In Maryland and California, University Leaders Set Example with Commitments to Free Speech

Regular readers of FIRE’s website are all too familiar with campus administrators censoring student and faculty speech, particularly when faced with controversial or unpopular viewpoints. For one example of thousands, we issued a press release Wednesday calling on Fordham University to honor its promises of free expression by reversing its misguided denial of recognition to a prospective chapter of Students for Justice in Palestine.

So it’s a pleasure to end this busy week by paying tribute to two excellent statements from university leaders who rededicated their institutions to the hard work of protecting freedom of expression.

University of Maryland

At the University of Maryland (UMD), President Wallace Loh issued a statement yesterday in response to a set of 64 demands from ProtectUMD, a coalition of 25 student groups. The demands, issued in late November, include calls for punishing speech protected by the First Amendment. Specifically, the coalition demands an “[i]mmediate response to hate speech or actions from the University including a consequence (e.g. mark on transcript, potential suspension).” Tellingly, “hate speech” is left undefined.

The University of Maryland has an obligation under federal law to respond to discriminatory harassment, which is unprotected by the First Amendment, as is speech that constitutes incitement or a true threat. But there is no First Amendment exception for “hate speech,” an inherently subjective concept that has no legal definition; one person’s “hate speech” is another’s political manifesto. The vast majority of speech that some or even most might consider “hate speech” is protected by the First Amendment, and for good reason. ProtectUMD’s call for punishing “hate speech” runs headlong into UMD’s legal and moral obligation as a public institution to uphold the First Amendment.

In response, President Loh’s statement—titled “True to Our Values”—explains why freedom of expression must remain at the core of the university’s commitments. While acknowledging “the rise of angst, hurt, and anger in fraught times,” President Loh writes that UMD community members “cannot learn, teach, pursue truth, and advance knowledge without academic freedom and freedom of expression, civility and respect, diversity and inclusion, openness and shared governance.” Instead of censorship, President Loh embraces the challenge of free speech and its necessity for our democracy:

No anodyne will heal the divisions in our country today, nor should it. At the University of Maryland, we do not fear the clash of ideas and values. I ask every member of our academic community to help us move forward with an open mind, consider different perspectives, and debate with respect and civility. These are the qualities that make trust, collaboration, and progress possible in a democracy.

We salute President Loh’s leadership and clear-sightedness, admirable qualities made evident in his response to a previous campus controversy, and we are pleased that the University of Maryland continues to earn FIRE’s highest "green light" rating in spirit as well as policy.

University of California, Berkeley

Meanwhile, 2,800 miles to the west, UC Berkeley Chancellor Nicholas Dirks also recognized the necessity of free speech in a statement to the campus community. Chancellor Dirks’ letter was prompted by an upcoming visit from Breitbart editor Milo Yiannopoulos, planned for next Wednesday and sponsored by the Berkeley College Republicans. Responding to calls for censorship and disinvitation, Chancellor Dirks wrote:

Since the announcement of Mr. Yiannopoulos’s visit, we have received many requests that we ban him from campus and cancel the event. Although we have responded to these requests directly, we would like to explain to the entire campus community why the event will be held as planned. First, from a legal perspective, the U.S. Constitution prohibits UC Berkeley, as a public institution, from banning expression based on its content or viewpoints, even when those viewpoints are hateful or discriminatory. Longstanding campus policy permits registered student organizations to invite speakers to campus and to make free use of meeting space in the Student Union for that purpose. As mentioned, the BCR is the host of this event, and therefore it is only they who have the authority to disinvite Mr. Yiannopoulos. Consistent with the dictates of the First Amendment as uniformly and decisively interpreted by the courts, the university cannot censor or prohibit events, or charge differential fees. Some have asked us whether attacks on individuals are also protected. In fact, critical statements and even the demeaning ridicule of individuals are largely protected by the Constitution; in this case, Yiannopoulos’s past words and deeds do not justify prior restraint on his freedom of expression or the cancellation of the event.

Berkeley is the home of the Free Speech Movement, and the commitment to free expression is embedded in our Principles of Community as the commitment “to ensur(e) freedom of expression and dialogue that elicits the full spectrum of views held by our varied communities.” As a campus administration, we have honored this principle by defending the right of community members who abide by our campus rules to express a wide range of often-conflicting points of view. We have gone so far as to defend in court the constitutional rights of students of all political persuasions to engage in unpopular expression on campus. Moreover, we are defending the right to free expression at an historic moment for our nation, when this right is once again of paramount importance. In this context, we cannot afford to undermine those rights, and feel a need to make a spirited defense of the principle of tolerance, even when it means we tolerate that which may appear to us as intolerant.

Chancellor Dirks also makes clear that “speech taxes” in the form of added security fees for controversial speakers are unacceptable at UC Berkeley, as they must be at any public institution bound by the First Amendment:

As part of the defense of this crucial right, we have treated the BCR’s efforts to hold the Yiannopoulos event exactly as we would that of any other student group. Since the event was announced, staff from our Student Affairs office, as well as officers from the University of California Police Department (UCPD), have worked, as per policy and standard practice, with the BCR 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.

Like all sponsors of similar events, BCR will be required to reimburse the university for the cost of basic event security. Law enforcement professionals in the UCPD have also explained to the BCR that, consistent with legal requirements, security charges were calculated based on neutral, objective criteria having nothing to do with the speaker’s perspectives, prior conduct on other campuses and/or expected protests by those who stand in opposition to his beliefs, rhetoric and behavior.

This is exactly correct, as FIRE has stated many times. Indeed, just yesterday FIRE issued a press release praising the University of New Mexico for rescinding an unconstitutional speech tax on an appearance by Yiannopoulos scheduled for this evening and pledging a revision of its security policy in accordance with First Amendment requirements. Security fees based on a speaker’s message are unconstitutional, whether applied against Yiannopoulos, Boots Riley, or Bill Ayers, and FIRE will always stand ready to challenge them.

Chancellor Dirks’ clarity and leadership is welcome and respects his legal and moral obligations under the First Amendment. We thank him for it, and hope others follow his lead.