The Koala v. Pradeep Khosla

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE KOALA, an unincorporated No. 17-55380
student association,
Plaintiff-Appellant, D.C. No.
3:16-cv-01296-
v. JM-BLM
PRADEEP KHOSLA, in his official
capacity as Chancellor of the OPINION
University of California, San Diego;
DANIEL JUAREZ, in his official
capacity as President of the
Associated Students of the
University of California, San Diego;
JUSTIN PENNISH, in his official
capacity as Financial Controller of
the Associated Students of the
University of California, San Diego,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted June 8, 2018
Pasadena, California
Filed July 24, 2019
2 THE KOALA V. KHOSLA
Before: Raymond C. Fisher and Morgan Christen, Circuit
Judges, and Edward F. Shea,* District Judge.
Opinion by Judge Christen;
Concurrence by Judge Fisher
SUMMARY**
Civil Rights
The panel reversed in part and vacated in part the district
court’s dismissal of a complaint in an action brought by The
Koala, a registered student organization at the University of
California, San Diego, alleging that the student government’s
passage of the Media Act, which eliminated registered
student organization funding for all print media, violated The
Koala’s First Amendment rights.
The Koala alleged that the student government passed the
Media Act two days after The Koala published an article in
its newspaper satirizing the concept of “safe spaces” and
“trigger warnings” on college campuses. The article
generated numerous complaints from students and
administrators and prompted the University to publicly
denounce the article’s offensive language.
*
The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
THE KOALA V. KHOSLA 3
In reversing the district court’s dismissal, the panel held
that the Eleventh Amendment did not bar The Koala’s claims
for prospective injunctive relief. The panel held that
accepting the allegations in the Second Amended Complaint
as true, the Complaint did not run afoul of the sovereign
immunity doctrine because The Koala sought only a return of
eligibility to apply for funding, not an order directing the state
to fund it. Moreover, the panel noted that because the
compulsory activity fees collected by the University are
remitted to the associated student government for
reallocation, the suit’s outcome would not increase or
decrease the overall financial burden on the state; it would
affect only which student organizations could apply for
student activity fees and, potentially, how the total student
activity fund was distributed.
In vacating the district court’s dismissal of the Free Press
Clause claim, the panel held that where a complaint alleges
that the State singled out the press by withholding a subsidy
in response to disfavored speech, the complaint alleges a
viable Free Press Clause cause of action. The panel held that
the Second Amended Complaint’s Free Press Clause claim
was sufficient to survive defendants’ motion to dismiss
because it alleged that the Media Act was passed for the
express purpose of silencing a newspaper, and that
defendants singled out The Koala for a disparate financial
burden.
The panel vacated the district court’s dismissal of The
Koala’s freedom of speech claim, which alleged that
defendants violated its First Amendment right to free speech
by creating a limited public forum consisting of the student
activity fund, and then closing a portion of the forum for the
purpose of denying The Koala access to it. The district court
4 THE KOALA V. KHOSLA
determined that the media funds category of the student
activity fund was a limited public forum that the University
was free to close. The panel held that the student activity
fund was the relevant forum for purposes of assessing the
permissibility of defendants’ actions and that the district court
analyzed the sufficiency of The Koala’s complaint using an
incorrect framework. The panel remanded for consideration
of The Koala’s free speech claim in light of the panel’s forum
definition.
The panel held that the Second Amended Complaint
sufficiently alleged a claim for First Amendment retaliation.
The panel was unpersuaded by defendants’ argument that the
government’s motive is irrelevant when it enacts a content-
neutral rule of general applicability. First, the panel
determined the Media Act discriminated based on the identity
of the speaker because rather than applying to all registered
student organizations, the Act applied only to media
organizations and singled them out for disfavored access to
student activity fee funding. Moreover, The Koala alleged
that at least one other student organization continued to
receive funding for its print media. Second, the panel held
that it was bound by Ariz. Students’ Ass’n v. Ariz. Bd. of
Regents, 824 F.3d 858, 864 (9th Cir. 2016), which
emphasized that motive was a necessary element of a
retaliation claim and which provided a framework for
analyzing such a claim. Applying that framework, the panel
held that The Koala’s article was clearly protected speech, the
Media Act chilled The Koala’s speech and The Koala
adequately alleged a nexus between its speech and the alleged
retaliatory conduct.
Concurring in the result and in all but part II of the
opinion, Judge Fisher would hold that the complaint,
THE KOALA V. KHOSLA 5
irrespective of censorial motive, adequately alleged a claim
under the Free Press Clause on the theory that the defendants
singled out the press for disparate treatment.
COUNSEL
John David Loy (argued), ACLU Foundation of San Diego &
Imperial Counties, San Diego, California; Ryan T. Darby,
The Law Office of Ryan T. Darby, San Diego, California; for
Plaintiff-Appellant.
William John Carroll (argued), Matthew W. Callahan, and
Jean-Paul P. Cart, Schiff Hardin LLP, San Francisco,
California, for Defendants-Appellees.
Jean-Paul Jassy and Kevin L. Vick, Jassy Vick Carolan LLP,
Los Angeles, California; Samantha Harris, Vice President of
Policy Research, Foundation for Individual Rights in
Education (FIRE), Philadelphia, Pennsylvania; Ilya Shapiro,
Cato Institute, Washington, D.C.; for Amici Curiae
Foundation for Individual Rights in Education and Cato
Institute.
Judy Endejan and Garvey Schubert Barer, Seattle,
Washington, for Amici Curiae the Student Press Law Center,
American Society of News Editors, Associated Press Media
Editors, Association of Alternative Newsmedia, College
Media Association, First Amendment Coalition, Reporters
Committee for Freedom of the Press, and Society of
Professional Journalists.
6 THE KOALA V. KHOSLA
OPINION
CHRISTEN, Circuit Judge:
Plaintiff-Appellant The Koala is an unincorporated
registered student organization (“RSO”) at the University of
California, San Diego (“UCSD”) that publishes a newspaper
featuring art and satirical writing. In 2015, The Koala
published an article satirizing the concept of “safe spaces” on
campus, generating numerous complaints from students and
administrators and prompting UCSD to publicly denounce the
article’s offensive language. Two days later, the UCSD
student government passed the Media Act, which eliminated
RSO funding for all print media, including The Koala. In
response, The Koala brought this action for declaratory and
injunctive relief, alleging that the passage of the Media Act
violated its First Amendment rights. Defendants moved to
dismiss.
The district court concluded that The Koala’s lawsuit was
barred by the Eleventh Amendment. Alternatively, it
concluded that the Media Act did not violate the Free Press
Clause of the First Amendment because the Act was content
neutral, viewpoint neutral, and applied uniformly to all RSOs.
The district court also dismissed The Koala’s Free Speech
Clause claims on the merits, concluding that the media funds
category of RSO funding was a limited public forum that
UCSD was free to close. Finally, the district court ruled that
The Koala failed to state a First Amendment retaliation claim
because the court concluded that a facially neutral legislative
enactment cannot be the basis for a claim of retaliation. The
Koala appeals.
THE KOALA V. KHOSLA 7
We reverse the district court’s order, vacate its judgment,
and remand for further proceedings consistent with this
opinion.
FACTUAL BACKGROUND
The Associated Students is the student government
organization at UCSD. Students at UCSD pay compulsory
student fees, and the university remits a portion to the
Associated Students for reallocation to RSOs, creating a
source of funding for various student activities. UCSD
allows the Associated Students to distribute student activity
funds, but the university mandates that the allocation be
consistent with its educational policy goals. UCSD’s Policy
on Compulsory Campus-Based Student Fees states that “[t]he
University’s educational purposes are served when
reallocations by [the Associated Students] . . . to support
[RSOs] and [RSO]-related programs and activities are made:
(1) to provide opportunities for the educational benefits and
personal and social enrichment that derive from participation
in extracurricular programs and activities; and (2) to stimulate
on-campus discussion and debate on a wide range of issues
from a variety of viewpoints.”
The Associated Students distributes a funding guide
explaining how to apply for student activity funding. For the
2015–16 academic year, the funding guide stated that the
Associated Students’ distribution guidelines were intended to
“promote the equitable allocation of student fees and
sustainable growth of student organizations[.]” The funding
guide also explained that RSOs could request funding from
seven different categories: (1) programming funds;
(2) operating funds; (3) tournament and competition funds;
8 THE KOALA V. KHOSLA
(4) annual event funds; (5) media funds; (6) interest-free
programming loans; and (7) Associated Students grants.
