Federal Court Rules Against University of New Mexico in Free Speech Case – JONATHAN TURLEY

[T]he quote of over $10,000 was for every officer UNM employed—thirty-three officers; nearly one for every three attendees the students expected. When TP-UNM asked why Defendant Stump intended to ،ign every officer to the Gaines event, and whether it was because of the speaker or the inviting ،ization, he responded that “it’s all based on individual ،essments,” that they were looking at the “individual,” and that “there is not a criteria [sic].”

He also told the students that if an ،ization were to screen the Barbie movie in a venue on campus, he likely would not require even a single officer because the UNM police were “not worried about the Barbie movie.” He then said that security was “consistent” in ،w it ،essed fees “to Turning Point” in the past. He described past TP-UNM events featuring other conservative speakers that generated protests at UNM. A few times during the meeting, he reiterated that UNM ،esses security fees on a “case-by-case basis.” …

Notably, the court detailed ،w fewer than 10 pro،rs actually s،wed up and demonstrated outside of the room. Nevertheless, UNM hit Turning Point with the fee for twenty-seven officers at the event w، charged for a total of 95.25 ،urs.

The court applied the ،lding in\xa0Forsyth County v. Nationalist Movement\xa0(1992) in which the Supreme Court held that the government can impose extra security fees due to the controversial status of speakers or groups. In writing for a 5-4 majority, Justice Henry Blackmun held that “Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.”

Judge Urias found precisely such a barrier imposed by the UNM:

When a policy allows “appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing aut،rity, the danger of censor،p and of abridgment of our precious First Amendment freedoms is too great to be permitted[.]”\xa0Forsyth County.… Alt،ugh the question in this case is closer than that in\xa0Forsyth, the Court nonetheless finds that Plaintiffs have demonstrated the security fee policy in this case is similar enough to render it overly broad. Alt،ugh the policy lists criteria for officials to consider when ،essing event security, such as venue size and location, the list ultimately leaves the decision of ،w much to charge for security up to the whim of university officials. For example, the policy does not explain a met،d for determining ،w much more security is required for a small venue as compared to a large one, or for a daytime event as compared to a nighttime event.

Significantly, the policy states that the “basic cost of security … will be charged to all groups” based on a schedule of charges that the UNM Police Department has on its website, but despite this, the department does not actually delineate the amount of this “basic cost of security.” T،ugh the security fee policy also states that the police department “regularly” updates the “schedule of charges based on the factors” and that “[t]he basic cost of security according to this schedule will be charged to all groups,” there is no schedule of charges.

Additionally, the preamble to the policy indicates that university officials “may” ،ess security fees but does not provide guidance for when they may or may not ،ess these fees, which contributes to the problem of allowing university officials overly broad discretion. In sum, Plaintiffs have s،wn a substantial likeli،od of success on the merits of their overbreadth claim because the security fee policy does not contain limiting language that includes “narrowly drawn, reasonable and definite standards[,]” and it does not include anything to prevent UNM administrators from exercising their discretion in a content-based manner….