The Koala's Motion For Preliminary Injunction Against UCSD

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 1 of 29
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David Loy (SBN 229235)

ACLU FOUNDATION OF SAN DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Telephone: (619) 232-2121
Facsimile: (619) 232-0036
davidloy@aclusandiego.org
Ryan T. Darby, Esq. (SBN 264357)
THE LAW OFFICE OF RYAN T. DARBY
525 B Street, Suite 1500
San Diego, CA 92101
Telephone: (619) 858-4766
Facsimile: (619) 243-7226
darby@darby.law
Attorneys for Plaintiff THE KOALA
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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THE KOALA,
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Plaintiff,
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v.
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PRADEEP KHOSLA, et al.,

Defendants.
Case No.: '16CV1296 JM BLM

PLAINTIFFS MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................iii
INTRODUCTION .................................................................................................... 1
STATEMENT OF FACTS ...................................................................................... 2
A. UCSDs student government exercises official authority over student
affairs with oversight by the Chancellor, who is responsible for its compliance
with legal requirements. ................................................................................... 2
B. University policy establishes a forum for supporting student speech on a
wide 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 publishing
a controversial newspaper that draws the ire of the Student Government and
UCSD administration. ...................................................................................... 4
D. Immediately after The Koala published a controversial satire on a topical
issue of public concern, the Student Government eliminated all funding for
student media but continued funding other forms of speech. .......................... 5
ARGUMENT............................................................................................................. 9
A. The Student Government reacted to a recent issue of The Koala by
unconstitutionally singling out the student press and discriminating against the
viewpoint of student speech10
1. The First Amendment governs the Chancellor and Student Government
officials....................................10
2. By stripping the student press of resources available to fund other student
speech, the Student Government violated the Free Press Clause............10
3.With the endorsement if not encouragement of UCSD officials, the
Student Government violated the Free Speech Clause by terminating
media funding in retaliation for The Koalas editorial viewpoint...15
4.The Koalas speech is constitutionally protected.............20
B. Deprivation of First Amendment rights is irreparable harm as a matter of
law, for which the balance of equities and public interest favor an
injunction.22
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C. No bond is required because UCSD will incur no compensable costs or

damages from issuance of an injunction to protect the First Amendment......23
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CONCLUSION24
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TABLE OF AUTHORITIES
CASES
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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 Assn, 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 Assn of State Univ. of New York at Albany
508 F.3d 94 (2d Cir. 2007) ......................................................................... 10, 15
Amidon v. Student Assn 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 WL
1169080 (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 Commrs 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 Assn
531 U.S. 288 (2001) ......................................................................................... 10
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
508 U.S. 520 (1993) ......................................................................................... 17
City 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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DanielsHall v. National Educ. Assn

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. Natl Collegiate Athletic Assn.
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 Commr 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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Mt. Healthy City Sch. Dist. v. Doyle

429 U.S. 274 (1977) ......................................................................................... 17
NAACP v. Claiborne Hardware Co.
458 U.S. 886 (1982) ......................................................................................... 21
OGrady 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 Entmt 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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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 Courts
intervention is necessary to protect the First Amendment, prevent discrimination
against the press, and prohibit viewpoint-based retaliation.
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The University of California has established a forum funded by campus
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activity fees to support the speech of student organizations. By university policy,
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the forum is dedicated to expression of the broadest range of ideas on a variety of
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topics. The university delegated administration of the forum to student
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government. For over 30 years, The Koala has qualified as a registered student
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organization and received funding from that forum to publish a satirical newspaper.
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The Koala has long been controversial for its editorial viewpoint, and the university
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has repeatedly sought to undermine its publication.
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Recently, The Koala published a satire of trigger warnings and safe
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spaces, topics of public concern. A number of people found the satire outrageous
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due to its invocation of racial epithets and stereotypes and launched a campaign to
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shut down or defund The Koala. In response, the student government eliminated
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funding for student media but continued to fund other forms of student speech.
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A senior administrator endorsed the decision, with direction not to ditch the good
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ones worthy of this funding and to work actively on finding ways to encourage
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and help them financially.
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With the administrations endorsement if not encouragement, the student
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government violated the First Amendment in two ways. First, it violated the Free
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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 Koalas 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,
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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
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test for a preliminary injunction. First Amendment violations cause irreparable
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harm as a matter of law, and the balance of equities and public interest always favor
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protecting constitutional rights. The Court is therefore respectfully requested to
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issue a preliminary injunction prohibiting Defendants from categorically refusing to
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fund the publication of student print media.
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STATEMENT OF FACTS
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A.
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UCSDs student government exercises official authority over

