Today’s press release calls upon the University of California at Berkeley and the University of Colorado at Boulder to meet their constitutional responsibility not to burden controversial speakers or ideas on campus. The principle is pretty clear: whether the speaker is controversial, popular, or unremarkable, similar security fees should be assessed for similar events. All too often, we have seen the assessment of very high "security costs" as a pretext for punishing or even excluding unpopular or controversial speakers. The truth is that if any extra security is deemed necessary because of a potentially hostile audience, it is the responsibility of the school’s or the city’s police to provide the extra security free of charge.
This principle is so clear because of the Supreme Court’s ruling in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), which prohibits increasing a security fee because of a potentially hostile audience: "Listeners’ 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." Otherwise, as Greg states in the press release, "Charging for extra security because of a potentially hostile audience grants the most disruptive or violent hecklers a veto over controversial events and creates an incentive for that kind of behavior."
At Berkeley, members of the Objectivist Club of Berkeley (OCB) turned to FIRE when faced with a $3,000 security fee to host a speech by Elan Journo entitled "America’s Stake in the Arab-Israeli Conflict." OCB President Dave Zornek was told by the UC Berkeley Police Department that uniformed officers would be required for the event because of the subject matter of Journo’s presentation and previous tension between Israeli and Palestinian student groups. On February 5, Officer John Lechmanik estimated that OCB would have to pay for two sergeants and at least ten or twelve officers at a total cost of at least $3,220.63.
On February 12, we wrote Berkeley Chancellor Robert J. Birgeneau to protest the prohibitively expensive security fee. We cited the Forsyth ruling. Berkeley responded on February 25, having acknowledged the Forsyth principle, and promising to use only content-neutral criteria for security. According to Zornek, such criteria included the expected number of attendees, the nature of and number of exits from the room for the event, whether money would be exchanged, and so on. As a result, OCB was charged only about $460 for two police officers.
However, Zornek also reported that Berkeley’s Assistant Chief of Police told him on February 27 that in cases when the audience causes a real threat to public safety, it would be up to the sponsoring group to decide whether to close down the event or to incur additional security costs. This policy would unconstitutionally burden unpopular speech, giving the most violent and intolerant members of the community the power to shut down a controversial event.
In addition to dropping the idea of charging more for security when things get out of hand, Berkeley really ought to publish its content-neutral criteria for security costs as soon as possible, which would make clear to all student groups at Berkeley that the speakers they bring to campus will not be unconstitutionally burdened in the future. Berkeley’s policy might even be able to stand as a model so that other public universities around the country, like the University of Colorado at Boulder, impose security costs fairly and without violating the First Amendment.
At the University of Colorado at Boulder (CU-Boulder), FIRE is working with the student group Students for True Academic Freedom to ensure that the university does not impose unacceptable security costs for a March 5 event that included controversial speakers Ward Churchill and William Ayers. The university reportedly plans to bill the group $2,203.42 for security for this event, which has already occurred and which did not see significant disruption. According to CU-Boulder spokesman Bronson Hilliard, as reported at thedenverchannel.com, the school also recently charged the College Republicans group $4,800 in security fees for "an event featuring two men who claimed to be former members of the Palestinian Liberation Organization." Whether it’s Bill Ayers or anti-PLO speakers, CU-Boulder must not charge its students extra for bringing controversial ideas and speakers to campus. CU-Boulder needs to follow Berkeley’s lead.
A university should be society’s ultimate marketplace of ideas. From this point of view, the more controversial the ideas that someone brings to campus, the better. Pricing the most controversial ideas right out of the educational market with excessive, unconstitutional fees makes a mockery of American freedom and cuts against some of the central ideals of liberal education and academic freedom.
Unfortunately, FIRE has to keep making this point to universities. In 2007, the University of California–Los Angeles (UCLA) had planned to charge a student group up to $15,000 in security costs after other students threatened to protest the group’s scheduled debate on immigration. Unable to pay this prohibitively large sum of money, the group, named Liberty, Objectivity, Greed, Individualism, Capitalism (L.O.G.I.C.), was forced to cancel the debate, but FIRE succeeded in getting UCLA to back down so that the event could be rescheduled.
Let the chancellors at Berkeley and Boulder know what you think. Robert J. Birgeneau, Chancellor, University of California at Berkeley, can be reached at 510-642-7464 or firstname.lastname@example.org. Phil DiStefano, Interim Chancellor, University of Colorado at Boulder, can be reached at 303-492-8908 or email@example.com.