the koala's motion for preliminary injunction against ucsd

8/16/2019 The Koala's motion for preliminary injunction against UCSD

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David Loy (SBN 229235)ACLU FOUNDATION OF SAN DIEGO &IMPERIAL COUNTIESP.O. Box 87131San Diego, CA 92138-7131Telephone: (619) 232-2121Facsimile: (619) [email protected]

Ryan T. Darby, Esq. (SBN 264357)THE LAW OFFICE OF RYAN T. DARBY 525 B Street, Suite 1500San Diego, CA 92101Telephone: (619) 858-4766Facsimile: (619) [email protected]

Attorneys for Plaintiff THE KOALA

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

THE KOALA,

Plaintiff,

v.

PRADEEP KHOSLA, et al.,Defendants.

Case No.:

PLAINTIFF’S MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT OF MOTION FORPRELIMINARY INJUNCTION

'16CV1296 BLMJM

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 1 of 29


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................iii

INTRODUCTION .................................................................................................... 1

STATEMENT OF FACTS ...................................................................................... 2

A. UCSD’s student government exercises official authority over studentaffairs with oversight by the Chancellor, who is responsible for its compliancwith legal requirements. ................................................................................... 2

B. University policy establishes a forum for supporting student speech on awide range of issues, with clear disclaimers of official endorsement and a

process to issue pro rata refunds to students who object to certain speech. .... 3

C. The Koala is a registered student organization with a history of publishinga controversial newspaper that draws the ire of the Student Government and

UCSD administration. ...................................................................................... 4D. Immediately after The Koala published a controversial satire on a topicalissue of public concern, the Student Government eliminated all funding forstudent media but continued funding other forms of speech. .......................... 5

ARGUMENT ............................................................................................................. 9

A. The Student Government reacted to a recent issue of The Koala byunconstitutionally singling out the student press and discriminating against thviewpoint of student speech…………………………………………………10

1. The First Amendment governs the Chancellor and Student Government

officials…………………………………………....................................102. By stripping the student press of resources available to fund other studen

speech, the Student Government violated the Free Press Clause............10

3.With the endorsement if not encouragement of UCSD officials, theStudent Government violated the Free Speech Clause by terminatingmedia funding in retaliation for The Koala’s editorial viewpoint……...15

4 .The Koala’s speech is constitutionally protected……………….............20

B. Deprivation of First Amendment rights is irreparable harm as a matter oflaw, for which the balance of equities and public interest favor an

injunction…………………………………………………………………….22

C. No bond is required because UCSD will incur no compensable costs ordamages from issuance of an injunction to protect the First Amendment......23

CONCLUSION……………………………………………………………………24



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TABLE OF AUTHORITIES

CASES

Abdu-Brisson v. Delta Air Lines, Inc. 239 F.3d 456 (2th Cir. 2001) ............................................................................ 18

Abdullah v. County of St. Louis 52 F. Supp. 3d 936 (E.D. Mo. 2014) ................................................................ 22

Alliance for the Wild Rockies v. Cottrell 632 F.3d 1127 (9th Cir. 2011) ............................................................................ 9

American Booksellers Ass’n, Inc. v. Hudnut 771 F.2d 323 (7th Cir. 1985) ............................................................................ 22

American Civil Liberties Union of Illinois v. Alvarez 679 F.3d 583 (7th Cir. 2012) ............................................................................ 23

Americans for Prosperity Found. v. Harris 809 F.3d 536 (9th Cir. 2015) .............................................................................. 2

Amidon v. Student Ass’n of State Univ. of New York at Albany 508 F.3d 94 (2d Cir. 2007) ......................................................................... 10, 15

Amidon v. Student Ass’n of State Univ. of New York at Albany 399 F. Supp. 2d 136 (N.D.N.Y. 2005) ............................................................. 10

Arkansas Writers’ Project, Inc. v. Ragland 481 U.S. 221 (1987) ................................................................................... 11, 15

Ave. 6E Investments, LLC v. City of Yuma, No. 13-16159, 2016 WL1169080 (9th Cir. 2016) ................................................................................... 17

Baca v. Moreno Valley Unified School Dist .936 F. Supp. 719 (C.D. Cal. 1996) ................................................................... 23

Bass v. First Pacific Networks, Inc.

219 F.3d 1052 (9th Cir. 2000) .......................................................................... 23 Bd. of County Comm’rs v. Umbehr

518 U.S. 668 (1996) ......................................................................................... 14

Bd. of Educ. of Westside Cmty. Sch. v. Mergens 496 U.S. 226 (1990) ......................................................................................... 13

Bd. of Regents of the Univ. of Wisconsin Sys. v. Southworth 529 U.S. 217 (2000) ............................................................................. 13, 15, 19

Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n 531 U.S. 288 (2001) ......................................................................................... 10

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

508 U.S. 520 (1993) ......................................................................................... 17City of Cleburne v. Cleburne Living Ctr.

473 U.S. 432 (1985) ......................................................................................... 19

Cohen v. California 403 U.S. 15 (1971) ........................................................................................... 20

Comite de Jornaleros de Redondo Beach v. City of Redondo Beach 657 F.3d 936 (9th Cir. 2011) ............................................................................ 14



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iv

Daniels–Hall v. National Educ. Ass’n 629 F.3d 992 (9th Cir. 2010) .............................................................................. 2

Drakes Bay Oyster Co. v. Jewell 747 F.3d 1073 (9th Cir. 2013) .......................................................................... 22

Dworkin v. Hustler Magazine, Inc. 867 F.2d 1188 (9th Cir. 1989) .......................................................................... 20

Edwards Jr., et al. v. South Carolina 372 U.S. 229 (1963) ......................................................................................... 21

Elrod v. Burns 427 U.S. 347 (1976) ......................................................................................... 22

Flint v. Dennison 488 F.3d 816 (9th Cir. 2007) ............................................................................ 10

Galassini v. Town of Fountain Hills, No. CV-11-02097-PHX-JAT,2011 WL 5244960 (D. Ariz. 2011) .................................................................. 23

Gorbach v. Reno 219 F.3d 1087 (9th Cir. 2000) .......................................................................... 23