student affairs with oversight by the Chancellor, who is
responsible for its compliance with legal requirements.
As stated in the verified complaint, the University of California, San Diego
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(UCSD) is one of several public university campuses in the state.1 The
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Associated Students of UCSD (Student Government) is the student government
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and exercises powers delegated by the university, subject to the UCSD Chancellors
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A verified complaint is treated as an affidavit in support of a preliminary

injunction. 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 the
Complaint and Request for Judicial Notice. DanielsHall v. National Educ. Assn,
629 F.3d 992, 998-99 (9th Cir. 2010). In any event, the rules of evidence do not
strictly 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.
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B.
University policy establishes a forum for supporting student

speech on a wide range of issues, with clear disclaimers of official
endorsement and a process to issue pro rata refunds to students
who 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
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support for student activities and organizations to further discussion among
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students of the broadest range of ideas, and they disburse campus activity fees to
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stimulate on-campus discussion and debate on a wide range of issues from a variety
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of viewpoints. Complaint 21-22; RJN 5, 7.
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The Student Governments funding decisions must be viewpoint-neutral in
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their nature; that is, they must be based upon considerations which do not include
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approval or disapproval of the viewpoint of the Registered Campus Organization or
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any of its related programs or activities. Complaint 23; RJN 7.
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The Student Government has adopted Standing Rules to administer the
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funding process. To obtain funding, organizations must be registered with the
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Student Government, and funding allocations do not constitute any official
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endorsement. Print media funded by the Student Government were required to
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include a disclaimer that the views expressed in this publication are solely those of
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<publications name here>, its principal members and the authors of the content of
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this publication, and not of the Student Government, UCSD, the University of
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California, or the Regents. The Student Government publishes a Funding Guide
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describing the viewpoint-neutral conditions for funding student speech, which
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includes the same disclaimer. Complaint 24-28; RJN 9-10.
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Taken together, university policies and the Student Governments 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
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speech funded by campus activity fees, UC policy authorizes student governments
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to provide a pro rata refund to any student of that portion of his or her compulsory
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campus-based student fees allocated to support a particular Registered Campus
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Organization or Registered Campus Organization-related program or activity.
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Complaint 32; RJN 6. The Student Government allows any student to request
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a pro-rata refund of a portion of the Campus Activity Fee for any allocation for
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political, religious, and ideological grounds. Complaint 33; RJN 9.
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C.
The Koala is a registered student organization with a history of

publishing a controversial newspaper that draws the ire of the
Student Government and UCSD administration.
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The Koala is a registered student organization that publishes a satirical
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student newspaper at UCSD. It has consistently qualified for and received funding
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from the Student Government, as have other student organizations. The Koalas
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speech has provoked significant controversy, and both the Student Government and
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UCSD administration have not only condemned but also attempted to undermine
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The Koala due to its viewpoint. Complaint 35-40, 73.
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In 2002, the university unsuccessfully attempted to revoke The Koalas
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registration as a student organization, and therefore its access to funding, because
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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
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develop effective policies to ensure that our fees do not go to support the hateful
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speech that targets members of our community. Complaint 43 & Ex.1.

Then-Vice Chancellor for Student Affairs Penny Rue applauded Mr. Gupta
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for working tirelessly to find a way to disestablish the [Student Governments]
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relationship with the Koala, but a concerted effort by other media groups and the
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spotlight of upcoming elections has hampered his efforts. I cannot tell you how bad
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a black eye it is for the University that we do not seem to have the power to cut our
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ties to this body. Complaint 44 & Ex. 1. Assistant Vice Chancellor of Student
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Life Gary Ratcliff wrote to Ms. Rue and a faculty member, alluding to methods he
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advised student leaders to consider in order to discontinue student government
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funding of the Koala. Complaint 45 & Ex. 1.
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D.
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Immediately after The Koala published a controversial satire on a

topical issue of public concern, the Student Government
eliminated all funding for student media but continued funding
other forms of speech.
The controversy over The Koalas viewpoint continued into the current
academic year. On November 12, 2015, UCSD received a complaint stating [t]he
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Steve Schmidt, Shows racial slur prompts hold on UCSD student media, San
Diego Union-Tribune (Feb. 23, 2010, 12:02 a.m.),
http://www.sandiegouniontribune.com/news/2010/feb/23/ucsd-media-outlets-seefunds-frozen/
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Koala is a newspaper that is solely meant to cause hatred and demanding Stop the
Koala. Complaint 46 & Ex. 1. In response, Vice Chancellor for Equity,
Diversity, and Inclusion Becky Pettit wrote to Vice Chancellor for Student Affairs
Juan Gonzalez and Associate Chancellor Clare Kristofco, among others: I think
this crosses the free speech line and Id like to explore ways we can do something
about it. I know its a delicate undertaking. Complaint 47 & Ex. 1. Ms.
Kristofco replied, We have been down this path many times over the years for
even more egregious issues. Complaint 48 & Ex. 1. In response to a suggestion
to meet and discuss the legal landscape, Ms. Pettit wrote, Id like to think
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creatively about how we can address this. Complaint 49 & Ex. 1.

