Berkeley Must Respect Free Speech And Take Steps To Make Sure Students Do, Too


Richard Cravatts Former President, Scholars for Peace in the Middle East
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The current debate at Berkeley over the contested appearance of Ann Coulter as a guest speaker, of course, is emblematic of the larger, serious issue of which views should be permitted on campus and which, because they are deemed by the illiberal Left to be outside the bounds of appropriate discourse, should not.

Berkeley has become the epicenter for this discussion, not because it is uniquely misguided about its free speech policies, but because the university has, over the last several months, repeatedly abandoned its responsibility to protect free speech, deciding instead that it would cave to the totalitarian demands of whiny progressive campus activists who wish to eliminate any ideas with which they disagree.

While the thuggish and grotesque riot that forced the cancellation of the January appearance at Berkeley of conservative provocateur Milo Yiannopoulos was inspired largely, but not exclusively, by students, the University’s craven administrators were certainly complicit in the exclusion of conservative views from campus. They were also instrumental in causing the cancellation of a scheduled appearance by conservative author David Horowitz earlier in April, and, as documents leaked as part of the current lawsuit over the Coulter affair reveal, administrators intentionally created a Byzantine system to help prevent any conservative voices from having a platform at Berkeley.

As the lawsuit, filed on behalf of Young America’s Foundation and Berkeley College Republicans, the groups that invited Coulter in the first place, observed that Berkeley administrators “selectively impose their unwritten, unpublished High-Profile Speaker Policy based on their subjective beliefs that the anticipated content of the speaker’s speech is likely to spark ‘public outrage,’ . . . thereby triggering ‘security’ concerns and leading to the need to restrict the speaker to a ‘securable” facility and time of speaking.’ For the Horowitz event, for example, just six days before the scheduled appearance, the administration demanded that the sponsoring student group suddenly pay a security fee of $5,788, something that made it impossible for the speech to be held.

Of course, the security fee practice serves as a perverse incentive for those who wish to disrupt or have canceled events by conservatives, since threats of protests and disruptions prior to the event can necessitate the security fees and, often, the eventual cancellation of the event as a result of this penalty—the so-called ‘heckler’s veto.’

When the university—a public actor—invokes the security claim based on a conservative speaker’s controversiality for liberal audiences, it “offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression,” the Supreme Court found in 1992 in Forsyth County v. Nationalist Movement. Moreover, even the determination that a speaker’s appearance is likely to provoke a violent reaction—based on previously articulated views—is itself violative of the First Amendment, since the Court also noted that “[l]isteners’ reaction to speech is not a content-neutral basis for regulation . . . Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”

The notion that administrators can be selective about who can and cannot speak on their campuses—based, in advance, on the content of the presumed speech—and can then make capricious decisions about fees, venues, and scheduling in order to obstruct or degrade the speaker’s message is, obviously, something that violates constitutional protections—and is therefore unlawful. Public universities must discontinue these practices and policies. “Such discretion,” the Court found, “has the potential for becoming a means of suppressing a particular point of view,” something that is clearly taking place at Berkeley and on other campuses.

Nor can the practice continue of levying arbitrary and onerous “speech tax” security fees for conservative speakers. Not only has the imposition of these fees been shown to not be content-neutral and therefore unconstitutional, it has also become a dangerous but efficient tool for leftist activists in their campaign to suppress speech which they have deemed unworthy.

If security fees are a legitimate requirement, and administrators feel it necessary to pass these charges on to student groups, security fees should be taken out of all student fees and put into a common security fee pool, to be used by the administration, as needed, during the year to pay for any security required for any speaker, liberal or conservative. It is certainly inequitable that the victims of the protestors—the groups who sponsor the speakers whose events are disrupted—now have to bear the cost for the actual or imagined unlawful behavior of protestors who have decided to suppress thought they hate.

Finally, pusillanimous administrators have to make a significant change in the way they respond to the misbehavior of those on campus attempting to curtail the free speech of others. When 1500 violent rioters at the Milo event lit fires, smashed windows, tossed smoke bombs, destroyed property, and pepper sprayed and beat pro-Trump bystanders and conservatives, campus security and Berkeley police essentially sat on their hands—helping to enforce the “heckler’s veto.” Students and faculty who had clearly violated own Berkeley’s code of conduct, if not civil law, went unpunished, sending another powerful message that only emboldens protestors to repeat their behavior the next time.

When members of the academic community ignore those values and violate regulations, there have to be swift and significant consequences, and these sanctions have to be publicized in advance of any event. When negative outcomes are clear, perpetrators often make different, self-serving decisions. Students should not and cannot be allowed to take over a campus and hijack the robust exchange of ideas—even if they think they have the best intentions and are promoting a virtuous, progressive agenda.

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education,” observed Justice Louis D. Brandeis, “the remedy to be applied is more speech, not enforced silence.”

Richard L. Cravatts, PhD, president emeritus of Scholars for Peace in the Middle East, is the author of Dispatches From the Campus War Against Israel and Jews.