Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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THE KOALA,
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Plaintiff,
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v.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................iii
INTRODUCTION .................................................................................................... 1
STATEMENT OF FACTS ...................................................................................... 2
A. UCSDs student government exercises official authority over student
affairs with oversight by the Chancellor, who is responsible for its compliance
with legal requirements. ................................................................................... 2
B. University policy establishes a forum for supporting student speech on a
wide range of issues, with clear disclaimers of official endorsement and a
process to issue pro rata refunds to students who object to certain speech. .... 3
C. The Koala is a registered student organization with a history of publishing
a controversial newspaper that draws the ire of the Student Government and
UCSD administration. ...................................................................................... 4
D. Immediately after The Koala published a controversial satire on a topical
issue of public concern, the Student Government eliminated all funding for
student media but continued funding other forms of speech. .......................... 5
ARGUMENT............................................................................................................. 9
A. The Student Government reacted to a recent issue of The Koala by
unconstitutionally singling out the student press and discriminating against the
viewpoint of student speech10
1. The First Amendment governs the Chancellor and Student Government
officials....................................10
2. By stripping the student press of resources available to fund other student
speech, the Student Government violated the Free Press Clause............10
3.With the endorsement if not encouragement of UCSD officials, the
Student Government violated the Free Speech Clause by terminating
media funding in retaliation for The Koalas editorial viewpoint...15
4.The Koalas speech is constitutionally protected.............20
B. Deprivation of First Amendment rights is irreparable harm as a matter of
law, for which the balance of equities and public interest favor an
injunction.22
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CONCLUSION24
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TABLE OF AUTHORITIES
CASES
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INTRODUCTION
Under the First Amendment, a public university must be a home for free
expression, a haven for free thought and experiment. Rosenberger v. Rector and
Visitors of Univ. of Virginia, 515 U.S. 819, 835 (1995). Unfortunately, the
University of California, San Diego has ignored the First Amendment. After a
student press of funding dedicated to the support of student speech. This Courts
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government. For over 30 years, The Koala has qualified as a registered student
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organization and received funding from that forum to publish a satirical newspaper.
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The Koala has long been controversial for its editorial viewpoint, and the university
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spaces, topics of public concern. A number of people found the satire outrageous
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due to its invocation of racial epithets and stereotypes and launched a campaign to
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shut down or defund The Koala. In response, the student government eliminated
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funding for student media but continued to fund other forms of student speech.
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A senior administrator endorsed the decision, with direction not to ditch the good
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ones worthy of this funding and to work actively on finding ways to encourage
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government violated the First Amendment in two ways. First, it violated the Free
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Press Clause by depriving the student press of revenue that remains available to
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support other forms of student speech. Second, it violated the Free Speech Clause
eliminate student media funding was ostensibly neutral, the government cannot
on third parties.
threatening the freedom of any controversial speech, which is precisely what the
Amendment is not only compatible with equality but essential to its pursuit,
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harm as a matter of law, and the balance of equities and public interest always favor
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STATEMENT OF FACTS
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A.
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and exercises powers delegated by the university, subject to the UCSD Chancellors
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oversight to ensure that its actions are consistent with legal requirements.
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UCSD collects campus activity fees from its students and allocates the
income to the Student Government, which dedicates a portion to support the speech
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students of the broadest range of ideas, and they disburse campus activity fees to
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stimulate on-campus discussion and debate on a wide range of issues from a variety
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their nature; that is, they must be based upon considerations which do not include
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include a disclaimer that the views expressed in this publication are solely those of
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<publications name here>, its principal members and the authors of the content of
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this publication, and not of the Student Government, UCSD, the University of
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various forms of speech within that forum, the disbursement of campus activity fees
In addition to supporting The Koala and other publications such as The Left
Coast Post, Fashion Quarterly, and The Muir Quarterly, the Student Government
political, and religious topics. Complaint 31; RJN 11. Given the breadth of
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to provide a pro rata refund to any student of that portion of his or her compulsory
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Complaint 32; RJN 6. The Student Government allows any student to request
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a pro-rata refund of a portion of the Campus Activity Fee for any allocation for
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C.
