“This ain’t funny no more!”—U.C. San Diego loses $800K censoring campus comedy

“Recently a really, really big black guy explained to me that I needed to print more material appropriate for public display in this public university that embraces diversity. By yelling at us he taught us an important lesson. I learned that all black men are not large, angry, and unemployed. This one had a job!”—Brian Barton—Editor UCSD’s “The Koala” (Class of ’04)

With free speech—and a student’s mind—under attack on all fronts on America’s university campuses, in a stunning and heartwarming tale the US 9th Circuit Court of Appeals showed that it, too, likes a good joke. Thanks to the unanimous decision of the court, the University of California/ San Diego lost in its attempt at furthering censorship, this time against a tiny but hilariously funny and irreverent satirical campus-wide newspaper called the The Koala.

With the majority of America’s purported institutions of higher learning preferring these days to, instead, bootlick for their too easily offended pablum soaked student bodies, another university, in this case, UCSD had decided that satirical humor on campus should be cast out like a fat girl on prom night.

For those already tuned in to university degradation of independent thought, limits on informed opinion, and sanctions against oppositional debate, this tale of actual free speech—and a damn good laugh—should come as another poignant indictment of America’s direction. You see, at UCSD, The Koala, after decades of lampooning the obvious had finally hit the new national wall of censorship: that unbridled 600-pound gorilla of diminished educational freedom… the snowflake!

Showing its complicity in the matter, the administration of UCSD had, in the name of free speech, approved expending over $800,000 in publicly produced funds for this hit job, rather than paying the paltry $452.80/quarter funding to their patsy, The Koala.

Although small, fluffy and cute, it turned out that this little bear also possessed sharp teeth, claws, fangs… and a couple of damn good lawyers!

I know a lot about The Koala. A few years back, I read it every time I could get a copy sent home. In the vein of the Berkeley Barb, Charlie Hebdo, the National Lampoon—and very old copies of the Onion—the Koala was bold, cutting and willfully socially unacceptable. In the face of the decades-long progression of one-sided political correctness, its editors were absolutely sincere and ruthless on their path of The Koalas’ message. This combination made The Koala, which bills itself as, “The Worst in College Journalism,” on most occasions, goddamn fucking funny.  Well at least to those with a cerebral sense of humor or the academic understanding that, “It’s the suppression of the word that gives it the power, the violence, the viciousness”

Back then, I had a close friend who was the longtime college administrator overseeing The Koala, so I was very aware of its ongoing quest to inform by outrageous insolence. My support and love of Dark Comedy led to more than a few lively discussions with him.  As to my regular defence of The Koala, he rarely agreed, but to the credit to the dean of John Muir College at the time (one of the six colleges at UCSD), who was a devout student advocate, the Koala was nevertheless allowed its continued small funding, a free small office—and its free speech—despite its editors relishing in seemingly daily satirical mischief in print and all over campus.

As their eight issues per school year continued, The Koala seemed to still have safely in mind some of the other strong words of satirical defence championed by the patron saint of unacceptable societal humor, Lenny Bruce, who articulated the role of satire, saying, I’m not a comedian. And I am not sick. The world is sick, and I’m the doctor. I’m a surgeon with a scalpel for false values.”

Indeed.

The Koala: Eats, shoots… and leaves.

The Koala first came to my attention about 2004. It had been doing its job since 1982, but with little controversy I had heard of and was rarely over three or four pages. So it was, as is the case with the topical timing of all great humorists that the Koala’s somewhat tepid comical past would suddenly be stabbed in the forehead with a much better-sharpened pen.

That year a new name would enter the lexicon of UCSD along with the new editor of The Koala. This one name would quickly personify revamped UCSD satire. All too often, when asked about his grimaced face and narrowed brows when meeting my friend for a beer after another long day at the office, that one name was often the reason, “Argh!  Brian… Barton.”

And that’s when I started reading the Koala.

I never met Barton. Didn’t have to. I read the Koala which for several years was on occasion better than almost any other national satirical publication I was aware of. Barton was its soul and The Koala his muse. To appreciate Barton, then, and The Koala now, a short review of its first edition of the winter 2004 school term, his first year at the helm, is all that is required. A copy is provided here for those who have not yet smashed their bathroom mirrors in favor of blinded self-righteousness. [see here]

Barton and his team provided solid editing, professional lay-out and much better-crafted graphics to The Koala that saw its amount of regularly copy increase to eight pages. This new professional appearance gave the publication a slick respectability needed to be taken seriously. He personally handed out The Koala’s copies along with his staff as a visual afront to the restrictions of free discussion and purchased old used newspaper machines to help canvas the campus. The Koala became the bold antithesis of the other campus rag sheet, The Guardian, a daily, which was, is and forever will be as milque-toast, blasé, and unthreatening as its co-opted UK namesake.

