Opinion: Cal family, free speech was protected at UC Berkeley last week

(Comments will remain closed. This is again a fact-check against media narrative. For those who construe this post as political, it reflects only the opinion of the author and not the opinions of all California Golden Blogs writers.)

I’ve received multiple inquiries about whether free speech was protected this week at Cal because a speaker was not allowed to be given a platform to speak at the university.

Let me make one thing clear. Freedom of speech (however ugly the end result might have been) was protected this week.

Let’s go through each lens, one by one.

The University protected the rights of a controversial speaker to speak. This is consistent with the First Amendment, which protects the rights of anyone invited onto a public space (like the University of California) to speak and express opinions, regardless of whether that speech is considered hateful.

Chancellor Dirks could have made the choice to deny the speaker the opportunity to speak from the outset, which would have been censorship from the beginning. He chose to let him speak, even at the risk of future harrassment:

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.

If you don’t believe me, just ask the hosts of the scheduled speaker.

UC Berkeley Republicans believe the university stood up for freedom of speech.

In an interview Friday, Peter Sittler, a sophomore at Berkeley and vice president of the organization that sponsored Yiannopoulos’s visit, the Berkeley College Republicans, told me the school’s administration, from Chancellor Nicholas Dirks on down, “worked tirelessly to plan [the event] and make sure it went through.” From the time Sittler’s group first proposed hosting Yiannopoulis two months ago, the university “acted in good faith,” and was “fully committed to protecting our First Amendment rights,” he said.

The university allowed this speaker on campus because he was invited by the university’s Republican group, and they did their best to provide the proper security to ensure the event would occur. This despite the rumors that the university learned that the speaker was about to engage in a naming campaign against undocumented immigrants.

“We are deeply concerned for all students’ safety and ability to pursue their education here at Cal beyond Milo’s speech,” the university’s Office of Student Affairs said in a letter Tuesday to the Berkeley College Republicans, the students hosting the event. “Milo’s event may be used to target individuals, either in the audience or by using their personal information in a way that causes them to become human targets to serve a political agenda.”

The letter expressed concerns that Yiannopoulos — a British writer for the right-wing opinion site Breitbart News — will use his appearance to kick off a campaign “targeting the undocumented student community on our campus,” and linked to an article published Tuesday on the site.

The article begins: “Milo and the (conservative think tank) David Horowitz Freedom Center have teamed up to take down the growing phenomenon of ‘sanctuary campuses’ that shelter illegal immigrants from being deported.”

That the speech still went ahead as planned despite the impending threat of potential Cal students being outed as undocumented is a testament to UC Berkeley’s commitment to free speech, regardless of repercussoins.

Protesting someone is also well within the rights of Americans. Those voices were heard loudly and clearly and definitely had an impact on whether the speaker would be a member of the audience, until they were hijacked by aggressive anarchists.

I was at the protests last night. The students had a great plan for a peaceful protest: a dance party was organized outside the student union with thousands of students to take attention away from Milo’s message. Student bands with tubas and trumpets were there to make noise and create a distraction, and many students had brought protest signs. But shortly into our planned protest, a large group of masked violent protesters dressed in all black carrying anarchist flags descended on our campus. They were highly organized and came with an agenda. Within minutes they had dismantled multiple layers of barricades and broke into the bottom floor of the building to set off the fire alarm and force Milo’s event to end.

After the event was cancelled we tried to peacefully march, as we do regularly in Berkeley. But these people began smashing ATMs and breaking windows. At one point, a person (likely a student) yelled out “Stop the violence!” and was immediately attacked and assaulted. That’s when I, and many other students, decided to leave. There were no cops to be seen, as they were all staked out at the student union waiting for backup. By the time a SWAT team arrived, they had already looted ATMs, broken into several banks and destroyed Starbucks.

The group is known as the “black bloc” and they are known to target large peaceful protests in order to create riots. In 2012 they usurped the peaceful Occupy Oakland protest to create violence and raid a supermarket. In 2014 they targeted the peaceful Eric Garner protests in Berkeley. This is what they do. They are known for creating violence and rioting, specifically targeting banks, national chain stores, and security cameras. And they came to Berkeley last night with a mission to do just that.

I’ve heard many remarks that “Berkeley students can’t handle free speech.” U.C. Berkeley was the birthplace of the free speech movement in the 1960s. We can handle free speech. We may use our own free speech rights to protest speech that we don’t agree with, but we don’t silence it. Since I’ve been here we’ve had many walkouts to protest controversial speakers. We have peaceful protests almost every day here, at least several per week. But you wouldn’t know it because they don’t make national news. The only thing that makes national news is a group of violent rioters descending on our campus to destroy our city.

