UC Berkeley's response to College Republicans lawsuit and the heckler's veto

In April, UC Berkeley was sued by the College Republicans who accused the school of failing to protect their rights to free speech. The case involved Berkeley’s response to the College Republicans inviting David Horowitz and, later, Ann Coulter to campus. Wednesday, the school filed a response to the lawsuit which asks the court to dismiss the case. What’s interesting are the reasons Berkeley offers for why the case has no merit. According to the school, they did not subject conservative speakers to the “heckler’s veto” because the campus police had determined the threats to such events were real and necessitated additional safety restrictions. From the court document:

Plaintiffs’ assertion that the University permitted a “heckler’s veto” does not defeat content or viewpoint neutrality. A heckler’s veto is “an impermissible content-based speech restriction where the speaker is silenced due to an anticipated disorderly or violent reaction of the audience.” Rosenbaum v. City & Cty. of San Francisco, 484 F.3d 1142, 1158 (9th Cir. 2007). Because the heckler’s veto is “a form of content discrimination, generally forbidden in a traditional or designated public forum,” the doctrine does not apply to a limited public forum, where only viewpoint discrimination is precluded, unless the “claimed fear of hostile audience reaction” is “mere pretext for suppressing expression because public officials oppose the speaker’s point of view.” Seattle Mideast Awareness Campaign v. King Cty., 781 F.3d 489, 502-03 (9th Cir. 2015). Plaintiffs have not alleged any facts here demonstrating that the safety concerns were pretextual.

I’m not an attorney, so I’m going to tread lightly here. It sounds to me as if the school is arguing that because classrooms on campus are a “limited public forum,” i.e. not open to the general public, the “heckler’s veto does not apply unless the plaintiffs can show the safety concerns were merely a pretext for disallowing a certain speaker. In other words, so long as the threat was believed to be genuine by the campus police, they have a right to regulate appearances in whatever way they feel is necessary to preserve safety. And, based on previous events, the campus clearly was not a safe space for conservative speakers. When Milo Yiannopolis came to campus, the school’s filing admits the result was a riot:

On February 1, 2017, the Berkeley College Republicans (BCR) hosted a speaking event featuring Milo Yiannopoulous, a contentious conservative commentator. (Compl. ¶ 25.) The widely-publicized event was scheduled to begin at 8:00 p.m. (Id.) In the hours leading up to the event, “dozens of black-clad, masked agitators and demonstrators” protested the event by setting fires, throwing objects at buildings, and engaging in physical altercations. (Id. ¶¶ 25-26.) The University of California Police Department (“UCPD”) and Berkeley Police struggled to contain “the violent mob.” (Id. ¶¶ 26-27.) Given these violent demonstrations and the imminent security risks, the University canceled the Yiannopoulos event and imposed a campus-wide “lockdown” that lasted until approximately 10:55 p.m. that evening.

So based on this experience, the UCPD were justified in placing limits on the time and place of any subsequent speech by Horowitz or Coulter:

Later that evening Vice Chancellor Scott Biddy and Vice Chancellor for Student Affairs Stephen Sutton sent an email to the BCR representatives confirming that “despite extensive efforts on the part of UCPD and the staff within Student Affairs, we have been unable to find a safe and suitable venue for your planned April 27th event featuring Ann Coulter” and “must now work together to reschedule her appearance for a later date.”… The email referenced the recent violent protests “surrounding the planned appearance by Milo Yiannopoulos in February, as well as several riots which have occurred in recent weeks in the City of Berkeley” and explained “[w]e base our decisions regarding an event’s timing and location on the objective analysis of the law enforcement professionals of UCPD as to how best to ensure safety for all while maximizing the chances that the event can take place as planned.” (Id.) The email explained that UCPD had, based on a “comprehensive review of potential sites and security arrangements,” “determined that, given currently active security threats, it is not possible to assure that the event could be held successfully—or that the safety of Ms. Coulter, the event sponsors, audience, and bystanders could be adequately protected—at any of the campus venues available on April 27th.”

Again, I’m not an attorney so I’m not going to offer an opinion on whether or not the legal argument is reasonable. I will point out that what is happening here is a de facto heckler’s veto. Radical left protesters were violent in February (and subsequently) so the bar set by the UCPD for hosting a safe event with a conservative speaker (i.e. Horowitz or Coulter) is very, very high. Here’s what the plaintiffs allege they were told:

BCR representatives met with UCPD representatives Captain Yao, Lt. Harris, and University administrators Ms. Chaney and Marissa Reynosso. (Id. ¶ 57.) Plaintiffs allege that at this April 6 meeting, unnamed members of UCPD instructed BCR that the Coulter event must conclude by 3:00 p.m., informed BCR that the University and UCPD would select a “securable” venue on campus, and “strongly encouraged” BCR and BridgeCal not to publicly disclose the location of the event and to limit the event to student attendees.

So College Republicans can have an event if it’s over before sunset and, by the way, don’t tell anyone where it will be. A conservative speaker on campus is treated like a speakeasy under prohibition. Meanwhile, because there is no similar threat of violence against progressive speakers, the same security precautions are, apparently, not necessary:

Plaintiffs contend that Defendants enforced the “unwritten, High-Profile Speaker Policy against YAF and BCR,” while allowing Vicente Fox Quesada, the former president of Mexico, to
speak on campus at 4:00 p.m. on April 17, 2017, and Maria Echaveste to speak on campus from 6:45 to 8:00 p.m. “without incident or interference from Defendants.” (Id. ¶¶ 78-79, 91.) Plaintiffs do not allege any threats to security accompanying the speeches of Mr. Fox or Ms. Echaveste.

Maria Echaveste is a former adviser to Bill Clinton. Vincente Fox is the former President of Mexico who has made news telling President Trump Mexico will never build his wall (using a lot more colorful language). The school seems to be arguing that different rules were appropriate because there were no threats associated with these speakers.

Was Berkeley within the bounds of the law when it restricted conservative events based on safety concerns? I don’t know. But either way, the end result is that the radical left has succeeded in making it much more costly, literally and figuratively, for conservatives to speak on campus. As this document indicates, that’s because they make and follow through on threats of violent behavior in response to conservative speech. This seems like an intolerable and unfair situation. Lawsuit aside, Berkeley should do more to make sure the radical left’s violent hecklers don’t get their veto over conservative speech.