On November 16, 2015, The Koala published an article entitled UCSD
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Unveils New Dangerous Space on Campus that satirized the concepts of trigger
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warnings and safe spaces and thus addressed topical issues of public concern.3
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Complaint 50-51. Invoking extreme racial epithets and stereotypes, The Koala
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played on the idea of safe spaces with a mock story that Administrators at UC
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San Diego are creating an all new, state-of-the-art Dangerous Space for UCSD
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students, thus continuing the universitys theme of inclusion and equality by
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establishing the ideal place for students to do whatever the hell they want.
After publication of the article, UCSD received a blizzard of demands for
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action against The Koala because of its viewpoint. To take a few examples:
The campus newspaper The Koala published an explicitly racist article
mocking safe spaces. The university needs to stop funding the Koala,
and stop endorsing it.
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UCSD Unveils New Dangerous Space on Campus, The Koala (Nov. 16, 2015),
http://thekoala.org/2015/11/16/ucsd-unveils-new-dangerous-space-on-campus/.
These topics have been extensively debated in the media and otherwise. See, e.g.,
Judith Shulevitz, In College and Hiding from Scary Ideas, N.Y. Times (March 21,
2015), http://www.nytimes.com/2015/03/22/opinion/sunday/judith-shulevitzhiding-from-scary-ideas.html?_r=0; Jennifer Medina, Warning: The Literary Canon
Could Make Students Squirm, N.Y. Times (May 17, 2014),
http://www.nytimes.com/2014/05/18/us/warning-the-literary-canon-could-makestudents-squirm.html?_r=0.
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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 racist
acts. 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 should
have no place or space for such discrimination. Defund and shut down
The Koala.
I would like the University to shut down the koala newspaper and the
creators 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 hateful
rhetoric. Therefore, the students need control to hold individuals
accountable.
Find ways to address the Koala by defunding it
Defund The Koala.
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Complaint 52 & Ex. 1.

The complaints were forwarded to senior UCSD officials, who discussed
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them intensively. Complaint 53-57 & Ex. 1. On November 18, UCSD released
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a Statement Denouncing Koala Publication From UC San Diego Administration,
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signed by the Chancellor and senior officials. The administration strongly
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denounce[d] the Koala publication and its offensive and hurtful language, called
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The Koala profoundly repugnant, repulsive, attacking and cruel, and asked the
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rest of the campus to join us in condemning this publication. Complaint 58 &
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Ex. 1. On the same date, a senior UCSD official wrote, Please note Koala get[s]
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no University funding[.] The Associated Students find [sic] them. Pressure should
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[be] brought to that organization to end the madness. Complaint 59 & Ex. 1.
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During the evening of November 18, 2015, the Student Government held its
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regular meeting, where the Vice Chancellor for Student Affairs read the official
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statement denouncing The Koala and speakers objected to funding The Koala.
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Complaint 61-62; RJN 13. A motion was then made to delete Title V,
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2.4(d)-(f) of the former Standing Rules, which provided the channel for funding
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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:
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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 my
opinion.
AVP Juarez: Objectivity does not exist. Im really upset what has come
out of this publication.
Senator Roberts: We nix them now does not mean that others who are
funded 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 shouldnt 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 feel
like this should happen so we can represent our constituents.
VP CA Valdivia: I am open to finding alternative funding. Its been
talked about before and nothing has been done. Something should be
done now.
President Suvonnasupa: It has to be looked as a whole. We arent saying
we are limiting free speech. Everything printed on AS Funds is AS
responsibility. Everything printed, good or bad, is partially our
responsibility.
Complaint 64; RJN 13.
The motion carried, with a statement from the Student Government that
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standing rules supersede the Funding Guide with respect to media funding. AS
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does not fund printed media. Complaint 65; RJN 13. As a result, the Student
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Government eliminated funding for publication of student media, including but not
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limited to The Koala, but not other forms of student speech. Complaint 66, 71;
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RJN 9, 13.
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On the next day, Mr. Ratcliff wrote to various UCSD officials, including Mr.
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Gonzalez, Ms. Pettit, and Ms. Kristofco, noting that the Associated Students (AS)
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voted to discontinue funding publications of media student organizations and
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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, Lets 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.
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After eliminating student media funding, the Student Government has

