In settling the case brought by the Berkeley College Republicans and Young America’s Foundation yesterday, the university denied it engaged in viewpoint discrimination against the groups’ invited speakers — but it did agree to pay $70,000 in attorneys’ fees, reconsider policies that would penalize controversial speakers based on viewpoint, and commit to additional transparency in the way it makes and publishes decisions about security fees.
Berkeley has struggled in recent years to balance its moral and legal obligations to free expression with its commitment to student safety. While it was once the home of the seminal Free Speech Movement in the 1960s, riots that rocked the campus during a February 2017 appearance by conservative provocateur Milo Yiannopoulos brought safety concerns to the fore.
BCR and YAF sued Berkeley that April after Berkeley, citing concerns related to the Feb. 2017 protests, so severely restricted planned campus speeches by Ann Coulter and David Horowitz that the two commentators cancelled their appearances. Then, that July, Berkeley announced a $600,000 police security fee estimate for a speech by Ben Shapiro would have to be passed on to the College Republicans, but after pressure from FIRE and others, they backtracked and agreed to foot the bill for Shapiro’s appearance themselves.
“Because of the extent of our commitment to free speech,” Berkeley spokesperson Dan Moguloff told FIRE at the time, “the campus will help fund any fees associated with hosting this event if need be.”
The following month, chancellor Carol Christ declared the upcoming school year would be a “Free Speech Year.”
“Particularly now, it is critical for the Berkeley community to protect this right; it is who we are,” Christ said when announcing the new initiative. “That protection involves not just defending your right to speak, or the right of those you agree with, but also defending the right to speak by those you disagree with, even of those whose views you find abhorrent.”
United States Supreme Court precedent is clear that content- and viewpoint-based security fees function like a tax on speech, and are impermissible under the First Amendment. Additionally, courts have ruled that universities cannot ban or burden speech because the views expressed are considered “controversial”; when they do, they promote a “heckler’s veto” and create incentives for shout-downs or violent reactions to speech. Instead, universities must apply policies in content-neutral ways and do their very best to defend speakers’ rights.
Under the terms of the new settlement, Berkeley’s policies appear on track to better reflect the proper scope of their First Amendment obligations. FIRE will continue to monitor the situation to ensure that they do.