The backlash against the anti-speech movement among American universities continues, as conservative activists have sued UC Berkeley for its unjustifiable restrictions that led to the cancellations of speeches by Ann Coulter and David Horowitz. The message is simple: public universities cannot make conservative speech more difficult than other speech.
The lawsuit—titled Young America’s Foundation v. Napolitano and filed by San Francisco attorney and leading California Republican Harmeet Dhillon—lays out a compelling argument that UC Berkeley systematically stifles conservative speech by imposing overly burdensome hosting restrictions upon the Berkeley College Republicans. The university claims this is done in the name of public safety, but the facts indicate that it’s more about preserving the heckler’s veto.
The evidence shows that the university and the UC Police Department have ordered officers observing protests to stand down and ignore acts of violence that are not life threatening. This lackadaisical attitude makes the defendants’ public-safety motive dubious at best. If they truly cared about public safety, then they would not issue orders requiring officers to disregard obvious threats to public safety. Moreover, if protestors can freely assault conservatives as long as they don’t seem poised to murder any of them, then this order implicitly encourages violence against conservatives.
In other words, the university shows no real interest in preventing violent protests, except when it offers a pretext for preventing conservative speech.
On this basis, UC Berkeley devised an unwritten policy that imposes unreasonable restrictions upon “high-profile speakers.” Of course, the university refuses to provide any objective criteria for this classification and applies it with unfettered discretion. For example, it has designated Ann Coulter and David Horowitz as “high-profile speakers,” but not former Mexican President Vincente Fox. Unless UC Berkeley is willing to admit that its elite students deem conservative pundits higher-profile than a former world leader, perhaps it should more aptly reclassify them as “unpopular speakers.”
The university used this pretext to force Berkeley College Republicans to host its conservative speakers in distant, off-campus locations during mid-afternoon classes to student-only audiences while paying several thousands of dollars in security fees; meanwhile, no such “security” measures were imposed upon the former President of Mexico.
The key question before the court is whether these restrictions represent lawful time, place, and manner restrictions upon speech. In other words, the court’s inquiry will focus on whether the restrictions are content-neutral, narrowly tailored to a significant government interest, and allowing alternative channels of communication.
The university’s disproportionate application of these restrictions to conservative speakers suggests that they are content-based and therefore subject to strict scrutiny—an exacting judicial standard the defendants are highly unlikely to survive.
The university will likely counter that this restriction was content-neutral or, alternatively, constitutional under the annoyingly broad Renton test, which permits content-based speech restrictions designed to prevent adverse secondary effects of the speech. In this case, the university claims to have reliable intelligence pointing to physical violence at the events, which it reasonably wishes to prevent.
Of course, the university’s argument would have far more merit if it didn’t tacitly encourage violent protests by ordering officers not to interfere with the protests. It’s quite a clever scheme, actually: if the university wishes to censor conservative viewpoints, all it needs to do is allow violent extremists to run wild and then use the violence as an excuse to impose heavy burdens in the name of public safety.
Therefore, this lawsuit is intended to prevent universities from making cynical end-runs around the First Amendment to silence disfavored speech. Anti-speech behavior is increasingly prevalent and antithetical to academic culture, so kudos to Ms. Dhillon, YAF, and the Berkeley College Republicans for standing up to it.