AN AFTERWARD ON MY APPEARANCE ON OPENING ARGUMENTS

Considering how many times I had to clarify and re-state my argument during my conversation
with Andrew and Thomas from the podcast Opening Arguments (five, conservatively), and how
their listeners suggested I didnt offer a cohesive argument, allow me to begin by restating my
(and, I believe, YAFs) argument as clearly as I can.

The lawsuit in question is a valid complaint due to the unconstitutionally vague nature of the
High-Profile Speaker Policy (HPSP) instituted by the University of California, Berkeley (UCB).
This policy allowed the University to engage in viewpoint discrimination in violation of the First
and Fourteenth Amendments to the United States Constitution.

The relevant case law comes in the form of both binding and persuasive precedent. In Sonnier
v. Crain, we find a virtually identical case in the Fifth Circuit. The court ruled that there was, in
fact, a First Amendment violation due to the University having sole discretion in the imposition
of security fees.

Essentially, Sonnier takes an earlier Supreme Court case with similar particulars regarding
vague speech policies, Forsyth County v. Nationalist Movement, and applies it to public
universities.

From Sonnier:

The Forsyth County Court found the security fee unconstitutional because, among other
reasons, the regulation included no objective standards directing how to establish the
level of the fee. Instead, the amount of the security fee was left to the "whim of the
administrator."*

Further, the Sonnier found:

As the policy states, determining the additional amount of security needed is at the sole
discretion of the University; no objective factors are provided for the University to rely
upon when making such a determination.*

In Forsyth County, the Court found:

The administrator is not required to rely on any objective factors. He need not provide
any explanation for his decision, and that decision is unreviewable. Nothing in the law or
its application prevents the official from encouraging some views and discouraging
others through the arbitrary application of fees. The First Amendment prohibits the
vesting of such unbridled discretion in a government official.*

* (emphasis mine)

So, to be clear, the order of operations alleged in the suit are:

1. UCB institutes an unconstitutionally vague speaker policy.

2. That speaker policy allowed administrators to engage in viewpoint discrimination.
3. This discrimination resulted in the damages claimed in the suit.
A proper counter argument might be to claim that UCBs HPSP passed Constitutional muster.
That it was narrowly drawn, with reasonable and objective standards, and that it had been made
available to the plaintiffs (and everyone else).

That is not, however, Andrews argument insofar as I understand it.

His argument is (and I hope hell correct me if Im wrong) that the imposition of the HPSP (and
its component speaker fees, venue changes, etc.) was content-neutral and served a narrowly
tailored governmental interest, therefore the lawsuit is without merit. In so long as the HPSP
was consistently applied (in other words, that other High Profile Speakers were subjected to
the same standards), then the damages alleged in the suit (i.e. content discrimination) did not,
in fact, take place and therefore the suit does not meet the requirements of a Constitutional
challenge.

He points to case law supporting the position that the state can impose security fees so long as
they are content neutral, serve significant government interests, and are not over and above
the normal costs of law enforcement. Andrew does not think that YAF has supplied sufficient
evidence of a First Amendment violation.

One might counter this argument by offering direct evidence of viewpoint discrimination (i.e. an
email from a UCB official stating that conservative speakers will require more security).

On balance, I would argue that YAF does not have to prove Berkeleys policy was applied
in a discriminatory manner in order to prove a First Amendment violation occurred. They
have to prove that UCBs policy was vague enough to allow discrimination. If the
allegations detailed in the suit are accurate, the suit has merit.

(Considering how drastically Andrew has misunderstood my argument, I would not be surprised
at all to discover that I have misunderstood his. Please keep this in mind as I try to move
through my understanding of Andrews position)

To make his case, Andrew begins by disassociating Sonnier with YAF v. Napolitano. He claims
that Sonnier specifically concerned a public forum whereas the YAF lawsuit concerns a limited
public forum. He asserts that these two fora play by different rules (as they often do) and, as
such, the Sonnier case does not apply. (He speaks about this at 38:30 of the podcast)

What Andrew might have missed is that the Sonnier case deliberately obviated the distinction
between public and limited public. To qualify their use of the term public forum in their
decision, the Court offers the following footnote:

[27] As the majority opinion says, Maj. Op. 441, and as the defendants acknowledge, the
public, outdoor areas of the SLU campus are either a traditional public forum or a
designated public forum. There is no need to decide which of these two types of public
forum is at issue because "[t]he state's power `to restrict speakers' access to [a
designated] public forum is subject to the same first amendment constraints that apply to
traditional public forums.'" Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 345 (5th Cir.
2001) (quoting Estiverne v. La. State Bar Ass'n, 863 F.2d 371, 376 (5th Cir.1989)).
So, as we now understand, whether a state forum is public or limited public or designated
public, it is nevertheless subject to the same first amendment constraints. This is a crucial
point, and it is one that I sniffed out at 53:52 of the podcast (though I hadnt found this footnote
at the time, Andrews statements struck me as unreasonable). Additionally, it came up again at
1:14:55, which accounted for what Andrew described as my noises.

