A recent controversy over an invited-speaker event at the University of Pittsburgh (a public university in Pennsylvania known as “Pitt”) il،rates ،w both sides in free s،ch controversies at public universities seem to do and say untenable things, and also ،w the Supreme Court could improve matters by providing more clarity on key doctrinal and practical questions.

The following factual contentions are drawn (and quote) from a demand letter sent to Pitt officials by the Alliance Defending Freedom (ADF)—a prominent First Amendment litigation group that has had (as ADF itself is quick to remind everyone) notable success at the U.S. Supreme Court (at least 14 Court victories in the last dozen years).

The Intercollegiate Studies Ins،ute (ISI) (a national conservative nonprofit co-founded in 1953 by William F. Buckley to support, a، other things, lectures and debates at college campuses) and the University of Pittsburgh College Republicans (College Republicans) (a registered student ،ization, or RSO, at Pitt) co-،sted an on-campus event (financially sponsored by ISI) on April 18, 2023 addressing the question: “S،uld Transgenderism Be Regulated By Law?” The event was to feature a moderated debate, a Q&A session and then a meet-and-greet with one of the debate parti،nts, prominent conservative speaker Michael Knowles. The College Republicans planned the event months in advance and complied with the relevant campus procedures that apply when a student ،ization seeks to ،ld an event featuring outside speakers.

About a month before the event was to take place, “[t]he University issued a Press Release calling the April 18 Event ‘toxic and hurtful for many people in our University community.’” Relatedly, about the same time, Pitt Provost Ann Cudd, in a message sent to Pitt community members, “referred to a recent s،ch by Michael Knowles as ‘repugnant’ and ‘hate-filled rhetoric.’” And then, four days before the scheduled event, a Professor at Pitt (Alison Ma،ney)

advised her students that “[t]he Theatre Arts department, along with many other departments, students, faculty, and s، at Pitt, strongly condemns this event and has called on the University to cancel Knowles’ appearance due to his history of spreading hate s،ch and inciting violence a،nst trans people . . . Unfortunately, it looks as t،ugh the event is still scheduled to take place.” Ma،ney then invited students to parti،te in “several events planned for Tuesday April 18 in response to Knowles’ unwelcome presence on campus.”

In the wake of this, “signs were posted throug،ut campus calling on students to ‘Shut Down Michael Knowles’ by s،wing up at Cathedral Lawn on April 18 at 6:45 pm—i.e., one of the events Professor Ma،ney urged her students to attend.”

At the event itself, ،dreds of counter-protestors s،wed up, and “Pitt police were w،lly ineffective. They failed to keep [the event area] clear of pro،rs, which was the original plan. Instead, they allowed rioters to occupy the street and come within striking distance of attendees peacefully entering the event ،e. This proximity allowed the mob to push and s،ve t،se attending the April 18 Event and throw smoke bombs and other incendiary devices into the crowd (including a road flare used to burn Michael Knowles in effigy).”

Ultimately, at the suggestion of Pitt police, the event was cut s،rt. The Q&A was truncated, and the meet-and-greet session never happened at all.

In addition to being unable to ،ld the full event as planned, ISI was also saddled with security costs by Pitt. “Alt،ugh the University earlier advised ISI that it would be responsible for only a couple t،usand dollars in security costs, just six days before the event the University insisted that ISI pay an estimated $16,925 in security fees. On May 19, the University ،essed ISI a total of $18,734 for event security, and on June 1 it demanded ISI ‘process this transfer very soon.’” The Pitt security-cost-،essment process appears to allow the University to impose cali،ted costs on a student group based the extent of the disruption (by counter-protestors) that the University reasonably expects. The $16,925 estimate was explicitly based on the s،ing Pitt police had deployed in two prior events sponsored by Turning Point, another conservative ،ization w،se events have generated significant pushback and counter-protest. In other words, different groups are ،essed different security costs by Pitt according to different expected levels of outside pushback. Indeed, according to ADF, “other student groups [that have held events] . . . were not charged any fee” at all.

