THE LAW DOESN’T CARE ABOUT YOUR FEELINGS: BEN SHAPIRO’S UNSUCCESSFUL FIRST AMENDMENT SUIT AGAINST THE UNIVERSITY OF MINNESOTA AND THE CASE FOR PUBLIC SAFETY-BASED SPEECH RESTRICTIONS

By: Alenah Luthens, Volume 105 Staff Member

“Facts don’t care about your feelings” is conservative pundit Ben Shaprio’s trademark phrase.[1] And he’s right. Indeed, the phrase proved particularly true in Young America’s Found. v. Kaler where Shapiro’s free speech lawsuit against the University of Minnesota (University) ultimately fell flat.[2]

The case began in 2018 when Students for a Conservative Voice (SCV) and the Young Americas Foundation (YAF) invited Shapiro to speak on campus.[3] To prepare for Shapiro’s speech, SCV and YAF urged the University to reserve a venue that could accommodate approximately 1,000 people.[4] The University rejected this request pursuant to its “Large-Scale Events Process” (LSEP)[5] and opted for a smaller venue on its more remote St. Paul campus.[6] Upset by this venue choice, Shapiro, YAF, and SCV sued the University for violating their free speech on the grounds that the LSEP enabled the University to “prohibit, chill, oppose, treat worse, and shut down speech with which [the University], or other students and faculty, disagree.”[7] The University maintained that its venue choice was made for “purely safety reasons”[8] based on protest activity at Shapiro’s past speeches.[9] In August 2020, the U.S. District Court for the District of Minnesota sided with the University holding that its venue choice constituted a legitimate “place restriction in furtherance of public safety.”[10]

In an increasingly polarized era, universities will likely continue to impose speech restrictions like the one at issue in Young America’s Found. v. Kaler. And while speech restrictions in the public university context undoubtedly implicate the First Amendment,[11] precedent[12] and policy considerations[13] demonstrate that public-safety based restrictions are prudent. Not only do such restrictions protect student safety and university property, but they also support two prominent free speech theories: (1) the marketplace of ideas and (2) self-realization.[14]

I. PUBLIC SAFETY-BASED SPEECH RESTRICTIONS COMPORT WITH PRECEDENT

In Young America’s Foundation, the court employed public forum doctrine––an analytical tool used to evaluate speech restrictions on government property––to deem the University’s speech restriction constitutional.[15] Under public forum doctrine, the constitutionality of speech restrictions turns on whether the relevant property constitutes a traditional public forum, limited public forum, or nonpublic forum.[16] The Supreme Court and Eighth Circuit have consistently held that public university property and programming are limited public forums.[17] Restrictions in limited public forums are constitutional provided they are reasonable and viewpoint neutral. [18] The Court has explained that promoting public safety constitutes a reasonable and viewpoint neutral government objective for forum-analysis purposes.[19] Therefore, the court correctly concluded that the University’s venue choice based on “potentially disruptive protest activity”[20]comported with longstanding First Amendment precedent.[21]

II. PUBLIC SAFETY-BASED SPEECH RESTRICTIONS FROM A POLICY PERSPECTIVE

A. Cost-Benefit Considerations

In recent years, there has been a renaissance of student activism and protests against controversial speakers.[22] This resurgence reflects the normalization of protests in America more broadly.[23] In fact, one in five Americans report participating in a political protest or rally since President Trump’s 2016 election.[24] In light of this trend, it is sound policy that courts provide universities leeway to restrict campus speech for legitimate public-safety reasons. In doing so, universities do not face a Hobson’s choice between prioritizing student safety or litigating costly free speech suits. Permitting such restrictions also enables universities to forgo massive security costs required to host controversial speakers in prime campus locations.[25] The University of California, Berkeley illustrates the hefty price tag that accompanies unrestrained free speech. In just one month, the university spent nearly $4 million in security costs and related expenses to host three free speech events.[26] The university could have reduced these costs by imposing reasonable public safety-based speech restrictions.

B. Pandemic Considerations

In the COVID-19 era, student protests against controversial speakers pose an additional public safety concern: rampant community spread.[27] Kaitlyn Bennet’s recent mask-less visit to the University of Central Florida (UCF) is instructive on this point.[28] In September, Bennet––a conservative activist and social media personality––visited UCF to ask students “who would be a better president for [B]lack Americans, Biden or Trump.”[29] Bennet was eventually kicked off UCF for not complying with its COVID-19 policy, but not before a swarm of students had congregated to protest her visit.[30] UCF conceded afterwards that it should have required Bennet and her security team to wear masks at the outset but maintained that it “want[ed] all perspectives to be heard civilly and safely.”[31] The UCF incident explicates the justification––and arguably the necessity––for public safety-based speech restrictions at universities amidst a deadly pandemic. More significantly, such restrictions support two values at the heart of free speech jurisprudence: (1) the marketplace of ideas and (2) self-realization.