The remaining sections of the 2015–16 funding guide
were dedicated to explaining those categories. Under media
funds, the guide stated that the Associated Students would
allocate funding on a “content-neutral basis” and that neither
the Associated Students nor UCSD would be “responsible for
the content of student media publications.”
According to the funding guide, RSOs like The Koala
could receive up to $1,000 per quarter for media costs, and
the Associated Students’ budget earmarked $25,000 for RSOs
seeking print media funding during the 2015–16 academic
year.
In November 2015, The Koala published an article
entitled “UCSD Unveils New Dangerous Space on Campus.”
The article satirized the concepts of “trigger warnings” and
“safe places” on college campuses, employing ethnic and
sexist stereotypes and racial epithets.
Following the article’s publication, the Associated
Students received numerous comments and complaints about
its offensive language. The article also prompted students to
file “Bias Incident Report Forms” with UCSD, which the
administration redirected to The Koala. A different RSO
suggested that the administrator who approved the
newspaper’s funding should resign, but a UCSD official
explained that “[The] Koala gets no University funding[.]
The Associated Students [funds] them. Pressure should [be]
brought to that organization to end the madness.” A
representative of that RSO replied “this is news to me, we
will get on it asap.”
THE KOALA V. KHOSLA 9
In the following days, UCSD released a statement by
Chancellor Khosla that “strongly denounce[d] [T]he Koala
publication and the offensive and hurtful language it cho[se]
to publish.” The statement described The Koala as
“profoundly repugnant, repulsive, attacking[,] and cruel,”
notified readers that the UCSD administration did “not
provide any financial support for [T]he Koala,” and “call[ed]
on all students, faculty, staff[,] and community members to
join [the administration] in condemning [The Koala’s]
publication and other hurtful acts.”
The Associated Students held a regularly scheduled
meeting on the same day the Chancellor issued his statement.
The Vice Chancellor of Student Affairs attended the meeting
and read Chancellor Khosla’s statement, and a member of the
Associated Students introduced the Media Act.
Consideration of the Media Act was not listed on the
Associated Students’ agenda prior to the day of the meeting,
but after some discussion and debate, it was approved. The
Media Act eliminated the media funds category from the
student activity funding available to RSOs.
The Koala lost $452.80 in campus activity fee funding
when the Media Act was passed. The loss of funds prevented
The Koala from publishing an issue planned for the 2015–16
winter quarter and three of the six issues planned for the
remainder of the academic year. The Koala alleges that the
Associated Students continues to provide financial support
for at least one student-run, student-initiated newspaper, The
Collective Voice.
The Koala continues to publish issues online, but it asserts
several reasons why online publication is not a suitable
alternative for publishing in print: (1) The Koala attracted
10 THE KOALA V. KHOSLA
student artists prior to the Media Act because it was the only
newspaper on campus that dedicated its cover to student
artwork; (2) The Koala contends that it is now unable to offer
artists the same control in digital format because end users
can change the display, color, and shading; and (3) The Koala
more easily reached its intended audience when it published
in print because it distributed each paper issue on campus, by
hand. In sum, The Koala contends that publishing online
hinders its ability to reach and engage with its intended
audience.
PROCEDURAL BACKGROUND
The Koala’s initial complaint alleged that defendants are
engaged in an ongoing violation of its First Amendment
rights, and The Koala sought to enjoin them from
“categorically refusing to provide campus activity fee funding
for the publication of student print media[.]” The Koala
moved for a preliminary injunction, and amended its
complaint. Defendants moved to dismiss the amended
complaint pursuant to Fed. R. Civ. P. 12(b)(6). The district
court denied the motion for a preliminary injunction and
granted defendants’ motion to dismiss. In doing so, the court
concluded that the Eleventh Amendment barred the amended
complaint because a “request to provide/restore funding from
the state” was “[a]t the heart” of The Koala’s claims. It
acknowledged, however, that further amendment might
correct this deficiency and granted The Koala leave to amend.
The court also noted that although The Koala’s briefing
argued a claim for retaliation under the First Amendment, the
amended complaint did not actually include a retaliation
claim.
THE KOALA V. KHOSLA 11
The Koala’s second amended complaint (“SAC”) is the
operative pleading in this case. It alleges that defendants are
engaged in a continuing violation of the First Amendment’s
Free Press Clause because the Media Act impermissibly
singled out and financially burdened the The Koala. The
Koala’s Free Speech Clause claim alleges that defendants
created a limited public forum for the speech of all RSOs
when they instituted a program allowing RSOs to apply for
campus activity funding. Because the Media Act expelled
The Koala from this forum in response to the “Dangerous
Space” article, The Koala contends that the Media Act
amounted to viewpoint discrimination. Finally, the SAC
includes a First Amendment retaliation claim that the
“Dangerous Space” article was a substantial motivating factor
in the decision to defund print media.1
The Koala requested an injunction preventing defendants’
continued enforcement of the Media Act, a declaratory
judgment that defendants violated The Koala’s First
Amendment rights, and an award of attorneys’ fees and costs.
Notably, in place of The Koala’s prior request for an order
restoring activity funding, the SAC seeks only eligibility to
apply for student activity funding.
1
Although neither party appears to explicitly raise or develop this
issue, we note that as a matter of policy the Associated Students “are
official units of the University exercising authorities concerning student
affairs by delegations from The Regents, the President, and the
Chancellors[.]” Thus, for the purposes of the present motion, the SAC
pleads the requisite state action for each of The Koala’s First Amendment
claims. See Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361, 365
(8th Cir. 1988) (finding state action where Student Senate was a
“creation[] of the State” and university retained “final say over Senate
funding decisions”).
12 THE KOALA V. KHOSLA
Defendants renewed their motion to dismiss, and the
district court granted the motion with prejudice. The Koala
timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291, and we reverse the district court’s order granting
defendants’ motion to dismiss and vacate the district court’s
judgment.
STANDARDS OF REVIEW
We review de novo “a dismissal on the basis of sovereign
immunity or for failure to state a claim upon which relief can
be granted.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents,
824 F.3d 858, 864 (9th Cir. 2016).
When evaluating the sufficiency of a pleading under Fed.
R. Civ. P. 12(b)(6), we review only the allegations in the
complaint and any attachments or documents incorporated by
reference. See United States v. Ritchie, 342 F.3d 903, 907–08
(9th Cir. 2003). We “accept the complaint’s well-pleaded
factual allegations as true, and construe all inferences in the
plaintiff’s favor[.]” Ariz. Students’, 824 F.3d at 864.
Ultimately, we must determine if these materials present
“sufficient factual matter . . . to state a claim to relief that is
plausible on its face.” OSU Student All. v. Ray, 699 F.3d
1053, 1061 (9th Cir. 2012) (alteration in original) (internal
quotation marks omitted).
DISCUSSION
I. The Eleventh Amendment does not bar The
Koala’s claims.
The Eleventh Amendment provides that the power of the
federal judiciary “shall not be construed to extend to any suit
THE KOALA V. KHOSLA 13
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. The
Supreme Court has explained that this provision “stand[s]”
for the “presupposition” that “each State is a sovereign entity
in our federal system” and “that ‘it is inherent in the nature of
sovereignty not to be amenable to the suit of an individual
without its consent.’” Seminole Tribe of Fl. v. Florida,
517 U.S. 44, 54 (1996) (quoting Hans v. Louisiana, 134 U.S.
1, 13 (1890)) (one alteration omitted). Thus, the Eleventh
Amendment generally prevents a state and state government
actors from being sued in federal court without the state’s
consent. See Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir.
2002).
Nevertheless, under the principle established in Ex parte
Young, 209 U.S. 123 (1908), private individuals may sue state
officials in federal court for prospective relief from ongoing
violations of federal law, as opposed to money damages,
without running afoul of the doctrine of sovereign immunity.
See Va. Office of Prot. & Advocacy v. Stewart, 563 U.S. 247,
254–55 (2011). “In determining whether the doctrine of Ex
parte Young avoids an Eleventh Amendment bar to suit, a
court need only conduct a ‘straightforward inquiry into
whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as
prospective.’” Verizon Md. Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 645 (2002) (alteration in original)
(quoting Idaho v. Coeur d’Alene Tribe of Id., 521 U.S. 261,
296 (1997)).