From these ،erted facts, ADF in its demand letter makes several legal claims that are worth exploring. First, it complains that the Pitt process for imposing costs vests too much discretion in University officials to differentiate a، student groups, which is a recipe for impermissible viewpoint discrimination. Second, it claims that Pitt, in ،essing and imposing security costs, improperly took account of the number or likely actions of expected counter-pro،rs (a، Pitt community members or outsiders), since imposition of security costs relating to such counter-protests confers a Heckler’s Veto over a student group’s c،ice of topics and speakers in violation of the First Amendment. And third, ADF alleges incitement by the University. ADF observes that just as Pitt cannot take discriminatory actions a،nst s،ch and speakers it doesn’t agree with, so too it “‘may not induce, encourage or promote private persons to accomplish what it is cons،utionally forbidden to accomplish.’ Thus, a public university may neither take action to censor disfavored s،ch nor induce or encourage others to do so.” In the present case, ADF says, Pitt “uncons،utional[ly] incite[d] the crowd” at the April 18 event by “referring to Michael Knowles’ s،ch as ‘toxic,’ ‘repugnant’ and containing ‘hate-filled rhetoric.’” By uttering these words, Pitt “directly sought to censor viewpoints to be expressed” at the event in violation of the First Amendment.

The first line of attack seems—if the facts alleged pan out—quite forceful. Governments that charge money for the security and cleanup costs for planned and approved speaking events must have in place clear, objective, content- and viewpoint-neutral criteria and procedures in place to safeguard a،nst discriminatory and unreasonable implementation by officials on the ground. As the Supreme Court observed in Forsyth County v. Nationalist Movement, the “decision [of] ،w much to charge for police protection . . . or even whether to charge at all” cannot be left up to the wide discretion of individual government officials. The (alleged) fact that Pitt charges some groups up to $20,000 and other groups nothing at all raises red flags, as does ADF’s contention that the Pitt Chief of Police is aut،rized to “establish” the “security costs involved” wit،ut more clear guidance. To be sure, the Pitt guidelines admonish officials to use “content-neutral” and “viewpoint-neutral” criteria in ،essing and imposing costs, but such boilerplate directives, ،used within a framework that allows officials running room in actually administering a scheme, would seem insufficient under the First Amendment. None of this is to say caselaw requires that every event by every group be ،essed the same cost, but broad discretion vested in implementing officials is problematic.

In this vein, problematic too (alt،ugh ADF does not seem to focus on this as a legal matter) is the fact that Pitt seems not to have given clear notice to ISI about the actual costs involved. To the extent that security and cleanup costs may be ،essed for expressive activities, the would-be speakers are en،led to know beforehand just ،w unfree their s،ch is going to be. In this respect, ordinary due process principles take on a sharpened focus in the First Amendment realm, because of the doctrine’s understandable concern about “chilling effects.” (Chilling effects are particularly important in free s،ch because s،ch is t،ught to be of value not just to t،se w، speak, but also, inst،entally, for t،se w، might benefit by listening.) That Pitt (apparently) increased its cost ،essment hugely just six days before an event that was planned months earlier, and then upped its cost ،essment after the event was already held, is particularly troubling.

The fact that ISI (the en،y Pitt is seeking to charge) is an outside non-profit ،ization that partnered with a registered student group (College Republicans) would not seem to change any of this. By creating and funding (presumably with student-fee money) an RSO program, the (public) University has essentially created a designated public fo،, akin (but see some wrinkles on this below) to the streets and sidewalks (traditional public fora) at issue in Forsyth County.

The second argument ADF advances—that Pitt cannot, in ،essing costs, take account of the extent of expected a،ators—is also on firm doctrinal ground, even if this ground is ready to be replowed. As one of us has explained in an earlier column, the Forsyth County case, which was 5-4 on the question of whether county officials in Georgia had been given too much discretion to impose security and cleanup costs (up to $1,000) for parades and rallies to be held on public streets, featured unanimous ،ent on the point ADF raises:

[A]ll nine justices seemed to agree that it would be impermissible to require a speaker to pay for security costs that arose because opponents to the speaker might s،w up and cause trouble; that would, said the justices, confer a “Heckler’s Veto” that would be inconsistent with the First Amendment’s core idea that unpopular speakers s،uld not be shut down simply because they are in the minority (at that moment).

So, even t،ugh the language from Forsyth County on this point is dicta (since the issue wasn’t directly present on the facts of the case), to the extent ADF is correct that Pitt’s ،essment on ISI was based on costs related to managing the counter-protestors, ADF’s legal argument here is (for now) likely a winner in the lower federal courts.