Griffin v. County Sch. Bd. of Prince Edward Cty. 377 U.S. 218 (1964) ......................................................................................... 19

Grosjean v. Am. Press Co. 297 U.S. 233 (1936) ......................................................................................... 11

Hardie v. Nat’l Collegiate Athletic Ass’n. 97 F. Supp. 3d 1163 (S.D. Cal. 2015) .............................................................. 18

Hunter v. Underwood 471 U.S. 222 (1985) ......................................................................................... 18

Hustler Magazine, Inc. v. Falwell 485 U.S. 46 (1988) ........................................................................................... 21

IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Univ. 993 F.2d 386 (4th Cir. 1993) ...................................................................... 18, 20

Jorgensen v. Cassiday 320 F.3d 906 (9th Cir. 2003) ............................................................................ 23

Klein v. City of San Clemente 584 F.3d 1196 (9th Cir. 2009) .......................................................................... 23

Leathers v. Medlock 499 U.S. 439 (1991) ......................................................................................... 11

Legend Night Club v. Miller 637 F.3d 291 (4th Cir. 2011) ............................................................................ 22

Melendres v. Arpaio 695 F.3d 990 (9th Cir. 2012) ...................................................................... 22, 23

Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue 460 U.S. 575 (1983) ................................................................. 11, 12, 13, 14, 15

Monteiro v. Tempe Union High Sch. Dist .158 F.3d 1022 (9th Cir. 1998) .......................................................................... 21



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v

Mt. Healthy City Sch. Dist. v. Doyle429 U.S. 274 (1977) ......................................................................................... 17

NAACP v. Claiborne Hardware Co. 458 U.S. 886 (1982) ......................................................................................... 21

O’Grady v. Super. Ct. 139 Cal. App. 4th 1423 (2006) ......................................................................... 11

Pacific Shores Props. , LLC v. City of Newport Beach 730 F.3d 1142 (9th Cir. 2013) .............................................................. 17, 18, 19

Papish v. Bd. of Curators of the Univ. of Missouri 410 U.S. 667 (1973) ......................................................................................... 20

Rodriguez v. Maricopa Cty. Cmty. Coll. Dist. 605 F.3d 703 (9th Cir. 2010) ......................................................... 18, 20, 21, 22

Rosenberger v. Rector and Visitors of Univ. of Virginia 515 U.S. 819 (1995) ........................................................................ 1, 15, 18, 19,

Rounds v. Oregon State Bd. of Higher Educ.166 F.3d 1032 (9th Cir. 1999) ......................................................................... 10

Sammartano v. First Judicial Dist. Ct .303 F.3d 959 (9th Cir. 2002) ............................................................................ 23

Scheetz v. Morning Call, Inc. 747 F. Supp. 1515 (E.D. Pa. 1990) ................................................................... 10

Shuttlesworth v. City of Birmingham 394 U.S. 147 (1969) ......................................................................................... 22

Snyder v. Phelps 562 U.S. 443 (2011) ......................................................................................... 21

Stanley v. Magrath 719 F.2d 279 (8th Cir. 1983) ............................................................................ 16

Texas v. Johnson 491 U.S. 397 (1989) ................................................................................... 20, 21

Thalheimer v. City of San Diego 645 F.3d 1109 (9th Cir. 2001) .................................................................. 2, 9, 22

The Pitt News v. Pappert 379 F.3d 96 (3d Cir. 2004) ................................................................... 11, 12, 15

United States v. Alvarez 132 S. Ct. 2537 (2012) ..................................................................................... 20

United States v. Playboy Entm’t Grp., Inc. 529 U.S. 803 (2000) ......................................................................................... 20

Widmar v Vincent 454 U.S. 263 (1981) ................................................................................... 10, 13

Winter v. Natural Resources Defense Council, Inc.555 U.S. 7 (2008) ............................................................................................... 9



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1

INTRODUCTION

Under the First Amendment, a public university must be a home for free

expression, a haven for free “thought and experiment.” Rosenberger v. Rector and

Visitors of Univ. of Virginia, 515 U.S. 819, 835 (1995). Unfortunately, the

University of California, San Diego has ignored the First Amendment. After a

student newspaper published a controversial satire, officials stripped the entire

student press of funding dedicated to the support of student speech. This Court’s

intervention is necessary to protect the First Amendment, prevent discrimination

against the press, and prohibit viewpoint-based retaliation.

The University of California has established a forum funded by campus

activity fees to support the speech of student organizations. By university policy,

the forum is dedicated to expression of the broadest range of ideas on a variety of

topics. The university delegated administration of the forum to student

government. For over 30 years, The Koala has qualified as a registered student

organization and received funding from that forum to publish a satirical newspaper.

The Koala has long been controversial for its editorial viewpoint, and the university

has repeatedly sought to undermine its publication.Recently, The Koala published a satire of “trigger warnings” and “safe

spaces,” topics of public concern. A number of people found the satire outrageous

due to its invocation of racial epithets and stereotypes and launched a campaign to

shut down or defund The Koala. In response, the student government eliminated

funding for student media but continued to fund other forms of student speech.

A senior administrator endorsed the decision, with direction not to “ditch the good

ones worthy of this funding” and to “work actively on finding ways to encourage

and help them financially.”

With the administration’s endorsement if not encouragement, the student

government violated the First Amendment in two ways. First, it violated the Free

Press Clause by depriving the student press of revenue that remains available to



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support other forms of student speech. Second, it violated the Free Speech Clause

by discriminating against The Koala’s viewpoint. Although the decision to

eliminate student media funding was ostensibly neutral, the government cannot

evade liability for viewpoint discrimination simply by inflicting collateral damage

on third parties.

The Koala remains protected speech that cannot be censored without

threatening the freedom of any controversial speech, which is precisely what the

First Amendment is designed to protect. As history demonstrates, a strong First

Amendment is not only compatible with equality but essential to its pursuit,

because freedom of speech is the lifeblood of protest and dissent.

