On Wednesday, the 9th Circuit delivered a big victory for free speech on college campuses. Interestingly, the three-judge appeals panel that delivered the decision is entirely composed of Democrat appointees, demonstrating that the judiciary may be our best hope of preserving liberty, especially free speech.
In 2015, a satirical student newspaper at the University of California San Diego called the Koala published a snarky and explicit article mocking safe spaces. Two days after the article was published, the university released a statement condemning the Koala and announced that it would no longer provide university funding for publication.
Interestingly, UCSD realized that defunding the Koala would clearly constitute an unconstitutional act of viewpoint discrimination, so in an effort to censor the publication more covertly, the university eliminated funding for all student media days after the controversial article in the Koala. UCSD laughably claimed the change in funding was not related to the Koala.
In 2016, ACLU San Diego filed a lawsuit against UCSD. A lower court ruled that the administration’s decision to defund all student media was legal, but fortunately, the 9th Circuit Court of Appeals reversed that decision on Wednesday.
In delivering the opinion of the court, Judge Morgan Christen said, “Absent a compelling justification, the government may not exercise its taxing power to single out the press … The rationale for this rule is not difficult to discern: ‘a power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected.’ Ark. Writers’ Project, Inc. v. Ragland.” The taxing power is relevant here because UCSD is a public and taxpayer-funded institution.
The Foundation for Individual Rights in Education, a nonpartisan campus free speech organization, applauded the 9th Circuit’s decision. FIRE’s Director of the Individual Rights Defense Program, Adam Steinbaugh, told the Washington Examiner via email that the case could still be appealed by UCSD.
“It’s always possible that the defendants will ask the Supreme Court to review this ruling, or ask the broader 9th Circuit to consider the case en banc. It’s also important to note that the case is still at the pleading stage, so if there are no successful appeals at this point, the case will go back to the District Court for further proceedings. The 9th Circuit ruling was an important victory, but the fight isn’t over yet,” Steinbaugh said.
The particular speech of the Koala’s protected by this case is quite explicit both sexually and racially. On a moral level, I certainly do not approve of such speech. But on a policy level, the Koala should not be discriminated against for this content, and the 9th Circuit’s ruling will protect the free speech of more sensible students who are discussing important and controversial topics on campus. If Wednesday’s ruling does stand, it would set binding precedent for the 9th Circuit, which is notable given its jurisdiction over the remarkably liberal state of California.
“Unless there is a successful appeal from this decision, it will be binding on federal courts across the 9th Circuit, which covers nine states and two territories. State courts across the country, and other federal courts, may rely on this decision’s reasoning if they find it persuasive — and we hope that they do,” Steinbaugh said.
As my colleague Melissa Quinn recently noted, President Trump has appointed six judges to the infamously liberal 9th Circuit, which is now nearly balanced between Republican and Democrat appointees. However, that doesn’t explain the court’s ruling in this case, which was made by three Democrat appointees: Judge Edward Shea, Judge Morgan Christen, and Judge Raymond Fisher.
Because federal judges are given lifetime appointments, the judiciary cannot be reshaped by progressives as quickly as the other branches of government. Consequently, Democratic judicial appointees come from an era when most Democrats still supported classical liberal ideals such as religious liberty and free speech.
For example, Fisher, who wrote a concurring opinion in Wednesday’s decision, was appointed by President Bill Clinton, who famously signed the Religious Freedom Restoration Act with strong bipartisan support in 1993. Democratic appointees on the Supreme Court have helped deliver some significant wins for civil liberties this year as well. In February, the high court issued a unanimous decision defending civil rights on the matter of asset forfeiture, confirming that the Eighth Amendment must apply to the states. Additionally, the Supreme Court ruled last month in a 7 to 2 decision that the Peace Cross, a large cross-shaped World War I Memorial on public land, did not violate the Establishment Clause of the First Amendment.
If a progressive radical wins the White House in 2020, let us hope Democratic appointees in the judiciary will be valuable allies in defeating unconstitutional leftist policies.