continued to fund numerous other forms of student speech on multiple topics.
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Complaint 72; RJN 11. UCSD has refused to allow The Koala to participate in
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Crowdsurf, a crowdfunding platform for student and campus projects, and The
12
Koala has been unable to obtain funding from any of UCSDs colleges. Complaint
13
79-80. Though The Koala previously published up to six issues per academic
14
year and planned to do so this year, the elimination of campus activity fee funding
15
for student media forced it to cancel its winter issue and cut back to three issues.
16
Complaint 78.
17
18
ARGUMENT
A preliminary injunction is warranted if The Koala shows a likelihood of
19
success on the merits and irreparable harm, and the balance of equities and public
20
interest favor an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
21
20 (2008). If the balance of hardships tips sharply in The Koalas favor, it only
22
needs to demonstrate serious questions going to the merits. Alliance for the Wild
23
Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).
24
The Koala bears the initial burden of making a colorable claim that [its]
25
First Amendment rights have been infringed, or are threatened with infringement, at
26
which point the burden shifts to the government to justify the restriction.
27
Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011). The Koala
28
is likely to prevail on the merits or at least presents serious question on the merits.
9
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 medias 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 by

unconstitutionally singling out the student press and
discriminating against the viewpoint of student speech.
1.
10
The First Amendment governs the Chancellor and Student

Government officials.
11
The First Amendment governs UCSD officials. Widmar v. Vincent, 454 U.S.
12
263, 26869 (1981). The Student Government acts under the color of state law to
13
the extent it is intertwined with the state in collecting, budgeting, and allocating
14
funds to create a forum for speech. Amidon v. Student Assn of State Univ. of New
15
York, 399 F. Supp. 2d 136, 145 (N.D.N.Y. 2005), affd, 508 F.3d 94 (2d Cir. 2007).
16
The Student Governments officials are therefore subject to the Constitution in this
17
case, because they have been delegated a public function.4 Brentwood Acad. v.
18
Tennessee Secondary Sch. Athletic Assn, 531 U.S. 288, 296 (2001).
19
2.
20
By stripping the student press of resources available to fund

other student speech, the Student Government violated the
Free Press Clause.
21
The First Amendment prohibits any law or rule abridging the freedom of
22
the press. The Free Press Clause protects the media as the only organized private
23
business that is given explicit constitutional protection. Scheetz v. Morning Call,
24
25
4
26
27
For convenience, this brief refers to UCSD and the Student Government, though
neither 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).
28
10
Inc., 747 F. Supp. 1515, 1528 (E.D. Pa. 1990) (quoting Potter Stewart, Or of the
Press, 26 Hastings L.J. 631, 633 (1975)), affd, 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 Commonwealths universities and
colleges); OGrady v. Super. Ct., 139 Cal. App. 4th 1423, 1467 (2006) (finding
no sustainable basis to distinguish online reporters and editors from the
10
reporters, editors, and publishers who provide news to the public through traditional
11
print and broadcast media).
12
The Free Press Clause prohibits any official action that single[s] out the
13
press for special treatment. Minneapolis Star & Tribune Co. v. Minnesota
14
Commr of Revenue, 460 U.S. 575, 582 (1983). For example, the government may
15
not impose a discriminatory tax on the press. Arkansas Writers Project, Inc. v.
16
Ragland, 481 U.S. 221, 227 (1987); Minneapolis Star, 460 U.S. at 591-92.
17
The press plays a unique role as a check on government abuse, and a tax limited to
18
the press raises concerns about censorship of critical information and opinion.
19
Leathers v. Medlock, 499 U.S. 439, 447 (1991).
20
That principle prohibits action that singles out the student press by
21
depriving such publications of a source of revenue. Pitt News, 379 F.3d at 111.
22
As then-Judge Alito explained, the Supreme Courts cases concerning disparate
23
taxation of the media or of a segment of the media apply to other laws that impose
24
other types of disparate financial burdens, because the press is threatened by any
25
financial burdens that may have the effect of influencing or suppressing speech,
26
and whether those burdens take the form of taxes or some other form is
27
unimportant. Id. at 111-12. The distinction between singling out the press to pay
28
taxes and singling out the press to deprive it of a source of revenue is

