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11 YOUNG AMERICA’S FOUNDATION Case № 2:24-cv-08507-ODW (AGRx) et al., 12 ORDER GRANTING IN PART AND Plaintiffs, 13 DENYING IN PART MOTION TO v. DISMISS [49] 14 GENE D. BLOCK et al., 15

Defendants. 16

17 18 I. INTRODUCTION 19 Plaintiffs Young America’s Foundation (“YAF”), Brooke Broll, and Macy 20 Roepke bring this First Amendment action against Defendants Gene D. Block, Darnell 21 Hunt, Michael S. Levine, Michael J. Beck, Monroe Gorden, Jr., Mick DeLuca, Mike 22 Cohn, Jasmine Rush, and Rick Braziel, all current or former University of California, 23 Los Angeles (“UCLA”) officials. (Compl., ECF No. 1.)1 Defendants move to dismiss 24 the Complaint. (Mot. Dismiss (“Mot.” or “Motion”), ECF No. 49.) For the reasons 25 below, the Court GRANTS IN PART and DENIES IN PART the Motion.2 26

1 Plaintiffs sue all Defendants in their personal and official capacities, except for Block, who 27 Plaintiffs sue in his personal capacity only. (Compl. ¶¶ 23–31.) 28 2 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND3 2 YAF is a nonprofit corporation that, among other things, sponsors programs to 3 bring “conservative and liberty-minded points of view” to colleges and high schools, 4 including to a YAF student group at UCLA (“UCLA YAF”). (Compl. ¶ 20.) Broll and 5 Roepke are both UCLA students and members of UCLA YAF. (Id. ¶¶ 21–22.) 6 On or about April 13, 2024, UCLA YAF chairman, Matthew Weinberg, asked 7 representatives of the UCLA Student Organizations, Leadership & Engagement 8 (“SOLE”) office to reserve a room in the Student Union for a talk on “Radical Islam 9 on College Campuses” by Robert Spencer, the founder of an organization “dedicated 10 to exposing dangerous and radical strains of Islamic thought.” (Id. ¶¶ 81–82.) At 11 some point, UCLA YAF changed the title of the talk to “Everything You Know About 12 Palestine Is Wrong.” (Id. ¶ 82.) On April 16, 2024, three days after Weinberg asked 13 about holding the event in the Student Union, the Student Union confirmed that a 14 room was available for May 15, 2024. (Id. ¶ 83.) Weinberg asked to reserve the room 15 and requested campus security for the event “to contend with possible 16 counter-protestors.” (Id. ¶¶ 83–84.) 17 In the meantime, on April 25, 2025, anti-Israel activists set up an 18 “encampment” of tents, signs, and tables in Royce Quad. (Id. ¶ 62.) They established 19 checkpoints around the encampment, required those wishing to cross to wear a 20 wristband given to people who called for Israel’s elimination, and excluded Jewish 21 students and faculty who “refused to denounce their faith.” (Id. ¶ 63.) Over the next 22 week, participants in the encampments assaulted pro-Israel and Jewish students, 23 professors, and bystanders. (Id. ¶¶ 65–66.) Despite these actions, UCLA “did nothing 24 to remove [the encampment] or to hold those responsible to account” and even 25 assisted activists in establishing a “border” to keep non-activists out of the area. (Id. 26 27 3 All factual references derive from the Complaint or attached exhibits, unless otherwise noted. See 28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that well-pleaded factual allegations are accepted as true for purposes of a motion to dismiss). 1 ¶¶ 70, 72.) Finally, on May 2, 2024, one day after UCLA asked for help, the Los 2 Angeles Police Department cleared the encampment. (Id. ¶ 75.) 3 On April 26, 2024, Weinberg spoke with a SOLE representative about the 4 Spencer event. (Id. ¶ 89.) The representative told Weinberg that “as far as he was 5 concerned, the event was approved,” but that he needed to confirm this with Cohn, 6 SOLE’s director. (Id.) On April 29, 2024, after not hearing from Cohn, Weinberg 7 asked Cohn to confirm the room reservation and security arrangements. (Id. ¶ 90.) 8 The next day, UCLA held a virtual meeting to discuss the event. (Id. ¶ 92.) 9 During the meeting, the participants, including YAF and UCLA Police 10 Department (“UCLAPD”) representatives, discussed security. (Id. ¶ 93.) UCLAPD 11 representatives said that administrators would decide whether the school would 12 provide security, and that the decision would depend on whether the encampment was 13 active at the time of the Spencer talk. (Id. ¶ 94.) On May 1, 2024, without event 14 approval, YAF’s counsel sent a letter to UCLA’s counsel, demanding that the school 15 approve the event and warning of the possibility of litigation. (Id. ¶ 96; see id. Ex. B 16 (“Letter”), ECF No. 1-2.) By May 6, 2024, UCLA “appeared to provide final 17 approval for the event.” (Compl. ¶ 97.) At this point, Plaintiffs began advertising the 18 Spencer talk. (Id. ¶ 98.) 19 The evening before the event, Broll and Roepke projected an advertisement on 20 the exterior of one of UCLA’s buildings. (Id. ¶ 102.) Anti-Israel activists threatened 21 to “shut down” the Spencer event. (Id. ¶ 103.) The activists stated that they would 22 report Broll and Roepke for violating UCLA rules. (Id. ¶ 104.) Mere hours later, 23 Rush, UCLA’s Dean of Students, threatened Broll and Roepke with disciplinary action 24 if they did not take down the projection, even though campus rules did not ban this 25 activity. (Id. ¶ 105.) Anti-Israel activists also posted on social media that they would 26 try to “cancel” and “shut down” the event. (Id. ¶ 110.) 27 The day of the Spencer event, Broll, Roepke, and others from YAF, went to 28 inspect the event space. (Id. ¶ 107.) UCLA staff told them to leave the room, which 1 was then locked. (Id.) SOLE and Student Union representatives stated that they were 2 unable to find the key to the now-locked space. (Id. ¶ 108.) Two hours later, Braziel 3 told YAF that UCLA had decided to move the event to another space, as UCLA was 4 unable to provide adequate security for the Spencer event. (Id. ¶ 109.) The new 5 venue would be in the geology building, around a half mile from the originally 6 scheduled spot. (Id. ¶ 111.) Broll and Roepke allege that UCLA could have 7 adequately secured the Student Union location. (Id. ¶ 112.) They further allege that 8 the new location was “not a reasonable or neutral alternative” and that “changing the 9 location at the last second without any advance warning would limit attendance.” (Id. 10 ¶¶ 116–17.) The location also had “very limited foot traffic” and was “inappropriate 11 for the audio-visual equipment” Plaintiffs intended to use. (Id. ¶¶ 117–18.) 