When controversial speakers (usually from the right) appear on campus, they frequently trigger violent and destructive demonstrations, sometimes leading to physical injuries and inevitable police arrests. The cost of securing the site from this violence poses an enormous problem for university officials. When they attempt to curtail or pass them on to the host, they run into the First Amendment free speech guarantee. In a limited public forum, such as a college campus, restrictions on speech such as a security cost assessment, must be reasonable and viewpoint neutral…“based on a standard that is definite and objective …, one that does not suppress speech merely because public officials oppose the speaker’s view.” In a “designated or traditional public forum” such as public parks, streets and other areas which the government designates as public forums, the burden is stricter. (Seattle Mideast Awareness Campaign v. King County, 781 F. 3d 489 (9th Cir. 2015)). The issue becomes complicated when the colleges evaluate and attempt to assess and pass on security costs based largely on their anticipation of disruption caused by opponents of the host event; they far outweigh the expense required to protect the venue itself, and when passed on threaten to make conservative speeches prohibitively expensive. This “heckler’s veto” runs into the First Amendment free speech guarantee.
The seminal authority is Forsyth County v. Nationalist, 505 U.S. 123 (1992). In the wake of two previous demonstrations, Forsyth County enacted an ordinance requiring that every applicant for a speech on public property pay a fee, not more than $1,000, which could be adjusted by the country administrator “in order to meet the expense incident to (the event) and to the maintenance of public order in the matter licensed.” There were little or no specific criteria guiding imposition of this fee or how much to charge. The Nationalist Movement sought a permit for a parade on public property in opposition to the federal Martin Luther King Jr. holiday. Rather than pay, it successfully challenged the constitutionality of the ordinance because in the first place there were no narrowly drawn definite standards for the administrator to apply. His decision would depend on his measure of the amount of hostility likely to be created by the speech’s content, which he would necessarily have to examine and evaluate. Speaking for the five-person majority, Justice Blackman wrote: “The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listener reaction to a speech is not a content neutral basis for regulation,“ and further: “Regulation which permits the Government to discriminate based on the content of the message cannot be tolerated under the First Amendment.”
