Berkeley Deals Another Blow to Free Speech

On February 1, 2017, the UC Berkeley College Republicans invited Milo Yiannopoulos to talk on campus. The event was widely publicized in the San Francisco Bay area and was scheduled to begin at 8:00 PM in Pauley Ballroom on the UC Berkeley campus — a venue more than large enough to accommodate the expected sellout crowd of 500 attendees. Hours before the event, black-clad, masked agitators and protesters set fire to several vehicles and threw objects at buildings in downtown Berkeley to protest Milo’s appearance. While UC Berkeley police were on the scene, officers made few arrests because UCPD apparently refuses to intervene in non-life threatening riot situations. Berkeley administrators canceled the event later that evening after protracted looting and violence.

On March 1, 2017, UC Berkeley President Janet Napolitano adopted an unwritten, unpublicized “high-profile” speaker policy to deal with future violent protests. Napolitano’s ordinance is rather vague because it does not contain criteria distinguishing high profile guests from low profile visitors. Berkeley policy does, however, allow Napolitano to confine high-profile speaker events to “securable locations” that must close before 3:00 PM.

Since then, it’s become clear that Berkeley’s speaker policy has been applied selectively to silence conservative student groups. For example, Berkeley College Republicans invited conservative commentator David Horowitz to campus in early March. Later that month, however, UCPD, citing undefined security concerns — with not one scintilla of concrete evidence, denied the group’s request to host the event on Berkeley’s central campus, limited attendance to students only, forced Horowitz to speak before 3:00 PM, and recommended that the College Republicans only advertise the event three hours before it was scheduled to take place. UC Berkeley then moved the Horowitz event to a small theater one mile from its main campus and forced the College Republicans to pay six thousand dollars for police protection. Most Berkeley students, of course, were in class on the main campus before 3:00 PM and would have found it incredibly inconvenient to commute to an unadvertised event one mile away. Given that Berkeley administrators must have known about this scheduling dilemma and attendance deficit, the sudden security fee seems more akin to a punitive tax on speech than a protection procurement.

But UC Berkeley didn’t stop there. After the suspicious Horowitz debacle, the College Republicans invited Ann Coulter to speak at the university in late April. Berkeley administrators responded, again, by forcing Coulter to speak before 3:00 PM, threatening the College Republicans with a higher security fee if any of the event’s attendees were not enrolled at the college, and refusing to protect students from violent protesters. The College Republicans complied with these requests, but Berkeley administrators still canceled the event one day before Coulter’s scheduled appearance due to security concerns. University administrators have since rescheduled the event.

UC Berkeley officials claim that these actions were justified because David Horowitz and Ann Coulter fall within their high profile speaker policy. But the Berkeley College Republicans had no chance to comply with the policy beforehand because it was not released until after the college canceled the Coulter event.

During this same time frame, moreover, another college student group, BridgeCal, hosted Former Mexican President Vicente Fox and Former Clinton Deputy Staff Chief Maria Echaveste. Fox and Echaveste were permitted to speak past 3:00 PM. And college officials imposed minimal time, place, and manner restrictions on Fox and Echaveste despite the fact that neither speaker was accompanied by an adequate private security force.

This high-handed behavior is unconstitutional. Because UC Berkeley is a public university, its speaker regulations must comply with the First Amendment. Berkeley’s student groups were operating within a limited public forum that provided open school facilities for a variety of social, civic, and recreational purposes. Limited public forums are designated areas or programs set aside by the state for certain expressive activities. Within this context, speakers and listeners have First Amendment rights to disseminate and receive protected speech on any subject related to public affairs. Colleges cannot discriminate against groups or speakers expressing disfavored political viewpoints in limited public forums without a compelling reason.

Berkeley’s main justification for its high-profile speaker policy is safety. This justification is, at first glance, compelling because the First Amendment does not permit speakers to incite lawless action or directly threaten others’ lives. However, it is insufficient here for three reasons. First, there is no indication that either Horowitz or Coulter had taken or were threatening to take anyone’s life during their speeches. Second, the First Amendment does not allow the government to use incitement concerns to preemptively censor speakers when the security threat is vague and unarticulated. Berkeley, at the very least, must provide actual evidence that it received threats. Since the college has no incentive to protect individuals threatening to murder or assault others, its unwillingness to put forward this evidence suggests that the threats (1) do not exist, (2) were exaggerated substantially, or (3) were a pretext for viewpoint discrimination. Finally, the First Amendment prohibits public entities from discriminating against certain viewpoints under the guise of protecting public safety. Anti-violence speaker regulations must be enforced evenhandedly against conservative and liberal guests.

The available evidence suggests that Berkeley’s high-profile speaker policy was selectively applied to stifle conservative outlets. Because Berkeley’s 3:00 PM curfew drastically limited audience sizes, the college’s exorbitant security fees and regulations were patently unnecessary. Moreover, even if one believed that there was a higher probability that violent protests would occur at conservative events, Berkeley’s unwillingness to provide any evidence detailing this security threat undermines this argument. On the other hand, liberal speakers such as Fox and Eschaveste faced minimal security regulations despite attracting larger audiences and featuring guests with higher public profiles.

Cynics might retort that UC Berkeley’s student group system is a non-public forum and is therefore not subject to these regulations. Under this theory, UC Berkeley would have an absolute right to deny any speaker a platform because listeners may assume that the university supports the speaker’s views, and the college should be able to control who speaks on its behalf. This argument is unpersuasive, however, because Horowitz and Coulter were speaking on behalf of the College Republicans, not the general university; it is widely accepted that a speaker’s mere appearance on a college campus does not mean that the college’s administrators endorse that speaker’s views.

Indeed, the Supreme Court unanimously agreed in 2006 that permitting someone to speak on public property does not mean that the property owner endorses that speaker’s message. In a similar vein, no one would be foolish enough to contend that Ann Coulter and David Horowitz are spokespersons for UC Berkeley. Indeed, the College Republicans invited both speakers to campus precisely because the general public was well aware that their political positions are at odds with most Berkeley students’ views.

No one is above the law. It is particularly important that speech regulations be enforced in a disinterested manner because selective enforcement can violate someone’s constitutional rights. Berkeley’s policy does not meet this standard. Cal must go back to the drawing board.