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student newspaper at UCSD. It has consistently qualified for and received funding
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from the Student Government, as have other student organizations. The Koalas
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speech has provoked significant controversy, and both the Student Government and
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UCSD administration have not only condemned but also attempted to undermine
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manner that mocked the other organization. Complaint 41; Liddle Decl. 3-7.
suspended all student media funding to retaliate against content The Koala
Gupta wrote in February 2010, The Koala has long since been a controversial
publication at UC San Diego and is primarily funded by our student fees. I do not
believe we should continue funding this organization with our fees. We must
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develop effective policies to ensure that our fees do not go to support the hateful
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relationship with the Koala, but a concerted effort by other media groups and the
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spotlight of upcoming elections has hampered his efforts. I cannot tell you how bad
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a black eye it is for the University that we do not seem to have the power to cut our
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ties to this body. Complaint 44 & Ex. 1. Assistant Vice Chancellor of Student
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Life Gary Ratcliff wrote to Ms. Rue and a faculty member, alluding to methods he
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D.
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The controversy over The Koalas viewpoint continued into the current
academic year. On November 12, 2015, UCSD received a complaint stating [t]he
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Steve Schmidt, Shows racial slur prompts hold on UCSD student media, San
Diego Union-Tribune (Feb. 23, 2010, 12:02 a.m.),
http://www.sandiegouniontribune.com/news/2010/feb/23/ucsd-media-outlets-seefunds-frozen/
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Koala is a newspaper that is solely meant to cause hatred and demanding Stop the
Diversity, and Inclusion Becky Pettit wrote to Vice Chancellor for Student Affairs
Juan Gonzalez and Associate Chancellor Clare Kristofco, among others: I think
this crosses the free speech line and Id like to explore ways we can do something
about it. I know its a delicate undertaking. Complaint 47 & Ex. 1. Ms.
Kristofco replied, We have been down this path many times over the years for
to meet and discuss the legal landscape, Ms. Pettit wrote, Id like to think
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Unveils New Dangerous Space on Campus that satirized the concepts of trigger
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warnings and safe spaces and thus addressed topical issues of public concern.3
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Complaint 50-51. Invoking extreme racial epithets and stereotypes, The Koala
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played on the idea of safe spaces with a mock story that Administrators at UC
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San Diego are creating an all new, state-of-the-art Dangerous Space for UCSD
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establishing the ideal place for students to do whatever the hell they want.
After publication of the article, UCSD received a blizzard of demands for
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action against The Koala because of its viewpoint. To take a few examples:
The campus newspaper The Koala published an explicitly racist article
mocking safe spaces. The university needs to stop funding the Koala,
and stop endorsing it.
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UCSD Unveils New Dangerous Space on Campus, The Koala (Nov. 16, 2015),
http://thekoala.org/2015/11/16/ucsd-unveils-new-dangerous-space-on-campus/.
These topics have been extensively debated in the media and otherwise. See, e.g.,
Judith Shulevitz, In College and Hiding from Scary Ideas, N.Y. Times (March 21,
2015), http://www.nytimes.com/2015/03/22/opinion/sunday/judith-shulevitzhiding-from-scary-ideas.html?_r=0; Jennifer Medina, Warning: The Literary Canon
Could Make Students Squirm, N.Y. Times (May 17, 2014),
http://www.nytimes.com/2014/05/18/us/warning-the-literary-canon-could-makestudents-squirm.html?_r=0.
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them intensively. Complaint 53-57 & Ex. 1. On November 18, UCSD released
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denounce[d] the Koala publication and its offensive and hurtful language, called
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The Koala profoundly repugnant, repulsive, attacking and cruel, and asked the
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Ex. 1. On the same date, a senior UCSD official wrote, Please note Koala get[s]
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no University funding[.] The Associated Students find [sic] them. Pressure should
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[be] brought to that organization to end the madness. Complaint 59 & Ex. 1.
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During the evening of November 18, 2015, the Student Government held its
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regular meeting, where the Vice Chancellor for Student Affairs read the official
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statement denouncing The Koala and speakers objected to funding The Koala.
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Complaint 61-62; RJN 13. A motion was then made to delete Title V,
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2.4(d)-(f) of the former Standing Rules, which provided the channel for funding
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publication of student media. Complaint 63; RJN 13. The motion did not affect
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funding for any other form of student speech. In debate on the motion, Student
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standing rules supersede the Funding Guide with respect to media funding. AS
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does not fund printed media. Complaint 65; RJN 13. As a result, the Student
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Government eliminated funding for publication of student media, including but not
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limited to The Koala, but not other forms of student speech. Complaint 66, 71;
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RJN 9, 13.
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On the next day, Mr. Ratcliff wrote to various UCSD officials, including Mr.
