Case 3:16-cv-01296-JM-BLM Document 21 Filed 08/29/16 Page 1 of 11

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David Loy (SBN 229235)

ACLU FOUNDATION OF SAN DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Telephone: (619) 232-2121
Facsimile: (619) 232-0036
E-mail:
davidloy@aclusandiego.org
Ryan T. Darby, Esq. (SBN 264357)
THE LAW OFFICE OF RYAN T. DARBY
525 B Street, Suite 1500
San Diego, CA 92101
Telephone: (619) 858-4766
Facsimile: (619) 243-7226
E-mail:
darby@darby.law
Attorneys for Plaintiff THE KOALA

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE KOALA,

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Plaintiff,

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v.

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PRADEEP KHOSLA, et al.,

Defendants.

Case No.: 16cv1296 JM (BLM)

PLAINTIFFS REPLY
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION

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INTRODUCTION
As explained in opposition to the motion to dismiss, The Koala is likely to

prevail on the merits. The decision to expel the student press from the relevant

forum (Media Disqualification) violates the First Amendment. The Media

Disqualification violates the Free Press Clause by targeting the press. It violates the

Free Speech Clause by expelling speakers from a forum designed for their speech

that remains open to other student organizations. The expulsion of the student press

was unreasonable in light of the universitys declared purposes for the forum.

Though the evidence also shows viewpoint discrimination, the Media

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Disqualification violates the First Amendment on its face regardless of viewpoint.

Under controlling precedent, that First Amendment violation is irreparable

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harm, regardless of whether The Koala has secured funding and persevered in

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publishing in the face of an unconstitutional chilling effect. The balance of equities

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and public interest always favor protecting constitutional rights, and in any event,

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by Defendants own calculations, an injunction against enforcing the Media

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Disqualification would not have a significant budgetary effect. The injunction is

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specific and properly tailored, and it does not affect proper implementation of

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otherwise valid rules for disbursing campus activity fees. Accordingly, the Court

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should grant a preliminary injunction.

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ARGUMENT

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A. The Koala is likely to succeed on the First Amendment merits.

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The Media Disqualification violates the Free Press Clause and the Free

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Speech Clause on its face, and the evidence also shows viewpoint discrimination.

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Therefore, The Koala is likely to succeed on the merits.

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1. The Media Disqualification violates the Free Press Clause.

The Media Disqualification selectively targets the student press by stripping

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it of revenue available to other student organizations. The alleged difference

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between imposing taxes and stripping revenue is constitutionally insignificant.

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Tax rules impact revenue just as much as direct payments, and there is no

principled difference between the two. Therefore, the Media Disqualification

violates the Free Press Clause. Plaintiffs Mem. of Points & Auth. in Opp. to Mot.

to Dism. at 9-14 (Opp. MTD).

2. The Media Disqualification violates the Free Speech Clause.

The Media Disqualification violates the Free Speech Clause on its face by

expelling the student press from a forum that remains open to other student

organizations. The forum is funding for speech of all student organizations, not

only print publications. That forum remains open, because the Media

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Disqualification did not cut off all student organizations, only a disfavored few.

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The government cannot selectively expel speakers for whom a forum is designed.

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To expel the student press from a forum designed for their speech is unreasonable

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in light of the universitys declared purposes for the forum, because the student

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press serves those purposes as much as other student groups.1 Opp. MTD at 14-20.
The expulsion was also improperly motivated by viewpoint. The Media

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Disqualifications superficial neutrality does not immunize it from constitutional

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review for viewpoint discrimination. Opp. MTD at 20-25. On this motion, the

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court need only find probabilities that the necessary facts can be proved. Sierra

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On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1423 (9th Cir. 1984). The

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facts make a strong case of viewpoint discrimination. The live blog of the meeting

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at which the Media Disqualification was adopted remains a contemporaneous

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record and is properly before the Court on preliminary injunction. Americans for

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Prosperity Found. v. Harris, 809 F.3d 536, 540 n.3 (9th Cir. 2015).

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The Court may grant an injunction on these grounds, which Defendants placed at
issue and to which they have an opportunity to respond in their reply brief on the
motion to dismiss. San Diego Gas & Elec. Co. v. Mitsubishi Heavy Indus., Ltd.,
No. 13-CV-1726-BEN KSC, 2014 WL 1245842, at *4 (S.D. Cal. Mar. 14, 2014);
Gomez v. Rossi Concrete, Inc., 270 F.R.D. 579, 588 n.12 (S.D. Cal. 2010).