Although regularly dragged off to the woodshed of UCSD disciplinary hearing for his crimes, Barton graduated. So, did The Koala and its own form of ethnic studies. The Koala’s archives are available here.

Possibly the most infamous and outrageously funny example of The Koala’s gift for satire came in 2010 after the near ethnic riots in south-central Los Angeles, just 80 miles to the north. In reaction, the Koala advertised, organized and championed its own public reaction: a reaction that is, to this very day, remembered by former students, ageing faculty, chagrined administrators… and San Diego police. It was a simple party—a Bar-B-Q—and it was, for advertising purposes, beforehand given a name that no one with a sense of un-PC humor could resist attending: “The Compton Cook-out.”

Replete with a myriad of Bar-B-Q pits, lots and lots of fried chicken, and buckets of ice stuffed full of Old English Malt liquor beer (‘cause only black folk will drink that shit) the party was and will forever be the stuff of underground legend in sophomoric humor.

Interestingly, with the UCSD student body then (and still) having a percentage of Black students approximately equal to that of a Klan rally, many African American students did see the satirical humor in the event and gladly attended it themselves. Reportedly everyone in attendance had a great time and, as a tribute, even finished off the Old E, which of course is not much of a feat for college students. All went home without incident.

And then…

Well, the impartial observer, such as the author, might have thought that due to following Monday morning’s volcanic reaction, this benign weekend satirical party was actually a rounding up of Jews for a toast with Zyklon B punch. Although the party was held “off-campus” word got out of what a good time had been missed by the righteous—and the Dean’s Office.

But in the end, free speech (and property rights) carried the day. Try as they might, the administration did its best to use The Koala as the sacrificial lamb to placate the mob, but a crime, then, could not be found. UCSD could do little but sympathize with that peripheral outrage and warn all involved in this comedy event of the season about a recurrence.

To this reaction, the Koala in its usual unabashed fashion crafted a defensive new issue just for the occasion, titled “Baitin’ You Into Race Wars Since ’82.”

What a difference a decade makes.

However, censorship has been shifting gears in recent years, particularly in “Educational Institutions.” This is 2020, and ten years from “The Compton Cook-Out” Free Speech is dying faster than the applause at a Biden rally.

Today, the world of American education is growing more endemically and academically humorless, if not, intellectually threatening. This was shown clearly in the 2015 decision by UCSD administrators to ultimately drop nearly $800,000 in legal fees in its four-year fight to remove $452.80/quarter in funding, a free office—and the First Amendment—from The Koala. This was done to appease just a few students of narrowed mind and viewpoint, who didn’t like the “N” word nor having their demands to protect the shallow resources of their minds being made fun off while that mind hid in the dark.

On November 16, 2015, The Koala, as a response to the growing “Snowflake” movement’s demand for “safe spaces” penned a very short, and frankly not very funny, article titled, “UCSD  Unveils New Dangerous Space on Campus.” Well, the campus snowflakes were outraged since snowflakes do not like heat. This led to the Associated Students (A.S.), the student union that derives its budget from student fees and also funds The Koala, to decide two days later at their next scheduled meeting to vote for a hurriedly crafted “Media Act.” And, of course, they called for the firing of the UCSD person in charge of overseeing this outrage.

But snowflakes apparently do not read anything beyond their mental grasp, and thus being informed that it was they that funded The Koala, they were off to next attack the UCSD chancellor, Pradeep Kumar Khosla.

Not, a champion of free speech himself, Chancellor Khosla quickly issue a statement, “I strongly denounce The Koala publication and the offensive and hurtful language it chooses to publish.”

So, for the moment the authoritarian thuggery of A.S. stood as scripted. One peculiar problem for The Koala, however, was that the Media Act created by A.S. went beyond stopping their funding and also stopped their self-distribution on campus. Before Barton’s time, The Koala had well understood that their publication, like all mentally insurrectionist papers since the invention of the printing press, far better served their message by direct, one-on-one distribution. This additional restriction by A.S. was obviously intended to prevent The Koala circumventing funding with donations and carrying on as usual. So, it was reduced to being an online newspaper.

No funding. No office. No voice. Sadly, too long gone are the days when newspapers- even the big boys- once used their legal teams to assail their opponents of Freedom of the Press. So… The Koala went to court.

The ACLU picked up the case and filed its complaint first in the local federal district court as, THE KOALA v. KHOSLA. As it generally does, the ACLU provided its help pro bono, but also tabulated its fees just in case. What becomes interesting at this point is UCSD’s funding decisions regarding its defence against The Koala.

