The Koala v. Pradeep Khosla
931 F.3d 887
| 9th Cir. | 2019Background
- The Koala, a UCSD registered student organization that published a satirical print newspaper, ran an article mocking "safe spaces" that provoked campus complaints and a public denouncement by UCSD’s Chancellor.
- Two days after the Chancellor’s statement, the UCSD student government (Associated Students) passed the "Media Act," eliminating student-activity funding eligibility for print media and costing The Koala several print issues.
- The Koala sued UCSD officials seeking declaratory and injunctive relief (eligibility to apply for activity-fund grants), alleging violations of the Free Press Clause, the Free Speech Clause (forum-based viewpoint discrimination), and First Amendment retaliation.
- The district court dismissed the Second Amended Complaint on Eleventh Amendment and merits grounds, treating the media-funds category as a closable limited public forum and rejecting the retaliation claim as inadequately pleaded.
- The Ninth Circuit reversed in part and vacated in part: it held Ex parte Young permits The Koala’s prospective-relief suit (no sovereign immunity bar as pleaded); reinstated Free Press and retaliation claims; and remanded the Free Speech/forum claim for analysis under the correct forum definition (the entire student activity fund).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eleventh Amendment sovereign immunity | The Koala seeks only prospective relief restoring eligibility to apply for student-activity funding (not a direct money judgment), so Ex parte Young allows suit against state officials. | The claim effectively seeks state treasury funds and is barred by sovereign immunity. | Reversed: Ex parte Young applies; pleading alleges only prospective relief and relief would not compel direct payment from the state treasury. |
| Free Press Clause (singling out/withholding subsidy) | Withdrawing a subsidy that singles out the press for a financial burden violates the Free Press Clause; the Media Act targeted print media and was passed to silence The Koala. | A subsidy denial is permissible; government may choose not to subsidize speech and Minneapolis Star tax-line cases do not control subsidy-withdrawal. | Vacated dismissal: Complaint sufficiently alleges the state singled out the press and acted with censorial motive or created a disparate financial burden—pleaded Free Press claim survives. |
| Free Speech / Forum definition (limited public forum) | The relevant forum is the entire student activity fund (created by UCSD policy to further educational debate), so closing just the media portion after-the-fact and in response to speech may be impermissible viewpoint discrimination. | The relevant forum is the media-funds category the Koala applied to; the university may close a limited forum. | Reversed/vacated dismissal: Court adopts the student activity fund as the relevant limited forum and remands for proper forum-analysis and assessment of viewpoint neutrality/reasonableness. |
| First Amendment retaliation | The article was protected speech; the Media Act was enacted shortly after and chilled The Koala’s speech; motive (retaliation) is a required element and is adequately pleaded. | Motive is irrelevant for a neutral generally applicable rule; the Media Act applied uniformly to all RSOs (or only closed a forum category). | Vacated dismissal: Applying Arizona Students’ framework, the complaint plausibly alleges protected activity, chilling effect, and a causal nexus—retaliation claim survives pleading-stage challenge. |
Key Cases Cited
- Ex parte Young, 209 U.S. 123 (1908) (permits prospective suits against state officials to enjoin ongoing federal-rights violations)
- Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575 (1983) (differential taxation of the press raises First Amendment concerns even without proven illicit intent)
- Grosjean v. American Press Co., 297 U.S. 233 (1936) (tax enacted to penalize critics of government violated the Free Press Clause)
- Leathers v. Medlock, 499 U.S. 439 (1991) (disparate taxes on the press are constitutionally suspect; intent not always required)
- Rust v. Sullivan, 500 U.S. 173 (1991) (government may refuse to subsidize speech but may not impose censorial conditions that suppress disfavored ideas)
- Regan v. Taxation With Representation, 461 U.S. 540 (1983) (government has discretion not to subsidize, but may not discriminate invidiously in subsidies to suppress ideas)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (forum analysis applies to metaphysical fora; define forum by government intent/policy)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (student activity funds constitute a limited public forum; viewpoint discrimination by subsidy denial violates the First Amendment)
- Arizona Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858 (9th Cir. 2016) (motive is a necessary element of a First Amendment retaliation claim; framework for pleading retaliation)
- Pitt News v. Pappert, 379 F.3d 96 (3d Cir. 2004) (financial burdens other than taxes that single out the press can violate the Free Press Clause)
- Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973) (withdrawing university funding from a student newspaper in response to editorial content abridged the freedom of the press)