Berkeley, Milo Yiannopoulos and the lessons of free speech

Recent events at the University of California, Berkeley reflect the enormous difficulties that campuses can face when trying to ensure freedom of speech while, at the same time, meeting their duty to ensure an inclusive learning environment and to protect everyone’s safety. Many, including President Donald Trump, spoke out about these events, but with apparently little understanding of what actually occurred or all that the campus did to try and protect speech.

On Wednesday, Feb. 1, Milo Yiannopoulos, a controversial speaker who prides himself on being inflammatory, was scheduled to speak at the University of California, Berkeley, at the invitation of the College Republicans student group. A demonstration of approximately 1,500 people developed to protest his presence and to stand against what they considered to be “hate speech.”

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A few hours before the scheduled talk, a group of protesters pulled down police barricades, hurled Molotov cocktails, smashed windows, and threw fireworks and rocks at police, resulting in US$100,000 of property damage. According to the university, the violent protesters were “150 masked agitators” who had come to campus to disturb an otherwise peaceful protest.

Perceiving a serious threat to public safety, campus officials called off Yiannopoulos’ talk, while also condemning the violence and reasserting their commitment to free speech principles. As university administrators and professors who teach and write about First Amendment law, we see what happened at Berkeley as enormously important in our current debate over free speech.

Did campus officials infringe Yiannopoulos’ freedom of speech and the rights of the College Republicans to hear his views?

The event has triggered intense debates about the scope and limits of free speech. However, to understand who did the right thing and who did the wrong thing, you must also understand a few basic First Amendment principles.

Basic free speech principles

First, by law campuses must allow all views and ideas to be expressed, no matter how offensive. Above all, the First Amendment means that the government cannot prevent or punish speech based on the viewpoint expressed. This also is a crucial aspect of academic freedom.

Campus officials at Berkeley recognized that Yiannopoulos had a First Amendment right to speak. Berkeley Chancellor Nicholas Dirks rightly resisted demands, including from Berkeley faculty, to ban Yiannopoulos’ appearance.Even the expression of hate is constitutionally protected; court cases have addressed this very issue on college campuses in the past. Although hate speech unquestionably causes harms, it nonetheless is expression that is covered by the First Amendment. We therefore strongly disagree with those who say that campus officials at Berkeley could keep Yiannopoulos from speaking because of his hateful and offensive message.

Second, campuses must do all they can to ensure that audience reactions against a speaker are not allowed to silence the speaker. Free speech can be undermined, not only by official censorship and punishment, but also by individuals who seek to disrupt or shut down others when they attempt to exercise their rights. If officials do not work to prevent or punish disruption then there will be a “heckler’s veto” of all unpopular or controversial speakers, and this is not consistent with free speech principles. Campus officials have a duty to protect the free speech rights of protesters, but they must also protect speakers and prevent heckling. Apparently, this, too, occurred at Berkeley. Staff members spent weeks planning extensive security arrangements, including bringing in dozens of police officers from nine other UC campuses.

Third, there may be situations where controlling the audience proves impossible and there is no choice but to prevent a speaker’s presence to ensure public safety. This should be a last resort taken only if there is no other way to prevent a serious imminent threat to public safety. This appears to be exactly what occurred at Berkeley, where the riotous demonstrators could not be controlled. In such cases, authorities should do all they can, after the fact, to identify and punish those who used violence and violated the law, and should assess how different security arrangements might be more effective in preventing future disruptions. Campus officials should also do what they can to reschedule the speaker for another time.

Misguided criticism of Berkeley officials

A number of commentators were outraged that Yiannopoulos was not able to speak, and claimed that free speech was under attack at Berkeley. But the campus itself consistently reaffirmed his right to speak, resisted calls to cancel the event and arranged for extraordinary security at great expense. The vast majority of the demonstrators were also merely exercising their free speech rights. Thus, the campus efforts were consistent with free speech principles. If there is blame to be assigned it should focus on the small number of outsiders who were intent on using violent and unlawful means to disrupt the event.

Nonetheless, President Trump tweeted after the event that federal funds might be withheld from Berkeley unless it allowed freedom of speech.

Putting aside that he lacks the legal authority to do this, Trump ignored the fact that freedom of speech never is absolute. Campuses can punish speech that constitutes true threats or harassment or incitement of illegal activity. Campuses also need to act to protect the safety and welfare of all on campus.

Campus officials at Berkeley faced an enormously difficult situation. They were not insensitive to speech and they did not deserve the disapproval of the president. The campus did not keep Yiannopoulos from speaking because of his views, but because public safety at the time necessitated it.

By Erwin Chemerinsky, Dean of the School of Law, University of California, Irvine and Howard Gillman, Chancellor, University of California, Irvine

This article was originally published on The Conversation. Read the original article.