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.