The Koala v. Khosla

August 3, 2017 • Legal Briefs
By Samantha Harris and Ilya Shapiro

Courts in modern times are generally protective of the First Amendment, specifically our freedoms of speech and press. On the whole, they vigorously oppose any attempt by government to minimize those essential liberties; they recognize that a free press is critical to any society that values expression and intellectual diversity. The Supreme Court’s 1983 ruling in Minneapolis Star v. Minnesota Commissioner of Revenue (1983), striking down certain taxes on ink and paper, shows that attempts to regulate the media as a group, even when broadly applied, are considered unacceptable if they crowd out certain viewpoints. The University of California San Diego (UCSD), a public university, attempted to do something similar when it defunded certain student organizations in a thinly veiled attempt to censor one organization’s opinions. The Koala, a satirical newspaper funded by student activity fees, published an article mocking “safe places” that sparked controversy on campus and debate in the school’s student government. In response, the student government enacted a “Media Act” that defunded all student‐​printed media organizations, in order to prevent the The Koala from publishing further articles that contradicted the student government’s political sensibilities. The Koala sued in an attempt to restore its funding, but the federal district court remarkably ruled against them. Cato has joined the Foundation for Individual Rights in Education on an amicus brief supporting its claim. There is a longstanding, constitutionally based tradition of public universities’ serving as conduits for freedom of expression, a tradition that UCSD has unceremoniously abandoned. By providing funding to certain groups and not others, the university is effectively restricting certain members of the public from a public forum, in blatant violation of the First Amendment. The lower court misread well‐​established jurisprudence regarding the scope of such forums, and failed to consider the evidence of viewpoint discrimination prevalent in the school’s Media Act. Not only does this rule have a discriminatory effect, but also it constitutes unconstitutional retaliation in direct response to the controversy surrounding The Koala’s article. In addition, the Supreme Court has established that student activity fee programs are required to respect viewpoint‐​neutrality, in order to ensure that political bias does not stifle speech. UCSD has violated all of these core constitutional principles in pursuit of political correctness and the comfort of ideological homogeneity. In The Koala v. Khosla, the U.S. Court of Appeals for the Ninth Circuit should reverse the lower court’s decision and stop UCSD’s efforts to seek vengeance against student groups for satirical articles.

About the Authors
Samantha Harris
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.