12 In deciding to change locations, UCLA officials acted pursuant to UCLA 13 Interim Policy 862. (Id. ¶ 126; see id. Ex. C (“Interim Policy 862”), ECF No. 1-3.) 14 This policy has since been updated. (Id. Ex. D (“Updated Interim Policy 862”), ECF 15 No. 1-4.) These policies apply to “Major Events.” (Compl. ¶ 147.) They define a 16 “Major Event” to include, as relevant here, an event that “[t]he Chancellor or the 17 Chancellor’s designee determines . . . is likely to significantly affect campus safety . . . 18 or significantly affect campus services.” (Interim Policy 862 § II.) In making this 19 determination, the Chancellor must consider “Safety and Security Criteria” and the 20 UCLAPD’s assessment. (Interim Policy 862 §§ III, IV.B.1.) The policies provide 21 several factors to guide this assessment. (Interim Policy 862 § III.C; Updated Interim 22 Policy 862 § VIII.) 23 Under both policies, UCLAPD must “assess security needs” using these criteria 24 to determine if “an event is likely to significantly affect campus safety and security or 25 significantly affect campus services.” (Interim Policy 862 § IV.B.1; Updated Interim 26 Policy 862 § III.G.) The policies provide that “UCLAPD will make security 27 recommendations that, in UCLAPD’s professional judgment, will address security 28 threats identified,” and that the goal of these recommendations is to: (1) “[m]inimize 1 risks to the health and safety of the event participants and audience;” (2) “[m]inimize 2 risks to the campus and surrounding community”; (3) “[s]upport the ability of the 3 Event Organizers to successfully hold the event”; and (4) “[r]espect the exercise of 4 rights of free expression by the Event Organizer, participants, and the community, 5 including lawful protestors.” (Interim Policy 862 § IV.B.1; Updated Interim 6 Policy 862 § III.G.) “[S]ecurity measures may include adjusting the venue, date, 7 and/or time of the event; providing additional law enforcement; imposing controls or 8 security checkpoints; requiring increased ticketing measures . . . ; and creating buffer 9 zones around the venue.” (Interim Policy 862 § IV.B.1; Updated Interim Policy 862 10 § III.G.) Also, the new policy sets an annual cap for money UCLA will spend on 11 security to address threats against Major Events. (Updated Interim Policy 862 § III.F.) 12 On October 3, 2024, Plaintiffs initiated this action. (Compl.) Plaintiffs assert 13 two First Amendment claims under 42 U.S.C. § 1983 for UCLA’s actions in 14 connection with the Spencer talk for viewpoint discrimination and heckler’s veto. (Id. 15 ¶¶ 163–75.) Plaintiffs also bring a facial challenge under § 1983 to Updated Interim 16 Policy 862 for violating the First Amendment. (Id. ¶¶ 176–84.) As relief, Plaintiffs 17 seek damages. (Id., Prayer ¶¶ A–B, K–N.) They also ask for a declaration that 18 Defendants violated the First Amendment and that Updated Interim Policy 862 is 19 overbroad and facially unconstitutional. (Id., Prayer ¶ C.) Lastly, they seek various 20 injunctions against Defendants, including to prohibit them from enforcing caps on 21 “Major Events,” as defined in Updated Interim Policy 862; and enforcing the “security 22 measure” rules in Updated Interim Policy 862. (Id., Prayer ¶¶ D–I.) 23 Defendants now move to dismiss the claims against them under Federal Rules 24 of Civil Procedures (“Rule” or “Rules”) 12(b)(1) and 12(b)(6). (Mot.) The Motion is 25 fully briefed. (Opp’n, ECF No. 54; Reply, ECF No. 57.) 26 27 28 1 III. LEGAL STANDARD 2 A. Rule 12(b)(1) 3 Under Rule 12(b)(1), a district court must dismiss a complaint when the court 4 lacks subject matter jurisdiction, which includes when a plaintiff lacks constitutional 5 standing. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (“Because standing . . . 6 pertain[s] to a federal court’s subject-matter jurisdiction under Article III, [it is] 7 properly raised in a motion to dismiss under [Rule] 12(b)(1).”). To satisfy Article III 8 standing, a plaintiff must show that (1) he has suffered an injury in fact that is 9 concrete and particularized and actual or imminent, not conjectural or hypothetical; 10 (2) the injury is fairly traceable to the challenged actions of the defendant; and (3) it is 11 likely, as opposed to merely speculative, that the injury will be redressed by a 12 favorable decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338–39 (2016); Lujan v. 13 Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The party attempting to invoke a 14 court’s jurisdiction bears the burden of proof for establishing jurisdiction. See Sopcak 15 v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). 16 B. Rule 12(b)(6) 17 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 18 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 19 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 20 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 21 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 22 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 23 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 24 550 U.S. 544, 555 (2007). That is, the “complaint must contain sufficient factual 25 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 26 556 U.S. at 678 (internal quotation marks omitted). 27 The determination of whether a complaint satisfies the plausibility standard is a 28 “context-specific task that requires the reviewing court to draw on its judicial 1 experience and common sense.” Id. at 679. A court is generally limited to the 2 pleadings and must construe all “factual allegations set forth in the complaint . . . as 3 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 4 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 5 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 6 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 7 IV. DISCUSION 8 Defendants move to dismiss Plaintiffs’ first two claims under Rule 12(b)(6) and 9 their third claim under Rules 12(b)(1) and 12(b)(6). 