Berkeley Lawsuit Shows Conservatives Won’t Be Silenced By University Censors

Berkeley Lawsuit Shows Conservatives Won’t Be Silenced By University Censors

Thanks to the attention to UC-Berkeley’s treatment of Ann Coulter, colleges should be aware that if they restrict the free speech rights of conservative students, they could face lawsuits.
Ashe Schow
By

Aggrieved students whose administrators have blocked their ability to invite speakers to campus are sending a message to school administrators everywhere: You will be sued. Berkeley College Republicans (BCR) and the conservative Young America’s Foundation have filed a lawsuit against the University of California-Berkeley after the school shifted its stance on allowing author Ann Coulter to speak on campus.

The 30-page lawsuit includes multiple pages of emails and letters between campus officials and BCR, detailing Berkeley’s changing policies toward Coulter. It contends that after violent protesters showed up on Feb. 1 to counteract a speech by Milo Yiannopoulos, Berkeley adopted an “unwritten policy” regarding “high-profile speakers.”

“This unwritten policy ostensibly restricts the time and place of all events involving ‘high-profile’ speakers,” the lawsuit alleges. “Specifically, these events must conclude by 3:00 p.m. (described by University administrators as a ‘curfew’), and must be held in a ‘securable’ location – also an undefined term.”

The lawsuit claims that Berkeley did not respond to multiple requests from BCR to define the terms of the “High-Profile Speaker Policy,” including “who is considered a ‘high-profile’ speaker under the policy, to whom this policy has been applied since its formation, or what, if anything, renders a particular venue on the UC Berkeley campus ‘securable.’”

A Double Standard for Conservative and Liberal Speakers

Further, the suit alleges this new policy was not provided to BCR, YAF, or other Berkeley students, and appears to have been selectively enforced. While speakers that conservatives invited, including writers David Horowitz and Coulter, were subjected to the new policy, liberal speakers were not. Horowitz’s speech, during days of back and forth emails between university administrators and the conservative student groups, was limited to a venue more than a mile from campus and required to conclude by 3 p.m.

Days after enacting these restrictions, university officials and campus police told the student groups they would also need to pay a $5,788 “security fee” before the event took place just six days later. Unable to pay, the groups had to cancel the Horowitz speech. This all concluded by April 10. Similar restrictions were placed on the groups regarding the Coulter event.

Meanwhile, speakers with liberal points of view were invited to campus with ease. Maria Echaveste, former White House deputy chief of staff, and Vicente Fox Quesada, former president of Mexico, were both invited to speak about immigration. BridgeCal, the Berkeley chapter of BridgeUSA, which fosters campus discussions of hot topics, sought to invite a conservative speaker on immigration. Conservative student groups chose Coulter.

Berkeley placed restrictions on Coulter’s event, which she agreed to, but cancelled the event anyway, giving potential rioters a much-desired win. The school then slightly backtracked by agreeing to let Coulter come to campus, but during a week when students would likely be absent or studying for finals. The school didn’t even wait to confirm the new date with Coulter or the student groups before holding a press conference about their supposed reversal.

“The High-Profile Speaker Policy is unconstitutionally vague, and impermissibly affords Defendants absolute discretion in identifying what events and which speakers are subject to the policy,” the lawsuit states. “Not surprisingly, by providing Defendants carte blanche to control campus speech, Defendants have been and are enforcing the High-Profile Speaker Policy in a manner that discriminates based on the viewpoint expressed by the speaker and the hosting Registered Student Organization, in violation of BCR and YAF’s constitutional rights to free speech, due process, and equal protection.”

Will These Claims Stick in Court?

By allowing Echaveste and Quesada to speak at later times to hundreds of people and without incident, Berkeley may have crossed a line. Robert Shibley, executive director of the Foundation for Individual Rights in Education, told The Federalist that the BCR and YAF lawsuit “certainly seems like it has some merit,” especially regarding the high-profile speakers policy.

“If ‘high-profile’ is just a synonym for controversial, then they have a real problem on their hands,” Shibley said. FIRE has filed several lawsuits against universities for violating the First Amendment, usually in response to what it says are unconstitutional “free speech zones,” which limit where and when students can exercise their constitutional rights.

In March, FIRE joined Kevin Shaw in filing a lawsuit against Los Angeles Pierce College for restricting the student’s ability to hand out Spanish-language Constitutions to a tiny area on campus. It was the first in a new project from the organization designed to force colleges to adhere to the U.S. Constitution.

Shibley said the “high-profile” speakers policy Berkeley has adopted is similar to free speech zones in that it restricts who can speak on campus, when, and where, and appears to be based on what the speaker says rather than a true status as “high profile.”

“It’s hard to make a case that the former president of Mexico isn’t high profile,” Shibley said.

As a public university, Berkeley may have difficulty defending its selectively enforced policy, and, according to FIRE’s Adam Steinbaugh, may have trouble in court. A 1992 Supreme Court ruling held that “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob,” which appears to be Berkeley’s justification for restricting Coulter’s event.

Still, there’s no guarantee that current California courts will be favorable to the plaintiffs in this case, but if schools are going to continue to side with violent protesters, filing lawsuits may be the only way to combat it.

Because of Coulter’s name recognition and the attention Berkeley’s treatment of her has received, colleges should be on notice that if they restrict the free speech rights of conservative students, they could face lawsuits. Also, since college conservatives are often a minority on campus, such litigation—and the media attention it receives—may be the best way to fight back against the liberal bias that permeates college campuses. Other schools should take note of what Berkeley has done and the response it has received before deciding to give in to violent protesters and restrict free speech.

Ashe Schow is a senior contributor to the Federalist and senior political columnist for the New York Observer. She also contributes to a weekly segment on the Enough Already podcast. She has previously worked for Watchdog.org, the Washington Examiner and the Heritage Foundation.

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