Public University Requires Extra Security for Pro-Israel Speakers

Mark Tushnet tushnet at law.georgetown.edu
Sat Mar 20 21:17:21 PST 2004


I think this problem is one of the hardest in free speech 
law.  A couple of dimensions need to be separated out.  
(1)  Discriminatory invocation of the imposition of security 
costs -- obviously a problem, but not an interesting one, 
and, according to the post, not present here.  (2)  
Accurate method for determining the extra security costs.  
That's actually the holding of the Forsyth County case to 
which David refers.  The facts aren't sufficiently detailed to 
know if that's involved here.  (3)  Imposition of the 
requirement on impecunious speakers as well as on those 
who can afford to pay.

The hard problem, I think, is the imposition of a cost-
justified fee for excess security costs (that is, those costs 
in excess of the ordinary public expenditures for providing 
police protection -- you can fiddle with whether "ordinary" 
means "in conjunction with the typical demonstration or 
speech" or "in conjunction with daily living," but I don't think 
it makes an interesting difference which way you go) on 
an impecunious speaker.  What are the intuitions people 
have about the constitutionality of imposing a cost-justified 
fee for excess security on Ross Perot?  If it's 
unconstitutional, then the public is subsidizing Perot's 
speech.  If it's constitutional to impose such a fee, there's 
no subsidy running either way -- for all practical purposes, 
Perot [or the group in David's post] is simply paying for a 
security service.  Another way of asking the question is, 
Can Perot be required either to pay the cost-justified fee or 
provide private security services for the event?
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>From this blog post,
http://www.yourish.com/archives/2004/mar14-20_2004.html#2004031804, I learn 
that a student group at Virginia Commonwealth University has invited Daniel 
Pipes, a pro-Israel speaker who is the center of numerous controversies, 
including allegations (false, in my view) that he is "anti-Muslim" to speak, and that 
the University is requiring that the group raise extra money to pay for extra 
security.  On further correspondence with the author of the post, I learn that 
VCU requires all student organizations to provide security if the event 
warrants it, like a dance. Question: Is it constitutionally permissible for a 
public university like VCU to require a student group to spend extra money on 
security for a controversial speaker, or does this situation fall within the USSC 
cases that forbid the government from requiring the KKK, parade organizers, 
etc, from posting bonds, paying for their own security, etc.?  On its face, it's 
sounds very fishy to me that if Muslim and pro-Palestinian students disrupt 
pro-Israel speakers, the pro-Israel groups get taxed for it.


Professor David E. Bernstein
George Mason University School of Law
http://mason.gmu.edu/~dbernste 
blog: http://volokh.com/index.htm?bloggers=DavidB
***********************************************
My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
from Antidiscrimination Laws, has just
been published
***********************************************

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<DIV>From this blog post,</DIV>
<DIV><A href=3D"http://www.yourish.com/archives/2004/mar14-20_2004.html#2004=
031804">http://www.yourish.com/archives/2004/mar14-20_2004.html#2004031804</=
A>, I learn that a student group at Virginia Commonwealth University has inv=
ited Daniel Pipes, a pro-Israel speaker who is the center of numerous contro=
versies, including allegations (false, in my view) that he is "anti-Muslim"=20=
to speak, and that the&nbsp;University is requiring that the group raise ext=
ra money to pay for extra security.&nbsp; On further correspondence with the=
 author of the post, I learn that VCU&nbsp;requires all student organization=
s to provide security if the event warrants it, like a dance.&nbsp;Question:=
 Is it constitutionally permissible for a public university like VCU to requ=
ire a student group to spend extra money on security for a controversial spe=
aker, or does this situation fall within the USSC cases that forbid the gove=
rnment from requiring the KKK, parade organizers, etc, from posting bonds, p=
aying&nbsp;for their own&nbsp;security, etc.?&nbsp; On its face, it's sounds=
 very fishy to me that if Muslim and pro-Palestinian students disrupt pro-Is=
rael speakers, the pro-Israel groups get taxed for it.</DIV>
<DIV>&nbsp;</DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT lang=3D0 face=3DArial size=3D2 FAMILY=3D"SANSSERIF" PTSIZE=3D"10"=
>Professor David E. Bernstein<BR>George Mason University School of Law<BR><A=
 href=3D"http://mason.gmu.edu/~dbernste">http://mason.gmu.edu/~dbernste</A>=20=
<BR>blog: <A href=3D"http://bernstein.blogspot.com/">http://volokh.com/index=
.htm?bloggers=3DDavidB</A><BR></FONT><FONT lang=3D0 face=3DArial color=3D#00=
0000 size=3D1 FAMILY=3D"SANSSERIF" PTSIZE=3D"8">****************************=
*******************<BR>My latest book, <I>You Can't Say That!<BR>The Growing=
 Threat to Civil Liberties<BR>from Antidiscrimination Laws</I>, has just<BR>=
been published<BR>***********************************************</FONT></DI=
V></BODY></HTML>

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