10 A. Viewpoint Discrimination 11 In their first claim, Plaintiffs allege that Defendants violated the First 12 Amendment by “discriminating against Plaintiffs’ speech because of the viewpoint 13 expressed” when Defendants decided to relocate the Spencer event at the last minute. 14 (Compl. ¶ 165.) Defendants move to dismiss for failure to state a claim. (Mot. 9–12.) 15 Plaintiffs allege that Defendants relocated the event “because they disagree with 16 Plaintiffs’ point of view.” (Compl. ¶ 167.) In support, they allege that Defendants 17 “appl[ied] vastly different standards to anti-Israel activities . . . and pro-Israel 18 expression” by treating anti-Israel events with “extreme deference,” while subjecting 19 pro-Israel events “to extreme vetting, exacting review, and last minute cancellation.” 20 (Id. ¶ 166.) They also contend that Defendants’ asserted justification for moving the 21 event—a “security-driven decision”—was pretextual and that Defendants intended “to 22 thwart the ability of Mr. Spencer to reach his intended audience.” (Id. ¶ 119.) 23 In moving to dismiss this claim, Defendants argue that Plaintiffs’ allegations 24 are conclusory and undermined by other allegations made in the Complaint. (Mot. 9– 25 12.) First, Plaintiffs do not plausibly allege that any Defendant held anti-Israel views. 26 (Id. at 9.) Second, per Plaintiffs’ allegations, there was a legitimate security threat 27 from holding the event in the Student Union. (Id. at 9–10.) Third, Plaintiffs do not 28 1 cite any anti-Israel speech that Defendants permitted under similar circumstances. (Id. 2 at 11.) 3 The government engages in viewpoint discrimination when it targets “not 4 subject matter, but particular views taken by speakers on a subject.” Rosenberger v. 5 Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). Conversely, a policy is 6 viewpoint neutral if it does “not favor one speaker’s message over another’s regarding 7 the same topic.” Flint v. Dennison, 488 F.3d 816, 833 (9th Cir. 2007). Even if a 8 policy is viewpoint neutral on its face, “that does not foreclose” a claim that the policy 9 was applied in a viewpoint discriminatory manner. Seattle Mideast Awareness 10 Campaign v. King County (SeaMAC), 781 F.3d 489, 502 (9th Cir. 2015). To succeed 11 on a viewpoint discrimination claim, plaintiffs must allege “that the government 12 intended to ‘suppress expression merely because public officials oppose the speaker’s 13 view.’” Id. (quoting Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 14 46 (1983)). 15 However, allegations of pretext are not enough to survive a motion to dismiss. 16 Rather, plaintiffs must “plead facts that make plausible their claim that they were 17 moved because of their viewpoint.” Moss v. U.S. Secret Service (Moss II), 711 F.3d 18 941, 961 (9th Cir. 2013), rev’d sub nom. on other grounds, Wood v. Moss, 572 U.S. 19 744 (2014). The Ninth Circuit’s decisions in Moss elucidate this pleading 20 requirement. In that case, protestors critical of then-President George W. Bush 21 brought a First Amendment claim against Secret Service agents for relocating a 22 demonstration. Moss v. U.S. Secret Service (Moss I), 572 F.3d 962, 964 (9th Cir. 23 2009). Pro- and anti-Bush demonstrators protested near an inn at which Bush was 24 dining. Id. at 965. Secret Service agents directed police to clear the street where anti- 25 Bush demonstrators were protesting but allowed pro-Bush demonstrators to protest a 26 block away. Id. at 965–66. Thus, anti-Bush demonstrators alleged that Secret Service 27 agents engaged in viewpoint discrimination when they moved the anti-Bush protestors 28 away from the public area outside of the inn. Id. at 969–70. 1 The Ninth Circuit identified the critical question as whether the anti-Bush 2 demonstrators’ “allegation that the [a]gents ordered the relocation of their 3 demonstration because of its anti-Bush message is plausible, not merely possible.” Id. 4 at 970. On a motion to dismiss, the court considered “[t]he bald allegation of 5 impermissible motive on the [a]gents’ part” and that the agents had a policy of 6 suppressing speech critical of Bush to be “conclusory.” Id. The court turned to the 7 anti-Bush demonstrators’ “specific factual allegations to determine whether” it could 8 “reasonably infer a First Amendment violation.” Id. Considering the anti-Bush 9 demonstrators’ allegations that the agents ordered their relocation but allowed 10 similarly situated pro-Bush demonstrators to remain, the court found this did not 11 support a plausible First Amendment violation because anti-Bush demonstrators failed 12 to allege that Agents moved them farther from the inn than the pro-Bush 13 demonstrators. Id. at 971–72. 14 After the anti-Bush demonstrators amended their complaint, the case returned to 15 the Ninth Circuit in the same posture. See Moss II, 711 F.3d at 941. This time, the 16 court concluded that anti-Bush demonstrators plausibly stated a viewpoint claim. Id. 17 at 961. The court identified three factual allegations that made plausible the claim that 18 the protestors “were moved because of their viewpoint—that the security rationale . . . 