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TL;DR: It’s incredibly unfortunate what happened last night. But I wouldn’t be so quick to blame the students of Berkeley, who tried to organize a peaceful protest.

The police were stuck in an impossible bind. The university took the proper precautions.

Far from sticking the student group with the tab for security, the university spent tens of thousands of dollars of its own funds on extra police, including dozens of officers trained in crowd control brought in from other campuses in the California school system. These officers were deployed in an effort both to protect approximately 1,000 anti-Yiannopoulos demonstrators, who began gathering more than two hours before the 8 p.m. start time, and to keep them from disrupting the speech.

The police were prepared for violent demonstrators, but were caught unaware by how highly disciplined and organized they were.

Chief Bennett said UCPD did get a report from a local hospital about someone who had been treated. But she said police at times have to make tough calls to minimize the potential for violence overall.

“In situations like that, we understand that if we go out and we engage — with the level of force and the presence of the trained anarchist-style protesters that were present — it will embolden the protesters and it will escalate the level of violence,” she said. “And our officers exercised, I think, some very tough and extreme restraint.”

The goal Wednesday night, she said, initially was to ensure that the event occurred and that anyone who wanted to express their First Amendment rights could do so. UCPD aimed to protect life, and also to protect property. But hard decisions had to be made in the end.

“We prioritize the protecting of life higher than everything else,” she said. “Some broken windows, we can accept. The fact that no one was seriously injured is a blessing when that level of violence was occurring.”

Here is a statement from FIRE, a non-profit group that focuses on civil liberties in academia.

When facing a violent mob, law enforcement officers need to have some discretion to determine how and when to intervene in accordance with their knowledge of the situation on the ground and their professional experience. They may decide that the risk to officers is too great to intervene, or that intervening aggressively will escalate the situation. Their action or inaction will not violate the First Amendment, as a matter of law, unless they intervene to accomplish the mob’s goal of censorship by stopping the speech without taking other, substantial steps first.

If police do intervene with a speaker confronted by a hostile mob, their efforts must be the “least restrictive means for coping with a crowd’s hostile reaction.” Bible Believers v. Wayne County, 805 F.3d 228, 255 (6th Cir. 2015). Silencing a speaker is the “last resort”; “before removing the speaker due to safety concerns, and thereby permanently cutting off his speech, the police must first make bona fide efforts to protect the speaker from the crowd’s hostility by other, less restrictive means.” Id. Additionally, we know that Berkeley brought in police officers from across its campuses to prepare for expected protests, and the school reports that “[m]utual aid officers from the city of Oakland and from Alameda County arrived at Berkeley around 7:45 p.m. to assist UCPD and Berkeley city police.”

Based on the information we presently have available, the school appears to have made good-faith efforts to prepare for a conflict. But as Wednesday night made plain, advance preparation is not always enough. And while it may be tempting to second-guess the actions of police in hindsight, one does so through the fog of tear gas.

As a result, all sides have been heard.

• The university has allowed a platform for a controversial speaker on the loudest stage. Free speech was allowed to a very hateful personality on an unfriendly campus, and by the end of the night most of the nation knew who he was.
• The protestors made it clear that those voices weren’t welcome. Their voices were heard as well in expelling that personality from campus, and that his presence and his opinions were not popular at Cal.
• The violent agitators took it too far (and they were not just anarchists, but alt-right trolls as well), and were the work of people not affiliated with the university or students.
• The police did not interfere in a crowded and confusing situation, and did their best to minimize injuries and assault so that students did not get caught in the crossfire. It is debatable whether they could have done more to prevent the arrival of the violent agitators, but we can at least say they did their best to avoid overstepping their boundaries.
• The people watching the events unfold on the Internet and on TV got a chance to take in the perspectives from all side, and hopefully educate themselves on the speaker, his viewpoints, the protestors, their viewpoints, and hopefully learn about the historical ability of protests at Berkeley to be hijacked by radicals.

This was not a perfect expression of the First Amendment by any means. But there was no censorship. There was true clarity of opinion, expressed in raw emotion. All voices got a chance to be expressed on all sides. Had the speech been barred from the outset, then there would have been actual grounds for suppression of unpopular opinions. You definitely can’t say that now—those unpopular opinions got a national stage without a single word being uttered.

So this brings us back to the quixotical nature of protest, which seems to be under constant attack. What should protest be? Should it be peaceful? Is violence acceptable in any forms? Can it live in concert with non-violent protest? Should protest commit to the final action of removing hateful speech from campus?

This will probably require complicated answers for complicated times, but those are questions that I hope all of you will consider pondering and expressing. Freely.

As members of the Cal family in UC Berkeley, home of the Free Speech Movement.