Earlier this week, I teamed up with the ACLU to file a federal lawsuit against the University of California, San Diego for depriving student media of their First Amendment rights. Specifically, UCSD’s student government has attempted to censor a controversial humor publication known as The Koala by halting funding to all print publications.
As a UCSD alumnus, I did not reach this decision lightly. I co-founded the UCSD Military Veteran Scholarship and prefer to maintain good relations with my alma mater. I had a great experience there, and I’m proud to have graduated from a world-class research university.
Unfortunately, I grow tired of reading headlines about UCSD censoring student speech. A UCSD provost recently issued a statement condemning students who chalked pro-Trump slogans on campus and warned that they could face the “fullest sanctions,” even though chalking is expressly allowed under the student code. The Foundation for Individual Rights in Education (FIRE) recently named UCSD one of our country’s ten worst schools for free speech rights. UCSD previously tried to shut down The Koala in 2002 and in 2010, the former of which I witnessed firsthand as a student.
UCSD’s present battle against the First Amendment started when The Koala published an article this past fall mocking safe spaces and trigger warnings. Condemnation immediately followed, from the Chancellor’s Office on down. The student government decided to discontinue funding for all student media the same day as the Chancellor’s statement.
This trend toward censorship represents a growing problem within academia. Universities were the champions of the free speech movement of the 1960s and prided themselves as hotbeds of free expression. Today, it appears that free speech is taking a backseat on many campuses to other political and sociological concerns. The peril of this shift in values cannot be overstated. Most partisan disagreements represent secondary values; our constitutional right to express our opinions on those topics are primary values that form the foundation of our free republic.
The ambivalence we see here toward free speech is a disturbing trend that can lead nowhere good. No matter how disagreeable a reader may find The Koala‘s speech, censorship is not the answer. Instead, we should encourage college students to craft persuasive arguments about issues they find important, not to petition the government to shut down opposing viewpoints. The answer to speech we dislike is to counter it with thoughtful rebuttals, and allow the best ideas to prevail in the marketplace of public opinion.
UCSD’s decision to target The Koala is not only politically perverse, but unconstitutional. UCSD is a public university bound by the First Amendment, which prohibits public bodies from discriminating against the press and against individual viewpoints. UCSD understands that it cannot single out The Koala by stripping this one publication of its funding, so it has developed a clever ploy to strip The Koala of its funding by removing all student media funding. In other words, UCSD realizes a surgical strike is illegal, so it thinks it can skirt the law by choosing the nuclear option.
This is problematic for two reasons. First, the First Amendment’s Free Press Clause prohibits the government from singling out the media for inferior treatment. The student government freely grants money to a wide array of student expression, so it cannot lawfully deprive student media of the same financial resources it freely offers for other forms of expression. Second, the Free Speech Clause prohibits the government from discriminating against any particular viewpoint—period. The sum total of the evidence shows that the media freeze is a ploy for defunding The Koala. It’s the discriminatory intent that matters.
For these reasons, I made the difficult choice to file a lawsuit against my alma mater. I do so, however, hoping that a just outcome will prompt much-needed reforms respecting the rights of free speech on campus.
Ryan T. Darby practices defamation defense and free speech law in San Diego.