19 was pretextual.” Id. First, anti-Bush demonstrators alleged that they posed no threat 20 to Bush at the location at which they initially protested. Id. They also alleged that, 21 had anti-Bush demonstrators posed a threat to Bush, then pro-Bush demonstrators— 22 who were not relocated—also posed a threat. Id. Second, the Secret Service 23 permitted pro-Bush demonstrators to gather along the motorcade route, within range 24 to use guns or explosives, yet anti-Bush demonstrators were relocated farther away 25 from the Bush than the pro-Bush demonstrators. Id. Lastly, anti-Bush demonstrators 26 made “twelve detailed allegations, relying on published reports, of similar instances of 27 viewpoint discrimination against protestors expressing negative views of the 28 1 President,” which supported the otherwise conclusory allegation that the Secret 2 Service had a policy of protecting the President from dissent. Id. 3 Viewing the allegations in the Complaint in the light most favorable to 4 Plaintiffs, this case is closer to Moss I than Moss II. Here, Plaintiffs fail to plausibly 5 allege that Defendants’ security-driven rationale is pretextual. As to the 6 security-driven justification for moving the Spencer event, Plaintiffs allege that this 7 decision was pretextual. (See Compl. ¶ 119.) However, their factual allegations 8 undermine this conclusory allegation. Indeed, Plaintiffs’ allegations support that there 9 was a justifiable security reason for moving the event. Upon requesting the Student 10 Union space for the Spencer event, Plaintiffs themselves requested security due to 11 “possible counter-protestors.” (Id. ¶ 84.) Plaintiffs detail specific threats anti-Israel 12 activists made to them the night before the event, as the activists “accosted 13 Plaintiffs . . . [and] threaten[ed] to ‘shut down’ the” Spencer event. (Id. ¶ 103.) 14 Plaintiffs also describe activist social media posts stating that “they would seek to 15 ‘cancel’ and ‘shut down’ the event.” (Id. ¶ 110.) And they discuss past actions by 16 anti-Israel activists that support the seriousness of these threats: anti-Israel activists 17 had set up an “encampment” in the Royce Quad in which they “prevent[ed] anyone 18 who disagreed with them from accessing” the quad, assaulted students and faculty, 19 and excluded Jewish students and faculty who “refused to denounce their faith.” (Id. 20 ¶¶ 63–66.) 21 Further, Plaintiffs’ allegation that “[m]oving the event to the remote location 22 would also have been counterproductive from a security perspective,” (id. ¶ 115), is 23 conclusory. Plaintiffs’ support for this contention is that “giving in to the demands of 24 potentially violent and disruptive counter protestors is not a way to prevent violence 25 or to enhance campus security,” as “giving in would have exactly the opposite effect 26 by encouraging more of the same in the future.” (Id.) Perhaps this is true as a policy 27 matter, but this allegation speaks to whether Defendants had a good security strategy, 28 not whether Defendants used those concerns as a pretext for viewpoint discrimination. 1 Plaintiffs also fail to allege that Defendants permitted anti-Israel speech in 2 similar situations such as would make Defendants’ alleged bias plausible rather than 3 merely possible. For support, Plaintiffs point to instances where Defendants permitted 4 anti-Israel speech on campus from as early as 2014. (See, e.g., Compl. ¶¶ 41, 44, 46.) 5 But these instances are not like the alleged violation here. Plaintiffs’ do not allege 6 that any of the identified prior events posed security concerns similar to anti-Israel 7 activists’ response to the Spencer event. In fact, Plaintiffs identify two prior incidents 8 where activists threatened speakers, and both were cancelled or relocated. (See id. 9 ¶¶ 79, 103, 110.) That only anti-Israel protestors have threatened events, (see id.), 10 does not make Defendants’ decision to cancel (or relocate) the threatened events 11 discriminatory. 12 Ultimately, Plaintiffs fail to make “specific factual allegations” such that it “is 13 plausible, not merely possible,” that Defendants ordered the relocation of the Spencer 14 event because of its pro-Israel message. Moss I, 572 F.3d at 970. Just as in Moss I, 15 Plaintiffs cannot state a claim for which relief can be granted. Accordingly, the Court 16 DISMISSES this claim. Also as in Moss I, this dismissal is with leave to amend. 17 B. Heckler’s Veto 18 Plaintiffs’ second claim is for Defendants providing a “heckler’s veto.” 19 (Compl. ¶ 173.) Through this claim, Plaintiffs allege that Defendants violated the 20 First Amendment “by caving in to the demands of anti-Israel protestors who set out to 21 cancel and ‘shut down’ Plaintiffs’ expression.” (Id. ¶ 172.) 22 “A ‘heckler’s veto’ is an impermissible content-based speech restriction where 23 the speaker is silenced due to an anticipated disorderly or violent reaction of the 24 audience.” United States v. Rundo, 990 F.3d 709, 719 (9th Cir. 2021). This veto “is a 25 form of content discrimination, generally forbidden in a traditional or designated 26 public forum.” Meinecke v. City of Seattle, 99 F.4th 514, 522 (9th Cir. 2024). The 27 doctrine is different in a limited public form because “what’s forbidden is viewpoint 28 discrimination, not content discrimination.” SeaMAC, 781 F.3d at 502. Still, even in 1 that limited public forum, “[a] claimed fear of hostile audience reaction could be used 2 as a mere pretext for suppressing expression because public officials oppose the 3 speaker’s point of view.” Id. 4 The parties agree, at least for purposes of the Motion, that the Student Union is 5 a limited public forum. (Mot. 12–14; Opp’n 11 n.1.) Despite this agreement, 6 Plaintiffs predominantly address the wrong standard by describing the test for 7 traditional and designated public fora and primarily citing cases concerning those fora. 8 (Opp’n 13–14); see, e.g., Jones v. Bd. of Regents of Univ. of Ariz., 436 F.2d 618, 619– 9 20 (9th Cir. 1970) (concerning forum “open to the public generally”); Bible Believers 10 v. Wayne County, Mich., 805 F.3d 228, 242 (6th Cir. 2015) (“The parties agree that 11 the Festival constituted a traditional public forum . . . .”). The gist of Plaintiffs’ 12 argument is that Defendants violated the First Amendment by “giving in to hecklers.” 13 (Opp’n 12.) Plaintiffs assert that “governmental authorities have an affirmative duty 14 to protect the speaker [threatened with violence] by addressing the hecklers’ conduct.” 15 (Id. at 13.) Per Plaintiffs, when security concerns “arise from hecklers seeking to 16 silence disfavored views, the First Amendment calls on the government to do so in a 17 specific way: by confronting the hecklers.” (Opp’n 22 (emphasis omitted).) 