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Gonzalez, Ms. Pettit, and Ms. Kristofco, noting that the Associated Students (AS)
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equating student media with equipment, travel, and food. Complaint 68 &
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Ex. 1. Mr. Ratcliff noted that certain student media might still receive funding from
colleges or departments with which they are affiliated. Complaint 68 & Ex. 1.
Mr. Subramani directed Mr. Gonzalez, Lets not ditch the good ones worthy of
this funding and work actively on finding ways to encourage and help them
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Complaint 72; RJN 11. UCSD has refused to allow The Koala to participate in
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Crowdsurf, a crowdfunding platform for student and campus projects, and The
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Koala has been unable to obtain funding from any of UCSDs colleges. Complaint
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79-80. Though The Koala previously published up to six issues per academic
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year and planned to do so this year, the elimination of campus activity fee funding
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for student media forced it to cancel its winter issue and cut back to three issues.
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Complaint 78.
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ARGUMENT
A preliminary injunction is warranted if The Koala shows a likelihood of
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success on the merits and irreparable harm, and the balance of equities and public
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interest favor an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
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20 (2008). If the balance of hardships tips sharply in The Koalas favor, it only
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needs to demonstrate serious questions going to the merits. Alliance for the Wild
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The Koala bears the initial burden of making a colorable claim that [its]
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First Amendment rights have been infringed, or are threatened with infringement, at
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which point the burden shifts to the government to justify the restriction.
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Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011). The Koala
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is likely to prevail on the merits or at least presents serious question on the merits.
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The Student Government violated both the Free Press and Free Speech Clauses by
cutting off student media funding. The Koala is suffering irreparable harm as a
matter of law, and the balance of equities and public interest necessarily favor
injunction to restore the student medias First Amendment right to receive funding
A.
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The First Amendment governs UCSD officials. Widmar v. Vincent, 454 U.S.
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263, 26869 (1981). The Student Government acts under the color of state law to
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the extent it is intertwined with the state in collecting, budgeting, and allocating
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funds to create a forum for speech. Amidon v. Student Assn of State Univ. of New
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York, 399 F. Supp. 2d 136, 145 (N.D.N.Y. 2005), affd, 508 F.3d 94 (2d Cir. 2007).
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The Student Governments officials are therefore subject to the Constitution in this
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case, because they have been delegated a public function.4 Brentwood Acad. v.
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Tennessee Secondary Sch. Athletic Assn, 531 U.S. 288, 296 (2001).
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2.
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The First Amendment prohibits any law or rule abridging the freedom of
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the press. The Free Press Clause protects the media as the only organized private
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For convenience, this brief refers to UCSD and the Student Government, though
neither is a named party in this official-capacity case for injunctive relief. Flint v.
Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Rounds v. Oregon State Bd. of Higher
Educ., 166 F.3d 1032, 1035-36 (9th Cir. 1999).
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Inc., 747 F. Supp. 1515, 1528 (E.D. Pa. 1990) (quoting Potter Stewart, Or of the
Press, 26 Hastings L.J. 631, 633 (1975)), affd, 946 F.2d 202 (3d Cir. 1991).
source of public information. Grosjean v. Am. Press Co., 297 U.S. 233, 250
(1936). It covers both the traditional and student press, online and otherwise.
The Pitt News v. Pappert, 379 F.3d 96, 111 (3d Cir. 2004) (Alito, J.) (striking down
law that targeted media associated with the Commonwealths universities and
colleges); OGrady v. Super. Ct., 139 Cal. App. 4th 1423, 1467 (2006) (finding
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reporters, editors, and publishers who provide news to the public through traditional
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The Free Press Clause prohibits any official action that single[s] out the
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press for special treatment. Minneapolis Star & Tribune Co. v. Minnesota
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Commr of Revenue, 460 U.S. 575, 582 (1983). For example, the government may
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not impose a discriminatory tax on the press. Arkansas Writers Project, Inc. v.
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Ragland, 481 U.S. 221, 227 (1987); Minneapolis Star, 460 U.S. at 591-92.
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The press plays a unique role as a check on government abuse, and a tax limited to
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the press raises concerns about censorship of critical information and opinion.
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That principle prohibits action that singles out the student press by
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depriving such publications of a source of revenue. Pitt News, 379 F.3d at 111.
