University Rescinds ‘Unconstitutional’ Security Fee Charged to Conservative Group That Hosted Michael Knowles

University Rescinds ‘Unconstitutional’ Security Fee Charged to Conservative Group That Hosted Michael Knowles

The University of Pittsburgh rescinded an “unconstitutional” security fee charged to the Intercollegiate Studies Institute (ISI) after the group cosponsored a campus talk on transgenderism with the College Republicans featuring Michael Knowles. The talk inspired considerable opposition and resulted in the indictment of a couple who allegedly targeted police with explosives.

“I’m pleased that Pitt administrators have wisely rescinded their five-figure conservative-on-campus fee,” Knowles told Legal Insurrection.

The Alliance Defending Freedom (ADF) challenged the fee in a June 5 letter, accusing the university of “unconstitutional” practices and policies, including the fee assessment, the university’s fee assessment policies, and the alleged failure of university police to protect attendees.

“Pitt had an obligation to encourage diverse perspectives, even on tough topics, and on that score it failed,” ADF Senior Counsel Phil Sechler told Legal Insurrection. “[W]e expect Pitt will promote and protect the free speech rights of its students in the future. It should not cost students tens of thousands of dollars to speak on campus.”

The university denied ADF’s legal accusations but agreed to rescind the fee. The university blamed charging the fee on a miscommunication and a lack of diligence by ISI in resolving the issue:

Clearly, there was a disconnect between our people and ISI. Unfortunately, ISI did not raise the issue when they received an estimate prior to the event, or this would have been easily resolved at that time.

Fee Assessment and Policy

ADF deemed the fee itself unconstitutional “because University administrators have unbridled discretion on whether and how much to charge as a security fee and because the fee was determined by the expected negative reaction of the University community”:

The Supreme Court held in Forsyth County v. Nationalist Movement that “[t]he First Amendment prohibits the vesting of such unbridled discretion” to discriminate between viewpoints “in a government official.” (footnote omitted)

The university fell short of this standard because its policies did not include “an exclusive list of content-neutral criteria by which the security fee would be determined and instead left up to administrators whether and how much to charge.”

ADF also accused the university of assessing fees “based on the extent of disruption,” which amounted to “an unconstitutional heckler’s veto”:

In short, “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” . . . Charging security fees based on the content of the speech is exactly the type of “suppression” the First Amendment does not permit. Such security fees are an unconstitutional heckler’s veto. (footnotes omitted)

The university denied ADF’s allegations: “the factors considered in determining security fees [are] clear and most importantly, content neutral and not based on expected reactions.”

Incitement

ADF accused the university of unconstitutionally “incit[ing] this behavior in the first instance”:

Of course, “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.” And it “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Thus, a public university may neither take action to censor disfavored speech nor induce or encourage others to do so. (footnotes omitted)

The university, ADF alleged, incited the crowd by referring to Knowles’ “hate-filled rhetoric” as “toxic” and “repugnant.” The university allegedly tried to indirectly censor Knowles’ talk by characterizing him as an “unwelcome presence on campus,” which ADF alleges “encourag[ed] others to take action to suppress speech [the university] disfavored.”

“Encouraging students to protest and disrupt an unpopular event is no different from cancelling the event directly,” Sechler told Legal Insurrection. “[E]ither way, the First Amendment is violated.”

“[T]he University disagrees with the assertion that the University incited the crowd,” read the university’s response.

Police Response

ADF accused campus police of seeking to end the event early and of failing to protect attendees. The university, ADF alleged, “failed in its responsibility to take reasonable action to protect ISI and College Republicans in the exercise of their First Amendment rights”:

[T]he Supreme Court has repeatedly affirmed that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Thus, “[w]hen a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines—watching as the crowd imposes, through violence, a tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his or her own protection.” (footnotes omitted; emphasis original)

The university allegedly failed in this regard because campus police “decided not to intervene against or arrest any of the rioters, choosing instead to allow them to gather right next to the event so that they could threaten and assault the peaceful attendees.”

“Universities have an obligation to protect free speech and prevent angry mobs from effecting a ‘heckler’s veto,'” Sechler told Legal Insurrection.

“Pitt Police were able to keep protesters at bay and keep attendees safe,” the university replied to ADF’s allegations.

The university allegedly compounded its unconstitutional behavior when campus police urged ending the event early “because they claimed the situation was ‘deteriorating.'”

Knowles “was able to give his entire presentation,” according to the university, but the Q&A session held afterward was cut short. The university placed some of the blame for this on Knowles: “Mr. Knowles was approximately 15 minutes late to the venue. Had the event started on time the Q&A would have been impacted to a lesser extent.”

Knowles expressed dismay at the university’s blaming him:

I’m . . . disappointed that they would lie to justify their misdeeds. I was on campus and backstage well before the event, which began late because, as we walked toward the stage, Antifa militants set off an explosive. It ended early because the university refused to disperse the rioters, whose antics forced the cancellation of our meet-and-greet, which in any event was scheduled to last far longer than fifteen minutes, making the university’s excuse preposterous on its face.

The university’s response to ADF:

ADF’s letter to the university:

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