Saturday, May 6, 2017

How Berkeley and NYU’s Anti-Free Speech Actions are as Unconstitutional as Hell

By Peter Van Buren - May 06, 2017 at 01:20PM

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Ann Coulter will not speak at Berkeley this week because the threat of mob violence lead campus authorities to claim they could not protect her. The same threats led New York University (NYU) to cancel Milo Yiannopoulos’ appearance in February. These are shameful actions by two universities, and they are unconstitutional as hell.

Previous violence at Berkeley directed against Yiannopoulos, as well as the current threats, originated with a coalition of so-called antifa’s, anti-fascists, persons who believe in Trump’s America violence to silence speech they do not agree with is justified. They probably are unaware their tactics were once used to silence civil rights marchers, anti-war protesters, abortion rights advocates and the women’s movement. Because the law that now shames Berkeley and NYU comes from earlier efforts to protect those groups’ right to speak.

The idea that a university cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t have to go to the trouble of protecting a controversial speaker, has become the go-to justification for persons on the left restricting speech from the right. Coulter and Yiannopoulos were singled out specifically for the content of their speech, which is indeed offensive to students and faculty who see danger in unpopular ideas. The universities’ actions are not content-neutral, the base requirement to restrict speech.

But what those offended people think is irrelevant, because the Constitution is clear even when their minds are muddied. While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is not to ban speech outright simply to maintain order. But don’t believe me; it’s the law.

A landmark case from 2015 involving a group called the Bible Believers, who used crude language (“Turn or Burn”) at an LGBT event, provides the clearest guidance:
When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines – watching as the crowd imposes, through violence, a tyrannical majoritarian rule – only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.
That an institution can shut down speech requiring physical protection has failed court tests in cases are diverse as Occupy protests and a Christian group which brought a pig’s head to an Islamic arts festival. Both sides in the abortion debate have slapped down the need to maintain public order argument outside clinics in defense of their right to speak. Any of those situations is at least as volatile as whatever Ann Coulter has been saying publicly since her first book came out in 1998, or Milo Yiannopoulos’ junior high school level homophobic slurs.

The court have also long held mobs should not be allowed to exercise the so-called Heckler’s Veto, where whomever can literally “speak” the loudest gets to choose what is said. The natural end of such thinking is mob rule, where Speaker A gets a bigger gang together to shout down the gang Speaker B controls. Or, in Coulter and Yiannopoulos cases, simply threatens to do so.

Allowing a de facto Heckler’s Veto to keep unpopular speakers from expressing their views, as Berkeley and NYU have basically done, also does damage long past two conservative speakers in April 2017. Allowing the Veto not only stifles a specific idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob while the administration and law enforcement stand aside?

The most insidious use of the Heckler’s Veto, however, is what has happened at Berkeley and NYU, where the administration allowed people to create a situation that compels law enforcement to shut down a speaker in advance for them, abusing their own freedom to assemble to get the government to stymie someone else’s. The Supreme Court concluded the government’s responsibility in such circumstances is to control those who threaten or act out disruption, rather than sacrifice the speaker’s free speech rights. Berkeley and NYU chose not to comply, even though as recipients of public funds they were required to do so.

The problems of having Ann Coulter speak on a campus are outweighed by the larger obligation to protect free speech. Getting rid of the speaker may be expedient but it is also unconstitutional. The ACLU knows that, because it took Coulter’s side, as did Elizabeth Warren and Bernie Sanders. There are plenty of lawyers working for Berkeley and New York University who know it too, but figure on a liberal campus in front of a sympathetic media they can get away with ignoring it.

History, and jurisprudence, are not on the universities’ side.

Supreme Court Justice Louis Brandeis held people must discuss and criticize unpopular ideas, that free speech is not an abstract virtue but a key element at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents to be applied to prevent violence and disruption are education and punishment for violations of the law, not abridgment of free speech.”

Free speech is not an ends, it is a means, in a democracy. Shame on two of America’s prominent universities for treading on that mighty concept. Free speech is messy, and it is our essential defense against fascism, whether from the left or the right.

Reprinted with permission from WeMeantWell.com.

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