We applied this principle in Arizona Students’, a case
involving claims similar to The Koala’s, and concluded that
a public university’s student government’s First Amendment
14 THE KOALA V. KHOSLA
“claim for prospective injunctive relief and related
declaratory relief [was] not barred by sovereign immunity,”
even though the effect of the relief sought in that case would
likely restore the student government’s funding. 824 F.3d
at 865.
Here, the district court acknowledged the exception to
sovereign immunity established by Ex parte Young and its
progeny but observed that “Ex parte Young cannot be used to
obtain an injunction requiring the payment of funds from the
State’s treasury.” (quoting Stewart, 563 U.S. at 256–57).
Despite the fact that the SAC sought only restoration of The
Koala’s eligibility to receive funds, the district court ruled
that the Eleventh Amendment prohibited The Koala’s claims
because it viewed the SAC as “an artful effort to avoid the
Eleventh Amendment bar” and concluded that the SAC
“seeks to directly tap the state treasury.” We disagree for two
reasons.
First, we are constrained to review only the allegations in
the SAC and any documents attached to it or incorporated by
reference, and we must accept all well-pleaded allegations as
true. See N.M. State Inv. Council v. Ernst & Young LLP,
641 F.3d 1089, 1094 (9th Cir. 2011). The implications of this
rule lead to “the well-established doctrine that an amended
pleading supersedes the original pleading.” Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,
whether The Koala originally sought an injunction directing
the restoration of funding is of no moment at this stage in the
proceedings. We must accept as true that The Koala seeks
only a return of eligibility to apply for funding, not an order
directing the state to fund it. Accordingly, the SAC does not
run afoul of the sovereign immunity doctrine. The express
THE KOALA V. KHOSLA 15
relief requested by the SAC requires that we reverse the
district court’s order.
Second, even if the The Koala’s desired remedy would
result in the return of its student activity fee funding, the rule
announced in Ex parte Young allows federal jurisdiction
where prospective relief remedying an alleged violation of
federal law may result in the expenditure of state funds. See
Cardenas, 311 F.3d at 938; see also K.W. ex rel. D.W. v.
Armstrong, 789 F.3d 962, 974 (9th Cir. 2015) (holding that
plaintiffs’ request for injunctive relief was not barred by the
Eleventh Amendment even though relief would require the
state to “reinstat[e] social assistance benefits prospectively”
because “the injunction d[id] not compensate class members
for any loss of services that occurred prior to the date it was
entered”).
Finally, we note that the doctrine of sovereign immunity
asks whether a state “will be legally required to satisfy any
monetary judgment[.]” Sato v. Orange Cty. Dep’t of Educ.,
861 F.3d 923, 929 (9th Cir. 2017), cert. denied, 138 S. Ct.
459 (2017). That concern is not presented by the facts of this
case because UCSD’s existing policy requires that it collect
a compulsory activity fee from each student and remit a
percentage of the total to the Associated Students for
reallocation to RSOs. The outcome of this lawsuit will not
increase or decrease the overall financial burden on the state;
it will affect only which RSOs may apply for student activity
fees and, potentially, how the total student activity fund is
distributed. We are satisfied that the relief The Koala seeks
is consistent with the Ex parte Young doctrine and not barred
by the Eleventh Amendment.
16 THE KOALA V. KHOSLA
II. Freedom of the Press
The Koala argues that enforcement of the Media Act
violates the First Amendment’s Free Press Clause because it
targets the student press for a financial burden. More
specifically, The Koala contends that any state action that
“singles out” the press by imposing a financial burden or
withdrawing a previously allocated revenue source is
unconstitutional unless there is a compelling government
interest justifying the action. The SAC also alleges that the
Media Act was “substantially motivated by discrimination”
against The Koala, that UCSD implemented the Media Act
just two days after The Koala published its “Dangerous
Space” article, that it did so “in order to deprive The Koala of
eligibility to seek campus activity fee funding,” and that at
least one other student-run newspaper continues to receive
activity fee funding. Defendants counter that access to the
student activity fund is more accurately characterized as a
government subsidy than the imposition of a financial burden
like a tax, and that the Media Act does not implicate the Free
Press Clause because it is applied to all RSOs.
The Supreme Court has made clear that “the States and
the Federal Government can subject newspapers to generally
applicable economic regulations without creating
constitutional problems,” Minneapolis Star & Tribune Co. v.
Minn. Comm’r of Revenue, 460 U.S. 575, 581 (1983), but
“[a]bsent a compelling justification, the government may not
exercise its taxing power to single out the press.” Leathers v.
Medlock, 499 U.S. 439, 447 (1991). 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, 481 U.S. 221, 228 (1987)
THE KOALA V. KHOSLA 17
(quoting Minneapolis Star, 460 U.S. at 585). Taxes that are
“seen to be a deliberate and calculated device . . . to limit the
circulation of information” or are enacted “with the plain
purpose of penalizing the publishers” of newspapers are the
most egregious example of this type of impermissible
government censorship. Grosjean v. Am. Press Co., 297 U.S.
233, 250–51 (1936); see also Leathers, 499 U.S. at 453. In
Grosjean, the Supreme Court held that the Louisiana
legislature unconstitutionally burdened the press by enacting
a law “with the plain purpose of penalizing” newspapers that
had criticized Senator Huey Long, thereby “curtailing the[ir]
circulation.” Id.; see also Minneapolis Star, 460 U.S. at 580.
The Supreme Court reaffirmed Grosjean’s holding in
Leathers, reiterating that a tax violates the Free Press Clause
if it is “directed at . . . particular ideas.” 499 U.S. at 453.
Supreme Court case law establishes that it is sufficient to
show the government acted with the intent to burden the press
in order to plead a viable Free Press Clause claim, but it is not
necessary to show invidious intent; where differential
taxation of the press burdens the special interests protected by
the First Amendment, it is presumptively unconstitutional.
See Minneapolis Star, 460 U.S. at 585. The government must
offer a “compelling justification” for a taxation scheme that,
on its face, treats the press differently. See Leathers,
499 U.S. at 447. Indeed, in Minneapolis Star, the Court
specifically disclaimed reliance on Grosjean because the
record did not show that the government acted for the purpose
of burdening the press. See 460 U.S. at 580. Nevertheless,
because the Minnesota legislature enacted a use-tax
exemption for print newspapers that resulted in one
newspaper paying two-thirds of the revenue raised statewide,
the Court found a violation of the Free Press Clause. Id. at
18 THE KOALA V. KHOSLA
592 (“Illicit legislative intent is not the sine qua non of a
violation of the First Amendment”).2
In addition to Supreme Court cases addressing the
imposition of taxes or the elimination of tax credits, the Third
Circuit ruled more broadly that the government may violate
the Free Press Clause if it imposes financial burdens on the
press through other means. See Pitt News v. Pappert, 379
F.3d 96, 110 (3d Cir. 2004). In Pitt News, the state prohibited
alcohol advertisements in media affiliated with universities,
colleges, or other educational institutions, thereby depriving
the student press of advertising income. Id. at 101–02.
Pennsylvania argued the law was permissible because it did
not impose a tax, id. at 111, but the Third Circuit disagreed.
Building on Leathers, Arkansas Writers’, and Minneapolis
Star, the Third Circuit concluded that the distinction between
taxes and other financial burdens was immaterial because
“[t]he threat to the First Amendment arises from the
imposition of financial burdens that may have the effect of
influencing or suppressing speech, and whether those burdens
take the form of taxes or some other form is unimportant.”
Id. at 111–12.
Our concurring colleague suggests that we should end our
legal inquiry here. Because the SAC alleges that defendants
acted to single out The Koala for disfavored treatment, the
concurrence concludes the SAC sufficiently alleges a Free
2
Black’s Law Dictionary defines “sine qua non” as follows: “without
which not. An indispensable condition or thing; something on which
something else necessarily depends.” (11th ed. 2019).
THE KOALA V. KHOSLA 19
Press Clause violation.3 But as the concurrence
acknowledges, the Supreme Court has never applied the
Minneapolis Star line of disparate taxation cases to a factual
situation in which the government singled out a newspaper by
withdrawing a subsidy, as opposed to imposing a tax.
Defendants argue that the Court’s Free Speech case law
establishes a “fundamental distinction” between withholding
government subsidies and the imposition of other financial
burdens, like taxes. The concurrence contends that we
analyze the implications of the tax-subsidy difference sua
sponte, but at the 12(b)(6) stage, the question is whether the
SAC states a claim for which relief may be granted, and the
legal distinction between subsidies and other forms of
financial burdens was a centerpiece of the defendants’
argument on appeal. Specifically, they argue that the
Minneapolis Star line of cases is inapplicable to The Koala’s
Free Press Clause claim.