11
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
10
[g]overnment can attempt to cow the media in general by singling it out for special
11
financial burdens. Government can also seek to control, weaken, or destroy a
12
disfavored segment of the media by targeting that segment. Id. at 109-10.
13
Any such law is unconstitutional unless the government can prove it is necessary
14
to achieve an interest of compelling importance. Id. at 111 (quoting Minneapolis
15
Star, 460 U.S. at 582).
16
That rule applies here. On behalf of UCSD, the Student Government
17
targeted student media for a special burden by depriving it of revenue that remains
18
available to support other forms of student speech. President Suvonnasupa
19
correctly noted [t]here is a difference between print and event, but the Student
20
Government drew the wrong conclusion from that premise, believing it could
21
discriminate against newspapers in the same way as equipment, travel, or food.
22
Complaint 64(a), 68; RJN 13. By doing so, the Student Government
23
unconstitutionally singled out the press for special treatment unless its decision
24
was necessary to achieve a compelling interest and narrowly drawn to achieve that
25
end. Minneapolis Star, 460 U.S. at 582.
26
Neither UCSD nor the Student Government can prove the elimination of
27
student media funding is necessary to serve any compelling interest. The Student
28
Government received $3,704,964 in campus activity fees during the 2015-2016

12
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 Governments 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 (states interest in raising revenue did not justify tax on press because the
State could raise the revenue by taxing businesses generally, avoiding the censorial
10
11
threat implicit in a tax that singles out the press).

Nor can it be justified by the interest in disassociating from the editorial
12
viewpoint of The Koala or any other student media. President Suvonnasupa was
13
mistaken that [e]verything printed, good or bad, is partially our responsibility.
14
Complaint 64(h); RJN 13. An open forum in a public university does not
15
confer any imprimatur of state approval on speech within that forum. Widmar,
16
454 U.S. at 274. The proposition that schools do not endorse everything they fail
17
to censor is not complicated, and a university does not endorse or support student
18
speech that it merely permits on a nondiscriminatory basis. Bd. of Educ. of
19
Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990). The requirement of
20
viewpoint neutrality in the allocation of funding support is therefore sufficient to
21
protect the First Amendment rights of objecting students. Bd. of Regents of the
22
Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 217, 233 (2000).
23
In any event, the Student Government has at least two alternatives to serve
24
the interest in disassociation. First, it has required student media to print a detailed
25
disclaimer of any official endorsement. Second, it has adopted a refund system
26
under which students may seek pro rata refunds for speech to which they object.
27
Id. at 232. To the extent students are unaware of that option, the Student
28
Government is free to publicize it. Therefore, any interest in conserving funds or

13
disassociating from controversy cannot justify the special treatment of the press,
because an alternative means of achieving the same interest without raising
concerns under the First Amendment is clearly available. Minneapolis Star, 460
U.S. at 586; cf. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936, 949 (9th Cir. 2011) (finding ordinance invalid where City has
various other laws at its disposal that would allow it to achieve its stated interests
while burdening little or no speech).
It is no answer to suggest that UCSD is not constitutionally compelled to
subsidize student speech. While that may be true, it cannot justify depriving the
10
student press of revenue that remains available to subsidize other student speech.
11
The selective withdrawal of benefits is not exempt from the First Amendment. It is
12
beyond dispute that the government may not deny a benefit to a person on a basis
13
that infringes his constitutionally protected ... freedom of speech even if he has no
14
entitlement to that benefit. Bd. of County Commrs v. Umbehr, 518 U.S. 668, 674
15
(1996) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972).
16
The same is true under the Free Press Clause. If the government cannot
17
selectively tax the press, it cannot discriminate against the press by selectively
18
excluding it from subsidies. For example, it would undoubtedly violate the Free
19
Press Clause if the government made an economic development subsidy generally
20
available to businesses but singled out the press for special treatment by
21
categorically disqualifying the media. Minneapolis Star, 460 U.S. at 582. In either
22
case, the government would be targeting the press for a disadvantage not generally
23
shared by others, which is precisely what the Free Press Clause prohibits.
24
That principle applies especially here, where the disbursement of campus
25
activity fees exists specifically to promote speech. If the Free Press Clause does not
26
allow discrimination against the media, it cannot tolerate exclusion of the student
27
press from a funding stream intended to promote student speech. To exclude the
28
student press from funding that supports other student speech unconstitutionally
14
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
10
11
generally applicable to all student speech. Id.

