Photo credit: The Heights

Heritage’s Ryan T. Anderson speaks on marriage at  Boston College last year. Photo: The Heights

Ryan T. Anderson talks a lot about marriage. Heritage’s William E. Simon fellow has even been on CNN talking about marriage. But apparently safe enough for a CNN studio and dozens of other college campuses isn’t safe enough for Stanford University, because the Stanford University Graduate Student Council (GSC) has denied funding for the Stanford Anscombe Society (SAS) to have Anderson and other advocates for traditional marriage come speak at Stanford, and is attempting to charge the SAS $5000 in unnecessary security costs.

Where does safety come in? Well, according to The Stanford Daily, some student agitators complained that bringing speakers to Stanford to speak about marriage would “threaten the safety of campus for the queer population.” And, on this pretext, the GSC denied funding for the SAS event: Anderson will hopefully still speak at the SAS event, but Stanford students will, temporarily at least, not be footing the bill.

Why temporarily? Under the First Amendment, public schools may not exclude otherwise permissible speech simply on the ground that the speech expresses an unpopular viewpoint. Cf. Good News Club v. Milford Central School, 533 U.S. 98. Indeed, as the U.S. Supreme Court said in 1995 in Rosenberger v. Rector and Visitors of the Univ. of Virginia, before, the very purpose of a university collecting and disbursing student activity fees is “to open a forum for speech and to support various student enterprises…in recognition of the diversity and creativity of student life.”

Stanford University is a private school, but California’s Leonard Law applies the First Amendment to Stanford. So under California law, a private school cannot deny funding to a student activity simply because the university doesn’t like the message. In order to shut up these traditional marriage advocates, then, the GSC has had to be creative, and use legal “magic words”—in this case, claiming that Anderson and others are a “threat” to students that disagree with their views.

Just calling speech you don’t like a “threat” doesn’t make that speech a “threat” for the purposes of the First Amendment, however. As the Supreme Court said in Virginia v. Black (2003), true threats are those statements where a “speaker means to communicate serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Does this sound like Ryan Anderson? Of course not. But thin-skinned student agitators can manufacture a sham threat with the barest of justifications.

Furthermore, the $5000 fee to provide for security at the event is also unlawful. Ginning up unnecessary fees is a typical tactic that public universities and other governmental entities use when the First Amendment stops them from directly prohibiting certain speech. However, it’s a tactic that doesn’t work. In Forsyth County v. Nationalist Movement (1992), the Supreme Court struck down a security fee regime for parade permits, and noted: “Listeners’ reaction to speech is not a content-neutral basis for regulation…. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”

Again, California’s Leonard Law would compel a California court to apply Forsyth County and invalidate Stanford’s scheme, allowing any student enrolled at Stanford University to sue in California court to compel the GSC to fund the SAS event, and to obtain attorney’s fees. Whether they do the right thing and fund the SAS event, or whether they pay for all the court costs, Stanford University will likely be footing the bill.

While there are good legal claims here, there is also an important principle at stake: colleges, as places of free debate, should not attempt to censor speech simply because they disagree with it. Attempting to keep traditional marriage advocates off the Stanford campus calls that university’s academic credibility into serious question. Stay tuned.