University of California Berkeley Gates feat
University of California Considers Yet Another Proposal to Silence Protected Speech

By September 14, 2015

Later this week, the University of California (UC) will consider a new proposal to silence speech protected by the First Amendment.

Here we go again.

This Thursday, the Committee on Education Policy of the Regents of the University of California will discuss a new “Statement of Principles Against Intolerance” that would require UC students and faculty to “respect the dignity of each person within the UC community.” The policy further states:

Intolerance has no place at the University of California. We define intolerance as unwelcome conduct motivated by discrimination against, or hatred toward, other individuals or groups. It may take the form of acts of violence or intimidation, threats, harassment, hate speech, derogatory language reflecting stereotypes or prejudice, or inflammatory or derogatory use of culturally recognized symbols of hate, prejudice, or discrimination.

Everyone in the University community has the right to study, teach, conduct research, and work free from acts and expressions of intolerance. The University will respond promptly and effectively to reports of intolerant behavior and treat them as opportunities to reinforce the University’s Principles Against Intolerance.

In an attempt to avoid the obvious First Amendment problems, the policy attempts to limit itself by claiming that it applies “to attacks on individuals or groups and does not apply to the free exchange of ideas in keeping with the principles of academic freedom and free speech” and “shall not be used as the basis to discipline students, faculty, or staff.” But as preeminent First Amendment scholar and University of California, Los Angeles law professor Eugene Volokh notes for his blog at The Washington Post, the chilling effect of the policy is bad enough:

When these students and faculty members are told that certain views about disabilities, about race or ethnicity, or (by obvious extension) about sexual orientation, sex, or religion have “no place at the University” — and violate others’ rights to be “free from” such “expressions” — will they feel free to openly discuss these topics? Or will they realize that they had best follow the orthodoxy?

The policy’s addendum provides a “non-exhaustive list contain[ing] examples of behaviors that do not reflect the University’s values of inclusion and tolerance”—including, for example, “[d]epicting or articulating a view of people with disabilities (both visible and invisible) as incapable.” Looking closely, Volokh concludes:

Obviously the authors of the proposal have a much narrower view of “free speech” in mind. Likewise with “the free and open exchange of ideas.” The authors of the proposal love free and open exchange of ideas, until some ideas they dislike about, say, disabilities are expressed.

I recommend reading Volokh’s perceptive analysis of the policy’s flaws in full.

Unfortunately, Thursday’s vote is just the latest in a growing list of attempts to restrict or chill speech protected by the First Amendment at UC.

Back in 2012, UC’s Advisory Council on Campus Climate, Culture and Inclusion—tasked with formulating recommendations to make UC campuses more inclusive, particularly in response to reported instances of anti-Semitism on campus—advised former UC President Mark Yudof to enact unconstitutional “hate speech” policies. The Advisory Council’s report went so far as to suggest that “UC should push its current harassment and nondiscrimination provisions further, clearly define hate speech in its guidelines, and seek opportunities to prohibit hate speech on campus.”

The fact that a public university system’s attempt to “push” existing legal standards to prohibit “hate speech” would all but guarantee a First Amendment lawsuit didn’t faze the Advisory Council, which boldly recommended that UC simply “accept the challenge” of potential litigation. After FIRE warned UC in a letter and press release about the obvious problems presented by the recommendation, we were pleased that former President Yudof—a First Amendment scholar—responded by indicating that proposals to restrict speech would be rejected.

This past June, Volokh documented another attempt to chill protected speech—this time from the UC Office of the President’s Academic and Personnel Programs, which offered seminars and materials on eliminating so-called “microaggressions” from classrooms. Statements like “America is a melting pot” or “I don’t believe in race” were classified as the types of “everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, that communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership” that could result in a “hostile learning environment” and thus be subject to discipline. After UC public relations staffers pushed back on criticism of the effort in national media outlets, arguing that the effort didn’t threaten protected speech, Volokh wrote:

Let’s just say that I’m unpersuaded. Note that another paper endorsed by the UC Office of the President defines microaggressions as “one form of systemic everyday racism.” So the UC says microaggressions are a form of racism; communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership; and can help create a hostile environment. And it says that expressing certain views is a form of racial microaggression. (By the way, UC Berkeley says this not just to administrators but also to “faculty or graduate student instructor[s].”) UC also often talks about how important campus climate is and how important diversity is, and indeed makes “contributions to diversity and equal opportunity,” such as “research … that highlights inequalities,” a factor “in the evaluation of the candidate’s qualifications” when it comes to hiring, promotion, and appraisal.

But apparently instructors — including untenured ones — are somehow expected to feel uncensored, and free to express their ideas, including ones UC has labeled racist, aggressive, and hostile. Really?

And this past spring, I wrote about how a proposal for the UC system to adopt the U.S. State Department’s definition of anti-Semitism would also threaten protected speech if adopted. As I pointed out, the proposed definition includes illustrative examples of anti-Semitism that are plainly protected by the First Amendment—for example, “[a]ccusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, the state of Israel, or even for acts committed by non-Jews.” I wrote:

FIRE has no position on whether this definition of anti-Semitism is correct, or whether it is better or worse than any other. But it doesn’t matter; as government actors, public university systems like the University of California cannot lawfully maintain and enforce policies that prohibit speech protected by the First Amendment. With the exception of certain well-defined categories of speech implicated by the first example provided here—speech that constitutes incitement, intimidation, or true threats—the expression described here by the State Department is generally protected by the First Amendment.

If these examples are turned into enforceable restrictions on free speech, certain criticisms of the Jewish faith or of Israel would be grounds for punishment, a viewpoint-based restriction on expression that cannot be squared with freedom of expression. That these criticisms may be bigoted or even false does not mean they may be silenced or punished by government action.

In response, some proponents of the definition’s adoption defended it as a way to raise awareness of anti-Semitism and contended that it would not serve as the basis for discipline. But as I toldThe Forward, classifying certain types of protected speech as officially disfavored would quickly lead to calls for classifying other types of protected speech in the same way—and, all but inevitably, to calls for punishing speech on those grounds. Likewise, Volokh warned of the chill on speech that would result: “When the UC administration makes broad pronouncements on this subject, those pronouncements aren’t just people’s opinions, academic or otherwise — they are an implicit push toward an orthodoxy on the subject.”

And that’s really the problem with each of these efforts to reclassify, prohibit, or strongly  discourage certain types of speech within the UC system: They represent misguided attempts to forego the clarifying debate that freedom of expression allows, opting instead for a top-down decree that one view or another “has no place” on campus. Instead of responding to and exposing unwanted speech—be it a microaggression or anti-Semitism—with more speech, these measures seek to establish boundaries for discussion, explicitly labeling certain viewpoints as untenable, even if not technically subject to discipline.

In so doing, they not only invite an impermissible chill on student and faculty speech but also represent a flawed, superficial response to the attitudes the UC system seeks to discredit. Even if this latest effort succeeds where the others have thus far failed, and it is adopted as official policy, it will almost certainly prove to be a hollow victory in terms of meaningfully addressing bigoted or hateful viewpoints. Changing minds requires dialogue, not an official decree. Artificially silencing the expression of certain viewpoints makes them far more difficult to confront and repudiate in any meaningful way—and thus far more likely to persist.

Schools: University of California, Berkeley