Does Ann Coulter have the right to speak at UC Berkeley?
The university just canceled a planned speech on campus by Coulter, a conservative commentator.
Both Auburn and UC Berkeley are public universities. Do speakers like Coulter and Spencer have a right to speak at these institutions?
While the Supreme Court has affirmed students’ free speech and other First Amendment rights, the Court hasn’t yet settled this very question clearly. But we do have some legal precedents to go by.
Is a public university a public forum?
Because public universities receive public funding, they are public forums, and therefore speakers like Spencer and Coulter have the unfettered right to speak. Right? Not quite.
Circuit courts have ruled that college campuses are – unlike, say, a public park or street – “limited public forums,” according to the First Amendment Center. That’s why universities can create rules and restrictions governing such speakers, like when and where they may speak. However, these rules must be applied fairly and have nothing to do with the speakers or their speech content.
The Supreme Court affirmed this tenet in a 1983 case, ruling that “the First Amendment does not guarantee access to property simply because it is owned or controlled by the government,” allowing rules and restrictions.
Can universities legally restrict campus speakers?
In limited ways, yes, but mostly, no.
Schools have some latitude when it comes to whether to approve student groups’ requests for guest speakers, according to the Newseum’s First Amendment Center – they can establish regulations and can deny requests “if they have reason to believe that the speaker will advocate violent rebellion against the government or immediate, destructive, and disruptive action against the host institution.”
Otherwise, “courts have held that when an audience brings someone to campus to speak, the school bears a constitutional responsibility not to interfere.”
In Coulter’s case, two student clubs invited her to campus. If she had been planning to come to Berkeley uninvited, the university could require her to apply for a permit and issue other restrictions — even on speech content — as long as those restrictions are reasonable and are applied fairly, explains the First Amendment Center.
What if there are safety concerns?
In an email conveying their decision on the Coulter talk, UC Berkeley administrators said they do uphold the First Amendment but canceled Coulter out of safety concerns – after all, they pointed out, there have been riots recently, as when a talk by Milo Yiannopoulos was canceled in early February.
So: Do public safety concerns justify the school canceling an incendiary speaker like Coulter?
Well, the First Amendment Center cautions that this argument may not hold water “if the school administration’s effort is seen as an attempt to block particular individuals, topics, or points of view.” So it’s a problem if public safety is being used as an excuse to ban Coulter from speaking, and the real reason is that the university finds her views objectionable.
And numerous court decisions have held that universities can’t block controversial speakers with offensive views.
Yet a category of speech known as “fighting words” is not constitutionally protected. “Fighting words” are those which “by their very utterance inflict injury or tend to incite an immediate breach of peace” and pose a “clear and present danger” of sparking violence, as decided in a 1942 case, Chaplinsky v. New Hampshire. So administrators can cite “fighting words” as the concern, if they truly believe that what the visitor actually says — and not just his or her presence — will foment violence.
But there’s also the issue of the “heckler’s veto,” going back to when civil rights movement marches were threatened with violence by white people. The Supreme Court has cautioned against allowing threats of violence by those opposed to a speaker or a demonstration to block the speech or march from taking place.
Naweed Tahmas, a spokesperson for the Berkeley College Republicans, one of the student groups who invited Coulter, cited this doctrine in a statement emailed to USA TODAY College: “It is disappointing that a [precedent] has been set that threats of violence by leftist agitators can derail events. The heckler’s veto should play no role in the matter.”
Do students have a right to hear visiting speakers?
Another way to look at First Amendment rights on campus is from another perspective: the students’. Do they have the right to hear visitors speak?
Courts have ruled that they do. And this right has long been championed in the justice system — going back to Justice Oliver Wendell Holmes, who famously wrote in a dissent that “The protection of a people’s right to hear is of particular importance on college campuses, where students’ intellectual development is dependent on the “free trade in ideas,” according to the First Amendment Center.
Can universities ban hate speech?
Some have commented that when the likes of Yiannopoulos, Coulter and Spencer talk, their speech might be considered hate speech, and therefore be unprotected. Indeed, some educational institutions have so-called hate speech codes that restrict racist, sexist and other offensive speech. SCOTUS hasn’t yet ruled on these types of codes, so their constitutionality is a bit murky.
But in one case, a hate speech code at the University of Michigan was ruled as being too broad and therefore unconstitutional. And the ruling, according to FindLaw, noted that at universities, “the free and unfettered interplay of competing views is essential to the institution’s educational mission.”
A Washington University Law Review article contended that the Doe v. University of Michigan case and similar cases “cast doubt on whether universities have the power to regulate hate-speech in any meaningful way.”
The ACLU puts it this way:
“How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When one of us is denied this right, all of us are denied.”
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