by Hanna Krueger

Free speech is one of the most sacred rights guaranteed by the U.S. Constitution and nowhere has it been more revered than on college campuses, with sit-ins and student activists arrested fighting for the right to free speech and political action on campus.

The Free Speech Movement was born on the campus of the University of California—Berkeley in the 1960s. A journalist covering the protests at the time remarked, “It wasn’t exactly that Berkeley was the first place where this mechanism [political protest] kicked in, but it was the place where it went critical.”

Fast forward a half a century later and it seems to be a different story on the Berkeley campus. In February 2017, the Berkeley College Republicans invited right-wing commentator Milo Yiannopoulos to speak on campus. More than 1,500 students gathered on the campus to protest Yiannopoulos, who promotes white supremacy and neo-Nazi ideals. The gathering turned violent when an anarchist group joined the protest throwing fireworks and rocks at police officers. The university condemned the violence and ultimately canceled the Yiannapoulos speech.

Suing over viewpoint

The free speech issue resurfaced months later when the Berkeley College Republicans invited conservative authors Ann Coulter and David Horowitz to speak on campus. Administrators originally rescinded the invitations, citing concerns about violence similar to the Yiannopoulos protests.

Amid national criticism that the university was suppressing free speech, administrators reversed course and invited them back to speak but at an alternative venue. Coulter and Horowitz rejected the renewed invitation because they were moved to a building on the outskirts of campus and the event had been changed to daytime hours, not the evening as originally planned. As a result, Young America’s Foundation, a conservative youth organization, filed a federal lawsuit against the university.

“Berkeley promises its students an environment that promotes free debate and the free exchange of ideas,” the lawsuit said, but that promise was broken by “the repressive actions of university administrators and campus police.”

In April 2018, a U.S. district court judge dismissed the plaintiff’s claim of viewpoint discrimination against UC Berkeley, but allowed them to move forward with charges of bias in the relocation of speakers. In December 2018, the university settled the lawsuit, agreeing to pay $70,000 in attorneys’ fees, along with the promise that it would not charge any group a fee for increased security or relocate speeches based on a speaker’s viewpoint.

Teachable moments

Similar free speech battles are playing out at universities across the nation. On more than one occasion in the past few years, student protests against political speakers have spiraled into violence and chaos.

“If there is any place in the world that an individual’s right to free speech and thought should be protected, it is on a college campus where young adults can pursue their passions and figure out how they think and who they want to be,” argues Zach Greenberg, a program officer at the Foundation for Individual Rights in Education (FIRE).

Administrators must also maintain an environment of civility and dignity, which has become increasingly more difficult since the polarization of politics, says Svetlana Mintcheva, free speech activist and program director with the National Coalition Against Censorship (NCAC).

A month after the protest at Berekley, student protesters at Middlebury College shut down a speech by Charles Murray, a conservative social scientist who wrote The Bell Curve, a book which concluded that intelligence and race are connected. Students at his speech pulled fire alarms and chanted until Murray stopped speaking. He was then harassed by protesters in the parking lot on the way to his car. Murray had previously spoken on campus in 2007 without incident.

“There is a fine line between protected speech and punishable conduct,” says Greenberg. “You have the right to protest, but not the right to throw bottles at someone you disagree with or shout them down and drown them out.”

In an opinion piece for The Guardian, Zachary Wood, a graduate of Williams College and president of its “Uncomfortable Learning” program, recalled his brush with Charles Murray. Wood, an African American, received pushback from his peers after inviting Murray to speak on the Williams campus.

“I wanted to use the education I received at Williams to create positive change in the world one day,” Wood wrote. “How would I do that if I shut out the voices I disagreed with instead of engaging with them?”

On behalf of his colleagues on the Free Speech Movement Archive Board of Directors at Berkeley, Robert Cohen, now a social studies professor at New York University, wrote an opinion piece for The Daily Californian about the Yiannopoulos protest.

“If even a 10th of the 100 or so faculty who signed those pro-ban open letters showed up to ask this bigot tough questions or held a teach-in about what’s wrong and unethical in his vitriol (and in the rest of the so-called ‘alt right’), they could puncture his PR bubble instantly, avoid casting him in the role of free speech martyr and prove that the best cure for ignorant and hateful speech is speech that unmasks its illogic, cruelty and stupidity,” Professor Cohen wrote.

What’s protected?

Some experts believe that current college students have a skewed view about what type of behavior is protected and acceptable under the First Amendment. For example, a Cornell University student told Time Magazine, “Free speech is speech that is not aimed to hurt. Free speech that dehumanizes is not free.”

A survey conducted by the Brookings Institution, an educational research group, reveals that 20 percent of college respondents think it is acceptable to use violence to shut down a speaker known for making offensive and hurtful statements. The same survey asked college students if the First Amendment protects “hate speech.” Nearly half said it did not. Legal experts say that is incorrect.

“The Supreme Court has never created a category of speech that is defined by its hateful conduct, labeled it hate speech, and said that that is categorically excluded by the First Amendment,” former American Civil Liberties Union president Nadine Strossen told National Public Radio (NPR). “Speech cannot be punished just because of its hateful content.”

Indeed, in a dissenting opinion, Justice Oliver Wendell Holmes once wrote, “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate.”

Just as student protesters are grappling with how to protest without inciting violence, universities face the question of whether they should curtail First Amendment rights or give a platform to hateful speech. Some universities and colleges are instituting free speech codes and policies that allow them to address First Amendment issues before they become headlines.

According to Mintcheva, that means answering a significant question: “How do you balance the rights of protesters without silencing those that are being protested?”

What these universities decide will likely have far-reaching effects.

“What is happening on campuses has a ripple effect into society,” says Greenberg. “When an institution makes the decision to silence a group on a college campus, they are sending the message to the rest of the educational community and society at large that certain voices do not need to be heard.”

Discussion Questions

  1. What do you think the consequences are of silencing certain viewpoints?
  2. If certain viewpoints are silenced do you think people that hold those views stop having them? Why or why not?
  3. How would you feel if your opinion was disregarded? What would you do to be heard?
  4. What steps do you currently take so that you are exposed to opinions or ideas that conflict with your beliefs? Is it enough? Why or why not?

Glossary Words
anarchist: a set of rules to be followed in calculations.
bigot: a person who is intolerant of those of different races or religions.
plaintiff: person or persons bringing a civil lawsuit against another person or entity.
vitriol: cruel and bitter criticism.

This article originally appeared in the fall 2019 edition of The Legal Eagle.