Judge rejects Berkeley's request to dismiss free speech lawsuit

A judge has rejected UC Berkeley’s request to dismiss a lawsuit against the school claiming it discriminates against conservative speakers. From Reuters:

A federal judge rejected the University of California at Berkeley’s bid to dismiss a lawsuit claiming it discriminated against conservative speakers like Ann Coulter by imposing unreasonable restrictions and fees on their appearances.

In a decision late Wednesday, U.S. District Judge Maxine Chesney in San Francisco said two conservative groups could pursue claims that the school applied its “high-profile speaker” and “major events” policies in a manner that unfairly suppressed conservative speech.

Young America’s Foundation and the Berkeley College Republicans sued the school last year after it attempted to reschedule a speech by Ann Coulter. Coulter declined to appear for the rescheduled event. The school then put in place a new policy which resulted in conservative speakers being forced to cover greater costs for security.

While saying the policy was not too vague, Chesney said the plaintiffs may pursue an equal protection claim over a security fee charged for an appearance by conservative commentator Ben Shapiro that was well above a fee at the same venue for Supreme Court Justice Sonia Sotomayor, part of the court’s liberal bloc.

I wrote last year about the school’s response to the initial lawsuit. Berkeley claimed their policy was based purely on security concerns:

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.”

In other words, Berkeley was just responding to threats. Those threats just happened to be overwhelmingly greater when conservatives like Coulter or Shapiro were invited to campus. Why is that? Because violent far-left groups like Antifa threatened to show up to break things and beat people whenever conservatives are invited to campus. In fact, that’s exactly what happened when Milo Yiannopolous came to campus in February 2017, something Berkeley pointed to as proof the additional security was needed.

What’s happening here is a kind of heckler’s veto two-step. Berkeley is forbidden to discriminate based on content, but not based on security. So if the left threatens violence every time a conservative is invited to campus, Berkeley has a legal reason to raise the cost of hosting the conservative speaker. The far-left is literally making speech more expensive for the right. Since what the far-left really wants is to “no-platform” (silence) conservative speakers, this is a win for them. Meanwhile, Berkeley can claim it’s not their fault the right is treated differently and that they haven’t done anything wrong.

Legally, this argument may fly but no one should be fooled about what’s happening here. It’s still giving the far left a way to veto (or at least discourage) conservative speech, just using the intermediary of security costs rather than the more direct action of throwing punches or breaking glass.

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