Because The Koala is likely to prevail on the merits, it necessarily meets the

test for a preliminary injunction. First Amendment violations cause irreparable

harm as a matter of law, and the balance of equities and public interest always favor

protecting constitutional rights. The Court is therefore respectfully requested to

issue a preliminary injunction prohibiting Defendants from categorically refusing to

fund the publication of student print media.

STATEMENT OF FACTS

A.

UCSD’s student government exercises official authority overstudent affairs with oversight by the Chancellor, who isresponsible for its compliance with legal requirements.

As stated in the verified complaint, the University of California, San Diego

(“UCSD”) is one of several public university campuses in the state.1 The

Associated Students of UCSD (“Student Government”) is the student government

and exercises powers delegated by the university, subject to the UCSD Chancellor’s

1 A verified complaint is treated as an affidavit in support of a preliminaryinjunction. Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011).The Court may also take judicial notice of official documents cited in theComplaint and Request for Judicial Notice. Daniels–Hall v. National Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010). In any event, the rules of evidence do notstrictly apply to preliminary injunctions. Americans for Prosperity Found. v.

Harris, 809 F.3d 536, 540 n.3 (9th Cir. 2015).



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oversight to ensure that its actions are “consistent with legal requirements.”

Complaint ¶¶ 12-13; Request for Judicial Notice (“RJN”) ¶¶ 3, 5.

B. University policy establishes a forum for supporting studentspeech on a wide range of issues, with clear disclaimers of official

endorsement and a process to issue pro rata refunds to studentswho object to certain speech.

UCSD collects campus activity fees from its students and allocates the

income to the Student Government, which dedicates a portion to support the speech

of registered student organizations. Complaint ¶¶ 17-20; RJN ¶¶ 4, 7. According

to university policy, student governments provide “financial and other tangible

support for student activities and organizations … to further discussion among

students of the broadest range of ideas,” and they disburse campus activity fees “to

stimulate on-campus discussion and debate on a wide range of issues from a variety

of viewpoints.” Complaint ¶¶ 21-22; RJN ¶¶ 5, 7.

The Student Government’s funding decisions “must be viewpoint-neutral in

their nature; that is, they must be based upon considerations which do not include

approval or disapproval of the viewpoint of the Registered Campus Organization or

any of its related programs or activities.” Complaint ¶ 23; RJN ¶ 7.The Student Government has adopted Standing Rules to administer the

funding process. To obtain funding, organizations must be registered with the

Student Government, and funding allocations do not constitute any official

endorsement. Print media funded by the Student Government were required to

include a disclaimer that the “views expressed in this publication are solely those of

, its principal members and the authors of the content of

this publication,” and not of the Student Government, UCSD, the University of

California, or the Regents. The Student Government publishes a Funding Guide

describing the viewpoint-neutral conditions for funding student speech, which

includes the same disclaimer. Complaint ¶¶ 24-28; RJN ¶¶ 9-10.



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Taken together, university policies and the Student Government’s rules

establish a forum for funding the speech of registered student organizations.

Although the Standing Rules provide administrative channels for supporting

various forms of speech within that forum, the disbursement of campus activity fees

remains a single forum for funding student speech. Complaint ¶¶ 29-30.

In addition to supporting The Koala and other publications such as The Left

Coast Post , Fashion Quarterly, and The Muir Quarterly, the Student Government

has funded a wide range of expression by student organizations on cultural,

political, and religious topics. Complaint ¶ 31; RJN ¶ 11. Given the breadth of

speech funded by campus activity fees, UC policy authorizes student governments

to provide “a pro rata refund to any student of that portion of his or her compulsory

campus-based student fees” allocated “to support a particular Registered Campus

Organization or Registered Campus Organization-related program or activity.”

Complaint ¶ 32; RJN ¶ 6. The Student Government allows any student to “request

a pro-rata refund of a portion of the Campus Activity Fee for any allocation for

political, religious, and ideological grounds.” Complaint ¶ 33; RJN ¶ 9.

C.

The Koala is a registered student organization with a history ofpublishing a controversial newspaper that draws the ire of theStudent Government and UCSD administration.

The Koala is a registered student organization that publishes a satirical

student newspaper at UCSD. It has consistently qualified for and received funding

from the Student Government, as have other student organizations. The Koala’s

speech has provoked significant controversy, and both the Student Government and

UCSD administration have not only condemned but also attempted to undermine

The Koala due to its viewpoint. Complaint ¶¶ 35-40, 73.

In 2002, the university unsuccessfully attempted to revoke The Koala’s

registration as a student organization, and therefore its access to funding, because

one of its members allegedly took photographs at a public meeting hosted by



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another student organization, and The Koala subsequently published them in a

manner that mocked the other organization. Complaint ¶ 41; Liddle Decl. ¶¶ 3-7.

In 2010, then-Student Government President Utsav Gupta unilaterally

suspended all student media funding to retaliate against content The Koala

broadcast on a UCSD television channel.2 The Student Government then explored

means of defunding The Koala before resuming media funding. As then-President

Gupta wrote in February 2010, “The Koala has long since been a controversial

publication at UC San Diego and is primarily funded by our student fees. I do not

believe we should continue funding this organization with our fees. We must

develop effective policies to ensure that our fees do not go to support the hateful

speech that targets members of our community.” Complaint ¶ 43 & Ex.1.

Then-Vice Chancellor for Student Affairs Penny Rue applauded Mr. Gupta

for working “tirelessly to find a way to disestablish the [Student Government’s]

relationship with the Koala, but a concerted effort by other media groups and the

spotlight of upcoming elections has hampered his efforts. I cannot tell you how bad

a black eye it is for the University that we do not seem to have the power to cut our

ties to this body.” Complaint ¶ 44 & Ex. 1. Assistant Vice Chancellor of StudentLife Gary Ratcliff wrote to Ms. Rue and a faculty member, alluding to methods he

“advised student leaders to consider in order to discontinue student government

funding of the Koala.” Complaint ¶ 45 & Ex. 1.

D. Immediately after The Koala published a controversial satire on atopical issue of public concern, the Student Governmenteliminated all funding for student media but continued fundingother forms of speech.