First, we agree that the government generally enjoys
broad discretion in granting or denying subsidies. The
Supreme Court has said that “[a] legislature’s decision not to
subsidize the exercise of a fundamental right does not
infringe the right.” Rust v. Sullivan, 500 U.S. 173, 192–93
(1991) (quoting Regan v. Taxation With Rep. of Wash.,
461 U.S. 540, 549 (1983)) (upholding conditions on Title X
healthcare funds prohibiting providers from discussing
“abortion as a lawful option”); see also United States v. Am.
Library Ass’n, Inc., 539 U.S. 194, 212 (2003) (rejecting Free
3
Though The Koala has not addressed it on appeal, the SAC alleges
that the financial burden imposed upon The Koala was not limited to
revocation of student activity funds. The SAC also alleges that defendants
denied The Koala access to a crowd-funding platform sponsored by
UCSD.
20 THE KOALA V. KHOSLA
Speech challenge to federal statute conditioning library
funding on the installation of software that blocked
pornographic websites, and observing “[a] refusal to fund
protected activity, without more, cannot be equated with the
imposition of a penalty on that activity.” (internal quotation
marks omitted)).
Though the Supreme Court has not addressed whether the
withdrawal of a press subsidy violates the First Amendment,
other Supreme Court case law teaches that the government
can violate the First Amendment by withholding benefits for
a censorious purpose, at least in the Free Speech Clause
context. See Regan, 461 U.S. at 548 (finding no Free Speech
Clause violation, but cautioning “[t]he case would be
different if Congress were to discriminate invidiously in its
subsidies in such a way as to ‘aim[] at the suppression of
dangerous ideas.’”) (second alteration in original) (quoting
Cammarano v. United States, 358 U.S. 498, 513 (1959)). In
Cammarano, the Court found no constitutional violation
where the denial of a tax deduction for “sums expended to
promote or defeat legislation was plainly not ‘aimed at the
suppression of dangerous ideas.’” 358 U.S. at 515 (quoting
Speiser v. Randall, 357 U.S. 513, 518–19 (1958) (cautioning
that withholding a tax exemption “to claimants who engage
in certain forms of speech is in effect to penalize them for
such speech.”). Likewise, in Perry v. Sindermann, the Court
warned that “if the government could deny a benefit to a
person because of his constitutionally protected speech . . .
[it] would allow the government to ‘produce a result which
[it] could not command directly.’” 408 U.S. 593, 597 (1972)
(third alteration in original) (quoting Speiser, 357 U.S.
at 526). Finally, though the Court found no First Amendment
violation in National Endowment for the Arts v. Finley, the
Court conspicuously continued to stake out the rule that the
THE KOALA V. KHOSLA 21
government may not “leverage its power to award subsidies
on the basis of subjective criteria into a penalty on disfavored
viewpoints” that might “‘ai[m] at the suppression of
dangerous ideas[.]’” 524 U.S. 569, 587 (1998) (quoting
Regan, 461 U.S. at 550) (first alteration in original). The
Speiser-Perry-Regan-Finley line of cases reflects the
Supreme Court’s continued cautionary admonition that the
First Amendment will not tolerate the administration of
subsidy programs with a censorious purpose.
We see no reason why the rule articulated in the Free
Speech cases cited above—that the government may not
withhold benefits for a censorious purpose—should not apply
when the state singles out and burdens the press by revoking
a subsidy, particularly where, as here, the record includes
unusually compelling allegations that the government acted
with discriminatory intent.4
The concurrence contends that the Minneapolis Star line
of cases, standing on their own, are enough to resolve this
4
The Fourth Circuit explicitly found such a violation of the Free Press
Clause in Joyner v. Whiting, 477 F.2d 456, 458 (4th Cir. 1973). Joyner
considered whether the First Amendment precluded a college president
from unilaterally revoking student activity fee funding earmarked for a
student newspaper in response to a controversial editorial. Id. at 459–60.
The court reasoned from the principle that “[a] college, acting ‘as the
instrumentality of the State, may not restrict speech . . . simply because it
finds the views expressed by any group to be abhorrent.’” Id. at 460
(second alteration in original) (quoting Healy v. James, 408 U.S. 169, 180,
187 (1972)). The Fourth Circuit ruled that, “if a college has a student
newspaper, its publication cannot be suppressed because college officials
dislike its editorial comment[,]” id., and held that “the president’s
irrevocable withdrawal of financial support from [the newspaper] . . .
abridge[d] the freedom of the press in violation of the First Amendment.”
Id. at 458.
22 THE KOALA V. KHOSLA
case without any consideration of defendants’ censorious
motivation—yet the concurrence acknowledges that this case
presents “circumstances raising a strong suspicion as to the
state’s censorial motives.” Concurrence at 46.5 Because the
SAC so clearly alleges that defendants acted with a
censorious purpose, we need not decide whether Minneapolis
Star’s reasoning suffices. The Supreme Court’s subsidy
cases provide a ready rule of decision: where a complaint
alleges that the state singled out the press by withholding a
subsidy in response to disfavored speech, the complaint
alleges a viable Free Press Clause cause of action.
The SAC’s Free Press Clause claim is sufficient to
survive defendants’ motion to dismiss because it alleges that
the Media Act was passed for the express purpose of
silencing a newspaper, Grosjean, 297 U.S. at 251, and that
defendants singled out The Koala for a disparate financial
burden, Minneapolis Star, 460 U.S. at 585; see also Pitt
News, 379 F.3d at 110. Although student activity fee funding
can be likened to a subsidy, we conclude that the SAC
sufficiently alleges a violation of the Free Press Clause, and
we reverse the district court’s order dismissing The Koala’s
Free Press Clause claim.
III. Freedom of Speech
The Koala also argues that defendants violated its First
Amendment right to free speech by creating a limited public
forum consisting of the student activity fund, and then closing
5
The concurrence argues that it would not compel the government to
maintain subsidies once they are granted, but the only way the
concurrence distinguishes this case is to point to strong evidence of
censorious purpose. See Concurrence at 45.
THE KOALA V. KHOSLA 23
a portion of the forum for the purpose of denying The Koala
access to it. Defendants disagree about the scope of the
limited public forum they created, and also argue that,
however the forum’s contours are defined, they were free to
close it. See Seattle Mideast Awareness Campaign v. King
Cty., 781 F.3d 489, 496 (9th Cir. 2015) [hereinafter SeaMAC]
(citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45–46 (1983)) (observing that the state may
close a designated public forum “whenever it chooses”).
“Nothing in the Constitution requires the Government
freely to grant access to all who wish to exercise their right to
free speech on every type of Government property without
regard to the nature of the property or to the disruption that
might be caused by the speaker’s activities.” Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
799–800 (1985); see Greer v. Spock, 424 U.S. 828, 836
(1976) (“The guarantees of the First Amendment have never
meant that people who want to propagandize protests or
views have a constitutional right to do so whenever and
however and wherever they please.”) (internal quotation
marks omitted). The government, like any landowner, has the
power to control access to its private property, id., and courts
will not entertain First Amendment challenges where there is
no indication that the government intended to grant public
access to a particular property. See Perry Educ., 460 U.S. at
47 (“If by policy or by practice the . . . School District ha[d]
opened its mail system for indiscriminate use by the general
public, then [plaintiff] could justifiably argue a public forum
ha[d] been created . . . . [However,] there is no indication in
the record that the school mailboxes and interschool delivery
system are open for use by the general public.”).
24 THE KOALA V. KHOSLA
In keeping with these black-letter principles, we use a
forum analysis to evaluate government restrictions on purely
private speech that occurs on government property. See
Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018).
We are concerned with three types of fora: (1) the traditional
forum; (2) the designated public forum; and (3) the limited
forum.6 See id. The government’s ability to restrict speech
differs “depending on the character of the property at issue.”
Perry Educ., 460 U.S. at 44.
Traditional public fora are defined as properties that by
history and tradition have been open for public speech. See
SeaMAC, 781 F.3d at 496. Traditional public fora include
“parks, streets, sidewalks, and the like[.]” Minn. Voters All.,
138 S. Ct. at 1885. Designated public fora are properties that
are not traditionally open for public speech, but the
government has made them “‘generally available’ for
‘expressive use by the general public or by a particular class
of speakers.’” SeaMAC, 781 F.3d at 496 (quoting Ark. Educ.
