This morning, the Young America’s Foundation and Berkeley College Republicans filed a lawsuit against officials at the University of California, Berkeley, arising out of administrators’ unilateral decision to “reschedule” a planned Thursday appearance by Ann Coulter, invited to speak at the university by several student organizations. After substantial public backlash, including criticism from Sen. Bernie Sanders and Berkeley professor Robert Reich, the university backtracked and agreed to reschedule Coulter’s appearance for next Monday, May 2 — a date offered by the university apparently without consulting the students or Coulter, who says she’s unavailable. A copy of the complaint is embedded below.
The university faces significant legal hurdles in defending its original decision to block Coulter’s appearance until next semester. The university cites a series of clashes between protesters (both opposed to speakers like Milo Yiannopoulos and in support), and told FIRE on Friday that it received specific information from law enforcement concerning threats relating to Coulter’s appearance. Yet at least some of the threats publicly cited by the university deserve skepticism, including dubious “threats” on an internet forum dedicated to bodybuilding, and claims that the risk of violence from people opposed to the speaker necessitates cancellation or delay.
As a public university, Berkeley is unquestionably bound to comply with the First Amendment. The university itself doesn’t have to extend an invitation to any speaker in particular, but a public university — an agency of the government — can’t veto who its students invite to speak. Speech is not deprived of protection under the First Amendment simply because is viewed as offensive or hateful.
Berkeley itself acknowledged as much in an email to the student organizers, reciting the university’s “unqualified support for our students’ right to bring speakers of their choosing to the university, and our deep commitment to the values and principles embedded in the First Amendment of the U.S. Constitution.” In that same email, campus administrators cancelled the planned April 27 appearance, claiming that “currently active security threats” meant that the university could not be sure that the event could be “adequately protected.”
But the First Amendment does not permit law enforcement to ban or burden speech on the basis that some people opposed to the speaker might, or are even likely to, react in a violent manner with the intent of stopping the speaker. When it does impose such a burden for that reason, it has established what is known as the “heckler’s veto.” When this is allowed to happen, it provides an incentive for protesters who wish to silence a speaker to act violently, knowing that the police will do the silencing for them. As the Supreme Court held in Forsyth County v. Nationalist Movement (1992), restrictions based on the expected violent opposition to a speaker would work to inhibit the expression of “views unpopular with bottle throwers”:
Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.
But this rule is not limitless: If police claim that intervention to protect the speaker or the public is necessary, they may stop the speech, but only after taking affirmative steps to protect the speaker. As the Sixth Circuit discussed in Bible Believers v. Wayne County (2015), police are not required to “go down with the speaker,” but if police intervene, they “must first make bona fide efforts to protect the speaker from the crowd’s hostility by other, less restrictive means” before requiring the speaker to leave or cancelling the speech:
In a balance between two important interests — free speech on one hand, and the state’s power to maintain the peace on the other — the scale is heavily weighted in favor of the First Amendment. … Maintenance of the peace should not be achieved at the expense of the free speech. The freedom to espouse sincerely held religious, political, or philosophical beliefs, especially in the face of hostile opposition, is too important to our democratic institution for it to be abridged simply due to the hostility of reactionary listeners who may be offended by a speaker’s message. If the mere possibility of violence were allowed to dictate whether our views, when spoken aloud, are safeguarded by the Constitution, surely the myriad views that animate our discourse would be reduced to the “standardization of ideas … by … [the] dominant political or community groups.” . . . Democracy cannot survive such a deplorable result.
The police may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if that becomes necessary. Moreover, they may take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker. Fundamentally, no police action that hinders the speaker’s freedom of speech should be deemed legitimate in the eyes of the Constitution unless it satisfies strict scrutiny, which requires the police to achieve their ends by using only those means that are the least restrictive with respect to the speaker’s First Amendment rights.
And as the Bible Believers court observed, courts must be skeptical of authorities’ claims that threatened or even actual violence required the police to silence the speaker, as a “heckler’s veto effectuated by the police will nearly always be susceptible to being reimagined and repackaged as a means for protecting the public, or the speaker himself, from actual or impending harm.”
Citing real or threatened violence and invoking the sound judgment of the police sounds reasonable in theory, but giving police the authority to determine who will speak on campus and when they will speak is a recipe for censorship. Throughout history, authorities have taken dissenters all the way to the Supreme Court, claiming that their fear of violence breaking out meant that some unpopular speech had to be silenced. In 1961, for example, Louisiana police cited white onlookers’ “muttering” and “grumbling” over black students marching in support of civil rights as grounds for fear of violence that necessitated the termination of the protest. And in Chicago during that same era, protesters angry over the slow pace of integration of the public schools were pelted with rocks by angry onlookers, then told to disperse by police who feared that the angry onlookers would escalate into a full-blown riot.
In cancelling Coulter’s speech because officials feared violence, Berkeley picked up the violent protesters’ torches and did their work for them. Cancelling an appearance a week before protesters even show up (much less resort to violence) is likely not the “bona fide” effort required under Bible Believers, and merits considerable skepticism. Berkeley will, ultimately, need to demonstrate in court that its conduct was the least restrictive means to responding to a threat to public safety. That will be difficult; most of the cases involving hecklers’ vetoes concerned police actually confronted by a hostile mob, not peremptory cancellations justified by a fear that violence may occur. More recently, an Alabama federal court relying on Bible Believers required Auburn University to proceed with an appearance by white nationalist Richard Spencer, after the university sought to cancel it due to safety concerns. The peremptory cancellation of Coulter’s speech looks a lot more like a ban than it does like police overwhelmed by a riot.
To be sure, the university’s concerns that protesters will use Coulter’s appearance as an opportunity for a skirmish are not unfounded. Some protesters opposed to Yiannopoulos, of course, successfully used violence directed at stopping his speech. Elsewhere in the city of Berkeley, groups purporting to act in “defense” of free speech have sparred with protesters and individuals they perceived as rioters. Vigilantism purportedly in defense of free speech, however, will certainly be cited by authorities as a rationale to silence the very speech it claims to protect. Further, political violence — and the reaction by police to riotous behavior — threatens to squelch the speech of speakers and peaceful protesters alike. Yet at least some of the perceived threats, including a BodyBuilding.com forum thread — cited by the university — in which one or two users were ridiculed after seeking to rally an international audience into attacking anti-Coulter protesters, are not exactly strong indicators that violence is certain to occur. Berkeley insists that it has additional, sufficient information to warrant this action, and will almost certainly have to demonstrate as much to a federal court.
The lawsuit also challenges an apparently unwritten policy imposed by the university requiring “high profile” speakers to appear before 3:00 p.m. There’s no information about whether the university or its police use “narrow, objective, and definite standards,” as the Supreme Court has required, to determine who qualifies as a “high profile” speaker, and the lawsuit notes that other speakers of stature, including former president of Mexico Vicente Fox, have not been constrained to these restrictions. While governments can regulate the time, place, or manner of speech, they must do so in a content-neutral fashion. If a “high profile” speaker designation is imposed because of possible protests, that’s not a content-neutral regulation, as the Forsyth County Court observed that a crowd’s “reaction to speech is not a content-neutral basis for regulation.”
It is possible, if not probable, that the students will next move for a temporary restraining order requiring Berkeley to allow the speech to go forward, as originally planned, on Thursday. FIRE will monitor the lawsuit and keep our readers apprised.Young-America-s-Foundation-v-Napolitano-Complaint