The Koala v. Khosla, No. 17-55380 (9th Cir. 2019)Annotate this Case
The Koala brought this action for declaratory and injunctive relief, alleging that the University student government's passage of the Media Act, which eliminated registered student organization (RSO) funding for all print media, violated its First Amendment rights.
The Ninth Circuit held that the Eleventh Amendment did not bar The Koala's claims and the relief The Koala sought was consistent with the Ex parte Young doctrine. The panel saw no reason why the rule articulated in the Free Speech cases cited -- 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. Therefore, the second amended complaint's (SAC) 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 also held that the allegations in the SAC, and in the documents incorporated by reference into the SAC, supported the conclusion that defendants created a limited public forum encompassing all student activity funding, not one constrained to only media funds. Furthermore, the complaint sufficiently alleged a claim for First Amendment retaliation where 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 Associated Students' alleged retaliatory conduct. Accordingly, the panel reversed in part and vacated in part.