Free speech is indispensable to our society, and it has particular importance here at UC Berkeley, the home of the Free Speech Movement. Below are a series of questions and answers related to free speech on campus, the First Amendment, the rights of student groups and controversial speakers and Berkeley’s commitment to community safety.
These questions have been edited for accuracy by Erwin Chemerinsky, dean of the UC Berkeley School of Law and a celebrated scholar of constitutional law.
Free Speech
Freedom of speech is the right of a person to articulate opinions and ideas without interference or retaliation from the government. The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests and more. In the United States, freedom of speech is strongly protected by the First Amendment of the U.S. Constitution, as well as many state and federal laws. The United States’ free speech protections are among the strongest of any democracy; the First Amendment protects even speech that many would see as offensive, hateful or harassing.
The Constitution prohibits UC Berkeley, as a public institution, from banning or punishing speech based on its content or viewpoint. Because campus policy permits Registered Student Organizations to invite speakers to campus and provides access to campus venues for that purpose, the university cannot take away that right or withdraw those resources based on the views of the invited speaker. Doing so would violate the First Amendment rights of the student group. Only under extraordinary circumstances, described below in the “Which types of speech are not protected by the First Amendment?” section, can an event featuring a speaker invited this way be cancelled. Secondly, once a speaker has been invited by a student group, the campus is obligated and committed to acting reasonably to ensure that the speaker is able to safely and effectively address his or her audience, free from violence or disruption.
No, this would violate established law and the rights of student groups to invite whoever they wish to the Berkeley campus. Only student groups who invite speakers have the authority to disinvite them.
The Supreme Court has said that public entities like UC Berkeley have discretion in regulating the “time, place, and manner” of speech. The right to speak on campus is not a right to speak any time, at any place and in any manner that a person wishes. The campus can regulate where, when and how speech occurs to ensure the functioning of the campus and achieve important goals, such as protecting public safety. When it comes to controversial speakers, UC Berkeley invokes this necessary authority in order to hold events at a time and location that maximizes the chance that an event will proceed successfully and that the campus community will not be made unsafe. The campus heeds its police department’s assessment of how best to hold safe and successful events. The campus might invoke its time, place and manner discretion, for example, to ensure that an event with a highly controversial speaker would be held in a venue that the campus police force believes to be protectable (e.g. one with an ample number of exits, with the ability to be cordoned off, without floor to ceiling glass, etc.). The need to consider time, place and manner regulations is the reason that we require students to work with the administration when setting up their events, as opposed to scheduling and creating the events on their own without campus input.
The Constitution guarantees freedom of speech by default, placing the burden on the state to demonstrate whether there are any circumstances that justify its limitation. When it comes to controversial speakers delivering remarks on campus, the relevant exceptions to the First Amendment that have been established are:
- Speech that would be deemed a “true threat”: Speech that a person reasonably would perceive as an immediate threat to his or her physical safety is not protected by the First Amendment. For example, if a group of students yelled at a student in a menacing way that would cause the student to fear a physical assault, such speech would not be protected.
- Incitement of illegal activity: There is no right to incite people to break the law, including to commit acts of violence. To constitute incitement, the Supreme Court has said that there must be a substantial likelihood of imminent illegal activity and the speech must be directed to causing imminent illegal activity. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.
- Harassment in an educational institution aimed at an individual on the basis of a protected characteristic (race, gender, sexual orientation, religion); that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile and demeaning atmosphere. For example, posting racist messages on the dorm room of an African American student would be regarded as harassment and not speech protected by the First Amendment.
The term “hate speech” does not have a legal definition in the United States, but it often refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. While the university condemns speech of this kind, there is no “hate speech” exception to the First Amendment and it is only illegal if it falls into one of the categories described above. In fact, on many occasions, the Supreme Court has explicitly held that prohibitions or punishments for hateful speech violate the First Amendment. Just because there is a First Amendment right to say something, however, doesn’t mean that it should be said. The First Amendment protects a right to say hateful things, but as a campus we strive to be a community where no one will choose to express hate.
If it is known that an event with a controversial speaker may lead to physical violence, is that legal grounds for the university to cancel the event?