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It is also corroborated by a witness who attended the meeting. ONeill Decl.

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6. Mr. Juarezs advocacy of the Media Disqualification focused on his

disagreements with the content of The Koala. Id. 10. He argued the Media

Disqualification is necessary because The Koala was harmful to campus climate

and to underrepresented communities. Id. 10-11. Others made similar

arguments that focused on de-funding The Koala in particular. Id. 13.

Notwithstanding attempts to sanitize it as content-neutral, the Media

Disqualification obviously singled out The Koala.2 Id. 14-15.

Mr. Suvonnasupa does not dispute the live blog reflects his general

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sentiments. Suvonnasupa Decl. (Doc. 17-1) 8, 10. Although he claims the live

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blog will often make errors, he does not specify any particular errors. Id. 9.

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Mr. Juarez disputes the content of one statement but points to no other errors.

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Juarez Decl. (Doc. 17-2) 5. The record thus shows viewpoint discrimination.
The declarations submitted by Defendants corroborate facts showing

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viewpoint discrimination. The Media Disqualification was not included in the

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original Media Funds Fiscal Approval Realignment Act on the agenda for

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November 18, 2015. Britt Decl. (Doc. 17-3) 5. Instead, it was first proposed in a

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Legislative Committee discussion immediately before the November 18 meeting.

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Juarez Decl. 3; Suvonnasupa Decl. (Doc. 17-1) 6. At the last minute, two days

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after The Koala published the article in question, Cart Decl. (Doc. 17-4) 13, a

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measure that would have maintained the print media funding levels and

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streamlined the administrative process for approving funding requests was

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transformed into the Media Disqualification. Britt Decl. 5.

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The Court may consider Mr. ONeills declaration because it is submitted in

direct response to evidence offered by Defendants. In re ConAgra Foods, Inc.,
302 F.R.D. 537, 560 n.87 (C.D. Cal. 2014); Edwards v. Toys "R" Us, 527 F. Supp.
2d 1197, 1205 n.31 (C.D. Cal. 2007).

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Defendants do not dispute the public outcry about The Koala as expressed at

the November 18 meeting or the proximity between publication of the safe spaces

satire and adoption of the Media Disqualification. The student government shared

or knowingly bowed to bias against The Koalas viewpoint. See Wallace v. Jaffree,

472 U.S. 38, 56 (1985) (looking to statements of sponsor of the bill to decide

constitutionality); Arizona Students Assn v. Arizona Bd. of Regents, 824 F.3d 858,

870-71 (9th Cir. 2016) (retaliatory intent can be based on comments of board

members and temporal proximity to plaintiffs exercise of its free speech rights);

Ave. 6E Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir. 2016)

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(community animus to which officials were knowingly responsive supports

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finding of discriminatory motives by government officials, even if the officials do

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not personally hold such views).

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B. The Media Disqualification causes irreparable harm by violating the

First Amendment.
The Media Disqualification is causing irreparable harm under First

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Amendment law. It created a chilling effect on speech by threatening or causing

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pecuniary harm or withholding a license, right, or benefit, regardless of whether

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the plaintiffs speech was actually suppressed or inhibited. Arizona Students

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Assn, 824 F.3d at 867-68. It is therefore irrelevant whether The Koala persevered

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in publishing. OBrien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016).

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When there is a chilling effect on speech, our caselaw clearly favors

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granting preliminary injunctions to a plaintiff who is likely to succeed on the

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merits of his First Amendment claim. Klein v. City of San Clemente, 584 F.3d

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1196, 1208 (9th Cir. 2009). In Klein, the Ninth Circuit reversed a decision that

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addressed only the merits, and the court saw no reason to remand on irreparable

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harm. Id. Both this court and the Supreme Court have repeatedly held that [t]he

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loss of First Amendment freedoms, for even minimal periods of time,

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unquestionably constitutes irreparable injury. Id. at 1207-08 (quoting Elrod v.

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Burns, 427 U.S. 347, 373 (1976)). Given the free speech protections at issue in

this case, an injunction is appropriate. Id. at 1207. By satirizing safe spaces and

trigger warnings, The Koala engaged in speech of public concern entitled to the

same protection as the speech in Klein. Snyder v. Phelps, 562 U.S. 443, 453-54

(2011); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 54-55 (1988).
As Elrod demonstrates, First Amendment violations cause irreparable harm

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regardless of whether damages are recoverable. In Elrod, the plaintiffs were

discharged or threatened with discharge. 427 U.S. at 350. The district court found

plaintiffs had an adequate remedy at law by way of damages. Id. at 373.