As it turns out, I was right to disbelieve (thats a reference to a segment, edited out, wherein I
making a Will save vs. nomenclature). Whatever the designation of the public forum, the state is
nonetheless required to adhere to the same constraints (which includes having clear, objective
criteria). I was not aware of Chiu v. Plano Indep. Sch. Dist. during the recording of our
conversation, and obviously neither were my interlocutors.

Therefore, Andrews assertion that Sonnier doesnt apply to the case before us is both
unfounded and refuted. The fact that the YAF lawsuit acknowledges that the fora in question are
limited and/or designated does not in any way make it dissimilar to Sonnier. Following that,
we can thereby be persuaded that the same logic used in Sonnier should also apply to YAF v.
Napolitano.

Sometime after an hour into the podcast, I noted that it seemed as though we were talking
about two different things. Andrew was talking about whether the HPSP was content-neutral, I
was talking about whether its specificity passed constitutional muster.

Pish-tosh, claims Andrew (not a quote, Im taking narrative license). Time, place and manner
restrictions are all wrapped up together, was the claim. However, even a cursory reading of the
relevant case law makes clear that the Court might make different decisions about each of
these things separately, often within the same case.

In Sonnier, for example, the allegation that the University in question violated the plaintiffs First
Amendment rights by requiring a seven-day time period was rejected in the majority opinion:

We acknowledge that the seven-day notice requirement is longer than notice

requirements considered by other circuits, but this modest increase in length does not
lead us to conclude that the regulation is not narrowly tailored for Sonnier's facial
challenge. In order to succeed in a facial challenge, the plaintiff must establish the
regulation would be invalid in all circumstances.

So the Court found SLUs time restriction valid. What about place?

Our reading of SLU's speech policy is consistent with the defendants reading of the
policy: nothing in the policy prohibits Sonnier from walking on the sidewalks of the SLU
campus and speaking to students. The policy simply precludes group demonstrations
and assemblies from occurring on the University sidewalks. The University obviously has
a significant interest keeping its sidewalks and streets open to allow students and others
access to the campus.

As we see, the time and place restrictions in the SLU policy were constitutional. As we know,
however, the manner (i.e. security fees) was found unconstitutional. Therefore, we can plainly
see from this case that they are most certainly not, as Thomas put it, one and the same. They
are distinct issues that can receive separate rulings within the same case.
Where Andrew is getting this notion that this is some sort of Jenga puzzle where if one piece is
removed the whole thing comes down wasnt something he seemed prepared to discuss.

Where things started to become bizarre is when we turned to the parsing of the following
paragraph in Sonnier (about 1:12:00 of the podcast):

Sonnier argues next that SLU's speech policy violates the First Amendment because it
gives the University the "sole discretion ... in determining both the need for, and the
strength of the security" at the public assembly or demonstration, and assesses the cost
of additional security on the sponsoring individual or organization. In response, the
defendants assert that the fee has never been charged. Regardless of whether the fee
has ever been charged, we agree with Sonnier.

I commented that it was clear what was being said here, but Thomas discounted it by calling it a
standing issue.

Having a basic understanding of standing as a legal concept, I reject outright that this is a
standing issue. Whoever wrote the majority opinion simply restated the arguments from both
the plaintiff and the defendants in an effort to frame the decision. The issue of standing ought to
have been decided long before, while Sonnier was in the lower courts.

But even if Andrew is correct here (which, as I admitted in the podcast, might be possible) -
even if this paragraph is one that concerns standing exclusively, it is clear that it supports my
argument.

Thomas said: If they charged Coulter $100,000, then we would agree with you (presumably
because the amount would clearly be over and above the normal costs of law enforcement).

However, if Sonnier had standing, then we know that the amount of the security fee should be
immaterial. The issue is that the University had sole discretion in the determination of that fee,
which - if it really is a standing issue, we can see that the court found to be a valid First
Amendment issue.

The fact that Sonnier had standing due to the manner in which fee was assessed, and not
simply that it was excessive, is the entire rationale for citing this case.

Interestingly, Andrew frequently quoted the following from Sonnier (1:14:00):

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a
virtually identical security fee provision that required organizations to pay for "the cost of
necessary and reasonable protection [for assemblies] ... [that] exceeds the usual and
normal costs of law enforcement."

The argument being that Forsyth found that while the state could require organizations to pay
for security, it couldnt exceed the usual and normal costs. Fair enough, and were I arguing that
the $5800 imposed on YAF was excessive then his point would be quite valid.