The Supreme Court has made it clear that a public institution like UC Berkeley cannot prevent speech on the grounds that it is likely to provoke a hostile response. Stopping speech before it occurs is called a “prior restraint,” and prior restraints of speech are almost never allowed. While the campus is constitutionally required and committed to doing what it can to protect speakers and to prevent disruption or violence, if despite all efforts by the campus there is a serious threat to public safety and no other alternative, a speaker’s event can be canceled. This is a last resort, and never done based on the views of the speaker. The campus’s paramount need is to protect the safety of its students, staff and faculty.
Absolutely. Berkeley supports the notion of a “marketplace of ideas,” in which speech that a person disagrees with should be met with more speech that engages and debates it. The First Amendment and the university are founded on the premise that we are all better off if ideas can be expressed and responded to, rather than be subject to an imposed orthodoxy of belief and punished for deviating from it. Free speech is particularly important to a university like Berkeley whose goal is the discovery and establishment of truth. Many ideas now fundamental to our understanding of the universe and our place in it – such as evolution or climate change – were initially attacked. Freedom of speech is so important to the university that one of the university’s bedrock principles is academic freedom, which protects faculty in their research and teaching, as well as the speech of students.
The Free Speech Movement (FSM) refers to a period in 1964 when UC Berkeley students successfully fought against an administrative ban on on-campus political activities. The FSM sparked a wave of student activism that became a core part of the campus’s identity through the Vietnam War and far beyond. One of the lessons of the FSM – for Berkeley and across the country – was that academic freedom means that student speech also is essential and protected.
Safety and Community
When there is a threat of violence in our community, the Berkeley administration works closely with student affairs staff, UCPD, the City of Berkeley and/or other groups to develop and communicate safety plans to the campus. Generally, we advise that if students see violence occurring, they should separate themselves from it, report what they see to police and follow police instructions. When events are occurring that have the potential to endanger students, UCPD uses the text and email messaging service Nixle to keep the campus informed about developments in real time. Additionally, Berkeley offers many resources, including counseling services, for students who have been affected physically, mentally or emotionally by such events.
Critical statements, and even the ridicule of individuals, are still largely protected by the Constitution. The law under the First Amendment is clear that the campus cannot exclude speakers on this basis. If the campus believed that a speaker was going to engage in speech that was directed at an individual and not protected by the First Amendment – such as by repeating statements that had been found to be defamatory or by revealing publicly very private facts about an individual – the campus would do all that it could to prevent this and to protect the person.
No “stand down” order has ever been issued by UCPD, or ever will be. Tactical response decisions are made by UCPD command on the scene of an event or incident, based on our prioritization of student and public safety. At times, this requires a difficult but appropriate real-time assessment that efforts to effect arrests would likely lead to numerous serious injuries, or worse, among innocent bystanders. For more information on the guidelines and values that govern policing on the UC campuses, see the 2012 Robinson-Edley report.
UC Berkeley’s principles of community, developed collaboratively by students, faculty, staff and alumni, are an affirmation of the value of each member of the UC Berkeley community and serve as a guide for our personal and collective behavior. While student groups have the right to free speech and to invite speakers of all kinds to campus, we encourage these groups to consider that such autonomy and independence comes with a moral responsibility for the consequences of their words, actions, events and invitations. As such, we ask that groups consult the principles of community in order to determine whether an action is consistent with their own and with our community’s values.
Berkeley event policies
The Constitution, and its protection of rights, applies only to the government. Public universities are directly bound by the First Amendment to uphold the right to free speech. Because private schools are not state actors, those schools’ administrations may generally impose whatever restrictions they wish on speech or on visitors to campus. Additional laws may also guide their actions, however; in California, for example, a state statute says that private universities cannot punish speech that the First Amendment prevents from being punished in public universities.
Several public universities have recently denied requests from white nationalist Richard Spencer to speak on their campuses, citing the violence in Charlottesville as cause to invoke prior restraint in the name of public safety. We are not aware of any public university that has canceled an already scheduled appearance, or an invitation issued by a legally independent student group. It should also be noted that in previous attempts to block Spencer from speaking on campuses, he has sued those campuses and won. Lawsuits have already been filed against some of the public universities that recently denied Spencer’s requests. Canceling events must be a last resort to be used only when the campus, despite taking all reasonable steps, believes that it cannot protect the safety of its students, staff and faculty. Events can never legally be canceled based on the likely offensiveness of the speaker’s message.