The controversy over The Koala’s viewpoint continued into the current

academic year. On November 12, 2015, UCSD received a complaint stating “[t]he

2 Steve Schmidt, Show’s racial slur prompts hold on UCSD student media, SanDiego Union-Tribune (Feb. 23, 2010, 12:02 a.m.), http://www.sandiegouniontribune.com/news/2010/feb/23/ucsd-media-outlets-see-funds-frozen/



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• “Last night they released an article on thekoala.org that mocked students’need for safe spaces, and included allusions to sexual violence and racistacts…. I would like to see UCSD dismantle The Koala immediately.”

• “The Koala, titled ‘UCSD Unveils New Dangerous Space on Campus,’ promotes hate speech and perpetuates racism and sexism. UCSD shouldhave no place or space for such discrimination…. Defund and shut downThe Koala.”

• “I would like the University to shut down the koala newspaper and thecreators of the newspaper should be punished by their college deans.”

• “The latest article in the Koala is blatantly offensive and preaches a single point of view…. It is evident that UCSD is not overseeing this hatefulrhetoric. Therefore, the students need control to hold individualsaccountable.”

• “Find ways to address the Koala by defunding it …”

•

“Defund The Koala.”

Complaint ¶ 52 & Ex. 1.

The complaints were forwarded to senior UCSD officials, who discussed

them intensively. Complaint ¶¶ 53-57 & Ex. 1. On November 18, UCSD released

a “Statement Denouncing Koala Publication From UC San Diego Administration,”

signed by the Chancellor and senior officials. The administration “strongly

denounce[d] the Koala publication” and its “offensive and hurtful language,” calledThe Koala “profoundly repugnant, repulsive, attacking and cruel,” and asked the

rest of the campus “to join us in condemning this publication.” Complaint ¶ 58 &

Ex. 1. On the same date, a senior UCSD official wrote, “Please note Koala get[s]

no University funding[.] The Associated Students find [sic] them. Pressure should

[be] brought to that organization to end the madness.” Complaint ¶ 59 & Ex. 1.

During the evening of November 18, 2015, the Student Government held its

regular meeting, where the Vice Chancellor for Student Affairs read the official

statement denouncing The Koala and speakers objected to funding The Koala.

Complaint ¶¶ 61-62; RJN ¶ 13. A motion was then made to delete Title V, §

2.4(d)-(f) of the former Standing Rules, which provided the channel for funding

publication of student media. Complaint ¶ 63; RJN ¶ 13. The motion did not affect



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funding for any other form of student speech. In debate on the motion, Student

Government officials made comments including:

• “President Suvonnasupa: The question is do we fund media at all?It expresses an opinion of that group. Should student fees be used to fund

these events? There is a difference between print and event in myopinion.”

• “AVP Juarez: Objectivity does not exist. I’m really upset what has comeout of this publication.”

• “Senator Roberts: We nix them now does not mean that others who arefunded by this cannot find alleyways to find different ways of funding.But we should nix this media funding now.”

• “Senator Pennish: I think alternate funding needs to be secured.It shouldn’t be to pull funding away because some groups benefit and are

positive to the campus.”

•

“Senator Vu: Campus climate has gotten so bad across the country. I feellike this should happen so we can represent our constituents.”

• “VP CA Valdivia: I am open to finding alternative funding. It’s beentalked about before and nothing has been done. Something should bedone now.”

• “President Suvonnasupa: It has to be looked as a whole. We aren’t sayingwe are limiting free speech. Everything printed on AS Funds is ASresponsibility. Everything printed, good or bad, is partially ourresponsibility.”

Complaint ¶ 64; RJN ¶ 13.The motion carried, with a statement from the Student Government that

“standing rules supersede the Funding Guide with respect to media funding. AS

does not fund printed media.” Complaint ¶ 65; RJN ¶ 13. As a result, the Student

Government eliminated funding for publication of student media, including but not

limited to The Koala, but not other forms of student speech. Complaint ¶¶ 66, 71;

RJN ¶¶ 9, 13.

On the next day, Mr. Ratcliff wrote to various UCSD officials, including Mr.

Gonzalez, Ms. Pettit, and Ms. Kristofco, noting that “the Associated Students (AS)

voted to discontinue funding publications of media student organizations” and

equating student media with “equipment, travel, and food.” Complaint ¶ 68 &



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Ex. 1. Mr. Ratcliff noted that certain student media might still receive funding from

colleges or departments with which they are affiliated. Complaint ¶ 68 & Ex. 1.

Mr. Gonzalez forwarded the message to Chancellor Khosla and Executive

Vice Chancellor of Academic Affairs Suresh Subramani, among others. In reply,

Mr. Subramani directed Mr. Gonzalez, “Let’s not ditch the good ones worthy of

this funding and work actively on finding ways to encourage and help them

financially. I know you are working on this.” Complaint ¶ 70 & Ex. 1.

After eliminating student media funding, the Student Government has

continued to fund numerous other forms of student speech on multiple topics.

Complaint ¶ 72; RJN ¶ 11. UCSD has refused to allow The Koala to participate in

Crowdsurf, a crowdfunding platform for student and campus projects, and The

Koala has been unable to obtain funding from any of UCSD’s colleges. Complaint

¶¶ 79-80. Though The Koala previously published up to six issues per academic

year and planned to do so this year, the elimination of campus activity fee funding

for student media forced it to cancel its winter issue and cut back to three issues.

Complaint ¶ 78.

ARGUMENT A preliminary injunction is warranted if The Koala shows a likelihood of

success on the merits and irreparable harm, and the balance of equities and public

interest favor an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

20 (2008). If “the balance of hardships tips sharply” in The Koala’s favor, it only

needs to demonstrate “serious questions going to the merits.” Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

The Koala bears “the initial burden of making a colorable claim that [its]

First Amendment rights have been infringed, or are threatened with infringement, at

which point the burden shifts to the government to justify the restriction.”

Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011). The Koala

is likely to prevail on the merits or at least presents serious question on the merits.



