After the Smoke Clears at Berkeley, Could More Have Been Done?

Last week, we praised University of California, Berkeley Chancellor Nicholas Dirks for professing his respect for the First Amendment rights of his students. Faced with calls to cancel Breitbart editor Milo Yiannopoulos’ appearance on campus at the invitation of the College Republicans, Chancellor Dirks refused. Instead, he committed the university to treating Yiannopoulos and the College Republicans as it would any other student group bringing a speaker to campus, pledging “to ensure the event goes as planned, and to provide for the safety and security of those who attend, as well as those who will choose to protest Yiannopoulos’s appearance in a lawful manner.”

Of course, the event did not go as planned. As the chaotic scene broadcast nationwide Wednesday made all too clear, Berkeley’s efforts proved flatly insufficient against organized efforts to shut down the event through violence. Writing for The Daily Beast, Robby Soave describes the reaction that shut down the event:

The protesters launched Roman candle fireworks at the building where Yiannopoulos was scheduled to speak. They smashed windows and tore down a police barricade. Using gasoline, they managed to start a large fire in the middle of the street that at one point threatened to engulf a nearby tree. At least one person who had come to see Yiannopoulos was beaten bloody during the skirmish. The university administration had no choice but to cancel the event, as Yiannopoulos was evacuated from campus.

As we said in our statement on Thursday, FIRE has not seen any evidence that Berkeley intentionally created or otherwise allowed this reaction in a deliberate effort to prevent Yiannopoulos from speaking. Rather, it appears that protesters—estimated by Berkeley to number more than 1,500, including non-students and 150 masked and violent participants—overwhelmed law enforcement, and that cancellation was at that point judged  by police to be necessary for the safety of all involved. Berkeley issued a statement lamenting the fact that even though “[d]ozens of additional police officers were on duty for Wednesday’s scheduled event, and multiple methods of crowd control were in place … it was impossible to maintain order given the level of threat, disruption and organized violence.”

We don’t yet know all the facts. In FIRE’s nearly 20 years defending student and faculty speech, it hasn’t been unheard of for universities to allow the “heckler’s veto” to silence unpopular speech, as Washington State University did in 2005. Pointing to the relatively few arrests and the reports that officers stayed indoors while violence raged outside, some have questioned law enforcement’s response.

When facing a violent mob, law enforcement officers need to have some discretion to determine how and when to intervene in accordance with their knowledge of the situation on the ground and their professional experience. They may decide that the risk to officers is too great to intervene, or that intervening aggressively will escalate the situation. Their action or inaction will not violate the First Amendment, as a matter of law, unless they intervene to accomplish the mob’s goal of censorship by stopping the speech without taking other, substantial steps first.

If police do intervene with a speaker confronted by a hostile mob, their efforts must be the “least restrictive means for coping with a crowd’s hostile reaction.” Bible Believers v. Wayne County, 805 F.3d 228, 255 (6th Cir. 2015). Silencing a speaker is the “last resort”; “before removing the speaker due to safety concerns, and thereby permanently cutting off his speech, the police must first make bona fide efforts to protect the speaker from the crowd’s hostility by other, less restrictive means.” Id. Additionally, we know that Berkeley brought in police officers from across its campuses to prepare for expected protests, and the school reports that “[m]utual aid officers from the city of Oakland and from Alameda County arrived at Berkeley around 7:45 p.m. to assist UCPD and Berkeley city police.”

Based on the information we presently have available, the school appears to have made good-faith efforts to prepare for a conflict. But as Wednesday night made plain, advance preparation is not always enough. And while it may be tempting to second-guess the actions of police in hindsight, one does so through the fog of tear gas.

If the official response was negligent, we trust that the public will soon find out. Berkeley announced the launch of an investigation yesterday. FIRE urges Berkeley to examine whether the decision made by police to end the event was the least restrictive means to protect the speaker and attendees, and whether officers could have undertaken any other action to end unlawful conduct while protecting the First Amendment rights of both the speaker and peaceful protesters.

We also trust that Berkeley will make clear that violent protest is unacceptable and will not be tolerated. Yesterday, Chancellor Dirks deemed the violence “an attack on our fundamental values, which are maintaining and nurturing open inquiry and an inclusive, civil society—the bedrock of a genuinely democratic nation.”

While we wait to learn more, FIRE remains committed to defending the First Amendment right of students at public universities to hear from their invited guests free from violence, mob censorship, or speech taxes in the form of viewpoint-based security fees. Indeed, just last Thursday, FIRE successfully intervened on behalf of the College Republicans at the University of New Mexico, who faced a $3,400 security fee for a visit from Yiannopoulos under a policy allowing for the imposition of security fees on student groups based on the “controversial nature of speakers or subjects” they invite or discuss. That intervention advances the rights of students of all views to invite speakers of their choice without being subject to taxes imposed on an administrator’s whim.

On that front, FIRE has received reports that Berkeley imposed an unfair security fee on the College Republicans prior to Wednesday’s event. Berkeley states that the students were charged the normal security price for an event of this size, based on lawful, viewpoint-neutral, objective criteria, and we have not seen evidence to the contrary.

FIRE has some backup for Berkeley’s claim on this front. Last month, we used California’s Public Records Act to compel Berkeley to provide certain records relating to its efforts to prepare for Yiannopoulos’ appearance. We know from those records and a letter from Berkeley’s counsel that the group was charged $6,372 for the use of officers inside the event, based on the number of expected attendees, while Berkeley assumed the cost of providing officers to deal with expected protesters. This practice is consistent with the First Amendment—assuming that Berkeley routinely requires the use of police for speakers in that venue, and not simply for controversial speakers, as the First Amendment prohibits imposing charges based on the expectation that crowds are going to be hostile to the speaker.

Now that the smoke has cleared, FIRE, the Berkeley community, and the rest of the nation will wait for more facts about Wednesday night. Until then, we remind students, faculty, and the general public that silencing speakers by mob violence is sharply at odds with the free speech principles embodied in the First Amendment. We’ve said this before, and sadly, it bears repeating:

To be clear: Silencing another’s message by sheer volume and force is an exercise in censorship. There is no First Amendment right to shout down a viewpoint with which one disagrees, no matter how deeply felt one’s opposition. As the Supreme Court of the United States has made plain, the “right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted). Justice Thurgood Marshall eloquently explained that “[t]he freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.” Kleindienst v. Mandel, 408 U.S. 753, 775 (1972) (Marshall, J., dissenting). To deem oneself the arbiter of what speech may and may not be heard by others is a breathtakingly arrogant act.