A satirical student publication’s free speech rights may have been violated, court says

Cover of the most recent print issue of The Koala, published in 2016

CALIFORNIA — A student-run satirical publication will proceed with its lawsuit against the University of California San Diego now that an appeals court has reversed a lower court’s dismissal of the case. 

The United States Court of Appeals for the Ninth Circuit says that the university may have violated students’ rights to free speech. The ruling is a victory for free speech and First Amendment advocates, and for student journalism on campus affected by punishment aimed at The Koala.

The appeals court overturned a 2017 ruling that dismissed a lawsuit brought against UCSD by The Koala. The decision can be read in its entirety here

In November 2015, the student government voted to defund all UCSD’s student media outlets, a move that The Koala staff suspected was targeting them following the publication of a controversial article that had prompted complaints from students.

The San Diego American Civil Liberties Union filed a complaint on behalf of The Koala and was backed by an amicus brief from the Student Press Law Center, which was supported by the College Media Association, the Society of Professional Journalists and five other journalism and First Amendment advocacy groups. The Foundation for Individual Rights in Education also filed an amicus brief.

The publication is still considered a sanctioned student organization under the student government, but no longer receives funding because of the initial decision. 

The article in question satirized campus “safe spaces” and trigger warnings and contained racial slurs, including multiple uses of the n-word. In a statement released following the article’s publication, UCSD administrators denounced the magazine’s content, calling it “profoundly repugnant, repulsive, attacking and cruel.” The publication’s content, which some have categorized as hate speech, also drew widespread public criticism from students. But the Supreme Court has decided in seven different cases that hate speech is protected by the First Amendment. 

The principles at stake are not at all limited to The Koala or the kind of newspaper The Koala publishes.

The Koala‘s website has not been updated since April 2018. 

The Koala among the current campus population is somewhat of an urban legend of campus past. If student leaders and administrators were seeking to silence the outlet it seems to have worked,” said Mohamed Al Elew, the 2018-19 editor-in-chief at The Triton, an independent student-run newspaper on the same campus. 

Mike Hiestand, SPLC’s senior legal counsel, said the decision is consistent with precedents that have been set for protecting the free speech of college journalists.   

“At the end of the day, the judges here said pretty much the same thing judges have been saying for close to five decades: Public colleges — and those acting on their behalf — which, as in this case, includes student governments responsible for allocating student activity funds — cannot use their power of the purse to punish student media for what they publish,” Hiestand said. 

The Koala has published pieces using racist, homophobic, Islamophobic, and anti-Semitic slurs and language. Some articles directly targeted specific students on campus by name. In 2003, the publication almost lost its funding following the publication of a special anti-Islam edition of the magazine. Student government leaders said that since The Koala had not included a disclaimer that the views expressed in the publication did not reflect the views of the student government, they were violating the media charter and could be denied funding. The issue was reprinted in 2015, this time containing the mandated disclaimer. In 2010, an anti-black segment ran on Koala TV, a campus broadcast associated with the publication, causing public outrage from students who called the content racist. 

The Koala sees itself as a satire organization, and it may have been at one time, but it currently only exists to stir up hatred and prejudice towards women and minority communities. Students I’ve talked to do not see The Koala as funny or satirical, but purely offensive,” said Ethan Coston, managing editor of The Triton. 

A ruling against The Koala would have potentially set a precedent allowing schools to withhold funding from student media organizations for purely content-based reasons. This decision could restore funding to all UCSD student publications.

“This decision is really a victory for the student press as an institution,” said David Loy, Legal Director of the ACLU of San Diego and Imperial Counties in an interview with The Triton. “The principles at stake are not at all limited to The Koala or the kind of newspaper The Koala publishes.”

The Triton was founded after the student government’s decision to rescind funding, so the publication has never received money from the school. Coston said he does not think other student publications should be punished for The Koala’s content.

“It’s frustrating to see the state of student media on campus, which was partially caused by [student government]’s decision to defund media,” Coston said. “Right now, student media is struggling on campus. While [their] intentions were in response to student outcry over offensive content, it turned into an attack on all student media, which is unacceptable.”

I am frustrated that violating the freedom of the press is our campus leaders’ solution addressing the real pain inflicted by The Koala‘s content.

“If media funding comes back, [student government] and UCSD administration can help support a strong student media infrastructure that can also reduce racist, sexist, homophobic, or transphobic content. That kind of content only exists to harm systematically oppressed communities and stir up hatred and prejudice… [and] has no place in journalism, satire, or in the UCSD community. The MQ [another student-run satire newspaper] is able to publish satirical content that is funny without being racist or offensive. I don’t see why The Koala shouldn’t follow the same guidelines,” said Coston.

“I am frustrated that violating the freedom of the press is our campus leaders’ solution addressing the real pain inflicted by The Koala‘s content,” said Al Elew.

According to Hiestand, The Koala can be held liable for publishing unlawful content, such as obscenity, libel, and invasion of privacy. However, “punishing them for [offensive content] would be considered unlawful censorship,” said Hiestand.

Hiestand said that student journalists can build a strong case to retain funding if it is taken away if they can provide enough evidence that there were content-based concerns involved in the decision.

“It’s vitally important that student media carefully document content-based criticism and threats by student government officials — be it email, voicemail, comments made at a meeting or whatever — so that they have evidence of such content-based motivation should they need it. I’ve always encouraged editors to put all of that stuff into a ‘First Amendment Folder’ that is passed down from staff to staff,” said Hiestand. 

Student journalists facing censorship can contact the SPLC’s legal hotline to receive free legal help. 

SPLC reporter Ginny Bixby can be reached at gbixby@splc.org or at 202-974-6318. Follow her on Twitter at @Ginny_Bixby

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