Published On: Thu, Feb 23rd, 2017

Univ of Southern Maine refuses stance on charging ‘free speech’ fees for speakers

A politically conservative student group’s event proceeded late last week at the University of Southern Maine without the need for the group to pay unconstitutional security fees after the school received a letter from Alliance Defending Freedom. University officials agreed not to charge the campus chapter of Young Americans for Freedom fees for their event on the Portland campus featuring a speech by a sitting member of the Maine Legislature on immigration policy and enforcement.

The school originally wanted to charge the group approximately $450 in order to exercise their free speech because administrators deemed it “controversial,” a practice that the courts have repeatedly ruled unconstitutional. In response to the ADF letter that pointed this out, the university’s chief of staff and general counsel, James Thelen, wrote in an e-mail, “To ensure that no one’s constitutional rights are infringed while we are reviewing this matter, USM will not charge YAF security fees for the Thursday evening event.”

photo Josh Janssen via Flickr

“Speech isn’t free when students have to pay hundreds of dollars because others want to protest their viewpoints,” said ADF Legal Counsel Caleb Dalton. “The cornerstone of higher education is the ability to participate freely in the marketplace of ideas on campus, but when administrators have free rein to charge student groups for ‘crowd control’ because their speech is deemed too ‘controversial,’ speech moves from being free to, quite literally, expensive. Policies like this give protestors the ability to veto less popular viewpoints, turning the marketplace of ideas into the intellectual vacuum of intolerance. We commend the university for deciding to review their policies and rescind the assessment of fees in this case. We hope they will make the necessary revisions so that this doesn’t happen again.”

The university’s Use of Facilities and Grounds Policy gives the director of public safety or his designee complete and arbitrary discretion to require and charge for public safety or other police personnel presence. The policy contains no viewpoint-neutral criteria or guidelines to protect minority viewpoints from discrimination thus allowing the University to charge fees for some groups and viewpoints, but let others by with a free pass. In this case, after calling YAF’s speaker “offensive and repulsive” and “distasteful and nasty” and encouraging the student body to “peacefully” protest him, the president of the university said in a Feb. 8 news report that the administration would charge YAF for security because their speaker’s viewpoints were controversial and could lead to “a highly charged situation.”

Courts have repeatedly ruled that the government cannot charge special fees to student groups simply because a controversy “could” erupt, as that can lead to an unconstitutional heckler’s veto. Public universities cannot discourage the expression of unpopular viewpoints by permitting officials to assess fees based on a speaker’s viewpoint.

After receiving the ADF letter on Feb. 13, Thelen wrote that the university would no longer charge the YAF chapter fees, noting that the goal was to ensure an event “where anyone who wishes to do so may properly express their views to the fullest extent permitted by law.” Although protestors did appear at the event Thursday, it proceeded as scheduled.

“Today’s college students will be tomorrow’s legislators, judges, commissioners, and voters. That’s why it’s so important that public universities model the First Amendment values they are supposed to be teaching to students,” said ADF Senior Counsel Casey Mattox, director of the ADF Center for Academic Freedom. “It should disturb everyone when any university communicates to a generation that the Constitution doesn’t matter. In this case, the university took the right first step by suspending its fee policy. It should now revise the policy to conform to constitutional requirements so that free speech will remain truly free on the USM campus for all student organizations.”

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