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taxation of the media or of a segment of the media apply to other laws that impose
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other types of disparate financial burdens, because the press is threatened by any
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financial burdens that may have the effect of influencing or suppressing speech,
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and whether those burdens take the form of taxes or some other form is
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unimportant. Id. at 111-12. The distinction between singling out the press to pay
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disfavored speech by preventing potential speakers from being paid, there would
In Pitt News, the court struck down a law prohibiting student media from
the student press with deprivation of a revenue stream. Id. at 102. As the court
recognized, laws that impose special financial burdens on the media or a narrow
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[g]overnment can attempt to cow the media in general by singling it out for special
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Any such law is unconstitutional unless the government can prove it is necessary
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targeted student media for a special burden by depriving it of revenue that remains
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correctly noted [t]here is a difference between print and event, but the Student
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Government drew the wrong conclusion from that premise, believing it could
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Complaint 64(a), 68; RJN 13. By doing so, the Student Government
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unconstitutionally singled out the press for special treatment unless its decision
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was necessary to achieve a compelling interest and narrowly drawn to achieve that
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Neither UCSD nor the Student Government can prove the elimination of
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student media funding is necessary to serve any compelling interest. The Student
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earmarked for the student press. Therefore, student media funding constituted a
mere 0.7 percent of the Student Governments budget and 5.7 percent of student
organization funding. Complaint 34; RJN 12. If the Student Government had
legitimate budgetary concerns, it could easily have reduced funding across the
board rather than target student media. As a result, the elimination of student media
funding cannot be justified on budgetary grounds. See Minneapolis Star, 460 U.S.
at 586 (states interest in raising revenue did not justify tax on press because the
State could raise the revenue by taxing businesses generally, avoiding the censorial
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viewpoint of The Koala or any other student media. President Suvonnasupa was
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Complaint 64(h); RJN 13. An open forum in a public university does not
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confer any imprimatur of state approval on speech within that forum. Widmar,
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454 U.S. at 274. The proposition that schools do not endorse everything they fail
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to censor is not complicated, and a university does not endorse or support student
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Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990). The requirement of
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protect the First Amendment rights of objecting students. Bd. of Regents of the
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In any event, the Student Government has at least two alternatives to serve
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the interest in disassociation. First, it has required student media to print a detailed
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under which students may seek pro rata refunds for speech to which they object.
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Id. at 232. To the extent students are unaware of that option, the Student
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disassociating from controversy cannot justify the special treatment of the press,
concerns under the First Amendment is clearly available. Minneapolis Star, 460
U.S. at 586; cf. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936, 949 (9th Cir. 2011) (finding ordinance invalid where City has
various other laws at its disposal that would allow it to achieve its stated interests
subsidize student speech. While that may be true, it cannot justify depriving the
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student press of revenue that remains available to subsidize other student speech.
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The selective withdrawal of benefits is not exempt from the First Amendment. It is
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beyond dispute that the government may not deny a benefit to a person on a basis
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that infringes his constitutionally protected ... freedom of speech even if he has no
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entitlement to that benefit. Bd. of County Commrs v. Umbehr, 518 U.S. 668, 674
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The same is true under the Free Press Clause. If the government cannot
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selectively tax the press, it cannot discriminate against the press by selectively
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excluding it from subsidies. For example, it would undoubtedly violate the Free
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available to businesses but singled out the press for special treatment by
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categorically disqualifying the media. Minneapolis Star, 460 U.S. at 582. In either
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case, the government would be targeting the press for a disadvantage not generally
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shared by others, which is precisely what the Free Press Clause prohibits.
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activity fees exists specifically to promote speech. If the Free Press Clause does not
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allow discrimination against the media, it cannot tolerate exclusion of the student
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press from a funding stream intended to promote student speech. To exclude the
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student press from funding that supports other student speech unconstitutionally
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imposes disparate financial burdens on the media or segments of the media. Pitt
Because a law that imposes a significant, but indirect, financial burden on the
media or a segment of the media can be used in the same way and with the same
effect, there is no principled reason to draw a distinction between laws that impose
elimination of student media funding therefore violated the Free Press Clause
because it specifically target[ed] the student press for a burden that is not
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student media, the Free Press Clause does not require a finding of [i]llicit
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legislative intent. Minneapolis Star, 460 U.S. at 592. The elimination of student
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media funding violated the Free Press Clause regardless of any improper censorial
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motive. Arkansas Writers Project, 481 U.S. at 228. The Koala is therefore likely
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In any event, the Student Government also violated the Free Speech Clause
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activity fees on behalf of the university, the Student Government expends funds to
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834. It therefore operates a limited public forum for the speech of student
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529 U.S. at 233; Rosenberger, 515 U.S. at 829; Amidon v. Student Assn of State
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Univ. of New York at Albany, 508 F.3d 94, 100 (2d Cir. 2007). In particular, [a]
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public university may not constitutionally take adverse action against a student
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newspaper like The Koala, such as withdrawing or reducing the papers funding,
has long been a flashpoint for controversy, with the Student Government and
UCSD officials seeking to undermine it because of how bad a black eye it is for
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with numerous individuals specifically demanding to shut down the Koala and
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Student Government meeting, students objected to The Koala and made clear we
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dont want student funds to support it. Complaint 61; RJN 13. The Student
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Government then eliminated funding for student media, with officials declaring the
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need to represent our constituents, condemning the opinion of that group, and
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expressing upset at what has come out of this publication. Complaint 64;
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RJN 13. Senior UCSD officials endorsed the Student Governments decision and
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undertook not to ditch the good ones worthy of this funding and work actively on
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finding ways to encourage and help them financially. Complaint 70 & Ex. 1.