18 This may be true for speech in traditional and designated public fora. (See 19 Opp’n 14–15 (collecting cases)); Meinecke, 99 F.4th at 522. But the government is 20 not required to do so in limited public fora. See SeaMAC, 781 F.3d at 496, 500 21 (contrasting traditional and designated public forum test with limited public forum 22 test). Rather, “[i]n limited public forums, content-based restrictions are permissible, 23 as long as they are reasonable and viewpoint neutral.” Amalgamated Transit Union 24 Loc. 1015 v. Spokane Transit Auth., 929 F.3d 643, 650–51 (9th Cir. 2019). 25 As to Plaintiffs allegations concerning the lack of viewpoint neutrality, the 26 Court has already concluded that they fail to adequately allege that Defendants moved 27 the Spencer event based because they opposed the speaker’s pro-Israel views. 28 Moreover, “[o]n its face,” Interim Policy 862 “is viewpoint neutral.” SeaMAC, 1 781 F.3d at 501. The policy calls for the Chancellor to determine if an “event is likely 2 to significantly affect campus safety” or “significantly affect campus services.” 3 (Interim Policy 862 § II.) The non-exhaustive listed criteria for making this 4 determination are viewpoint neural. (See id. § III.C.) If the Chancellor decides that 5 an event is likely to pose this risk, then UCLAPD must “address security threats”— 6 identified through the same criteria—through various security measures, including 7 adjusting the venue, date, or time of an event. (Id. § IV.B.1.) 8 For Defendants to avoid liability, the policy must also be reasonable. 9 Amalgamated Transit, 929 F.3d at 650. To determine whether a content-based 10 restriction is “reasonable,” courts look to three components: (1) “whether the policy 11 standard is reasonable in light of the purpose served by the forum”; (2) “whether the 12 standard is sufficiently definite and objective to prevent arbitrary or discriminatory 13 enforcement by the government officials”; and (3) “whether an independent review of 14 the record supports” the conclusion.” Id. at 651 (cleaned up). However, even if 15 Interim Policy 862 was not reasonable, and Plaintiffs plausibly allege a First 16 Amendment violation on this basis, Plaintiffs’ damages claim must be dismissed 17 because they cannot overcome the doctrine of qualified immunity. 18 “The doctrine of qualified immunity protects government officials from liability 19 for civil damages insofar as their conduct does not violate clearly established statutory 20 or constitutional rights of which a reasonable person would have known.” Pearson v. 21 Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Qualified 22 immunity requires a two-pronged analysis: (1) “whether the facts that a plaintiff has 23 alleged or shown make out a violation of a constitutional right”; and (2) “whether the 24 right at issue was ‘clearly established’ at the time of the defendant’s alleged 25 misconduct.” Id. at 232 (citations omitted). A court may address either prong of the 26 qualified immunity analysis first. Id. at 236. “[I]f the answer to either [prong] is 27 ‘no,’” then the Court need not analyze the other prong, as the officer is entitled to 28 qualified immunity. Gordon v. County of Orange, 6 F.4th 961, 968 (9th Cir. 2021). 1 Dismissal under Rule 12(b)(6) is only appropriate where a court “can determine, 2 based on the complaint itself, that qualified immunity applies.” Groten v. California, 3 251 F.3d 844, 851 (9th Cir. 2001) 4 “To meet the ‘clearly established’ requirement, the law at the time of the 5 conduct must have been ‘sufficiently clear’ that every ‘reasonable official would have 6 understood that what he is doing’ was unlawful.” DeFrancesco v. Robbins, 136 F.4th 7 933, 939 (9th Cir. 2025) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). 8 Thus, “[t]he right must be settled law, meaning that it must be clearly established by 9 controlling authority or a robust consensus of cases of persuasive authority.” 10 Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019). 11 Plaintiffs assert that “[c]aselaw going back at least fifty years firmly establishes 12 that UCLA had a duty to take reasonable action to protect Robert Spencer from 13 potential hecklers before burdening his speech.” (Opp’n 26.) But Plaintiffs’ cases do 14 not support this proposition. As with their argument that Defendants violated the First 15 Amendment by permitting a heckler’s veto, each of Plaintiffs’ cases concern speech in 16 traditional and designated fora. See, e.g., Jones, 436 F.2d at 619–20; Hague v. Comm. 17 for Indus. Org., 307 U.S. 496, 515–16 (1939) (concerning city’s exclusion of speakers 18 from “streets and parks,” which “have immemorially been held in trust for the use of 19 the public”). By defining speaker’s rights in traditional and designated fora that are 20 not applicable in limited public fora, these cases could not put Defendants on notice of 21 the constitutional violations Plaintiffs allege here. Simply put, the First Amendment 22 does not impose a duty on public universities to take reasonable action to protect 23 speakers from hecklers in limited public fora. Even if it did, Plaintiffs have not cited a 24 single case showing that this right was “clearly established” at the time of the alleged 25 violation. 26 Moreover, Plaintiffs argue they put Defendants on notice when, prior to the 27 event, YAF sent a letter to UCLA’s counsel citing authority describing Defendants’ 28 obligations. (Opp’n 26; see Letter.) But, again, the authority Plaintiffs cited 1 concerned Defendants’ obligations in traditional or designated public fora. (Letter 4.)4 2 And even if Plaintiffs’ description of their rights in the Letter is correct, a description 3 of one’s rights in a letter does not make them clearly established such that it is “settled 4 law.” See Tuuamalemalo, 946 F.3d at 477. 