California Forum

Why UC Berkeley was right not to ban Milo, and other lessons from Free Speech Week

British commentator Milo Yiannopoulos is escorted from Sproul Plaza at the UC Berkeley campus after a speach Sunday, Sept. 24, 2017.
British commentator Milo Yiannopoulos is escorted from Sproul Plaza at the UC Berkeley campus after a speach Sunday, Sept. 24, 2017. Los Angeles Times/TNS

My first weeks on the Berkeley campus have been dominated by the attention to free speech issues. Controversial conservative speakers such as Ben Shapiro and Milo Yiannopoulos announced they were coming to campus and there was to be a Free Speech Week where they were to be joined by Ann Coulter and Steve Bannon.

I finally said to the audience: Be clear, if Chancellor Christ were to prevent particular speakers because of their offensive message, she would get sued.

Thankfully, this wave of activity is over. Shapiro spoke on campus on Sept. 21 without incident and Yiannopoulos made a brief, uneventful appearance on Sept. 24. The conservative student group that had planned Free Speech Week chose to cancel it, likely because it turns out that Coulter and Bannon never were planning to come to Berkeley. Chancellor Carol Christ handled all of this superbly. She decided that it was essential that Berkeley be known as a free speech campus and demonstrate that it is possible to protect free speech while maintaining public safety.

What can be learned from all of this?

The issues of free speech on campus today are very different than at earlier times. The Free Speech Movement at Berkeley more than 50 years ago is remembered as the quintessential example of freedom of speech on a campus. It involved students protesting and an administration trying to stop them. But now it is about outside speakers coming onto campus, like Shapiro and Yiannopoulos and Coulter, and outside agitators, like antifa, threatening violence. The campus is the place where this all is happening.

The commitment to free speech by students and faculty is quite mixed. I repeatedly heard from students, faculty and even deans that the campus should not allow hateful speakers on campus. I participated in a faculty panel on campus, convened by Chancellor Christ and held in a packed auditorium, where many present expressed the view that she should refuse to permit Shapiro and Yiannapoulos and others to speak. The students and faculty who expressed this position said that they felt upset and threatened by hateful speakers, that such speech inflicted great pain, and that their educational experience was being disrupted.

I understand their feelings and believe the campus must make itself inclusive for all students. But that cannot be done by suppressing speech, even deeply offensive speech.

At the faculty panel, I finally said to the audience: Be clear, if Chancellor Christ were to prevent particular speakers because of their offensive message, she would get sued. The speakers would win and get an injunction to allow them to speak. The campus would have to pay their attorney fees and perhaps money damages as well. The excluded speakers would be victims and martyrs. And nothing would be gained because they would get to speak anyway.

Equally important, campuses must be places where all ideas and views can be expressed, even ones we detest. That is the core of freedom of speech and of academic freedom, which is at the very core of a university’s mission of advancing knowledge.

There is a difficult, unresolved question of how much a campus must pay to facilitate free speech. There was a $600,000 bill for the security costs for Shapiro’s appearance and a substantial additional cost when Yiannopoulos briefly appeared. If Free Speech Week had happened, it would have cost more than $1 million.

At what point can a university say that it cannot afford the necessary security precautions and therefore must cancel a speaker because public safety cannot be assured? The law provides no clear answer to this question.

Yet, it is a very real and difficult issue. If Shapiro and Yiannopolous and others like them announced they were coming every week, no campus could possibly afford it. Never should anyone be prevented from speaking because of his or her views, but there must be a point at which a campus can say the financial bill is just too high. The law needs to develop in this area to provide guidance to campus administrators.

Attorney General Jeff Sessions gave a speech last week at Georgetown Law Center in which he talked about the threat to free speech on campuses. I think he is wrong that there is generally a problem in this area.

To be sure, there are high profile incidents of campuses acting inappropriately, but they garner attention because they are atypical. Free speech is a constant presence on campuses across the country, as the Berkeley experience of the last couple of weeks so clearly demonstrated.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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