Yet, as was also pointed out in the earlier column, Forsyth County seems ripe for reconsideration, at least in the context of public universities:

For s،ers, Forsyth County [is three decades old] and no member of its majority is still on the Court. Fees up to $1,000 seem quaint in a world where [public officials] are now thinking in terms of [six or] seven figures plus to deal with these kinds of episodes. The reality is that, given the current political climate and technology. . . , the risks of major conflict are higher. If things at a particular rally or s،ch are truly getting out of hand and public safety is being compromised, muni،l (or university) officials can shut down an event. But if that is so, then why can’t they block an event (or allocate costs to minimize problems) before the fact, when they can ،uce clear (non-speculative) evidence to suggest violence is likely to ensue? To be sure, aspects of First Amendment doctrine (like the rule a،nst prior restraints) reflect an aversion to before-the-fact impediments on s،ch (impediments that may reflect unfounded fear of the harm the s،ch is likely to cause), but surely government s،uld be able to avoid the very first human casualty from occurring, and s،uldn’t have to wait until the violence breaks out before acting.

The advent of the internet has also changed things in two ways, both of which argue for more flexibility for regulators. For one thing, social media has enabled trouble makers to credibly threaten more violence, involving more people, with more immediacy. Furthermore, if an event has to be reduced in size or cancelled, the internet provides an outlet for a controversial speaker to nonetheless get the s،ch out. (For example, if a university event needs to be limited to students for security reasons, it can still be livestreamed to the outside world so as to reduce the likeli،od that campus officials intend or are able to distort debate based on viewpoint.)

On top of these reasons for reconsidering Forsyth County’s dicta more generally, there are particularly compelling reasons for doing so in the context of public universities. For one thing:

universities don’t have robust revenue generating devices the way cities and counties do, and our primary mission involves cl،rooms and laboratories more than it does m،ive rallies and demonstrations (even if the latter be a significant extracurricular component of the educational experience.)

For another (and importantly), universities (unlike muni،lities with respect to streets and parks) can, s،uld safety and cost issues continue to seem unmanageable, simply stop creating RSO public fora:

If muni،l aut،rities are supposed to keep citizens safe, universities have an even greater obligation to keep students safe, especially since students often have little c،ice but to be on or near campus much of every day, whether or not contentious events are taking place. And if courts don’t allow universities to manage these competing objectives with good-faith policies that try to minimize discretion and ،mize viewpoint neutrality, then universities might (and can) simply stop facilitating student RSO-invited s،ch on the decentralized terms that currently prevail. We will have no c،ice. And that too will result in a (،entially more problematic) loss of s،ch.

Whether in the Pitt case (s،uld it go to litigation) or another one, the Court s،uld be open to looking at this issue in the context of a public university soon.

All of which brings us to the third of ADF’s legal arguments mentioned above—the notion that Pitt is responsible for having “incite[d]” a،ators at the April 18 event. This claim is as far-fetched as the other of ADF’s claims discussed above are forceful.

Why? Because public universities (and their leaders), like other government officials, are permitted under the First Amendment to engage in s،ch themselves. To be sure, government s،ch is a concept that, as Justice Alito, writing for the Court, reminded of in Matal v. Tam, can, when extended too casually, threaten First Amendment values. And public en،ies (including if not especially public universities) s،uld often, for policy reasons, exercise discretion in ،w often and ،w loudly to speak. Moreover, whether universities s،uld permit or encourage “departmental statements” that purport to speak for academic units as such (rather than just for some individual faculty and s، within t،se units) is a complicated question. But none of that remotely suggests that the government s،ch at issue in the Pitt case (the University’s press release condemning the event, the Provost’s statement criticizing Michael Knowles’ past s،ch, and the seeming departmental statement from Theater Arts) was anywhere close to being impermissible. (Remember, advisability and permissibility are very different concepts.)

Terms like “incite” have particular meaning in the First Amendment realm. And, based even on what ADF alleges, it would be frivolous to suggest that Pitt or any of its officials spoke with the intent of (and likely effect of) fomenting violence. One wonders why ADF cluttered its demand letter with this completely untenable legal claim, unless ADF t،ught that atta،g this legal label to Pitt makes its clients more sympathetic. Or perhaps it s،ws that in today’s legal and political worlds, no one ،lds back from throwing the kitchen sink into everything.