Television Comm’n v. Forbes, 523 U.S. 666, 677–78 (1998)).
Examples of designated public fora include university
meeting facilities, school board meetings, and municipal
theaters. See Perry Educ., 460 U.S. at 45 (collecting cases).
In both of these types of fora, the government may impose
reasonable time, place, and manner restrictions on speech, but
content-based restrictions must be viewpoint neutral and
satisfy strict scrutiny review. Minn. Voters All., 138 S. Ct.
at 1885.
6
In SeaMAC, we noted that fora in the third category have
“sometimes been labeled ‘nonpublic’ forums” but concluded that “[t]he
label doesn’t matter, because the same level of First Amendment scrutiny
applies to all forums that aren’t traditional or designated public forums.”
781 F.3d at 496 n.2 (internal citations omitted).
THE KOALA V. KHOSLA 25
Both parties agree that, whatever its scope, the forum at
issue in this case is a limited public forum. The classic
example of a limited public forum is a government property
characterized by selective access based on the speaker or
subject matter. See SeaMAC, 781 F.3d at 497. In this type of
forum, the government may regulate speech so long as the
restriction is reasonable and viewpoint neutral. Id. at 496.
The government creates limited public fora, and we have said
that it may close such limited fora “whenever it chooses.”
See id.7
The parties in this case disagree about what constitutes
the limited public forum. The Koala contends that the
relevant forum in this case is the total student activity fund
available to RSOs. It argues that the media funds category is
merely an administrative device established by the Associated
Students to facilitate its allocation of the total student activity
fund. The Koala reasons that the relevant forum should be
defined by the policy pursuant to which the forum was
created, and UCSD’s Policy on Compulsory Campus-Based
Student Fees unambiguously created a single funding
program for the speech of all RSOs. Defendants counter that
the relevant forum is limited to the media funds category of
the student activity fund, primarily because The Koala
applied for that category of student activity fee funding.
7
Although our observation that the government may close a limited
public forum “whenever it chooses” is perhaps a stronger statement of the
law than those embraced by our sister Circuits, it is consistent with cases
from other Circuits holding that, just because the government opens a
limited forum, it is not required to retain or maintain it indefinitely. See,
e.g., Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d
314, 323 (D.C. Cir. 2018); Verlo v. Martinez, 820 F.3d 1113, 1129 (10th
Cir. 2016); Satawa v. Macomb Cty. R. Comm’n, 689 F.3d 506, 517 (6th
Cir. 2012).
26 THE KOALA V. KHOSLA
Alternatively, defendants maintain that even if the relevant
forum is defined as the total pool of student activity fee
funds, the Media Act was a reasonable restriction on speech.
Cornelius v. NAACP Legal Defense and Educational
Fund, 473 U.S. 788 (1985), is key to our analysis because it
illustrates how the Supreme Court identifies the boundaries
of fora that are not physical spaces. In Cornelius, two legal
defense funds were denied access to a federal workforce
charitable fundraising campaign established by a series of
executive orders. Id. at 790–92. The campaign limited
participation to charitable organizations that provided direct
health and welfare services, and excluded those that
participated in lobbying. Id. at 792–95. Because of these
limits, the defense funds were not allowed to be designated as
beneficiaries of the charitable campaign, and they challenged
this restriction as a denial of their First Amendment rights.
Id. at 793.
The government argued that the fundraising program was
not a forum at all, because it was not a physical space. Id. at
800. Looking to the rule that had emerged from the Court’s
earlier case law, the defense funds argued that the forum
should be defined by the space to which the speaker sought
access. Id. at 801. Because the defense funds did not seek
access to a physical work space—the defense funds wanted
to be deemed eligible to receive employee donations in the
charitable campaign, not access to federal office space—they
argued that the relevant forum was the fundraising campaign
itself. Id.
The Supreme Court agreed with respondents that the
forum need not be a physical space and declared the
charitable campaign to be the relevant forum. Id. But the
 THE KOALA V. KHOSLA 27
defense funds had also argued that the charitable campaign
should be open to all types of charitable organizations, and
the Court disagreed with that part of the funds’ argument. Id.
at 804. The Court determined the contours of the charitable
campaign forum by looking to what the government intended
when it created the campaign:
in defining the forum we have focused on the
access sought by the speaker. When speakers
seek general access to public property, the
forum encompasses that property. In cases in
which limited access is sought, our cases have
taken a more tailored approach to ascertaining
the perimeter of a forum within the confines
of the government property.
Cornelius, 473 U.S. at 801 (citing Greer, 424 U.S. at 836)
(holding that Fort Dix, a military installation, was not a
public forum)).
After considering the executive orders that created the
campaign, the Court rejected the legal defense funds’
contention that the government “created a limited public
forum for use by all charitable organizations to solicit funds
from federal employees” because “neither its practice nor its
policy [was] consistent with [that] intent.” Id. at 804.
Limited fora may be established through policy or
practice, see id. at 791–93 (examining executive orders
establishing charitable fund for federal workers); see also
Widmar v. Vincent, 454 U.S. 263, 277 (1981) (concluding
that a university created a limited public forum by adopting
an express policy allowing its meeting facilities to be used by
student groups), but the government does not create a limited
28 THE KOALA V. KHOSLA
public forum by inaction. See Cornelius, 473 U.S. at 802.
Here, as in Cornelius, we address “a forum more in a
metaphysical than in a spatial or geographic sense[.]”
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 830 (1995) (noting that a university student activity fund
is a metaphysical forum). To define its contours, we consider
the policy by which the forum was created. See Cornelius,
473 U.S. at 802. A limited public forum is a forum the
government has intentionally opened to certain groups or
topics, see id., and where there is an express policy, it
establishes the nature and purpose of the forum.8 SeaMAC,
781 F.3d at 497; see Bd. of Regents of Univ. of Wis. Sys. v.
Southworth, 529 U.S. 217, 223, 230 (2000) (observing the
University of Wisconsin created a forum for a student activity
fund, and that it did so to “enhance the educational
experience of its students [in a manner] consistent with the
University’s mission”).
Because designated or limited public fora are by
definition created by the state for particular purposes, see,
e.g., Minn. Voters All., 138 S. Ct. at 1886 (concluding that a
polling place is a limited public forum because it is
“government-controlled property set aside for the sole
purpose of voting”), it follows that where an express policy
creates a metaphysical forum, the policy itself defines the
forum’s scope.
The allegations in the SAC, and in the documents
incorporated by reference into the SAC, support the
conclusion that defendants created a limited public forum
8
In a related context, we have held that “[w]e look first to the terms
of any policy the government has adopted to govern access to the forum”
when determining the type of forum at issue. SeaMAC, 781 F.3d at 497.
THE KOALA V. KHOSLA 29
encompassing all student activity funding, not one
constrained to only media funds. Most saliently, UCSD’s
policy goals for allocating student activity fees were: “(1) to
provide opportunities for the educational benefits and
personal and social enrichment that derive from participation
in extracurricular programs and activities; and (2) to stimulate
on-campus discussion and debate on a wide range of issues
from a variety of viewpoints.” There is no UCSD policy
statement that separately establishes the category of media
funds, and although the Associated Students apportions the
total available activity funds into seven categories, we are
persuaded that these categories merely facilitate the grant
approval process. The guidelines to the Associated Students’
allocation process explain how RSOs may apply for funding;
they do not contain a separate statement of purpose for each
category of funding. In fact, UCSD mandates that the
Associated Students’ process for reallocating student fees be
consistent with UCSD’s overall educational policy goal of
providing opportunities for the educational benefit of its
students and stimulating on-campus discussion. Because a
limited public forum is one that “the government
intentionally has opened to certain groups or to certain
topics,” DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ.,
196 F.3d 958, 965 (9th Cir. 1999), and UCSD established a
policy addressing all of the funds available for allocation by
the Associated Students, we conclude the relevant forum is
the student activity fund in its entirety.
This conclusion is consistent with the way the Supreme
Court has defined fora in university settings. Rosenberger,
for example, concerned the University of Virginia’s student
activity fund, established “to support a broad range of
extracurricular student activities that [were] related to the
educational purpose of the University.” 515 U.S. at 824
30 THE KOALA V. KHOSLA
(internal quotation marks omitted). The Court defined the
entire student activity fund as limited public forum. Id.
at 830. Similarly, in Christian Legal Society v. Martinez, the
University of California, Hastings College of Law created a
“Registered Student Organization” (RSO) program whereby
RSOs were eligible to seek financial assistance from the law
school, and the Court defined the relevant forum as Hastings’
RSO program writ large. 561 U.S. 661, 669–70, 689 (2010).