Although the facts make a strong case of intent to discriminate against
12
student media, the Free Press Clause does not require a finding of [i]llicit
13
legislative intent. Minneapolis Star, 460 U.S. at 592. The elimination of student
14
media funding violated the Free Press Clause regardless of any improper censorial
15
motive. Arkansas Writers Project, 481 U.S. at 228. The Koala is therefore likely
16
to prevail on that basis alone.
17
18
19
20
3.
With the endorsement if not encouragement of UCSD

officials, the Student Government violated the Free Speech
Clause by terminating media funding in retaliation for The
Koalas editorial viewpoint.
In any event, the Student Government also violated the Free Speech Clause
21
by discriminating against The Koalas editorial viewpoint. In disbursing campus
22
activity fees on behalf of the university, the Student Government expends funds to
23
encourage a diversity of views from private speakers. Rosenberger, 515 U.S. at
24
834. It therefore operates a limited public forum for the speech of student
25
organizations in which it may not discriminate based on viewpoint. Southworth,
26
529 U.S. at 233; Rosenberger, 515 U.S. at 829; Amidon v. Student Assn of State
27
Univ. of New York at Albany, 508 F.3d 94, 100 (2d Cir. 2007). In particular, [a]
28
public university may not constitutionally take adverse action against a student
15
newspaper like The Koala, such as withdrawing or reducing the papers 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 Koalas 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
10
in opposition to The Koalas editorial viewpoint because it mocks safe spaces,
11
with numerous individuals specifically demanding to shut down the Koala and
12
[d]efund The Koala. Complaint 52 & Ex. 1. Immediately afterward, at the
13
Student Government meeting, students objected to The Koala and made clear we
14
dont want student funds to support it. Complaint 61; RJN 13. The Student
15
Government then eliminated funding for student media, with officials declaring the
16
need to represent our constituents, condemning the opinion of that group, and
17
expressing upset at what has come out of this publication. Complaint 64;
18
RJN 13. Senior UCSD officials endorsed the Student Governments decision and
19
undertook not to ditch the good ones worthy of this funding and work actively on
20
finding ways to encourage and help them financially. Complaint 70 & Ex. 1.
21
Those facts make a compelling case that the Student Government intended to
22
retaliate against The Koalas viewpoint by eliminating student media funding, with
23
5
24
25
26
27
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, Were glad this pig
died, 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 University
is 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/.
28
16
the administrations concurrence if not connivance. The historical background of
hostility to The Koalas 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 Governments 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 defendants actions
were motivated by a discriminatory purpose by examining [t]he historical
10
background of the decision [t]he specific sequence of events leading up to the
11
challenged decision, [and] relevant legislative or administrative history)
12
(quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-
13
68 (1977)).
14
This framework applies to discrimination prohibited by the First Amendment
15
and shows that the Student Government discriminated against The Koalas
16
viewpoint. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
17
520, 540 (1993) (in First Amendment case, as in equal protection cases, we may
18
determine the city councils object from both direct and circumstantial evidence,
19
including the historical background of the decision under challenge, the specific
20
series of events leading to the enactment or official policy in question, and the
21
legislative or administrative history, including contemporaneous statements made
22
by members of the decisionmaking body) (citing Arlington Heights, 429 U.S. at
23
266-68); Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287 & n.2 (1977)
24
(citing Arlington Heights in free speech case).
25
By taking action based on The Koalas viewpoint, the Student Government
26
violated the First Amendment. The funding of student organizations provides a
27
forum to stimulate on-campus discussion and debate on a wide range of issues
28
from a variety of viewpoints. Complaint 22; RJN 7. In that forum, trigger