C. Public Safety-Based Speech Restrictions Promote Free Speech Ideals

Public-safety based speech restrictions support the “marketplace of ideas”––a free speech theory that analogizes free speech to the economic marketplace where competition leads superior products to sell better than others.[32] The marketplace theory therefore discourages censorship and argues that the free, unfettered exchange of ideas will inevitably lead the “marketplace” to determine the truth and acceptability of speech.[33] At first glance, any speech restriction seemingly runs afoul of marketplace theory. But student protests against controversial speakers often morph into shouting matches wherein neither side can effectively proffer their ideas into the marketplace.[34] Furthermore, the prospect of violent campus protests against controversial speakers may discourage many students from participating in the marketplace altogether. In this way, public safety-based speech restrictions actually help diversify the marketplace of ideas.

Public safety-based speech restrictions also support the “self-realization” free speech theory.[35] Under self-realization theory, the sole purpose of free speech is to promote human autonomy and personal development.[36] Indeed, the Supreme Court has noted that “the First Amendment serves not only the needs of the polity but the needs of the human spirit-a spirit that demands self-expression.”[37] To this end, public safety-based speech restrictions supports self-realization ideals because they provide students a safe forum to engage in self-discovery and robust discussion. For example, consider again the University’s decision to reserve a smaller, less-central venue for Shapiro’s speech. This decision arguably provided the University’s conservative students a better forum to “discover and solidify their personal political views”[38] than would have been possible at a larger venue ripe for student protests.[39] Public-safety based speech restrictions therefore reinforce the values central to self-realization theory by providing students an amenable forum for discussion and self-discovery.

CONCLUSION

Permitting universities to restrict speech based on well-founded public safety concerns is not only good policy, it also supports core free speech values. Amidst a deadly pandemic and a hotly contested presidential race, universities might be wise to follow the University of Minnesota’s lead and limit controversial speech accordingly.

 

[1] Ben Shapiro (@benshapiro), Twitter (Feb. 5, 2016, 10:03 AM),  https://twitter.com/benshapiro/status/695638866993115136 [https://perma.cc/XCQ4-ZVCR].

[2] Young America’s Found. v. Kaler, No. 18-cv-1864, 2020 U.S. Dist. LEXIS 157040 (D. Minn. Aug. 28, 2020).

[3] Id. at *6.

[4] Id. at *31.

[5] Student Unions & Activities: Event Planning, U. of Minn., https://sua.umn.edu/engage/student-groups/managing-group/event-planning [https://perma.cc/X2KW-UYL3] (last visited Sept. 25, 2020) (explaining that the LSEP protects “the performer/speaker, attendees, and the community” through various precautions for major campus events).

[6] Young America’s Found., 2020 U.S. Dist. LEXIS 157040, at *22.

[7] Amended Complaint & Demand for Jury Trial at 2, Young America’s Found. v. Berthelsen, No. 18-cv-01864 (D. Minn. Mar. 5, 2019) ECF No. 37.

[8] Young America’s Found., 2020 U.S. Dist. LEXIS 157040, at *38.

[9] Id. at *67.

[10] Id. at *73.

[11] See Gregory P. Magarian, When Audiences Object: Free Speech and Campus Speaker Protests, 90 U. Colo. L. Rev. 551, 554 (2019) (“The campus speaker debate implicates . . . the First Amendment. . . as to public universities.”).

[12] See infra Part I.

[13] See infra Part II.

[14] See infra Part III.

[15] See Young America’s Found., 2020 U.S. Dist. LEXIS 157040 at **48–50 (describing public forum doctrine).

[16] Id. at *49 (noting public forum types).

[17] See, e.g., Gerlich v. Leath, 861 F.3d 697, 705 (8th Cir. 2017) (deeming a university’s student activity fund a limited public forum); Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 (2010) (“A university ‘establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.’”); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (noting that dedicating school facilities for private use creates a limited public forum).

[18] Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 690–91 (2010).

[19] See Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 650 (1981) (“[A] state’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.”).

[20] Young America’s Found., 2020 U.S. Dist. LEXIS 157040, at *74.