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Nonetheless, the Supreme Court affirmed the judgment of the Court of Appeals

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directing preliminary injunctive relief, because the First Amendment violation

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unquestionably constitute[d] irreparable injury. 3 Id. at 350, 374.

The decision on irreparable harm was the Courts holding. Although two

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Justices did not join all of the pluralitys reasoning on the merits, they concur[red]

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in its judgment to affirm the preliminary injunction. Id. at 374 (Stewart, J.,

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concurring in judgment). The judgment necessarily included the relief affirmed by

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the Court. If the concurring Justices had disagreed about irreparable harm, they

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could not have joined the judgment. Because they did, the ruling on irreparable

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harm was the Courts holding, and the Ninth Circuit has properly treated it as such.4

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See, e.g., Klein, 584 F.3d at 1207-08; cf. Marks v. United States, 430 U.S. 188, 193

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The passing reference to individuals who had agreed to provide support for the
Democratic Party was immaterial. Elrod, 427 U.S. at 373. Those individuals
were members of an uncertified class, id., and it was not certain the class would be
certified. Burns v. Elrod, 509 F.2d 1133, 1136-37 (7th Cir. 1975), affd, 427 U.S.
347 (1976). Because the preliminary injunction issued only for the named
plaintiffs, the circumstances of putative class members were not at issue.
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The Court did not cite much less overrule Elrod in Winter v. Nat. Res. Def.
Council, 555 U.S. 7 (2008), which was not a First Amendment case. When the
First Amendment is violated, Elrod satisfies irreparable harm under Winter. See
Klein, 584 F.3d at 1207-08. In DISH Network Corp. v. FCC, 653 F.3d 771 (9th Cir.
2011), the court held only that plaintiff was not likely to succeed on the merits
and did not consider other elements of the preliminary injunction test. Id. at 782.

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(1977) (when no single rationale explaining the result enjoys the assent of five

Justices, the holding of the Court may be viewed as that position taken by those

Members who concurred in the judgments on the narrowest grounds).

Courts follow Elrod in finding First Amendment violations cause irreparable

harm notwithstanding recoverability of damages. See, e.g., Valle Del Sol Inc. v.

Whiting, 709 F.3d 808, 828-29 (9th Cir. 2013) (citing Elrod to find irreparable

harm from commercial speech restriction that impacted economic interest);

Higher Taste v. City of Tacoma, 755 F. Supp. 2d 1130, 1137-38 (W.D. Wash. 2010)

(citing Elrod to find irreparable harm from prohibiting sales of shirts); Lopez v.

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Town of Cave Creek, 559 F. Supp. 2d 1030, 1036 (D. Ariz. 2008) (citing Elrod to

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find irreparable harm from prohibition on roadside solicitation of employment);

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Michel v. Bare, 230 F. Supp. 2d 1147, 1159 (D. Nev. 2002) (citing Elrod to find

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irreparable harm due to prohibition on use of trade names in for-profit law

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practice). Therefore, under Elrod, First Amendment violations cause irreparable

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harm regardless of damages.

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A First Amendment violation unquestionably constitutes irreparable injury

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because First Amendment rights are uniquely foundational. Elrod, 427 U.S. at 373.

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Freedom of speech plays a fundamental role in a democracy; as this Court has

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said, freedom of thought and speech is the matrix, the indispensable condition, of

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nearly every other form of freedom. Federal Election Commn v. Massachusetts

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Citizens for Life, Inc., 479 U.S. 238, 264 (1986) (quoting Palko v. Connecticut, 302

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U.S. 319, 327 (1937)).

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Ignoring the foundational nature of the First Amendment, Defendants

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wrongly contend First Amendment violations are subject to the ordinary economic

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analysis for injunctions in antitrust claims. Los Angeles Meml Coliseum

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Commn v. Natl Football League, 634 F.2d 1197, 1198 (9th Cir. 1980); cf.

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Sampson v. Murray, 415 U.S. 61, 83, 90 (1974) (no irreparable harm from

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temporary loss of income where only substantive claim was that officials had
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violated the regulations promulgated by the Civil Service Commission). That

position conflicts with binding precedent and cannot stand.

