When a UC Berkeley student group invited a speaker known for his hard-line pro-Israel stance, the university feared clashes with Palestinian supporters and billed the group more than $3,000 for police protection.
It was a common response by campus officials in a security-conscious era. When a speaker’s controversial topic or history suggests the possibility of a violent reaction, the thinking goes, the sponsoring group should pay for protecting the speaker, the audience and public property.
That sounds logical, but it’s also unconstitutional, says the Foundation for Individual Rights in Education, a conservative-leaning group that defends free speech on campus. Citing a 1992 U.S. Supreme Court ruling, the foundation has been challenging security fees at colleges around the country.
“It doesn’t matter how unpopular or controversial the speech is,” said foundation spokesman Adam Kissel. “The amount of security has to be the same as for all other events.”
UC Berkeley, the birthplace of the Free Speech Movement, got the message. Saying its police may have misunderstood the nature of the event, the university lowered its fee to $460 for two officers for the March 3 speech at Dwinelle Hall by Elan Journo of the Ayn Rand Institute in Irvine.
Journo said about 60 people attended and listened peacefully to his message that the United States should stop trying to promote an agreement between Israel and the Palestinians and instead should encourage Israel to “uproot, dismantle and destroy the Palestinian cause, which seeks to destroy Israel.”
‘Stifling real debate’
He said his sponsors, the Objectivist Club of Berkeley, probably would have canceled the event if the university hadn’t reduced the security charge.
“When they’re asked to pay an excessive fee, that is stifling real debate,” Journo said.
In a similar dispute two years ago, Kissel said, UCLA planned to charge a conservative student group $12,000 to $15,000 to pay for 46 security guards at a debate on illegal immigration, but relented after a protest.
He said the foundation is now challenging a $725 fee that the University of Massachusetts at Amherst charged for police protection at a March 11 speech by a conservative columnist who disputes the concept of hate crimes.
The foundation is also backing a left-leaning student group that is contesting fees that the University of Colorado wants to charge for security at an appearance by two speakers earlier this month.
William Ayers, a leader of the 1960s radical group Weather Underground, and Ward Churchill, a former Colorado ethnic studies professor, spoke at a student-sponsored forum on academic freedom March 5 at the university’s Boulder campus.
‘Little Eichmanns’ furor
Churchill was fired on plagiarism charges in 2007. He claims in a lawsuit that the university was retaliating against him for describing the Sept. 11 terrorist attacks as a response to U.S. abuses and calling some of the victims “little Eichmanns.” The reference was to Adolf Eichmann, the main Nazi coordinator of the Holocaust.
University spokesman Bronson Hilliard said about 1,100 people attended the event under tight security, which included pat-downs at the entrance, and behaved peacefully. He said university officials have planned to bill the sponsors about $2,700, but listened to the students’ objections and have not made a final decision.
“There’s no relationship between the cost of the security and the content of the speaker,” Hilliard said. He said police consider the likely audience reaction when making security plans and should be able to pass along those costs to event organizers.
“What our law enforcement officials look at is, are we going to have a full venue and might we have audience members who disagree with the message?” Hilliard said. “That’s a basic security planning protocol.”
Other factors to consider
Kissel said security fees should be based on factors unrelated to either the speaker’s message or the audience’s anticipated response – for example, the expected size of the crowd, the location, and whether a security guard will be needed for admission money collected at the door.
The Supreme Court set constitutional standards for such disputes in the 1992 case of a white-supremacist group, the Nationalist Movement, that wanted to demonstrate in Georgia against the proposed national holiday honoring Martin Luther King Jr.
The group canceled its plans when officials said a permit would cost $100, and instead challenged a county ordinance that allowed authorities to charge as much as $1,000 for a permit to hold a demonstration, parade or meeting on public property.
In a 5-4 ruling, the court said the ordinance was unconstitutional because it allowed officials to base the fee on the costs of controlling hostile onlookers.
Kissel said the ruling means public speakers shouldn’t have to pay for protecting themselves or their surroundings from an angry crowd. Speakers who incite a riot should be responsible for the consequences, he said, but “security is a basic function of government.”
Controversial speech should be especially welcome at universities, “society’s ultimate marketplace of ideas,” Kissel said. He said UC Berkeley could help other schools get the message if it followed its recent agreement on fees with standards for such disputes.
Michael Smith, a lawyer for the university, said he had reviewed the security fee for the March 3 speech agreed that it shouldn’t be based on the speaker’s viewpoint or the expected reaction. He said he had discussed the proper standards with campus police, who set the fee levels in most cases, so that such overcharges won’t happen again.
But Smith said neither Berkeley nor the 10-campus university has a formal policy on the subject.
“We don’t set all constitutional principles down in writing,” he said.Download file