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Those facts make a compelling case that the Student Government intended to
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retaliate against The Koalas viewpoint by eliminating student media funding, with
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UCSD has not always bowed to pressure for censorship of controversial speech.
When a student newspaper reacted to the killing of a Border Patrol agent by
publishing an article entitled Death of a Migra Pig that said, Were glad this pig
died, he deserved to die As far as we care all the Migra pigs should be killed,
every single one, UCSD resisted calls for retaliation, proclaiming [t]he University
is legally prohibited from censoring student publications. Samantha Harris,
Double Standards at UCSD, Foundation for Individual Rights in Education (Feb.
25, 2010), https://www.thefire.org/double-standards-at-ucsd/.
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hostility to The Koalas editorial viewpoint, the community animus against that
viewpoint, and the events leading up to the challenged decision and the legislative
history behind it demonstrate that a discriminatory reason more likely than not
of Yuma, ___ F.3d ___, No. 13-16159, 2016 WL 1169080, at *8 (9th Cir. Mar. 25,
2016); see also Pacific Shores Props., LLC v. City of Newport Beach, 730 F.3d
1142, 1158 (9th Cir. 2013) ([A] court analyzes whether the defendants actions
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(quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-
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68 (1977)).
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and shows that the Student Government discriminated against The Koalas
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viewpoint. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
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520, 540 (1993) (in First Amendment case, as in equal protection cases, we may
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determine the city councils object from both direct and circumstantial evidence,
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including the historical background of the decision under challenge, the specific
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series of events leading to the enactment or official policy in question, and the
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266-68); Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287 & n.2 (1977)
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warnings and safe spaces, like racism, may be a topic of debate, and it is
Therefore, the Student Government may not take action because The Koala
that would further the viewpoint expressed in the Universitys goals. IOTA XI
Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 393
(4th Cir. 1993) (university violated First Amendment by punishing fraternity for
speech with racist and sexist overtones). Although individuals no doubt feel
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demeaned by The Koalas speech, the objections are based entirely on [its] point
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of view, and it is axiomatic that the government may not silence speech because the
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terminate all student media funding. A defendant may not escape liability for
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Pacific Shores, 730 F.3d at 1159. Nor can an employer effectively immunize
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itself from suit if it is so thorough in its discrimination that all similarly situated
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employees are victimized. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
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468 (2d Cir. 2001. Therefore, when a party adopts a facially neutral policy with
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additional purpose to discriminate against poor whites would not render nugatory
the purpose to discriminate against all blacks.); Griffin v. County Sch. Bd. of
Prince Edward Cty., 377 U.S. 218, 231 (1964) (Whatever nonracial grounds might
support a States allowing a county to abandon public schools, the object must be a
qualify as constitutional.).
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parties does not cleanse the taint of discrimination; it simply underscores the depth
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of the defendants animus. Id. at 1159. If the Student Government cannot target
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The Koala in retaliation for The Koalas viewpoint, it cannot target all student
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criticize and condemn speech they despise. However, the government may not
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cross the First Amendment line into censorship by deferring to the wishes or
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Living Ctr., 473 U.S. 432, 448 (1985); cf. Southworth, 529 U.S. at 235 (to substitute
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viewpoint, because [t]he University has taken pains to disassociate itself from the
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private speech involved in this case. Id. at 841. As noted above, the requirement
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of viewpoint neutrality and the refund system address any concerns of students
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The Student Government properly made no claim that The Koalas content is
outside the First Amendment. If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable. Texas v.