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The Student Government violated both the Free Press and Free Speech Clauses by

cutting off student media funding. The Koala is suffering irreparable harm as a

matter of law, and the balance of equities and public interest necessarily favor

protection of constitutional rights. As a result, the Court should issue a preliminary

injunction to restore the student media’s First Amendment right to receive funding

that remains available to support other forms of student speech.

A.

The Student Government reacted to a recent issue of The Koala byunconstitutionally singling out the student press anddiscriminating against the viewpoint of student speech.

1. The First Amendment governs the Chancellor and StudentGovernment officials.

The First Amendment governs UCSD officials. Widmar v. Vincent , 454 U.S.

263, 268–69 (1981). The Student Government “acts under the color of state law” to

the extent it “is intertwined with the state in collecting, budgeting, and allocating

funds to create a forum for speech.” Amidon v. Student Ass’n of State Univ. of New

York , 399 F. Supp. 2d 136, 145 (N.D.N.Y. 2005), aff’d , 508 F.3d 94 (2d Cir. 2007).

The Student Government’s officials are therefore subject to the Constitution in this

case, because they have been “delegated a public function.”4

Brentwood Acad. v.Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001).

2. By stripping the student press of resources available to fundother student speech, the Student Government violated theFree Press Clause.

The First Amendment prohibits any law or rule “abridging the freedom of …

the press.” The Free Press Clause protects the media as “the only organized private

business that is given explicit constitutional protection.” Scheetz v. Morning Call,

4 For convenience, this brief refers to UCSD and the Student Government, thoughneither is a named party in this official-capacity case for injunctive relief. Flint v.

Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032, 1035-36 (9th Cir. 1999).



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Inc., 747 F. Supp. 1515, 1528 (E.D. Pa. 1990) (quoting Potter Stewart, Or of the

Press, 26 Hastings L.J. 631, 633 (1975)), aff’d , 946 F.2d 202 (3d Cir. 1991).

The Free Press Clause exists “to preserve an untrammeled press as a vital

source of public information.” Grosjean v. Am. Press Co., 297 U.S. 233, 250

(1936). It covers both the traditional and student press, online and otherwise.

The Pitt News v. Pappert , 379 F.3d 96, 111 (3d Cir. 2004) (Alito, J.) (striking down

law that targeted “media associated with the Commonwealth’s universities and

colleges”); O’Grady v. Super. Ct., 139 Cal. App. 4th 1423, 1467 (2006) (finding

“no sustainable basis” to distinguish online reporters and editors “from the

reporters, editors, and publishers who provide news to the public through traditional

print and broadcast media”).

The Free Press Clause prohibits any official action that “single[s] out the

press for special treatment.” Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of Revenue, 460 U.S. 575, 582 (1983). For example, the government may

not impose a discriminatory tax on the press. Arkansas Writers’ Project, Inc. v.

Ragland , 481 U.S. 221, 227 (1987); Minneapolis Star , 460 U.S. at 591-92.

“The press plays a unique role as a check on government abuse, and a tax limited tothe press raises concerns about censorship of critical information and opinion.”

Leathers v. Medlock , 499 U.S. 439, 447 (1991).

That principle prohibits action that “singles out” the student press by

depriving such “publications of a source of revenue.” Pitt News, 379 F.3d at 111.

As then-Judge Alito explained, “the Supreme Court’s cases concerning disparate

taxation of the media or of a segment of the media apply to other laws that impose

other types of disparate financial burdens,” because the press is threatened by any

“financial burdens that may have the effect of influencing or suppressing speech,

and whether those burdens take the form of taxes or some other form is

unimportant.” Id. at 111-12. The distinction between singling out the press “to pay

taxes” and singling out the press to deprive it of “a source of revenue” is



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“insignificant for present purposes,” because both “forms of financial burden

operate as disincentives to speak.” Id. at 111. “If government were free to suppress

disfavored speech by preventing potential speakers from being paid, there would

not be much left of the First Amendment.” Id. at 106.

In Pitt News, the court struck down a law prohibiting student media from

receiving payment for “any advertising of alcoholic beverages,” which burdened

the student press with deprivation of a revenue stream. Id. at 102. As the court

recognized, “laws that impose special financial burdens on the media or a narrow

sector of the media present a threat to the First Amendment,” because

“[g]overnment can attempt to cow the media in general by singling it out for special

financial burdens. Government can also seek to control, weaken, or destroy a

disfavored segment of the media by targeting that segment.” Id. at 109-10.

Any such law is unconstitutional unless the government can prove it is “necessary”

to achieve an “interest of compelling importance.” Id. at 111 (quoting Minneapolis

Star, 460 U.S. at 582).

That rule applies here. On behalf of UCSD, the Student Government

targeted student media for a special burden by depriving it of revenue that remainsavailable to support other forms of student speech. President Suvonnasupa

correctly noted “[t]here is a difference between print and event,” but the Student

Government drew the wrong conclusion from that premise, believing it could

discriminate against newspapers in the same way as “equipment, travel, or food.”

Complaint ¶¶ 64(a), 68; RJN ¶ 13. By doing so, the Student Government

unconstitutionally “singled out the press for special treatment” unless its decision

was necessary to achieve a compelling interest and narrowly drawn to achieve that

end. Minneapolis Star , 460 U.S. at 582.

Neither UCSD nor the Student Government can prove the elimination of

student media funding is necessary to serve any compelling interest. The Student

Government received $3,704,964 in campus activity fees during the 2015-2016



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school year. It allocated $432,236 to fund student organizations, with $25,000

earmarked for the student press. Therefore, student media funding constituted a

mere 0.7 percent of the Student Government’s budget and 5.7 percent of student

organization funding. Complaint ¶ 34; RJN ¶ 12. If the Student Government had

legitimate budgetary concerns, it could easily have reduced funding across the

board rather than target student media. As a result, the elimination of student media

funding cannot be justified on budgetary grounds. See Minneapolis Star , 460 U.S.

at 586 (state’s interest in raising revenue did not justify tax on press because “the

State could raise the revenue by taxing businesses generally, avoiding the censorial

threat implicit in a tax that singles out the press”).

Nor can it be justified by the interest in disassociating from the editorial

viewpoint of The Koala or any other student media. President Suvonnasupa was

mistaken that “[e]verything printed, good or bad, is partially our responsibility.”