To adopt Defendants position would lead to absurd results. For example,

under Defendants logic, the Court could not enjoin a city from confiscating and

burning copies of a newspaper that criticized city officials if the newspaper secured

funding to cover its losses and was able to continue its publishing activities.

Opp. to Plaintiffs Mot. for Prelim. Inj. (Doc. 17) at 20 (Opp. MPI). That is not

and cannot be the law.

It is no answer to claim The Koala was merely deprived of funds and

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suffered no impairment of its speech. Id. at 19. If government were free to

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suppress disfavored speech by preventing potential speakers from being paid, there

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would not be much left of the First Amendment. Pitt News v. Pappert, 379 F.3d

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96, 106 (3d Cir. 2004). In rejecting the claim that a law against payment for

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advertising of alcoholic beverages was valid because the paper remains free to say

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whatever it wishes about alcoholic beverages as long as it is not paid for engaging

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in the expression, the court held that a financial burden is a restriction of

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speech just as much as directly prohibiting the speech. Id. at 101, 106 (citing

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Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502

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U.S. 105, 116 (1991)).

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Defendants find no comfort in Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989).

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That case involved fair share fees to a union, which escrowed all fair share fees

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deducted pending arbitration over proper use of the fees. Id. at 71-72. The only

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First Amendment interest at issue was that of non-union members in not being

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compelled to subsidize the propagation of political or ideological views that they

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oppose. Id. at 72. Since the Union has escrowed the entire amount of all fair

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share fees deducted pending arbitration, this interest is protected, and no

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constitutional deprivation arose from denying plaintiffs hypothetical use of fees

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to support their own political, ideological, or other purposes. Id. at 72-73.

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Here, by contrast, the Media Disqualification works a constitutional

deprivation by stripping the student press of eligibility to seek funds for engaging in

actual speech and thereby causing a chilling effect on speech. Arizona Students

Assn, 824 F.3d at 867-68. [T]he deprivation of a valuable government benefit for

the purpose of discouraging the exercise of First Amendment rights need not be

particularly great in order to find that rights have been violated. Id. at 870

(citation and quotation marks omitted). The Media Disqualification causes

irreparable harm by violating the First Amendment.

C. The balance of equities and public interest favor an injunction.

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There is no legitimate interest in preventing the protection of constitutional

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rights. The balance of equities and the public interest thus tip sharply in favor of

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enjoining a First Amendment violation, especially where the violation impacts

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third parties as well as the plaintiff. Klein, 584 F.3d at 1208. The impact of the

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Media Disqualification on persons who are not parties to this lawsuit supports a

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preliminary injunction. Valle del Sol, 709 F.3d at 829. Defendants misconstrue the

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facts in a futile attempt to obscure the equities and public interest involved.

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First, the Media Disqualification was not a legislative act. Opp. MPI at 23;

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see Flint v. Dennison, 488 F.3d 816, 827 (9th Cir. 2007) (student officeholders are

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not the equivalent of elected political officeholders, because student government is

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primarily an educational tool and a creature of the Board of Regents, and

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although student government has certain powers to distribute funds among student

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groups, it simply does not follow that [student government] is akin to a political

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government). In disbursing funds by delegation from the Regents under the

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Chancellors oversight, students act as functionaries, not legislators.

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Second, The Koala does not seek any special status. Opp. MPI at 23.

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The Koala seeks only to resume the position it occupied before the Media

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Disqualification, in which it was eligible to seek funds available to other student

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organizations, subject to otherwise valid rules. Cf. Arizona Dream Act Coal. v.
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Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014) (in challenge to drivers license

eligibility standards, the result of an injunction here may be that, under state law,

Arizona will ultimately provide drivers licenses, but an injunction will not

order[ ] Defendants to take this step) (emphasis in original).

Third, although budgetary assertions do not outweigh First Amendment

rights, by Defendants own calculations the amount involved in student media

funding does not significantly impact the Student Governments budget. Opp. MPI

at 4. Accordingly, the balance of equities and public interest favor an injunction.

D. The injunction is sufficiently clear, specific, and tailored.

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The requested injunction describe[s] in reasonable detail the acts or acts

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restrained and is properly tailored. Fed. R. Civ. P. 65(d)(1)(C). The Koala seeks

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an order that prohibits Defendants from:

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1. Enforcing any motion, resolution, or other official action that

disqualifies registered student organizations at the University of
California, San Diego (UCSD) from eligibility to receive funds
derived from campus activity fees to publish student newspapers or
other periodicals; [and]

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2. Categorically refusing to disburse funds derived from campus activity

fees to Plaintiff for purposes of publishing a student newspaper or
other periodical on the ground that Plaintiff would use such funds to
publish a student newspaper or other periodical.