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Johnson, 491 U.S. 397, 414 (1989). In particular, the mere dissemination of
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ideasno matter how offensive to good tasteon a state university campus may
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not be shut off in the name alone of conventions of decency. Papish v. Bd. of
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Curators of the Univ. of Missouri, 410 U.S. 667, 670 (1973) (overturning expulsion
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of graduate student for distributing cartoon depicting policemen raping the Statue
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of Liberty and the Goddess of Justice). The First Amendment protects the right to
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unpleasant terms. Rodriguez, 605 F.3d at 709 (quoting Adamian v. Jacobsen, 523
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Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1199 (9th Cir. 1989) (citation
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and quotation marks omitted). Because one mans vulgarity is anothers lyric and
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governmental officials cannot make principled distinctions in this area, the First
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Amendment does not permit censorship based on disgust. Cohen v. California, 403
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U.S. 15, 25 (1971). The First Amendment protects the speech we detest as well as
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the speech we embrace. United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012).
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inherently expressive and thus entitled to First Amendment protection. IOTA XI,
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993 F.2d at 388, 391. In any event, by participating in the debate over safe spaces
and trigger warnings, The Koala addressed a matter of public concern that relates
may be. Snyder v. Phelps, 562 U.S. 443, 453-54, 458 (2011). Satire remains
protected even if it goes beyond the bounds of good taste and conventional
audience. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 54-55 (1988).
None of this is to say UCSD may not condemn The Koala or foster by
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persuasion and example its goals of diversity, respect, and inclusion. Johnson,
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491 U.S. at 418. Though the debate may become heated, [t]he Constitution
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embraces such a heated exchange of views, even (perhaps especially) when they
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concern sensitive topics like race. Rodriguez, 605 F.3d at 708. But the Student
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countered with good ones, not punished by official retaliation. Monteiro v. Tempe
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Union High Sch. Dist., 158 F.3d 1022, 1032 (9th Cir. 1998).
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recognize that a strong First Amendment is not only compatible with equality but
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any movement for social justice. Several landmark free speech cases arose from
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attempts to suppress the civil rights movement. See, e.g., NAACP v. Claiborne
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Hardware Co., 458 U.S. 886 (1982) (overturning judgment against boycott
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372 U.S. 229, 237 (1963) (overturning breach of the peace convictions because
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The First Amendment remains indispensable to protest and dissent today. See, e.g.,
Abdullah v. County of St. Louis, 52 F. Supp. 3d 936, 947 (E.D. Mo. 2014)
These cases demonstrate that [f]ree speech has been on balance an ally of
those seeking change. Governments that want stasis start by restricting speech,
and change depends on the ability of outsiders to challenge accepted views and the
effective right to challenge the status quo. American Booksellers Assn, Inc. v.
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Hudnut, 771 F.2d 323, 332 (7th Cir. 1985), affd, 475 U.S. 1001 (1986). As the
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Ninth Circuit has recognized, [f]ree speech has been a powerful force for the
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spread of equality under the law; we must not squelch that freedom because it may
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B.
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Because The Koala is likely to prevail on the merits, the Court need not
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linger over irreparable harm, balance of equities, and public interest. As a matter of
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law, [t]he loss of First Amendment freedoms, for even minimal periods of time,
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unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373
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74 (1976); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
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The balance of equities and public interest merge when the governments
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conduct is at issue. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
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unconstitutional restrictions. Legend Night Club v. Miller, 637 F.3d 291, 303 (4th
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Cir. 2011). As the Ninth Circuit has confirmed, it is always in the public interest
303 F.3d 959, 974 (9th Cir. 2002). As a result, injunctions protecting First
Amendment freedoms are always in the public interest. American Civil Liberties
Union of Illinois v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012). That principle
applies especially here, because the termination of student media funding violates
the First Amendment rights of both Plaintiff and other student organizations. Klein
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v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).
C.
The Court need not require bond under Rule 65(c) when it concludes there
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conduct. Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). It is proper to
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waive the bond requirement in free speech cases involving no harm to the
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public. Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 738
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were later dissolved. Parties may not recover attorney fees arising from issuance of
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an injunction. Bass v. First Pacific Networks, Inc., 219 F.3d 1052, 1055-56 (9th
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Cir. 2000). Therefore, UCSD will suffer no compensable harm, and no bond
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should be required. Gorbach v. Reno, 219 F.3d 1087, 1092 (9th Cir. 2000)
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CONCLUSION
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Respectfully submitted,
By: s/David Loy
David Loy
davidloy@aclusandiego.org
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Ryan T. Darby
Attorneys for Plaintiff
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