[21] See id. at *76 (“The University was ‘entitled to decide that the situation presented a danger before an [incident] occurred.’”); supra notes 11–13 and accompanying text; Ass’n of Cmty. Orgs. for Reform Now v. St. Louis Cty., 930 F.2d 591, 596 (8th Cir. 1991) (“The government need not wait for accidents to justify safety regulations.”).

[22] See Alia Wong, The Renaissance of Student Activism, The Atlatnic (May 21, 2015),

https://www.theatlantic.com/education/archive/2015/05/the-renaissance-of-student-activism/393749/ [https://perma.cc/ZGC6-SYM] (describing the “resurgence in campus activism.”).

[23] Mary Jordan & Scott Clement, Rallying Nation, Wash. Post (Apr. 6, 2018), https://www.washingtonpost.com/news/national/wp/2018/04/06/feature/in-reaction-to-trump-millions-of-americans-are-joining-protests-and-getting-political/ [https://perma.cc/JZ75-9KCU].

[24] Id.

[25] See Madison Park, Universities Face Rising Security Costs for Controversial Speakers, CNN (Oct. 31, 2017), https://www.cnn.com/2017/10/31/us/cost-of-speech-universities/index.html [https://perma.cc/5RV9-UHC6] (discussing security expenses universities incur to host controversial speakers).

[26] Ashley Wong, UC Berkeley Spent $4 Million on ‘Free Speech’ Events Last Year, Daily Californian (Feb. 4, 2018), https://www.dailycal.org/2018/02/04/uc-berkeley-split-4m-cost-free-speech-events-uc-office-president/ [https://perma.cc/89E8-PWUX].

[27] See Michelle R. Smith & Nicky Forster, Protest in Top 25 Virus Hot Spots Ignite Fears of Contagion, Press Herald (June 2, 2020), https://www.pressherald.com/2020/06/02/protests-in-top-25-virus-hot-spots-ignite-fears-of-contagion/?rel=related [https://perma.cc/2S8N-CRZD] (“Experts point out that . . . factors associated with protests could accelerate the spread of the virus.”). Note that this Post only pertains to protests against controversial speech at universities and does not speak to protests against racial injustice.

[28] See Annie Martin, Protests Against Gun Rights Activist Erupt at UCF; School Suspends Groups for Violating Social Distancing Policies, Orlando Sentinel (Sept. 10, 2020, 7:31 PM),

https://www.orlandosentinel.com/news/education/os-ne-ucf-no-masks-class-20200910-sievcem3yrhw3pcs6vrajdmlme-story.html [https://perma.cc/EE3D-9DWH].

[29] Kaitlin Bennett (@KaitMarieox), Twitter (Sept. 10, 2020, 2:51 PM), https://twitter.com/KaitMarieox/status/1304145390724419591[https://perma.cc/JJ8K-6HU9].

[30] Martin, supra note 21 (“A large gathering of protesters screamed at Bennet . . . .”).

[31] Our Commitment to the UCF Community: An update on the Sept. 10 on-campus incident., U. Cent. Fla. (Sept. 11, 2020), https://www.ucf.edu/news/our-commitment-to-the-ucf-community/ [https://perma.cc/P422-ZQQ5].

[32] See, e.g., Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of idea in which truth will ultimately prevail . . . .”); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.”).

[33] See id.

[34] See Magarian, supra note 12, at 572–73 (discussing the “shouting down” of campus protests against invited speakers).

[35] See generally Martin H. Reddish, The Value of Free Speech, 130 U. Pa. L. Rev. 591 (1982) (describing “self-realization” free speech theory).

[36] See id. at 604 (arguing that free speech enables individuals to “speak, write, create, appreciate, or learn” and helps individuals develop their “uniquely human faculties.”).

[37] Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring).

[38] Letter to the Editor, Ben Shapiro Event Tomorrow Will test USC’s Commitment to Diverse Views and Ideas, Daily Trojan (Oct. 3, 2018), https://dailytrojan.com/2018/10/03/letter-to-the-editor-ben-shapiro-event-tomorrow-will-test-uscs-commitment-to-diverse-views-and-ideas [https://perma.cc/FQ78-GZXF] (referencing upcoming Ben Shapiro event at the University of Southern California).

[39] A recent New York Times study lends itself to this assertion. The study found that 92 percent of college students said liberals can freely express their views on campus but only 69 percent said the same about conservatives. Niraj Chokshi, What College Students Really Think About Free Speech, N.Y. Times (Mar. 12, 2018), https://www.nytimes.com/2018/03/12/us/college-students-free-speech.html [https://perma.cc/XK9W-KQ3Q].