Complaint ¶ 64(h); RJN ¶ 13. An “open forum in a public university does not

confer any imprimatur of state approval” on speech within that forum. Widmar ,

454 U.S. at 274. “The proposition that schools do not endorse everything they fail

to censor is not complicated,” and a university “does not endorse or support studentspeech that it merely permits on a nondiscriminatory basis.” Bd. of Educ. of

Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990). The “requirement of

viewpoint neutrality in the allocation of funding support” is therefore sufficient to

protect the First Amendment rights of objecting students. Bd. of Regents of the

Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 217, 233 (2000).

In any event, the Student Government has at least two alternatives to serve

the interest in disassociation. First, it has required student media to print a detailed

disclaimer of any official endorsement. Second, it has adopted a “refund system”

under which students may seek pro rata refunds for speech to which they object.

Id. at 232. To the extent students are unaware of that option, the Student

Government is free to publicize it. Therefore, any interest in conserving funds or



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imposes “disparate financial burdens on the media or segments of the media.” Pitt

News, 379 F.3d at 112.

It makes no difference whether that burden is “direct” or “indirect.” Id.

“Because a law that imposes a significant, but indirect, financial burden on the

media or a segment of the media can be used in the same way and with the same

effect, there is no principled reason to draw a distinction between laws that impose

direct and indirect burdens of comparable practical significance.” Id. The

elimination of student media funding therefore violated the Free Press Clause

because it “specifically target[ed]” the student press for a burden that is not

“generally applicable” to all student speech. Id.

Although the facts make a strong case of intent to discriminate against

student media, the Free Press Clause does not require a finding of “[i]llicit

legislative intent.” Minneapolis Star , 460 U.S. at 592. The elimination of student

media funding violated the Free Press Clause regardless of any “improper censorial

motive.” Arkansas Writers’ Project , 481 U.S. at 228. The Koala is therefore likely

to prevail on that basis alone.

3.

With the endorsement if not encouragement of UCSDofficials, the Student Government violated the Free SpeechClause by terminating media funding in retaliation for The

Koala’s editorial viewpoint.

In any event, the Student Government also violated the Free Speech Clause

by discriminating against The Koala’s editorial viewpoint. In disbursing campus

activity fees on behalf of the university, the Student Government “expends funds to

encourage a diversity of views from private speakers.” Rosenberger , 515 U.S. at

834. It therefore operates a limited public forum for the speech of student

organizations in which it may not discriminate based on viewpoint. Southworth,

529 U.S. at 233; Rosenberger , 515 U.S. at 829; Amidon v. Student Ass’n of State

Univ. of New York at Albany, 508 F.3d 94, 100 (2d Cir. 2007). In particular, “[a]

public university may not constitutionally take adverse action against a student



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newspaper” like The Koala, “such as withdrawing or reducing the paper’s funding,

because it disapproves of the content [or viewpoint] of the paper.” Stanley v.

Magrath, 719 F.2d 279, 282 (8th Cir. 1983).

With the endorsement if not encouragement of UCSD officials, the Student

Government violated that principle by eliminating student media funding because

of opposition to The Koala’s viewpoint. As the record demonstrates, The Koala

has long been a flashpoint for controversy, with the Student Government and

UCSD officials seeking to undermine it because of “how bad a black eye it is for

the University.”5 Complaint ¶ 44 & Ex. 1. Recently, a firestorm of criticism arose

in opposition to The Koala’s editorial viewpoint because it “mocks safe spaces,”

with numerous individuals specifically demanding “to shut down the Koala” and

“[d]efund The Koala.” Complaint ¶ 52 & Ex. 1. Immediately afterward, at the

Student Government meeting, students objected to The Koala and made clear “we

don’t want student funds to support” it. Complaint ¶ 61; RJN ¶ 13. The Student

Government then eliminated funding for student media, with officials declaring the

need to represent “our constituents,” condemning the “opinion of that group,” and

expressing “upset” at “what has come out of this publication.” Complaint ¶ 64;RJN ¶ 13. Senior UCSD officials endorsed the Student Government’s decision and

undertook not to “ditch the good ones worthy of this funding and work actively on

finding ways to encourage and help them financially.” Complaint ¶ 70 & Ex. 1.

Those facts make a compelling case that the Student Government intended to

retaliate against The Koala’s viewpoint by eliminating student media funding, with

5 UCSD has not always bowed to pressure for censorship of controversial speech.When a student newspaper reacted to the killing of a Border Patrol agent by

publishing an article entitled “Death of a Migra Pig” that said, “We’re glad this pigdied, he deserved to die … As far as we care all the Migra pigs should be killed,every single one,” UCSD resisted calls for retaliation, proclaiming “[t]he Universityis legally prohibited” from censoring student publications. Samantha Harris,

Double Standards at UCSD, Foundation for Individual Rights in Education (Feb.25, 2010), https://www.thefire.org/double-standards-at-ucsd/.



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the administration’s concurrence if not connivance. The “historical background” of

hostility to The Koala’s editorial viewpoint, the “community animus” against that

viewpoint, and the “events leading up to the challenged decision and the legislative

history behind it” demonstrate that “a discriminatory reason more likely than not

motivated” the Student Government’s decision. Ave. 6E Investments, LLC v. City

of Yuma, ___ F.3d ___, No. 13-16159, 2016 WL 1169080, at *8 (9th Cir. Mar. 25,

2016); see also Pacific Shores Props. , LLC v. City of Newport Beach, 730 F.3d

1142, 1158 (9th Cir. 2013) (“[A] court analyzes whether the defendant’s actions

were motivated by a discriminatory purpose by examining … ‘[t]he historical

background of the decision’ … ‘[t]he specific sequence of events leading up to the

challenged decision,’ … [and] relevant ‘legislative or administrative history’”)

(quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-

68 (1977)).