Although the administration could have quashed the Media Act as being a Free Speech violation, it instead chose to fight. Next, it decided not to use its retained Campus Council, who was presumably involved in the decision to punt UCSD’s defence over to a very expensive private council of Chicago’s Schiff Hardin, which would submit more than thirty invoices from 2016 to October 2020, ranging from less than $100 to $110,000. Additionally, the law firm of Orrick, Herrington & Sutcliffe billed-out for more than $150,000, which altogether totaled more than $660,000 to defend The Koala’s action. A.S. certainly didn’t have the big bucks for all this, so UCSD elected to join A.S. as a stated co-defendant in its response to the civil suit.

UCSD basically relied on the 11th amendment and resultant SCOTUS decisions embodied within it.  The precedent that the university relied on was Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 581, 103 (1983). Foundationally, this cite provided that, under the 11th, a violation of law by a state entity was provided Qualified Immunity from actions brought by a federal court, which the ACLU had chosen to use.

In an interesting side note, research for this article showed that the ultra-conservative Cato Institute (formerly the Charles Koch Foundation) filed an amicus brief with the 9th in support of UCSD.

This legal end-around of using Minneapolis Star & Tribune Co had been tried before in many very different cases by many others. In this case, UCSD was clutching at straws, as has generally been the case when using this legal ploy by others. However, the District Court found UCSD’s argument strangely meritorious and, per the defense’s motion, dismissed the case wholesale. With prejudice.

Now, common sense and even a cursory knowledge of the First Amendment would seem to favor The Koala. The ACLU moved to have the US 9th Circuit Court of Appeals hear the case de novo which they did on June 8, 2018. After the replay of The Koala v. Khosla [931 F.3d 887 (2019)] the seven-page decision was released on July 24, 2019, and that decision was a unanimous: 3-0. The Justices voted to reverse the decision of the trial court and remand the case back to that court for further review with their decision on First Amendment rights firmly in mind.

The court, as to UCSD’s specious use of Minneapolis Star & Tribune Co, was very clear, writing: “Because the SAC (Second Amended Complaint) so clearly alleges that defendants acted with a censorious purpose, we need not decide whether Minneapolis Star’s reasoning suffices.” [emph.added]

But the court also made specific reference to the Free Speech claims of The Koala: “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.”

Continuing: “…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.”

This ain’t funny no more

What is most important to note is that the decisions UCSD made to allow for its censorship funding, already approaching 200K before the appellate challenge, did not come for the Dean’s Office and not likely only from the Chancellor’s office.  Almost certainly the funds and challenge were also approved by the president of the ten-campus, state-wide University of California system, (no joke), Janet Napolitano.

At every stage of the legal proceedings, and the related expenses for each, the chancellor’s office, much less the president, could have quashed the Media Act created for just one purpose by A.S. Yet, instead of encouraging academic freedom, thought, and discussion by making a strong statement, the collective UC administrative decision was to support censorship, while bringing to the court an obviously untenable legal position, and all the while throwing public money at their self-created problem.

After being re-introduced to Free Speech rights by the 9th’s decision, UCSD finally folded.

So, the news hit this past week that in the end, the Koala would now receive in settlement the massive sum of $12,000, which will be paid by A.S. and which will also pay the Koala’s/ ACLU’s legal bill of $120,000. In also losing, UCSD, thanks to the intransigence of its administrators—and the very poor constitutional translations of their many legal vultures—will now pay for this bad legal advice to the tune of another $660,000!

What was it that Shakespeare said about lawyers? Look it up. It’s a good one!

Student newspapers, budding satirists, comedians and those who love a good joke must take careful note of this very important decision and its breadth across a humorless academia and society. Short of a similar case making it all the way to the US Supreme Court, Koala v. Khosla is now the law of the land and a renewed “safe space” for we who challenge today’s descent into societal madness with the scalpel of satire. Satirists have been set free; set free to reap vengeance, while holding up a giant, bright green, foam rubber middle finger directly into the face of our intended targets.

Lenny Bruce lived until his last fix defending the same right that the Cal. 9th gave back to The Koala. In 1964 the Illinois Supreme Court, in People v. Bruce, handed Lenny, his own landmark decision favoring comedic freedom. That court ruled that Lenny’s comedy was “social commentary and not obscenity.”

As the great one correctly observed at the time: “There are no dirty words…only dirty minds.”

Sixty years on… those dirty minds now roam American universities, its campus grounds, its classrooms, and the agenda of its faculty and administrators. Bruce foresaw this eventuality, cracking wise on the necessary dangers to the social satirist: “You might bomb at Berkeley…. and then crush it at a Klan rally!”

Or, apparently, the University of California at San Diego.

Brett Redmayne-Titley has authored and published over 180 in-depth articles over the past twelve years. Many have been translated and republished worldwide. He can be reached at: live-on-scene ((at)) gmx.com. Prior articles can be viewed at his archive: www.watchingromeburn.uk.

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