17
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 Universitys 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
10
demeaned by The Koalas speech, the objections are based entirely on [its] point
11
of view, and it is axiomatic that the government may not silence speech because the
12
ideas it promotes are thought to be offensive. Rodriguez v. Maricopa Cty. Cmty.
13
Coll. Dist., 605 F.3d 703, 708 (9th Cir. 2010).
14
The Student Government cannot hide behind an ostensibly neutral decision to
15
terminate all student media funding. A defendant may not escape liability for
16
discriminating against the plaintiff simply by inflicting collateral damage on others.
17
For example, a city cannot avoid judgment merely because it is willing to
18
overdiscriminate by enforcing the facially neutral law or policy even against
19
similarly-situated individuals who are not members of the disfavored group.
20
Pacific Shores, 730 F.3d at 1159. Nor can an employer effectively immunize
21
itself from suit if it is so thorough in its discrimination that all similarly situated
22
employees are victimized. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
23
468 (2d Cir. 2001. Therefore, when a party adopts a facially neutral policy with
24
discriminatory animus, that policy would be properly categorized as unlawful
25
overdiscrimination. Hardie v. Natl Collegiate Athletic Assn., 97 F. Supp. 3d
26
1163, 1166 (S.D. Cal. 2015).
27
28
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
18
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 States 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
10
parties does not cleanse the taint of discrimination; it simply underscores the depth
11
of the defendants animus. Id. at 1159. If the Student Government cannot target
12
The Koala in retaliation for The Koalas viewpoint, it cannot target all student
13
media for the same purpose.
14
It is natural, understandable, and lawful for individuals and officials to
15
criticize and condemn speech they despise. However, the government may not
16
cross the First Amendment line into censorship by deferring to the wishes or
17
objections of some fraction of the body politic. City of Cleburne v. Cleburne
18
Living Ctr., 473 U.S. 432, 448 (1985); cf. Southworth, 529 U.S. at 235 (to substitute
19
majority determinations for viewpoint neutrality would undermine the
20
constitutional protection required for campus activity funding). Viewpoint
21
discrimination also remains invalid regardless of any asserted budgetary
22
justification. Rosenberger, 515 U.S. at 835 (The government cannot justify
23
viewpoint discrimination among private speakers on the economic fact of
24
scarcity.). Nor is it justified by any need to disassociate from The Koalas
25
viewpoint, because [t]he University has taken pains to disassociate itself from the
26
private speech involved in this case. Id. at 841. As noted above, the requirement
27
of viewpoint neutrality and the refund system address any concerns of students
28
about funding speech to which they object. Accordingly, the viewpoint-based

19
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 Governments purpose. United States v.
Playboy Entmt Grp., Inc., 529 U.S. 803, 813 (2000).
5
6
4.
The Koalas speech is constitutionally protected.
The Student Government properly made no claim that The Koalas 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.
10
Johnson, 491 U.S. 397, 414 (1989). In particular, the mere dissemination of
11
ideasno matter how offensive to good tasteon a state university campus may
12
not be shut off in the name alone of conventions of decency. Papish v. Bd. of
13
Curators of the Univ. of Missouri, 410 U.S. 667, 670 (1973) (overturning expulsion
14
of graduate student for distributing cartoon depicting policemen raping the Statue
15
of Liberty and the Goddess of Justice). The First Amendment protects the right to
16
express oneself in vigorous, argumentative, unmeasured, and even distinctly
17
unpleasant terms. Rodriguez, 605 F.3d at 709 (quoting Adamian v. Jacobsen, 523
18
F.2d 929, 934 (9th Cir. 1975)).
19
It is therefore settled that speech is not actionable simply because it is base
20
and malignant and may not be suppressed simply because it is offensive.
21
Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1199 (9th Cir. 1989) (citation
22
and quotation marks omitted). Because one mans vulgarity is anothers lyric and
23
governmental officials cannot make principled distinctions in this area, the First
24
Amendment does not permit censorship based on disgust. Cohen v. California, 403
25
U.S. 15, 25 (1971). The First Amendment protects the speech we detest as well as
26
the speech we embrace. United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012).
27
Even low-grade entertainment that is sophomoric and offensive is
28
inherently expressive and thus entitled to First Amendment protection. IOTA XI,
20
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
10
persuasion and example its goals of diversity, respect, and inclusion. Johnson,
11
491 U.S. at 418. Though the debate may become heated, [t]he Constitution
12
embraces such a heated exchange of views, even (perhaps especially) when they
13
concern sensitive topics like race. Rodriguez, 605 F.3d at 708. But the Student
14
Government crossed the First Amendment line by eliminating student media
15
funding to retaliate against The Koala. The function of education is to stimulate
16
thought, to explore ideas, to engender intellectual exchanges. Bad ideas should be
17
countered with good ones, not punished by official retaliation. Monteiro v. Tempe
18
Union High Sch. Dist., 158 F.3d 1022, 1032 (9th Cir. 1998).
19
In bowing to demands for censorship, the Student Government failed to
20
recognize that a strong First Amendment is not only compatible with equality but
21
essential to its pursuit. History demonstrates that freedom of speech is necessary to
22
any movement for social justice. Several landmark free speech cases arose from
23
attempts to suppress the civil rights movement. See, e.g., NAACP v. Claiborne
24
Hardware Co., 458 U.S. 886 (1982) (overturning judgment against boycott
25
campaign); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 158-59 (1969)
26
(reversing convictions for marching without a permit); Edwards v. South Carolina,
27
372 U.S. 229, 237 (1963) (overturning breach of the peace convictions because
28
government may not punish the peaceful expression of unpopular views).