This framework applies to discrimination prohibited by the First Amendment

and shows that the Student Government discriminated against The Koala’s

viewpoint. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 540 (1993) (in First Amendment case, “as in equal protection cases, we maydetermine the city council’s object from both direct and circumstantial evidence,”

including “the historical background of the decision under challenge, the specific

series of events leading to the enactment or official policy in question, and the

legislative or administrative history, including contemporaneous statements made

by members of the decisionmaking body”) (citing Arlington Heights, 429 U.S. at

266-68); Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287 & n.2 (1977)

(citing Arlington Heights in free speech case).

By taking action based on The Koala’s viewpoint, the Student Government

violated the First Amendment. The funding of student organizations provides a

forum “to stimulate on-campus discussion and debate on a wide range of issues

from a variety of viewpoints.” Complaint ¶ 22; RJN ¶ 7. In that forum, trigger



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warnings and safe spaces, like “racism,” may be a “topic of debate,” and it is

“offensive to the First Amendment” to retaliate against the expression of certain

“views on that problem.” Rosenberger , 515 U.S. at 831.

Therefore, the Student Government may not take action because The Koala

“scoffed at its goals,” while it continues “permitting, even encouraging, conduct

that would further the viewpoint expressed in the University’s goals.” IOTA XI

Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 393

(4th Cir. 1993) (university violated First Amendment by punishing fraternity for

speech with “racist and sexist overtones”). Although individuals “no doubt feel

demeaned” by The Koala’s speech, the objections are “based entirely on [its] point

of view, and it is axiomatic that the government may not silence speech because the

ideas it promotes are thought to be offensive.” Rodriguez v. Maricopa Cty. Cmty.

Coll. Dist., 605 F.3d 703, 708 (9th Cir. 2010).

The Student Government cannot hide behind an ostensibly neutral decision to

terminate all student media funding. A defendant may not escape liability for

discriminating against the plaintiff simply by inflicting collateral damage on others.

For example, a city cannot avoid judgment merely because it “is willing to‘overdiscriminate’ by enforcing the facially neutral law or policy even against

similarly-situated individuals who are not members of the disfavored group.”

Pacific Shores, 730 F.3d at 1159. Nor can an employer “effectively immunize

itself from suit if it is so thorough in its discrimination that all similarly situated

employees are victimized.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,

468 (2d Cir. 2001. Therefore, when “a party adopts a facially neutral policy with

discriminatory animus, that policy would be properly categorized” as unlawful

“overdiscrimination.” Hardie v. Nat’l Collegiate Athletic Ass’n., 97 F. Supp. 3d

1163, 1166 (S.D. Cal. 2015).

The rule against overdiscrimination derives from constitutional law and

applies in this case. See Hunter v. Underwood , 471 U.S. 222, 232 (1985) (“[A]n



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additional purpose to discriminate against poor whites would not render nugatory

the purpose to discriminate against all blacks.”); Griffin v. County Sch. Bd. of

Prince Edward Cty., 377 U.S. 218, 231 (1964) (“Whatever nonracial grounds might

support a State’s allowing a county to abandon public schools, the object must be a

constitutional one, and grounds of race and opposition to desegregation do not

qualify as constitutional.”).

“The principle that overdiscrimination is prohibited undergirds all of

constitutional and statutory anti-discrimination law.” Pacific Shores, 730 F.3d at

1160. It is thus settled that a “willingness to inflict collateral damage” on third

parties “does not cleanse the taint of discrimination; it simply underscores the depth

of the defendant’s animus.” Id. at 1159. If the Student Government cannot target

The Koala in retaliation for The Koala’s viewpoint, it cannot target all student

media for the same purpose.

It is natural, understandable, and lawful for individuals and officials to

criticize and condemn speech they despise. However, the government may not

cross the First Amendment line into censorship by “deferring to the wishes or

objections of some fraction of the body politic.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985); cf. Southworth, 529 U.S. at 235 (to substitute

“majority determinations for viewpoint neutrality … would undermine the

constitutional protection” required for campus activity funding). Viewpoint

discrimination also remains invalid regardless of any asserted budgetary

justification. Rosenberger , 515 U.S. at 835 (“The government cannot justify

viewpoint discrimination among private speakers on the economic fact of

scarcity.”). Nor is it justified by any need to disassociate from The Koala’s

viewpoint, because “[t]he University has taken pains to disassociate itself from the

private speech involved in this case.” Id. at 841. As noted above, the requirement

of viewpoint neutrality and the refund system address any concerns of students

about funding speech to which they object. Accordingly, the viewpoint-based



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elimination of student media funding was unconstitutional because it was not

“narrowly tailored to promote a compelling Government interest,” given that “a less

restrictive alternative would serve the Government’s purpose.” United States v.

Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

4. The Koala’s speech is constitutionally protected.

The Student Government properly made no claim that The Koala’s content is

outside the First Amendment. “If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or disagreeable.” Texas v.

Johnson, 491 U.S. 397, 414 (1989). In particular, “the mere dissemination of

ideas—no matter how offensive to good taste—on a state university campus may

not be shut off in the name alone of ‘conventions of decency.’” Papish v. Bd. of

Curators of the Univ. of Missouri, 410 U.S. 667, 670 (1973) (overturning expulsion

of graduate student for distributing cartoon “depicting policemen raping the Statue

of Liberty and the Goddess of Justice”). The First Amendment protects the right to

express oneself “in vigorous, argumentative, unmeasured, and even distinctly

unpleasant terms.” Rodriguez, 605 F.3d at 709 (quoting Adamian v. Jacobsen, 523F.2d 929, 934 (9th Cir. 1975)).

It is therefore settled that speech “is not actionable simply because it is base

and malignant” and “may not be suppressed simply because it is offensive.”

Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1199 (9th Cir. 1989) (citation

and quotation marks omitted). Because “one man’s vulgarity is another’s lyric” and

“governmental officials cannot make principled distinctions in this area,” the First

Amendment does not permit censorship based on disgust. Cohen v. California, 403

U.S. 15, 25 (1971). The First Amendment “protects the speech we detest as well as

the speech we embrace.” United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012).