5 Plaintiffs do not even dispute that Defendants would be entitled to qualified 6 immunity if the Policy violates the First Amendment due to its lack of definiteness 7 and objectivity. (See generally Opp’n.) Nor have they offered any case law to 8 support that this right is clearly established in the context of public university 9 decisions as to where to hold campus events. (See generally id.) Therefore, Plaintiffs 10 have not carried their burden to show “that the right allegedly violated was clearly 11 established at the time of the alleged misconduct.” Shooter v. Arizona, 4 F.4th 955, 12 961 (9th Cir. 2021). Defendants are thus entitled to qualified immunity on Plaintiffs’ 13 second cause of action. To the extent Plaintiffs seek damages on this claim, the Court 14 DISMISSES this claim WITH PREJUDICE.5 15 C. Facial Challenge 16 Plaintiffs’ final claim is a facial challenge to Updated Interim Policy 862. 17 (Compl. ¶¶ 176–84.) Plaintiffs allege that the policy is unconstitutionally vague and 18 overbroad and gives government officials broad discretion to decide what speech is 19 allowed. (Id.) Defendants raise two issues in challenging this claim. First, they assert 20 that Plaintiffs lack standing to bring this facial challenge for prospective relief because 21 Plaintiffs have not shown an imminent risk of future injury. (Mot. 19–22.) Second, 22 Defendants argue that Updated Interim Policy 862 is sufficiently definite and 23 objective to survive Plaintiffs’ facial challenge. (Id. at 19–20.) 24

25 4 See, e.g., Meinecke, 99 F.4th at 521 (“It is also beyond doubt that Meinecke’s speech occurred in traditional public fora . . . .”); Cent. Fla. Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1521 26 (11th Cir. 1985) (“The crucial concern here is the extent of the right of the public to use the city streets and parks, which the Supreme Court has regarded as quintessential public forums . . . .”). 27 5 To the extent Plaintiffs raise a facial challenge to Updated Interim Policy 862 within their second 28 cause of action, the Court considers this challenge identical to Plaintiffs’ third cause of action for injunctive relief and addresses those together. 1 1. Standing 2 Defendants first move to dismiss Plaintiffs’ facial challenge for lack of 3 standing. (Id. at 19–22.) 4 “For injunctive relief, which is a prospective remedy, the threat of injury must 5 be ‘actual and imminent, not conjectural or hypothetical.’” Davidson v. 6 Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (quoting Summers v. Earth 7 Island Ins., 555 U.S. 488, 493 (2009)). “‘[T]he threatened injury must be certainly 8 impending to constitute injury in fact’ and ‘allegations of possible future injury are not 9 sufficient.’” Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). 10 “Past exposure to illegal conduct does not in itself show a present case or controversy 11 regarding injunctive relief if unaccompanied by any continuing, present adverse 12 effects.” Lujan, 504 U.S. at 564 (cleaned up). Therefore, when “standing is premised 13 entirely on the threat of repeated injury, a plaintiff must show ‘a sufficient likelihood 14 that he will again be wronged in a similar way.’” Davidson, 889 F.3d at 967 (quoting 15 City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). 16 However, “special standing principles apply in First Amendment cases.” Santa 17 Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 18 2006). “In the prior restraint context, . . . ‘the mere existence of the licensor’s 19 unfettered discretion, coupled with the power of prior restraint,’ can threaten First 20 Amendment values even if such discretion and power are never actually abused.” 21 United States v. Linick, 195 F.3d 538, 541 (9th Cir. 1999) (quoting City of Lakewood 22 v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988)). Therefore, “a party subject to 23 a regulatory scheme may challenge the scheme on its face, without first applying for a 24 permit, whenever the scheme allegedly vests authorities with substantial power to 25 allow or deny expressive activity.” Id. “This is because ‘without standards to fetter 26 the licensor’s discretion, the difficulties of proof and the case-by-case nature of “as 27 applied” challenges render the licensor’s action in large measure effectively 28 unreviewable.’” Real v. City of Long Beach, 852 F.3d 929, 933 (9th Cir. 2017) 1 (quoting City of Lakewood, 486 U.S. at 758–59). As a result, “[t]he Supreme Court 2 and the Ninth Circuit have repeatedly allowed facial attacks premised on the grant of 3 unbridled discretion to a licensing official” so long as a plaintiff meets two 4 requirements. Kaahumanu v. Hawaii, 682 F.3d 789, 802 (9th Cir. 2012) (collecting 5 cases). “First, a plaintiff must satisfy the standing requirements of Article III by 6 showing that the challenged provision or provisions apply to its conduct.” Id. 7 “Second, the challenged regulation granting discretion must have a close enough 8 nexus to expression, or to conduct commonly associated with expression, to pose a 9 real and substantial threat of the identified censorship risks.” Id. (cleaned up). 10 As to the first requirement, Plaintiffs have alleged that the challenged 11 provisions of Updated Interim Policy 862 provide the Chancellor and UCLAPD with 12 unfettered discretion to subject Plaintiffs’ events to restrictions. (Compl. ¶¶ 180–81.) 13 Plaintiffs have plausibly alleged that they intend to bring conservative and pro-Israel 14 speakers to campus in the future. (Id. ¶ 145.) As alleged, at least some of those 15 events would be characterized as “Major Events,” such that the Chancellor and 16 UCLAPD could determine that the events are subject to restrictions like change of 17 venue, date, or time of the event. (See id. ¶ 152 (alleging that “conservative and pro- 18 Israel events . . . will be deemed Major Events every time” because “[a]nti-Israel and 19 left-wing activists have pledged to ‘shut down’ and ‘cancel’ pro-Israel and 20 conservative speakers”).) 