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Amended Mot. for Prelim. Inj. (Doc. 5) at 2 (MPI). That language is directed to

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the Media Disqualification. It would prohibit Defendants only from enforcing the

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disqualification from eligibility to seek existing funds or refusing to disburse funds

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on the ground that The Koala would use the funds to publish a newspaper.5
The injunction gives fair notice of the actions that are prohibited in language

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that is reasonably understandable. Portland Feminist Womens Health Ctr. v.

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Advocates for Life, Inc., 859 F.2d 681, 685 (9th Cir. 1988). Its provisions are

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[L]ike other injunctions that prohibit enforcement of a new law or policy, the
requested injunction is prohibitory and not subject to the heightened standard for
mandatory injunctions. Arizona Dream Act Coal., 757 F.3d at 1061.

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tailored to remedy the specific harm caused by the Media Disqualification.

Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991).

It would not prevent Defendants from properly implementing otherwise valid rules

and policies or require Defendants to disburse funds to applicants who wantonly

violate such rules. Opp. MPI at 24.

The injunction properly prohibits any action that discriminates or retaliates

against Plaintiff because of the viewpoint expressed by Plaintiff. MPI at 2; Profl

Assn of Coll. Educators, TSTA/NEA v. El Paso Cty. Cmty. Coll. Dist., 730 F.2d

258, 273 (5th Cir. 1984) (PACE) (upholding injunction prohibiting retaliation or

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discrimination against employees due to their membership or association with

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PACE or other lawful employee associations). It is difficult to understand how

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the defendants could have legitimate difficulty understanding what they are

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forbidden to do, or to imagine how the injunction could be more specific without

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attempting to catalog every conceivable means by which Defendants might

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retaliate or discriminate. PACE, 730 F.2d at 273.

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CONCLUSION

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For the foregoing reasons, the Court is respectfully requested to enter the

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requested preliminary injunction.

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Dated: August 29, 2016

Respectfully submitted,

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By: s/David Loy

David Loy
davidloy@aclusandiego.org

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Ryan T. Darby
Attorneys for Plaintiff

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EXHIBIT TO PLAINTIFFS REPLY MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
TABLE OF CONTENTS
Exhibit 1
DECLARATION OF ROGER ONEILL....1

EXHIBIT 1

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David Loy (SBN 229235)

ACLU FOUNDATION OF SAN DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Telephone: (619) 232-2121
Facsimile: (619) 232-0036
davidloy@aclusandiego.org
Ryan T. Darby, Esq. (SBN 264357)
THE LAW OFFICE OF RYAN T. DARBY
525 B Street, Suite 1500
San Diego, CA 92101
Telephone: (619) 858-4766
Facsimile: (619) 243-7226
darby@darby.law
Attorneys for Plaintiff THE KOALA

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE KOALA,

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Plaintiff,

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v.

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Case No.: 16cv1296 JM (BLM)

PROOF OF SERVICE

PRADEEP KHOSLA, et al.,

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Defendants.

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The undersigned hereby certifies that he is an employee for the ACLU

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Foundation of San Diego & Imperial Counties, P.O. Box 87131, San Diego,

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California 92138-7131; is a person of such age and discretion to be competent to

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serve papers; and that on August 29, 2016, he served copies of the following

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document(s):

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1. PLAINTIFFS REPLY MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY
INJUNCTION

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by transmitting via e-filing the document(s) listed above to the Case

Management/ Electronic Case filing system, such document(s) will be
deemed served.
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____ by transmitting via facsimile the document(s) listed above to the fax
number(s) specified on this date before 5:00p.m.

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____ by placing the document(s) listed above in a sealed envelope with certified
postage thereon fully prepaid, in the United States mail at San Diego,
California addressed as set forth below.
____ by placing the document(s) listed above in a sealed envelope with postage
thereon fully Prepaid, and deposited with Federal Express Overnight at San
Diego, California to The Office of The General Counsel of The Regents of
the University of California, 1111 Franklin Street, 8th Floor, Oakland, CA
94607-5200.
____ by personally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.

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I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.

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Executed on August 29, 2016, at San Diego, California.

Dated:

August 29, 2016

By: s/ David Loy
David Loy
Attorney for Plaintiff

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