Even “low-grade entertainment” that is “sophomoric and offensive” is

“inherently expressive and thus entitled to First Amendment protection.” IOTA XI ,



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993 F.2d at 388, 391. In any event, by participating in the debate over safe spaces

and trigger warnings, The Koala addressed a matter of public concern that “relates

to broad issues of interest,” and it “cannot be restricted simply because it is

upsetting or arouses contempt,” no matter how “inappropriate or controversial” it

may be. Snyder v. Phelps, 562 U.S. 443, 453-54, 458 (2011). Satire remains

protected even if it “goes beyond the bounds of good taste and conventional

manners,” regardless of whether it “may have an adverse emotional impact on the

audience.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 54-55 (1988).

None of this is to say UCSD may not condemn The Koala or “foster by

persuasion and example” its goals of diversity, respect, and inclusion. Johnson,

491 U.S. at 418. Though the debate may become heated, “[t]he Constitution

embraces such a heated exchange of views, even (perhaps especially) when they

concern sensitive topics like race.” Rodriguez, 605 F.3d at 708. But the Student

Government crossed the First Amendment line by eliminating student media

funding to retaliate against The Koala. The function of education “is to stimulate

thought, to explore ideas, to engender intellectual exchanges. Bad ideas should be

countered with good ones,” not punished by official retaliation. Monteiro v. TempeUnion High Sch. Dist ., 158 F.3d 1022, 1032 (9th Cir. 1998).

In bowing to demands for censorship, the Student Government failed to

recognize that a strong First Amendment is not only compatible with equality but

essential to its pursuit. History demonstrates that freedom of speech is necessary to

any movement for social justice. Several landmark free speech cases arose from

attempts to suppress the civil rights movement. See, e.g., NAACP v. Claiborne

Hardware Co., 458 U.S. 886 (1982) (overturning judgment against boycott

campaign); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 158-59 (1969)

(reversing convictions for marching without a permit); Edwards v. South Carolina,

372 U.S. 229, 237 (1963) (overturning “breach of the peace” convictions because

government may not punish “the peaceful expression of unpopular views”).



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The First Amendment remains indispensable to protest and dissent today. See, e.g.,

Abdullah v. County of St. Louis, 52 F. Supp. 3d 936, 947 (E.D. Mo. 2014)

(enjoining enforcement of rule that “prohibited citizens from peacefully assembling

on the public sidewalks” to protest police conduct in Ferguson, Missouri).

These cases demonstrate that “[f]ree speech has been on balance an ally of

those seeking change. Governments that want stasis start by restricting speech,”

and change “depends on the ability of outsiders to challenge accepted views and the

reigning institutions. Without a strong guarantee of freedom of speech, there is no

effective right to challenge” the status quo. American Booksellers Ass’n, Inc. v.

Hudnut , 771 F.2d 323, 332 (7th Cir. 1985), aff’d , 475 U.S. 1001 (1986). As the

Ninth Circuit has recognized, “[f]ree speech has been a powerful force for the

spread of equality under the law; we must not squelch that freedom because it may

also be harnessed by those who promote retrograde or unattractive ways of

thought.” Rodriguez, 605 F.3d at 709-10.

B. Deprivation of First Amendment rights is irreparable harm as amatter of law, for which the balance of equities and public interestfavor an injunction.

Because The Koala is likely to prevail on the merits, the Court need notlinger over irreparable harm, balance of equities, and public interest. As a matter of

law, “[t]he loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373–

74 (1976); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

(“[T]he deprivation of constitutional rights unquestionably constitutes irreparable

injury.”) (internal quotations omitted); Thalheimer , 645 F.3d at 1128 (harm

resulting from First Amendment violations is “particularly irreparable”).

The balance of equities and public interest merge when the government’s

conduct is at issue. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.

2013). The government cannot be harmed by an injunction against “enforcing

unconstitutional restrictions.” Legend Night Club v. Miller , 637 F.3d 291, 303 (4th



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Cir. 2011). As the Ninth Circuit has confirmed, “it is always in the public interest

to prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at

1002. Courts “have consistently recognized the significant public interest in

upholding First Amendment principles.” Sammartano v. First Judicial Dist. Ct .,

303 F.3d 959, 974 (9th Cir. 2002). As a result, “injunctions protecting First

Amendment freedoms are always in the public interest.” American Civil Liberties

Union of Illinois v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012). That principle

applies especially here, because the termination of student media funding violates

the First Amendment rights of both Plaintiff and other student organizations. Klein

v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).

C.

No bond is required because UCSD will incur no compensablecosts or damages from issuance of an injunction to protect theFirst Amendment.

The Court need not require bond under Rule 65(c) “when it concludes there

is no realistic likelihood of harm to the defendant from enjoining his or her

conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). It is proper to

waive the bond requirement in free speech cases involving no harm to the

defendant, because “to require a bond would have a negative impact on plaintiff’sconstitutional rights, as well as the constitutional rights of other members of the

public.” Baca v. Moreno Valley Unified School Dist ., 936 F. Supp. 719, 738

(C.D. Cal. 1996).

UCSD would incur no compensable costs or damages even if the injunction

were later dissolved. Parties may not recover attorney fees arising from issuance of

an injunction. Bass v. First Pacific Networks, Inc., 219 F.3d 1052, 1055-56 (9th

Cir. 2000). Therefore, UCSD will suffer no compensable harm, and no bond

should be required. Gorbach v. Reno, 219 F.3d 1087, 1092 (9th Cir. 2000)

(upholding denial of bond in absence of harm to government); Galassini v. Town of

Fountain Hills, No. CV-11-02097-PHX-JAT, 2011 WL 5244960, at *7 (D. Ariz.

Nov. 3, 2011) (waiving bond in First Amendment case because it is “difficult to



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envision how Defendants would incur compensable costs or damages”).

Accordingly, the Court should require no bond in this case.

CONCLUSION

For the foregoing reasons, the Court is respectfully requested to enter a

preliminary injunction prohibiting Defendants from categorically refusing to

allocate campus activity fees for the publication of student media.

Dated: May 31, 2016 Respectfully submitted,

By: s/David LoyDavid [email protected]

Ryan T. DarbyAttorneys for Plaintiff


the koala's motion for preliminary injunction against ucsd

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