21 As to the second requirement, Updated Interim Policy 862, which regulates 22 whether and where students like Plaintiffs may speak on campus, “ha[s] a close 23 enough nexus to expression, or to conduct commonly associated with expression, to 24 pose a real and substantial threat of the identified censorship risks.” Kaahumanu, 25 682 F.3d at 802; see S. Or. Barter Fair v. Jackson Cnty., Or., 372 F.3d 1128, 1135 26 (9th Cir. 2004) (allowing facial challenge where the regulation “is broad enough to 27 cover gatherings that are expressive,” even if the regulations also regulate “purely 28 recreational” gatherings “devoid of expressive purposes”). 1 Accordingly, at this stage, Plaintiffs have established standing to assert a facial 2 challenge to Updated Interim Policy 862, to the extent the policy vests the Chancellor 3 or UCLAPD with discretion to determine whether and what kind of security measures 4 to impose on an event. 5 In contrast, to the extent Plaintiffs challenge the policy’s annual cap for money 6 UCLA will spend on security to address threats against Major Events, they fail to 7 establish standing. (See Updated Interim Policy 862 § III.F; Compl. ¶ 151 (alleging 8 UCLA may shut down events because it “has reached its arbitrary cap on security 9 spending”).) These spending caps apply to all Major Events, so Plaintiffs cannot 10 allege that the policy provides UCLA officials with unfettered discretion. Also, 11 Plaintiffs have not alleged that it is certainly impending that UCLA’s security costs 12 will exceed the annual cap such that Plaintiffs will no longer be permitted to host 13 events. (See Compl. ¶¶ 146–53 (describing policy).) Therefore, the Court 14 DISMISSES WITHOUT PREJUDICE and WITH LEAVE TO AMEND. 15 Plaintiffs’ claims for injunctive relief challenging Updated Interim Policy 862’s 16 annual cap on security spending for Major Events. 17 2. Definite & Objective 18 Defendants separately move to dismiss Plaintiffs’ facial challenge on the merits, 19 arguing that Updated Interim Policy 862 is sufficiently definite and objective to 20 survive Plaintiffs’ challenge. (Mot. 19–20.) Plaintiffs disagree, arguing that the 21 policy “is facially vague and overbroad.” (Opp’n 30–32.) 22 As discussed, to assert a facial challenge to a policy regulating speech in limited 23 public fora—like Updated Interim Policy 862—Plaintiffs must allege that the standard 24 is not “sufficiently definite and objective to prevent arbitrary or discriminatory 25 enforcement by the government officials.” Amalgamated Transit, 929 F.3d at 651 26 (cleaned up). 27 On this inquiry, the Ninth Circuit in SeaMAC considered a policy that excluded 28 transit ads “so objectionable under contemporary community standards as to be 1 reasonably foreseeable that it will result in harm to, disruption of, or interference with 2 the transportation system.” 781 F.3d at 500. The court held that the criteria was 3 “sufficiently definite and objective to prevent arbitrary or discriminatory 4 enforcement” by government officials because the “ultimate criterion is an objective 5 one: reasonably foreseeable harm to, disruption of, or interference with the 6 transportation system.” Id. Conversely, in Amalgamated Transit, the Ninth Circuit 7 was “skeptical” about the definiteness and objectivity of a policy banning ads that 8 “express or advocate an opinion, position, or viewpoint on matters of public debate 9 about economic, political, religious or social issues.” 929 F.3d at 654 (internal 10 quotation marks omitted). Unlike with the SeaMAC policy, the court in Amalgamated 11 Transit reasoned that the policy there did not contain “objective criteria to provide 12 guideposts for determining what constitutes prohibited ‘public issue’ advertising.” Id. 13 at 655. For example, the policy provided no guidance to determine whether a 14 statement concerning “the right to organize” is one of fact (e.g., employees legally 15 have a right to collectively bargain) or one that “might prompt a response from the 16 ‘right to work’ movement and would thus cause ‘highly emotional debate.’” Id. 17 at 654–55. 18 Here, Plaintiffs challenge Updated Interim Policy 862 based on the discretion it 19 provides Defendants both to categorize an event as a “Major Event” and to determine 20 what kind of security measures to impose. (Compl. ¶ 184.) 21 UCLA’s policy of determining when an event is a “Major Event” is like the 22 policy in SeaMAC. It defines a “Major Event” to include, as relevant here, an event 23 that “[t]he Chancellor or the Chancellor’s designee determines . . . is likely to 24 significantly affect campus safety . . . or significantly affect campus services.” 25 (Updated Interim Policy 850 Ex. A at 25, ECF No. 1-4.) In making this 26 determination, the Chancellor must consider “safety and security criteria” and the 27 UCLPAD’s assessment. (Id. at 26.) Such criteria include 28 (a) [the] nature of the event, that includes: (i) the estimated number of 1 participants, (ii) whether alcohol is intended to be served, (iii) the 2 estimated duration of the event, and (iv) any objective and credible 3 evidence regarding possible threats to campus safety or security; (b) the proximity of the event to other activities or locations that may interfere, 4 obstruct, or lessen the effectiveness of the security measures being 5 implemented; (c) the resources needed to secure the event; (d) the anticipated weather conditions; and (e) any similar viewpoint neutral 6 considerations relevant to assessment of campus safety, security, and 7 services . . . . 