21
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 Assn, Inc. v.
10
Hudnut, 771 F.2d 323, 332 (7th Cir. 1985), affd, 475 U.S. 1001 (1986). As the
11
Ninth Circuit has recognized, [f]ree speech has been a powerful force for the
12
spread of equality under the law; we must not squelch that freedom because it may
13
also be harnessed by those who promote retrograde or unattractive ways of
14
thought. Rodriguez, 605 F.3d at 709-10.
15
16
B.
Deprivation of First Amendment rights is irreparable harm as a

matter of law, for which the balance of equities and public interest
favor an injunction.
17
Because The Koala is likely to prevail on the merits, the Court need not
18
linger over irreparable harm, balance of equities, and public interest. As a matter of
19
law, [t]he loss of First Amendment freedoms, for even minimal periods of time,
20
unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373
21
74 (1976); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
22
([T]he deprivation of constitutional rights unquestionably constitutes irreparable
23
injury.) (internal quotations omitted); Thalheimer, 645 F.3d at 1128 (harm
24
resulting from First Amendment violations is particularly irreparable).
25
The balance of equities and public interest merge when the governments
26
conduct is at issue. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
27
2013). The government cannot be harmed by an injunction against enforcing
28
unconstitutional restrictions. Legend Night Club v. Miller, 637 F.3d 291, 303 (4th
22
Cir. 2011). As the Ninth Circuit has confirmed, it is always in the public interest
to prevent the violation of a partys 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
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11
12
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v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).
C.
No bond is required because UCSD will incur no compensable

costs or damages from issuance of an injunction to protect the
First Amendment.
The Court need not require bond under Rule 65(c) when it concludes there
14
is no realistic likelihood of harm to the defendant from enjoining his or her
15
conduct. Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). It is proper to
16
waive the bond requirement in free speech cases involving no harm to the
17
defendant, because to require a bond would have a negative impact on plaintiffs
18
constitutional rights, as well as the constitutional rights of other members of the
19
public. Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 738
20
(C.D. Cal. 1996).
21
UCSD would incur no compensable costs or damages even if the injunction
22
were later dissolved. Parties may not recover attorney fees arising from issuance of
23
an injunction. Bass v. First Pacific Networks, Inc., 219 F.3d 1052, 1055-56 (9th
24
Cir. 2000). Therefore, UCSD will suffer no compensable harm, and no bond
25
should be required. Gorbach v. Reno, 219 F.3d 1087, 1092 (9th Cir. 2000)
26
(upholding denial of bond in absence of harm to government); Galassini v. Town of
27
Fountain Hills, No. CV-11-02097-PHX-JAT, 2011 WL 5244960, at *7 (D. Ariz.
28
Nov. 3, 2011) (waiving bond in First Amendment case because it is difficult to

23
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.
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Dated: May 31, 2016
Respectfully submitted,
By: s/David Loy
David Loy
davidloy@aclusandiego.org
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Ryan T. Darby
Attorneys for Plaintiff
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The Koala's Motion For Preliminary Injunction Against UCSD

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The Koala's Motion For Preliminary Injunction Against UCSD

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

David Loy (SBN 229235)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

PRADEEP KHOSLA, et al.,

Case No.: '16CV1296 JM BLM

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 2 of 29

C. No bond is required because UCSD will incur no compensable costs or

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

Abdu-Brisson v. Delta Air Lines, Inc.

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 4 of 29

DanielsHall v. National Educ. Assn

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 5 of 29

Mt. Healthy City Sch. Dist. v. Doyle

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 6 of 29

student newspaper published a controversial satire, officials stripped the entire

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

has repeatedly sought to undermine its publication.

Recently, The Koala published a satire of trigger warnings and safe

and help them financially.

With the administrations endorsement if not encouragement, the student

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 7 of 29

by discriminating against The Koalas viewpoint. Although the decision to

evade liability for viewpoint discrimination simply by inflicting collateral damage

The Koala remains protected speech that cannot be censored without

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

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

test for a preliminary injunction. First Amendment violations cause irreparable

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.

UCSDs student government exercises official authority over

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

A verified complaint is treated as an affidavit in support of a preliminary

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 8 of 29

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

University policy establishes a forum for supporting student

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

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

The Student Governments funding decisions must be viewpoint-neutral in

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

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.

Case 3:16-cv-01296-JM-BLM Document 3-1 Filed 05/31/16 Page 9 of 29

Taken together, university policies and the Student Governments rules

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

Although the Standing Rules provide administrative channels for supporting

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