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College Republicans of University of Washington v. Cauce

United States District Court, W.D. Washington, Seattle

February 9, 2018

COLLEGE REPUBLICANS OF THE UNIVERSITY OF WASHINGTON; CHEVY SWANSON, an individual, Plaintiffs,
v.
ANA MARI CAUCE, in her official capacity; GERALD J. BALDASTY, in his official capacity; RENE SINGLETON, individually and in her official capacity; CHRISTINA COOP, individually and in her official capacity; JOHN N. VINSON, individually and in his official capacity; CRAIG WILSON individually and in his official capacity; and DOES 1-25, Defendants.

          ORDER GRANTING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

          Marsha J. Pechman United States District Judge.

         THIS MATTER comes before the Court on Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction. (Dkt. No. 2.) Having reviewed the Motion, the Response (Dkt. No. 12), and all attached declarations and exhibits, and having considered the statements of the parties at oral argument, the Court GRANTS the Motion.

         Background

         Plaintiffs University of Washington College Republicans (“College Republicans”) and Chevy Swanson challenge the constitutionality of the University of Washington's (“UW”) “Safety and Security Protocols for Events” policy (“Security Fee Policy”), which requires student organizations to pay the anticipated costs of security for on-campus events. (See Dkt. No. 1.) The College Republicans have organized a “Freedom Rally, ” scheduled to take place in Red Square on the afternoon of Saturday, February 10, 2018, and to feature Joey Gibson, the leader of the controversial, conservative political group Patriot Prayer. (Id. at 7-9.) Based upon factors including the time and location of the event, the estimated number of attendees, and the responses at prior events featuring Mr. Gibson and Patriot Prayer, the UW has determined that the Freedom Rally requires enhanced security, including the presence of additional officers from the UW Police Department. (Dkt. No. 12 at 6-7.) Pursuant to its Security Fee Policy, the UW seeks from the College Republicans an estimated $17, 000 as reimbursement for its security costs. (Id.) The UW does not require that the fee be paid in advance, but will calculate and assess the total amount owed following the event. (Id. at 5.)

         Plaintiffs contend that the $17, 000 fee is excessive and unreasonable, and that the Security Fee Policy violates the First and Fourteenth Amendments by regulating the student organization's expression based on its conservative viewpoints and the potential reaction of those who oppose Mr. Gibson and Patriot Prayer. (Dkt. No. 2-1 at 8-9.) In particular, Plaintiffs contend that the Security Fee Policy impermissibly fails to provide any objective criteria, factors, or standards to guide administrators in estimating security costs. (Id. at 10.) Plaintiffs now move for a TRO directing the UW to assess a reasonable security fee based only on “objective criteria, ” not including the anticipated response of supporters or protesters. The UW has indicated to the Court that it will allow the Freedom Rally to go forward, and will provide security for the event. (Dkt. No. 12 at 7.) Therefore, the only issue for the Court to decide at this stage is whether the $17, 000 security fee is based upon “objective criteria, ” not including the anticipated response of supporters or protesters.

         Discussion

         I. Legal Standard

         A TRO is an “extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain such relief, Plaintiffs must show: (1) a strong likelihood of success on the merits, (2) a likelihood that they will suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities is in their favor, and (4) that the requested relief is in the public interest. Id. at 20. Plaintiffs seek a mandatory order compelling the UW to take specific actions (i.e., assess a reasonable security fee). Accordingly, Plaintiffs must demonstrate that without relief, “extreme or very serious damage will result” and that their injury is not “capable of compensation in damages.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (citation omitted).

         A. Likelihood of Success on the Merits

         Because the UW has authorized the Freedom Rally and has agreed to take measures to ensure the safety and security of those who attend, the only question at this stage is whether the First Amendment allows the UW to seek reimbursement from the College Republicans based upon the criteria set forth in its Security Fee Policy. (Dkt. No. 12 at 9-10.) The Court finds that it does not.

         Based upon the pleadings filed at this stage in the proceedings, there is no dispute that Red Square is a limited public forum. (Dkt. No. 2-1 at 10; Dkt. No. 12 at 2.) In a limited public forum, restrictions on speech must be reasonable and viewpoint neutral. Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489, 496 (9th Cir. 2015) (citation omitted). A reasonable restriction is one that is “based on a standard that is definite and objective.” Id. at 499. A viewpoint neutral restriction is one that does not suppress speech “merely because public officials oppose the speaker's view.” Id. at 502.

         Plaintiffs contend that the Security Fee Policy is “vague and contains no objective criteria, factors, or standards” to guide administrators in assessing the appropriate amount of fees. (Dkt. No. 2-1 at 10.) Due to its lack of objective criteria, Plaintiffs contend that the Security Fee Policy cannot be applied in a viewpoint neutral manner. The Security Fee Policy provides in relevant part:

When the use of campus facilities involves events, activities, and programs that are likely to significantly affect campus safety, security, and operation, the University will perform an analysis of all event factors. This could result in additional conditions and requirements placed on the host organization in order to maintain the safety and security of all organizing parties, guests attending, and the broader campus community. Safety and security concerns may include, but are not limited to, history or examples of violence, bodily harm, property damage, significant disruption of campus operations, and those actions prohibited by the campus code of conduct and state and federal law. . . .
The University (i.e., venue coordinator and UWPD) may review all event details and logistics to determine necessary safety and security protocols. . . . Any determination by authorized campus officials will be based on an assessment of credible information other than the ...

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