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Is Free Speech Smart?

January 19, 2018
by Krissy Eliot

There appears to be a consensus among UC Berkeley law professors that despite his offensive views, alt-right provocateur Milo Yiannopoulous had a legal right to speak on campus last September. And the UC administration has taken a hard and fast stance when it comes to speech, saying that any suppression of it would go against the university’s official mission—to be a center for higher learning and advancing that higher learning.

“We would be providing students with a less valuable education, preparing them less well for the world after graduation, if we tried to shelter them from ideas that many find wrong, even dangerous,” writes Chancellor Carol Christ in a letter to the campus community. “Berkeley, as you know, is the home of the Free Speech Movement, where students on the right and students on the left united to fight for the right to advocate political views on campus. Particularly now, it is critical that the Berkeley community come together once again to protect this right. It is who we are.”

But not everyone at Cal identifies with this point of view. Opinions on campus are split as to whether or not the administration’s absolutist stance on free speech meshes with that mission.

The university’s allowing Free Speech Week to take place, Cohen says, is the equivalent of sponsoring a four-day Flat Earth Society event outside of the physics

“I think there’s a fundamental question of values, of community, of who we are and what we believe­,” says African American studies professor Michael Cohen, who co-authored a campus-wide letter calling for a campus boycott during Yiannopoulos’ planned Free Speech week event. “[Free Speech Week] was deliberately designed to offend as many people as possible and to take up as much space on campus so as to prevent the workings of the campus from being carried out…. To halt and thwart the educational mission of the university, not advance it.”

And in actuality, Yiannopoulous basically said as much days before Free Speech Week, publicly asserting that his event was driven by a political vendetta against Berkeley faculty. He told the LA Times that “the fewer classes taught by the lunatics in the Berkeley asylum the better,” and “If all it takes to stop left-wing indoctrination on campus is me showing up, I’ll happily move into a tent on Sproul Plaza full time.”

Chancellor Christ, in an op-ed following Free Speech Week, admitted that the university suspected that Free Speech Week “had always been, in significant part, a fiction” and a “set-up”—that “universities in general, and Berkeley in particular, are being targeted in a battle against objective scholarship, tolerance and diversity.”

Cohen says the university should have known this all along and not allowed themselves to be “duped.” The university’s allowing Free Speech Week to take place, Cohen says, is the equivalent of the administration sponsoring a four-day Flat Earth Society event directly outside of the physics department, or allowing a creationist and intelligent design conference to be held at the life sciences building.

“Milo is a provocateur peddling discredited ideas about biological racism, the inherent inferiority of black people and women, and outmoded, discredited and patently false notions about American race, class, gender and sexuality,” Cohen said. “Why would the university—whose singular message and mission is educational and research oriented— invite people with such utterly backwards, amoral and contemptuous ideas to use their platform to recruit and spread hatred sexism and violence?”

But Christ has continuously made the point that part of an education is being able to discern fact from fiction, to develop one’s own values through experience, and that the way to do that is to be exposed to ideas we may not like or agree with.

“We must show that we can choose what to listen to, that we can cultivate our own arguments and that we can develop inner resilience,” Christ says.

Berkeley Law Dean Erwin Chemerinsky, who is in alignment with Christ’s perspective on free speech rights, says that if you’re allowed to censor one person or group’s speech, there’s “no stopping point”—and that “If today you can stop the speech that I find offensive, tomorrow people can silence me because they find me offensive.” Picking and choosing who gets to speak could mean halting the free flow of ideas in an educational environment.

But Cohen isn’t convinced that Berkeley’s decision to support Yiannopoulos’ speech was that simple.

“I think the UC admin sees free speech as their marketing campaign, their branding strategy. It’s not something they actually believe in and want to act on, but it’s what they need the rest of the country to think that Berkeley is about,” Cohen says.

“The Chancellor may be stuck with [the law], but you’re not,” powell said in a speech to students and faculty. “You can make a new world.”

Cohen acknowledges the facts that Chemerinsky has publicly and repeatedly asserted: If UC Berkeley were ever to prevent Yiannopoulos from speaking, he would sue, they would lose, and they’d have to pay for his eventual appearance in addition to money damages. But Cohen says that cost/benefit analysis shouldn’t be the university’s concern.

“My fear is that [the administration] is more concerned about the cost of legal fees than they are about the cost to morale and to people’s physical safety,” Cohen says. “UC Berkeley has a lot of very expensive lawyers, and they should do their job and come up with an argument that places the values of the campus ahead.”

In a similar sentiment at a free speech panel a few months back, ethnic studies professor john a. powell (who spells his name in lowercase) stated flat out that he thinks the “Supreme Court is wrong,” about free speech, and encouraged an auditorium full of Cal students and faculty to stand up and fight back against the law: “The Chancellor may be stuck with [the law], but you’re not,” powell said. “You can make a new world.”

But if the university or its students were to fight, would they have any chance of winning? According to Dean Chemerinsky, no.

“The Berkeley campus has no choice but to allow Milo to speak,” Chemerinsky says. “Speech can’t be punished, particularly based on the ideas or views expressed…. I wish that hateful speakers didn’t come onto campus, but they have the First Amendment right to do so.”

This is true, says David Robinson, associate campus counsel at Berkeley—but he grants that with any case brought to court, there’s always a chance for wiggle room. The lawyer’s job is to look at situations in which the Court has always rendered decisions, Robinson says, and try to convince the judge otherwise.

“I often tell people about the practice of law that if the answer was written in the book, and you could just open up the book and look and there the answer was, then you wouldn’t need lawyers,” says Robinson.

That said, the law tends to be based on fact rather than opinion, and a lot of the concerns around free speech at Berkeley are about differing moral values, says Robinson, which may not hold up strongly in court.

“Legal analysis depends on analysis of very specific facts,” says Robinson. “I don’t mean to say that [the conversation] doesn’t have an underlying factual basis, but the very specific facts are what matters when someone brings a lawsuit against the university.”

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