However, that is not my argument (as I stated numerous times throughout the conversation).
My argument is predicated on the sentence that follows directly after the one Andrew offered,
(which was previously quoted):

The Forsyth County Court found the security fee unconstitutional because, among other
reasons, the regulation included no objective standards directing how to establish the
level of the fee. Instead, the amount of the security fee was left to the "whim of the
administrator."

My argument is that, as in Forsyth, the HPSP left the amount of the security fee to the whim of
the administrator. The HPSP includes no objective standards on how that $5800 was
established, it was assessed at the sole discretion of the university, and as Andrew so
eloquently stated (somewhere around 34:00):

For something to be unconstitutional for vagueness it has to give you no guidance as to how
to conform your conduct to avoid falling under the ambit of the law. I completely concur with
this. Unfortunately, Andrew continues: That is not the case here.

As I hope Ive made clear, it most certainly is the case here. The allegation that YAF and BCR
were subjected to a vague speaker policy and were given no guidance as to how to conform
their conduct within the policy is absolutely the primary cause for compliant (the specific
allegations can be found in paragraphs 30, 31, and 32 of the YAF lawsuit).

Having reviewed the case law provided by Andrew, I find that they all concern challenges to
government speech policies not on grounds of specificity, but rather on whether they serve a
particular government interest or are content-neutral. The specificity of the challenged policy
was never in question in any of the case law Andrew brought to the table insofar as I could
determine.

Therefore, they are relevant only to whatever phantom argument Andrew was countering;
presumably, that YAF v. Napolitano is predicated on the assertion that the HPSP isnt content-
neutral. Were that in fact the case being made, the case law cited by Andrew would be
relevant.

It might be instructive to take a glance at Opening Arguments website, where theyve

thoughtfully included links to the court cases we discussed. Under the entry for Forsyth, the
webmaster (presumably either Thomas or Andrew) described it as: the Supreme Court held
that content-based restrictions, including excessive security fees, violate the 1st Amendment.

A more accurate description can be found on Wikipedia: the court ruled that an ordinance
allowing the local government to set varying fees for different events violated the First
Amendment due to the lack of narrowly drawn, reasonable, and definite standards governing
the amount of the fee.

One has only to parse the differences in these two descriptions to see the key concept both
Andrew and Thomas have failed to grasp.

Thomas sums up what I consider to be both his and Andrews view (1:02:00): It is not enough
to say these fees youre charging are vague. You have to say youre using vague criteria to
charge significantly different fees based on content. So you have to prove not just that, okay,
because it was Ann Coulter the fees were high you have to prove that they were only
targeting the content. And the easy counter to that is Well no, the fees are based on the fact
that Ann Coulter requires more security.

The inaccuracy of this description helps us understand how both Thomas and Andrew have yet
to grasp the importance of objective criteria within governmental speech policies. Forsyth held
that the vagueness of the speech policy required the administrator to discriminate based on the
content of the speech. The administrator was left to estimate the level of law enforcement
needed based on the content of the speech.

Therefore, the court has held that it is impossible to attain content-neutrality while
applying a vague policy.

That was the finding in Forsyth and, later, Sonnier. It is the fundamental truth that Andrew and
Thomas are either ignoring or are incapable of understanding. The fact that the OA partners
dont seem to grasp the precedent set in these cases helps us understand why theyve so
misunderstood and misconstrued my argument.

As Andrew said after we had concluded our talk (1:27:34): Travis thinks imposing security fees
is unconstitutional. No Andrew. Travis thinks it is unconstitutional to base the imposition of
security fees on a vague policy. Big difference. I said it numerous times through our discussion
(1:01:45, for example) so how Andrew could hear me say it over and over and still rephrase my
argument so remarkably incorrectly is an indication of how totally he has missed the point.

Considering that Andrews claims (that time-place-manner restrictions all go together, that
vagueness doesnt apply in this case, that Sonnier doesnt apply because its a public forum
while UCB is a limited public forum, and that the lawsuit must prove that the HPSP wasnt
content neutral [hard to do when its undisclosed]) have, to my mind, been disproven and none
of my claims (that the HPSP was vague yet was nonetheless applied, that content
discrimination is the logical byproduct of vague policy, and that the lawsuit must mainly prove
that the policy was unconstitutionally vague to being with) have been properly addressed, I
consider my argument salient.

Finally, I want to also clear up one thing: I do not, as Andrew suggested after we had ended the
conversation, think this case is going to the Supreme Court. I made the comment about a split
circuit in jest, but crazier things have happened.

My thanks to Andrew and Thomas for this invigorating dialectic, and I look forward to seeing
how this case turns out.

one,
Travis Wester