If UC Berkeley were to illegally cancel the talk of a speaker invited by a student group, it could be sued by the speaker or by the student group. A court could issue an order requiring the campus to allow the speaker. The court could also potentially award money damages to the speaker and student group, and the campus, if it loses such a lawsuit, would also be liable for paying the attorney fees of the speaker and student group. There are many instances, including in California, where public universities have been sued in exactly this way when they have tried to exclude speakers.
The current event policy, which underwent changes in the summer of 2017, can be found on the dean of students website. The policy is designed to be consistent with the university’s paired commitments to free speech as well as to the safety and well-being of students, other members of the campus community, their guests and the public. These key elements of the previous policy have been retained:
- A requirement that student groups and organizations provide the campus with sufficient advance notice of proposed events;
- A requirement that UCPD provide a security assessment for certain events;
- Neutral, objective criteria for review of events and requirement of security precautions;
- A requirement that all hosting organizations assume responsibility for basic security costs as per a UCPD assessment that is also based on neutral, objective criteria;
- A requirement that contracts or obligations with outside speakers not be finalized until the availability of an appropriate venue can be confirmed and event approved by the appropriate department.
At the same time, the new, interim policy proposes changes and additions that include:
- Specific criteria defining events that must be submitted for review;
- A detailed timeline for each required step in the event planning process;
- Statements reasserting and emphasizing our existing policies and practices that make clear speaker viewpoints will not influence decisions relating to event approval or required security measures;
- Clear statements of campus administration’s authority to require security measures that maximize both the expressive rights of event sponsors and public safety.
The university does not charge student groups different fees to host speakers based on the invited speaker or the content of his or her speech. Doing so would constitute a breach of students’ First Amendment rights. As is the case with all events that student groups host, those groups must reimburse the campus for the cost of basic event security. These security charges are calculated based on neutral, objective criteria having nothing to do with the speaker’s perspectives, prior conduct on other campuses and/or expected protests by those who stand in opposition to him or her.
Protest
Yes – activism is very much part of our campus’ DNA, and we encourage expression in protest of other expressions. The campus encourages all who engage in protest activity to do so safely. Below are some reminders for how to protest safely:
- Avoid activity that infringes on the rights of others, such as blocking and preventing the movement or access of others.
- Follow the lawful instructions of a police officer or public official, such as staying behind barricades, dispersing from an area declared an unlawful assembly, not resisting arrest. It is against the law to disobey a lawful order by a police officer.
- Leave the area where others are engaging in illegal activities and acts of violence. Your presence may be interpreted as participating in a riot or illegal group action. Staying overnight in a campus building after hours is prohibited.
- Refrain from speech that incites others to commit acts of violence such as pushing, kicking or spitting on others, destruction of property or other unlawful actions.
- Make informed decisions. If you choose to engage in civil disobedience and get arrested, know the potential consequences. See the Center for Student Conduct for more information.
No, freedom of speech does not give someone the right to drown out the words and speech of others; freedom of speech would mean little if the audience was able to silence anyone with whom they disagreed. Once a society starts down the path of condoning such de facto censorship, it creates the culture and conditions in which anyone’s rights of speech can be compromised.
As discussed above in the section “What are ‘time, place and manner’ restrictions? How do they relate to controversial speakers?”, the Supreme Court has said that public entities like UC Berkeley have discretion in regulating the “time, place and manner” of speech. The right to speak on campus is not a right to speak any time, at any place and in any manner that a person wishes. These restrictions do not vary depending on the views or ideas being expressed; rather they are about ensuring that speech occurs in a way that does not disrupt the campus’s educational mission or endanger public safety. The university has developed rules and regulations related to protest that are designed to prevent substantial disruption of educational activities, protect lawful access to campus programs and facilities, avoid unsafe behavior and prevent the destruction of property. Their application does not vary according to the cause or content of a particular protest, speech, or other form of expression, and the rules and regulations are designed to enable extensive opportunity for expressive activity. Learn more about these regulations on the UCPD website.
Event listing
Any member of the UC Berkeley campus community (student, staff, or faculty) may submit an event for listing in the UC Berkeley Calendar Network. Events must take place at UC Berkeley, or be sponsored by a department or recognized group at UC Berkeley.
Login to the system with your calnet ID. Enter your event details, choosing the Free Speech calendar as the primary calendar to approve and publish your event.