Defendants’ reliance on our ruling in Flint v. Dennison,
488 F.3d 816 (9th Cir. 2007), is misplaced. In Flint, the
plaintiff twice exceeded the spending cap for a student
government election and was removed from office. Id. at
822. The plaintiff then brought a complaint against the
university alleging the spending cap was an unconstitutional
abridgment of free speech. Id. We defined the relevant
forum as the student election rather than the entire university
campus after reviewing the student government’s
Constitution and bylaws and determining that the student
government bylaws specifically created a separate student
election forum to provide “an educational experience for the
student candidates and student voters.” Id. at 833. Here,
UCSD’s written policy memorializes its intent to broadly
fund activities that serve its educational mission by
facilitating participation in extracurricular programs and
activities, and stimulating on-campus discussion and debate.
Defendants argue that the Media Act amounts to a forum
closure of the media funds category, and that they were free
to close this limited forum. We agree that a government is
not obligated to indefinitely maintain a limited public form,
see SeaMAC, 781 F.3d at 496, but we know of no case in
which the government has been allowed to define a forum
one way at its inception, then redefine it in response to speech
THE KOALA V. KHOSLA 31
it deems offensive and close only the portion of the forum
where that speech occurs. If the government could define the
contours of a limited public forum one way at is inception,
then redefine its scope in response to speech it disfavors, the
government would be free to zero-in and selectively silence
any voice or perspective.9 UCSD’s newly defined forum,
proposed ex post during contentious litigation around
sensitive cultural and political topics, runs the real risk of
silencing divergent views by slicing off just enough of an
existing forum (the student activity fund) to isolate offensive
speech, then closing the redefined forum (the Media Funds
category of the student activity fund) under the guise of
content neutrality.
Amici offer an analogy that illustrates this point:
If the appropriate forum in this case is
“Associated Students’ funding of student print
publications,” then the appropriate forum
when a college decides to stop funding
religious student groups might be considered
“Associated Students’ funding of religious
9
As the Second Circuit has observed:
all the circuits that have considered the issue have
determined that, at the very least, when a public
university creates or subsidizes a student newspaper
and imposes no ex ante restrictions on the content that
the newspaper may contain, neither the school nor its
officials may interfere with the viewpoints expressed in
the publication without running afoul of the First
Amendment.
Husain v. Springer, 494 F.3d 108, 124 (2d Cir. 2007).
32 THE KOALA V. KHOSLA
student groups.” If this is true, then the case
of a de-funded religious group would be
properly construed to be a forum closure
case[.]
Brief of Amicus Curiae The Student Press Law Center, et al.
at 23. The Supreme Court’s decision in Rosenberger
forecloses such a result. 515 U.S. at 844.
We conclude that the student activity fund is the relevant
forum for purposes of assessing the permissibility of
defendants’ actions. Because the district court came to a
different conclusion, it analyzed the sufficiency of The
Koala’s complaint using an incorrect framework. We
therefore vacate its order granting defendants’ motion to
dismiss and remand for consideration of The Koala’s Free
Speech claims in light of our forum definition.10
IV. The complaint sufficiently alleged a claim for
First Amendment Retaliation.
In addition to its Free Press and Free Speech claims, the
SAC includes a separate First Amendment claim arguing that
defendants passed the Media Act in retaliation for, and with
the intent to silence, The Koala’s satirical content.
10
Defendants’ separate argument, that the relevant forum must be
defined as the media funds because The Koala cannot show it was denied
access to any other category of funding other than media funds, boils
down to a restatement of its view that the relevant forum must be defined
as the space to which The Koala sought access. Defendants apply this test
without regard to context. For the reasons explained, we are persuaded
that The Koala sought access to a grant from the student activity fund, and
that the media funds category was adopted as an administrative
convenience, not as a separate forum.
THE KOALA V. KHOSLA 33
Defendants argue that the government’s motive is irrelevant
when it enacts a content-neutral rule of general applicability.
We are not persuaded by defendants’ argument. First, the
Media Act does not apply to all RSOs; it bans all media
organizations from obtaining student activity fee funding.
The Media Act discriminates based on the identity of the
speaker—here media organizations—and singles them out for
disfavored access to student activity fee funding. Further, the
SAC alleges that at least one other student organization
continues to receive funding for its print media.
Second, we are bound by our prior decision in Arizona
Students’. 824 F.3d at 862. There, we addressed a retaliation
claim from an organization representing students at each of
Arizona’s three public universities. Id. The students alleged
that the Arizona Board of Regents had withdrawn their
student activity fee funding in retaliation for the students’
support of a controversial statewide ballot measure. Id.
at 863. The Regents initially voted to cease collecting student
activity fees on behalf of the student government
organizations and not to disburse those it had already
collected. Id. Later, the Regents changed the mandatory
student activity fee to an opt-in fee and required the student
associations to reimburse the administration for the costs of
collection. Id. The student associations brought suit, alleging
that they lost their only source of income as a result of the
retaliatory action. See Ariz. Students’, 824 F.3d at 863.
The district court dismissed the students’ retaliation
claim, but we reversed. Id. at 862. We began by recognizing
the elements of a First Amendment retaliation claim: a
plaintiff must show “(1) it engaged in constitutionally
protected activity; (2) the defendant’s actions would chill a
34 THE KOALA V. KHOSLA
person of ordinary firmness from continuing to engage in the
protected activity; and (3) the protected activity was a
substantial motivating factor in the defendant’s conduct—i.e.,
that there was a nexus between the defendant’s actions and an
intent to chill speech.” Ariz. Students’, 824 F.3d at 867
(internal quotation marks omitted). At the pleading stage, the
complaint must simply allege “plausible circumstances
connecting the defendant’s retaliatory intent to the
suppressive conduct[,]” and motive may be shown with direct
or circumstantial evidence. Id. at 870.
After laying out this basic framework, we emphasized
that “motive [is] a necessary element” of a retaliation claim,
id. at 866, and held that “[o]therwise lawful government
action may nonetheless be unlawful if motivated by
retaliation for having engaged in activity protected under the
First Amendment.” Id. at 869 (quoting O’Brien v. Welty,
818 F.3d 920, 932 (9th Cir. 2016)).
Neither party disputes that The Koala’s “Dangerous
Space” article satisfies the first element of a retaliation claim,
because it was clearly protected speech. Second, The Koala
alleges that the Media Act eliminated its ability to seek
funding for printing and distributing its student newspaper,
which caused The Koala to stop publishing in print entirely.
The Koala thus adequately alleges that the Media Act would
chill a person of ordinary firmness from continuing to engage
in the protected activity and also that the Media Act did, in
fact, chill The Koala’s speech in this instance. That The
Koala continues to publish its newspaper online does not
change this outcome. A “plaintiff is not required to
demonstrate that its speech was actually suppressed or
inhibited.” Ariz. Students’, 824 F.3d at 867. Moreover, for
the reasons explained, The Koala sufficiently alleged that the
THE KOALA V. KHOSLA 35
Media Act burdened its speech because it considers the paper
version of its publication to be a more effective means of
communicating with its audience.
Finally, The Koala alleges its publication of the
“Dangerous Space” article was the motivating factor that
prompted the Associated Students to pass the Media Act,
thereby adequately alleging a nexus between The Koala’s
speech and the Associated Students’ allegedly retaliatory
conduct. The SAC alleges close temporal proximity between
the “Dangerous Space” article and UCSD’s release of a
statement from the Chancellor that “strongly denounce[d]
[T]he Koala publication and the offensive and hurtful
language it cho[se] to publish.” The Chancellor allegedly
described The Koala as “profoundly repugnant, repulsive,
attacking[,] and cruel[,]” the SAC alleges that a UCSD
administrator encouraged an RSO to “pressure” the
Associated Students to defund The Koala, and the Executive
Vice Chancellor of Academic Affairs allegedly made a
statement that strongly suggested The Koala was indeed
being singled out for special treatment: “Let’s not ditch the
good ones worthy of this funding and work actively on
finding ways to encourage and help them financially.” At
this early stage of the litigation, we take these allegations as
true and construe them in the light most favorable to The
Koala.
