The First Amendment is never more necessary than when it concerns unpopular speech. At the University of California, Berkeley, the speech of conservative students — whose views fall beyond the political orthodoxy of the campus — is in desperate and immediate need of First Amendment protection today.
Once lauded as the “birthplace of the free speech movement,” UC Berkeley has come under attack in recent months for canceling the speeches of notable conservative writers, commentators and authors, most recently including well-known political commentator Ann Coulter, who was invited to speak on campus by the Berkeley College Republicans (“BCR”) and its sponsor, Young America’s Foundation (“YAF”), as a counterpoint to a liberal speaker in a student series on immigration.
As justification for canceling the Coulter event, the University cited security concerns, pointing to the anticipated dangers posed by an organized group of black-clad, mask-wearing agitators and demonstrators self-styled as the “antifa” (short for “anti-fascist”), whose goal has been to use violence to silence any speech they find objectionable.
This type of “heckler’s veto” does not fare under well-settled constitutional law, argues a lawsuit filed against University administrators by BCR and YAF on Monday. The lawsuit demands that UC Berkeley make good on its public commitment to provide students with an environment that promotes free debate and the free exchange of ideas on campus, by ending the University’s selective discrimination against conservative student groups, and using its considerable resources to end violence inflicted against those groups by outside paramilitary forces.
Unfortunately, the suppression of free speech currently faced by BCR and YAF reflects a larger constitutional crisis currently unfolding in our nation. In recent years, an ideological shift has resulted in a challenge to long-standing First Amendment principles — a shift that calls, essentially, for the creation of “safe spaces” in speech.
Just Monday, The New York Times published an op-ed calling for a “vigilant and continuing examination” of the parameters of free speech, and thanking so-called “protestors” for “keeping watch over the soul of our republic.” These ideas have gained such traction in social media and news outlets to have coalesced into what might be called an “Anti-Free Speech Movement,” and often find political support by prominent liberals such as Jackie Speier and Howard Dean, both of whom recently called for limitations on the reach of the First Amendment.
This movement has grown in size and militancy in the wake of President Donald TrumpDonald TrumpJudge rules Alaska governor unlawfully fired lawyer who criticized Trump Giuliani led fake electors plot: CNN Giuliani associate sentenced to a year in prison in campaign finance case MORE’s emergence onto the national political stage. Sects of this movement, such as the “antifa,” openly employ violence to suppress speech. Far from contributing to any rational debate — the core purpose of the First Amendment — these self-described protectors against fascism eagerly terminate the expression of any viewpoint they perceive as misaligned with their own, through violence and intimidation, effectively moving beyond a “heckler’s veto” to a “rioter’s veto.”
This ups the ante for university officials and state and local governments, to fulfill their constitutional obligation to ensure the free expression of all viewpoints, by protecting those engaging in free speech from those who seek to quell it. Unfortunately, UC Berkeley openly has acknowledged its unwillingness to devote the resources necessary to protect its students from outside agitators, many of whom are often masked, in violation of California anti-mask laws.
Where law enforcement fails, the judicial system should be used to ensure that First Amendment rights are not being trammeled, particularly at public universities, where the exchange of ideas is at a premium. Just this month, a federal court in Alabama enjoined Auburn University from canceling a controversial speaking event on campus, requiring the university’s police department to provide security and enforce Alabama’s anti-mask law. If necessary, California courts will be called on to issue similar orders, including requiring UC Berkeley and its administration and police force to do their jobs of protecting student speech.
UC Berkeley has many tools at its disposal to prevent masked criminals from destroying our nation’s foundational principles of liberty, including its very own police force of sworn peace officers, access to mutual aid channels, and standing agreements with local officials. Instead of utilizing these tools, UC Berkeley has allowed a taxpayer-funded professional police force to become professional, passive bystanders to violent protests. This constitutes a marked departure from the school’s prior free speech history, as UC Berkeley is now becoming the bastion of the idea that the First Amendment ought to be “watched over” by those with the “correct” sensibilities.
This concerning development gives rise to a host of fears, surely to be addressed in the both judicial and political arenas, and unlikely to be settled by any single victory. For now, BCR and YAF will continue to pursue justice for the students at UC Berkeley in federal court, a venue that has not yet forsaken the First Amendment.
Krista L. Baughman is a partner of the Dhillon Law Group Inc.
Gregory R. Michael is an associate of the firm. Both of their practices include substantial First Amendment litigation. Along with founding partner Harmeet K. Dhillon, they represent the Plaintiffs in the lawsuit discussed above.
The views expressed by contributors are their own and are not the views of The Hill.