“We should refuse to allow hateful speakers on campus,” a campus faculty member said.
The statement was met with resounding applause. I mentally prepared for the response to what I was going to say next.
It was September, and I was at a forum at which several professors, including me, discussed free speech issues before a large audience of students at the University of California Berkeley. Several faculty and students had already implored Chancellor Carol Christ to revoke the invitations of conservative provocateurs Milo Yiannopoulos and Ann Coulter to speak on campus, and their declarations were met with enthusiasm.
Finally, I spoke up. “Be clear that if Chancellor Christ were to exclude speakers based on their viewpoint, she would get sued and lose,” I said. “The speakers would get an injunction and be allowed to speak. They would recover attorneys’ fees and maybe money damages. They would be portrayed as victims. And since they would get to speak anyway, nothing would be gained.”
No one applauded.
I have been dean of Berkeley’s law school for several months. But before I arrived at campus, the university, home of the free speech movement of the 1960s, had become a battleground for a new kind of campus speech debate.
In late September, elaborate security precautions were taken when conservative commentator Ben Shapiro spoke at Berkeley; $600,000 had to be spent so he could deliver his remarks without disruption. When conservative student groups attempted to host a “Free Speech Week,” and invited conservative speakers like Coulter and Steve Bannon, the campus steeled itself to spend in excess of $1 million to allow them to speak while ensuring safety on the campus. (In the end, “Free Speech Week” was canceled by the student group that had organized it.)
I have been teaching First Amendment law to law students and undergraduates for more than 37 years. I have also litigated free speech cases, including at the Supreme Court. I believe that Chancellor Christ and the campus have done a superb job of adhering to the First Amendment, protecting free speech while ensuring the safety of students, staff, and faculty. But it’s also become clear to me that current college students are often ambivalent, or even hostile, to the idea of free speech on campus.