The district court cited the Seventh Circuit’s decision in
Grossbaum v. Indianapolis-Marion County Building
Authority, which held that “content-neutral speech regulations
in nonpublic fora pass constitutional muster regardless of
motive[.]” 100 F.3d 1287, 1299 (7th Cir. 1996). Grossbaum
is neither controlling nor analogous. In Grossbaum, the
Seventh Circuit upheld a government building authority’s
36 THE KOALA V. KHOSLA
decision to “prohibit[] all private displays, religious or
otherwise[,]” because the building authority entirely closed
the subject forum. Id. at 1289–91. Because the Seventh
Circuit approved the closure of an entire forum, it declined to
consider the government’s motivation. But as we have
explained, the Media Act only closed part of the broader
limited public forum created by the student activity fund. On
these facts, the SAC plausibly alleges the elements necessary
to plead a First Amendment retaliation claim.
We are sensitive to the challenges facing educational
institutions seeking to steer a difficult course between free
expression and civil discourse. Nevertheless, we are equally
mindful of that fact that, in the university setting, “the State
acts against a backdrop and tradition of thought and
experiment that is at the center of our intellectual and
philosophic tradition.” Rosenberger, 515 U.S. at 835. We
conclude that the Eleventh Amendment does not bar
plaintiffs’ suit. Because we further conclude that The Koala’s
complaint adequately states claims for violations of the Free
Press Clause, the Free Speech Clause, and First Amendment
retaliation, we vacate the district court’s order granting the
second motion to dismiss and remand for further proceedings
consistent with this opinion.
REVERSED, VACATED, AND REMANDED.
THE KOALA V. KHOSLA 37
FISHER, Circuit Judge, concurring:
I concur in the result and in all but part II of the opinion.
Regarding the Koala’s Free Press Clause claim, I agree with
the majority’s conclusion that the complaint states a claim,
but my analysis differs from the majority’s in two ways.
First, the majority concludes the second amended complaint
states a claim under the Free Press Clause on a theory –
improper censorial purpose – that the complaint does not
advance, the Koala does not rely on and the parties have not
briefed. Op. at 20–22. Although I agree with the majority
that a censorial purpose theory would be viable here if raised,
I would prefer not resolve the Free Press Clause issue on a
theory that it has not been pled, relied on or briefed. 1
Second, the opinion declines to decide whether the
complaint states a Free Press Clause claim on the theory that
the Koala does advance – its theory that the Media Act
violates the Free Press Clause because, irrespective of
censorial purpose, it singles out the press for a disparate
financial burden. Op. at 21–22. I recognize that this presents
a novel issue. Nevertheless, because the issue is fairly
presented, I would resolve the parties’ disagreement about
whether the discriminatory administration of a subsidy
program can be challenged on a “singling out” theory under
the Free Press Clause – a theory that does not require proof of
censorial purpose. Accordingly, I write separately to explain
1
As the majority opinion points out, the complaint does allege that
the defendants acted with a censorial purpose. Op. at 16. The complaint,
however, relies on these allegations in connection with the Koala’s Free
Speech Clause claim, not with respect to its Free Press Clause claim. The
Koala’s Free Press Clause claim relies on a singling out theory, not
censorial purpose.
38 THE KOALA V. KHOSLA
why, in my view, the Koala has adequately stated a Free
Press Clause claim on a singling out theory.2
I
The Supreme Court has not had occasion to address when
discrimination against the press in connection with a subsidy
program violates the Free Press Clause. That clause states
that “Congress shall make no law . . . abridging the freedom
of . . . the press.” U.S. Const. amend. I.
The Court has, however, addressed discrimination against
the press in connection with the imposition of taxes,
identifying at least four circumstances in which taxation of
the press is constitutionally suspect: (1) when a tax has “an
improper censorial motive,” Arkansas Writers’ Project, Inc.
v. Ragland, 481 U.S. 221, 228 (1987); see Leathers v.
Medlock, 499 U.S. 439, 444–45 (1991); Grosjean v.
American Press Co., 297 U.S. 233, 250 (1936); (2) when a
tax “singles out the press as a whole” for special treatment,
Arkansas Writers’ Project, 481 U.S. at 229; see Leathers,
499 U.S. at 445–46; (3) when a tax “targets a small number
of speakers,” Leathers, 499 U.S. at 447, or “individual
members of the press,” Arkansas Writers’ Project, 481 U.S.
at 228; and (4) when a tax “discriminates on the basis of the
2
I do not, as the majority opinion suggests, fault the majority for
“analyz[ing] the implications of the tax-subsidy difference.” Op. at 19.
In my view, the majority quite properly focuses on that issue. My concern
is simply that the majority opinion resolves the adequacy of the Free Press
Clause allegations on a legal theory that the complaint does not allege and
upon which the Koala does not rely – censorial purpose – while
simultaneously failing to address the theory upon which the complaint and
the Koala do rely – the theory that the defendants, irrespective of censorial
purpose, impermissibly singled out of the press for disparate treatment.
THE KOALA V. KHOSLA 39
content of taxpayer speech,” Leathers, 499 U.S. at 447. As
relevant here, the second and third of these types of
discrimination do not require proof of censorial purpose. As
the Court explained in Leathers, “direct evidence of improper
censorial motive is [not] required in order to invalidate a
differential tax on First Amendment grounds: ‘Illicit
legislative intent is not the sine qua non of a violation of the
First Amendment.’” Id. at 445 (quoting Minneapolis Star &
Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 592
(1983)).3
The Third Circuit, moreover, has held that the second and
third of these types of discrimination – singling out the press
as a whole or targeting a small number of speakers – apply
not only to “disparate taxation” but also to “laws that impose
other types of disparate financial burdens.” Pitt News v.
Pappert, 379 F.3d 96, 111 (3d Cir. 2004). The court reasoned
that “[t]he threat to the First Amendment arises from the
imposition of financial burdens that may have the effect of
influencing or suppressing speech, and whether those burdens
take the form of taxes or some other form is unimportant.”
Id. at 111–12. The court therefore applied these principles to
a state law preventing college newspapers from collecting
revenue from the advertisement of alcoholic beverages.
Here, both sides rely on Pitt News. Thus, for purposes of
my analysis, I assume that the Court’s cases regarding
singling out the press as a whole or targeting individual
3
Although the Court has said that “the institutional press” enjoys no
“constitutional privilege beyond that of other speakers,” Citizens United
v. FEC, 558 U.S. 310, 352 (2010) (quoting Austin v. Michigan Chamber
of Commerce, 494 U.S. 652, 691 (1990) (Scalia, J., dissenting)), it has
long treated discrimination against the press as constitutionally suspect.
40 THE KOALA V. KHOSLA
members of the press apply not only to disparate taxation but
also to “laws that impose other types of disparate financial
burdens.” Id. at 111.4
II
Where the parties disagree, however, is over whether
these principles extend from the imposition of taxes and other
financial burdens to disparate treatment under a subsidy
program. The defendants point out that the government is
under no obligation to subsidize the exercise of constitutional
rights. See, e.g., Ysursa v. Pocatello Educ. Ass’n, 555 U.S.
353, 355 (2009) (although “[t]he First Amendment prohibits
government from ‘abridging the freedom of speech,’” it does
not require the government to “promote that speech”); Rust
v. Sullivan, 500 U.S. 173, 193 (1991); Leathers, 499 U.S. at
450 (“[A] legislature is not required to subsidize First
Amendment rights through a tax exemption or tax
deduction.”); Regan v. Taxation With Representation of
Washington, 461 U.S. 540, 549 (1983) (“[A] legislature’s
decision not to subsidize the exercise of a fundamental right
does not infringe the right.”); Harris v. McRae, 448 U.S. 297,
317 n.19 (1980) (“A refusal to fund protected activity,
without more, cannot be equated with the imposition of a
‘penalty’ on that activity.”). They argue, moreover, that the
rationale behind the singling out theory – the recognition that
selective taxation can be used to coerce or destroy the press
– does not extend to the denial or withdrawal of a government
subsidy:
4
“In order to justify such differential taxation, the State must show
that its regulation is necessary to serve a compelling state interest and is
narrowly drawn to achieve that end.” Arkansas Writers’ Project, 481 U.S.
at 231.
THE KOALA V. KHOSLA 41
The rationale running through the Free Press
Clause cases repeatedly refers to the coercive
power to tax, and the legitimate role played by
the Free Press Clause in shielding the press
from the discriminatory exercise of the
potentially destructive power to tax. . . .
