analysis of speakers’ views violates the principle of “viewpoint neutrality,” a concept in First Amendment jurisprudence which holds that the government can only impose basic limitations on speech if such limitations apply generally, and are not based on the content of speech. As a result, she said, WMU would be acting within its rights if it charged a security fee for every speaker expected to draw a large crowd, but assessing security fees based on speakers’ particular views was entirely unacceptable.
Since WMU’s policy isn’t unique, Sevcenko said, she said the lawsuit was potentially just the first of several on the topic, with the long-term goal of making it simply too costly for universities to limit speech on campus.
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