8 (Id.) The Chancellor’s determination that an event is “likely to significantly affect 9 campus safety” or “campus services” is indistinguishable from the SeaMAC 10 determination of whether an ad would cause “reasonably foreseeable harm to, 11 disruption of, or interference with the transportation system.” SeaMAC, 781 F.3d 12 at 500. In fact, a determination about campus safety is less amorphous on its face than 13 one considering interference with the transportation system. Plaintiffs complain that 14 the criteria are non-exhaustive and do not specify how the Chancellor should balance 15 them. (See Opp’n 30.) But that does not alter the Court’s conclusion that the 16 Chancellor’s determination of Major Events is definite and objective. The ad policy 17 in SeaMAC listed no criteria. See 781 F.3d at 500. UCLA’s definite and objective 18 definition of Major Event does not become less definite and objective when it lists 19 criteria to make this decision, even if the list is non-exhaustive. If anything, the 20 criteria make UCLA’s definition more definite and objective than the policy in 21 SeaMAC. Ultimately, the definition of “Major Event” does not leave courts “with the 22 specter of a ‘standardless standard’ whose application will be immune from 23 meaningful judicial review.” Id. 24 However, the inquiry does not end there. Plaintiffs take issue with Updated 25 Interim Policy 862 providing discretion to officials to determine “what kind of 26 ‘security measures’ to impose for an event” and for not “explain[ing] how each factor 27 impacts the need for a particular ‘security measure.’” (Compl. ¶ 181.) Therefore, 28 Updated Interim Policy 862 must also provide definite and objective standards to 1 guide what security measures officials should impose in the event of “security 2 threats.” (Updated Interim Policy 862 § III.G.) 3 Under the policy, “UCLAPD and the Operational Assessment Team (OAT) will 4 conduct a security/interference assessment” based on the same above-described 5 criteria. (Id.) They “will make security/interference determinations that, in 6 UCLAPD’s/OAT’s professional judgment, will address [the identified] security 7 threats.” (Id.) “The goals of UCLAPD’s/OAT’s security/interference determinations” 8 are to: (1) “[m]inimize risks to the health and safety of the event participants and 9 audience”; (2) “[m]inimize risks to the campus and surrounding community”; 10 (3) “[s]upport the ability of the Event Organizers to successfully hold the event”; and 11 (4) “[r]espect the exercise of rights of free expression by the Event Organizer, 12 participants, and the community, including lawful demonstrators.” (Id.) “Required 13 security measures and measures to minimize interference may include adjusting the 14 venue, date, and/or time of the event; providing additional law enforcement or other 15 safety-related personnel; imposing controls or security checkpoints; requiring 16 increased ticketing measures . . . ; and creating buffer zones around the venue.” (Id.) 17 At this stage, Plaintiffs have plausibly alleged that the policy is not sufficiently 18 objective and definite for UCLAPD/OAT to determine what security measures to 19 recommend. Once UCLAPD/OAT determines that an event is likely to significantly 20 affect campus safety and campus services and needs “security measures” to “address 21 security threats and potential interference,” the policy does not provide guidance on 22 how UCLAPD/OAT should determine what security measures to impose. It simply 23 provides UCLAPD/OAT with a menu of options and lets them choose based on their 24 “professional judgment.” (Id.) 25 For example, in this case, Defendants moved the Spencer event to another 26 venue based on a prior iteration of the policy, meaning that, per the policy, Defendants 27 would have decided that moving the event to the new venue would address security 28 threats. But the policy does not address how Defendants should act if providing 1 additional law enforcement would have also addressed the security threats. (See 2 Compl. ¶ 112 (alleging that “there was no reason that the Student Union location 3 could not be adequately secured”).) In such a situation, Updated Interim Policy 862 4 does not appear to provide “definite and objective” criteria for UCLAPD/OAT to 5 decide whether to move the event or add additional law enforcement to the original 6 venue. Rather, it provides four “goals of UCLAPD’s/OAT’s security/interference 7 determinations” with no guidance on how to balance them or how they factor into 8 deciding which security measures to impose. (Id.) Without such guidance, Plaintiffs 9 plausibly allege that policy “lacks objective criteria to provide guideposts for 10 determining what” security measures to impose. Amalgamated Transit, 929 F.3d 11 at 655. Therefore, at this stage, Plaintiffs’ have plausibly alleged a facial challenge to 12 Updated Interim Policy 862’s “security measures” rules. (See Compl. ¶ 184.) 13 Accordingly, the Court DENIES Defendants’ Motion to the extent they seek dismiss 14 Plaintiffs’ challenges to enjoin Updated Interim Policy 862 based on the discretion as 15 to what security measures to impose on Major Events. 16 V. CONCLUSION 17 For the reasons discussed above, the Court GRANTS IN PART and DENIES 18 IN PART Defendants’ Motion to Dismiss. (ECF No. 49.) Specifically, the Court: 19  DISMISSES Plaintiffs’ first cause of action WITH LEAVE TO 20 AMEND to add factual allegations consistent with the challenged 21 pleading to cure the above noted deficiencies. 22  DISMISSES WITH PREJUDICE Plaintiffs’ second cause of action to 23 the extent Plaintiffs seek damages. 24  DENIES Defendants’ Motion to Dismiss Plaintiffs’ second and third 25 causes of action to the extent Plaintiffs seek to enjoin Updated Interim 26 Policy 862 based on the discretion as to what security measures to 27 impose on Major Events. 28 1 e DISMISSES WITH LEAVE TO AMEND Plaintiffs’ claims for 2 injunctive relief challenging Updated Interim Policy 862’s annual cap on 3 security spending for Major Events. 4 If Plaintiffs chooses to amend, they must file the First Amended Complaint no 5 || later than twenty-one (21) days from the date of this Order, in which case Defendants 6 | shall answer or otherwise respond within twenty-one (21) days of the filing. If 7 || Plaintiffs do not timely amend, the dismissal as to their first cause of action shall be 8 | deemed a dismissal with prejudice, as of the lapse of the deadline to amend. 9 10 IT IS SO ORDERED. 11 12 August 11, 2025 13 Sie wy 14 Libed bie 15 OTIS D. HT, I

UNITED STATES DISTRICT JUDGE

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