Similar concerns arise where the government
“unjustifiably imposes a financial burden on
a particular segment of the media,” Pitt News
v. Pappert, 379 F.3d 96, 109 (3d Cir. 2004),
or where it singles out the press with costly
and burdensome regulations, penalties, or
fines. . . . The potential threats posed by such
taxes, penalties, regulations, and fines do not
exist with regard to the administration of
government subsidies such as the campus
activity funds at issue here. . . . Nothing in
the Free Press Clause jurisprudence suggests
that it was intended to promote, guarantee, or
protect affirmative government assistance to
the press. . . . Simply put, the power to
subsidize is not the power to destroy.
Answering Brief at 21–23. The defendants emphasize that
“no court has construed the Free Press Clause to create a
‘protected classification’ for the press, guaranteeing ‘the
press’ access to every subsidy program the government
makes available to any person or entity who might also
engage in expressive activity.” Id. at 23. Nor, the defendants
argue, can the Koala “contend that the Free Press Clause
compels the government to maintain subsidies, once they are
granted, and to continue to maintain them, apparently
indefinitely.” Id. at 25.
42 THE KOALA V. KHOSLA
The defendants’ arguments are not persuasive. First, it
does not follow from the fact that the government has no duty
to subsidize the press that the government may discriminate
against the press in administering subsidies. The Court has
held, for instance, that a state may not “discriminate
invidiously in its subsidies in such a way as to ‘aim[ ] at the
suppression of dangerous ideas.’” Regan, 461 U.S. at 548
(alteration in original) (quoting Cammarano v. United States,
358 U.S. 498, 513 (1959)); cf. Perry v. Sindermann, 408 U.S.
593, 597 (1972). The right not to subsidize does not include
the unfettered right to discriminate.
Second, the defendants overstate matters when they argue
that the rationale underlying the Court’s tax cases does not
extend to the denial or withdrawal of a subsidy. To be sure,
in some instances the denial or withdrawal of a subsidy may
be less coercive than the imposition of a tax. In Regan, the
Court noted that, “although government may not place
obstacles in the path of a person’s exercise of freedom of
speech, it need not remove those not of its own creation.”
461 U.S. at 549–50 (alterations omitted) (quoting Harris,
448 U.S. at 316). The Court observed that “[c]onstitutional
concerns are greatest when the State attempts to impose its
will by force of law.” Id. at 550 (alteration in original)
(quoting Maher v. Roe, 432 U.S. 464, 476 (1977)). The
government’s “power to encourage . . . is necessarily far
broader.” Id. (quoting Maher, 432 U.S. at 476).
In my view, however, this is a difference in degree, not a
difference in kind. The tax-subsidy distinction goes only so
far. See, e.g., Leathers, 499 U.S. at 450 n.3 (describing tax
exemptions and deductions as “a form of subsidy”
administered through the tax system (quoting Regan,
461 U.S. at 544)). At least in some circumstances, “[t]he
THE KOALA V. KHOSLA 43
selective administration of government subsidies presents as
much potential for abuse as selective imposition of taxes,
regulations, penalties, or fines.” Reply Brief at 8. This may
be “especially true for the student press.” Id. Thus, the
defendants’ contention that the government enjoys carte
blanche to single out the press for differential treatment under
a subsidy program, so long as it neither manifests a censorial
purpose nor facially discriminates based on content, is
unpersuasive.
III
Here, the complaint adequately alleges a Free Press
Clause claim on a singling out theory. First, the complaint
plausibly alleges that the Media Act singled out the press
from a generally available funding program.5 It alleges that
“[t]he Student Government . . . disqualified student
organizations that publish print newspapers from eligibility
to seek funding designed to support the speech of student
organizations while continuing to treat other student
organizations as eligible to seek such funding.” SAC ¶ 2.
5
The majority opinion appears to misstate the theory upon which the
Koala relies. As I read it, the complaint alleges that the defendants
violated the Free Press Clause by singling out the student press as a
whole, not by singling out “The Koala [alone] for disfavored treatment.”
Op. at 18. See SAC ¶ 109 (“Defendants violated and are continuing to
violate the Free Press Clause of the First Amendment by adopting and
enforcing the Media Disqualification and thus excluding The Koala and
other student print publications from eligibility to seek campus activity fee
funding for the publication of student print newspapers, while continuing
to treat other student organizations as eligible to seek campus activity fee
funding . . . .”); Opening Brief at 28 (“As pleaded in the SAC, the Media
Disqualification violates the Free Press Clause on its face because it
imposes a financial burden on the student press by selectively
disqualifying it from an otherwise available source of revenue.”).
44 THE KOALA V. KHOSLA
Significantly, the complaint does not allege that the
defendants excluded the student press from a narrow, targeted
subsidy program, but rather that they excluded the student
press, and solely the student press, from a widespread funding
program upon which student organizations broadly rely.
According to the complaint, the Student Government
collected $3,704,964 in campus activity fees during the
2015–16 school year and allocated $432,236 to fund student
organizations, including $25,000 earmarked for print media
organizations. SAC ¶ 34. The defendants then excluded the
press alone from this broad-based funding program.
Second, the complaint plausibly alleges that this funding
program plays an outsized role in the financial lives of
student organizations. It alleges, for example, that the Media
Act “materially hindered The Koala’s ability to publish,
preventing it from publishing a planned issue during the
winter quarter of the 2015–16 academic year and limiting it
to three issues instead of the planned six during the
[subsequent] academic year.” SAC ¶ 101. It alleges that the
university also precluded the Koala from participating in “a
crowdfunding platform for student and campus projects.”
SAC ¶ 103.
Under these circumstances, the withdrawal of a subsidy
raises many of the same concerns as the imposition of a tax.
As the Third Circuit explained in Pitt News, schemes singling
out the press, or individual members of the press, “are suspect
because they can easily be used as a way of controlling or
suppressing speech.” 379 F.3d at 112. “Government can
attempt to cow the media in general by singling it out for
special financial burdens,” or it can “seek to control, weaken,
or destroy a disfavored segment of the media by targeting that
segment.” Id. at 110. As the Court recognized in Leathers,
THE KOALA V. KHOSLA 45
even the threat of disparate financial treatment can operate
“as effectively as a censor” in suppressing disfavored
expression. 499 U.S. at 446 (quoting Minneapolis Star,
460 U.S. at 585). These concerns apply here as well. The
defendants’ actions materially weakened the Koala, and it
requires little imagination to suppose that the funding
decision challenged here had a profound chilling effect on the
expressive activities of other organizations that depend on
student activity fee funding.
Third, the principle that taxes singling out the press are
constitutionally suspect responds to the practical concern that
a censorial purpose may be difficult to prove. Under a
singling out theory, a tax is suspect when, although evidence
of censorial motive is lacking, it “is structured so as to raise
suspicion that it was intended” as “a purposeful attempt to
interfere with [an entity’s] First Amendment activities.”
Leathers, 499 U.S. at 448. Here, the complaint plainly raises
these concerns. It alleges that, although the Media Act “was
in form directed at eligibility to seek funding for any student
print media,” it was “in fact substantially motivated by
discrimination or retaliation against The Koala because of the
viewpoint of its speech.” SAC ¶ 88. The timing of the Media
Act, as well as contemporary statements by student and
university leaders, strongly suggest a hidden censorial
motive.
For these reasons, I would hold that the complaint,
irrespective of censorial motive, adequately alleges a claim
under the Free Press Clause on the theory that the defendants
singled out the press for disparate treatment. This conclusion
does not, as the defendants contend, broadly interfere with a
government’s discretion to administer subsidy programs. I
would not “prevent the government from ever eliminating, or
46 THE KOALA V. KHOSLA
even reducing, subsidies to a media recipient, unless it can
demonstrate a compelling government interest.” Answering
Brief at 21. I would not read the Free Press Clause as
creating “a ‘protected classification’ for the press,
guaranteeing ‘the press’ access to every subsidy program the
government makes available to any person or entity who
might also engage in expressive activity,” or as requiring
“affirmative government assistance to the press.” Id. at
23–24. Nor would I read the Free Press Clause as compelling
“the government to maintain subsidies, once they are granted,
and to continue to maintain them, apparently indefinitely.”
Id. at 25. We have in this case the selective withdrawal of the
student press, and solely the student press, from a broad-
based funding program, under circumstances raising a strong
suspicion as to the state’s censorial motives. Under these
circumstances, I would hold that the complaint adequately
states a claim under the Free Press Clause.