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What the Constitution says Berkeley can do when controversial speakers come knocking

The rules governing the right-wing “Free Speech Week” showdown.

Protesters march off the UC Berkeley campus on February 1, 2017. A scheduled speech by the controversial author Milo Yiannopoulos was canceled after protesters and police skirmished.
Protesters march off the UC Berkeley campus on February 1, 2017. A scheduled speech by the controversial author Milo Yiannopoulos was canceled after protesters and police skirmished.
Elijah Nouvelage/Getty Images

As of Saturday, it was unclear whether Free Speech week would be happening. Still, UC Berkeley, the proposed site, is bracing for the event:

“This coming week is “Free Speech Week” at the University of California Berkeley. Conservative speakers, some very incendiary, are scheduled to appear in public spaces — the storied Sproul Plaza, the nearby Mario Savio Steps — offering their views on feminism, Islam, and more.

Maybe the organizers really want to gather an audience that will listen to what the speakers have to say — the list seems quite fluid, but the names of alt-right provocateur Milo Yiannopoulos, anti-Islamic polemicist Pamela Geller, and former White House strategist Steve Bannon have been bandied about — and exit with changed minds. Mostly, though, they want to lay down a marker at what they regard as a center of intolerance for conservative views. And they probably expect some disruptions that will, they hope, discredit their opponents.

There’s a lot of misunderstanding about what public universities and cities can do when faced with requests to use their facilities for demonstrations, particularly when officials reasonably think the events might turn violent.

People offer simple-minded answers to what are, in fact, difficult questions: “Time, place, and manner regulations are okay — but not restrictions based on speech content.” Or: “You can’t give the counterdemonstrators a heckler’s veto” (that is, you can’t let them make it impossible for the demonstrators to get their message across to people who want to hear it). The former statement is true, but it’s too short on details to be a useful guide to action. The latter is debatable.

Amid the confusion, there’s room for people to cry “censorship” when none has occurred. My prediction: The odds are slim that there will be real violations of the speakers’ constitutional rights next week, but chances are high that conservatives will say that the university has violated the First Amendment, confirming its reputation as a hotbed of liberal intolerance.

Universities have considerable leeway in deciding when, and where, speakers may appear

When you walk through the First Amendment rules, things get complicated very fast. Sophisticated lawyers like those Berkeley and larger cities have can usually work their way through the constitutional maze, though sometimes even they will be blindsided by unexpected developments. Smaller campuses and towns are more likely to misstep — largely unintentionally, I think — and provide fuel for conservative attacks on the purported “suppression” of free speech.

So let’s walk through those rules.

Suppose a public university gets a “request” from a group that the group wants to invite a speaker on a specific date, to appear at a particular auditorium, or a city gets a request to hold a demonstration in a specific city park. (Concerning universities, the rules only apply to public institutions, as private colleges can set their own policies, although many say they try to do what the First Amendment requires of public institutions.)

The first reaction to the request has to be, “Sure, in principle. But we have to think about some things before we can sign off on this.” If a public university allows student groups to invite outside speakers, it can’t pick and choose based on how offensive the speaker is perceived to be. Likewise, all demonstrators have a (presumptive) right to use the streets, park, or auditorium — which is why they aren’t really making a request.

What sorts of things do officials who get the request have to think about? Suppose the demonstrators say they want to hold a fairly large demonstration on Main Street during rush hour. The officials can say, “Sorry, that’s going to be too disruptive. If you want Main Street, you’ve got to clear out by 3 pm. And if you want rush hour, you have to use a street a couple of blocks over.” Same for using heavily trafficked areas of the university, or — of course — auditoriums in which classes are already scheduled.

Milo Yiannopoulos has announced a return to Berkeley, with other controversial speakers, to force a showdown over “free speech.”
Milo Yiannopoulos has announced a return to Berkeley, with other controversial speakers, to force a showdown over “free speech.”
Stephanie Keith/Getty

Notice two things about this. The officials telling the organizers to move or reschedule their event aren’t basing their decision on what the demonstrators are going to say. In the jargon, their approach is “content neutral.” As far as they’re concerned, they’d say the same thing to Black Lives Matter, the Republican Party, the Democratic Party, and Richard Spencer, the white supremacist leader.

Large universities and cities with lots of experience probably have content-neutral rules in place about when and where demonstrations can occur. Other places might not, but will say that they’ve come up with rules on the spot that are good enough.

Of course, were he denied permission to demonstrate where and when he wants, Spencer might be suspicious about the officials’ claim that they would say no to the Democratic Party too. Fair enough. That’s what hearings before a judge are for; the officials will testify, and a judge will decide whether she believes them.

The second thing about the officials’ response is that if they say no regarding a proposed time and venue, they have to offer a reasonable alternative. Of course the demonstrators will think —correctly, from their point of view — that the alternative isn’t quite as good: Fewer people will see a demonstration at a plaza outside the engineering school than at Sproul Plaza, for example.

Still, if the city’s alternative is a reasonable one, that’s fine by the Constitution. (Again, “reasonable” is up to judges. Every four years the cities where national political conventions are held set aside specific areas for demonstrations against the parties, often not all that close to the convention site, and courts have routinely found these alternatives reasonable.)

Berkeley has the right to set rules that minimize the risk of violence

Avoiding violence has become an important concern for universities and cities. If there’s time, officials can ask organizers to provide a list of invited speakers and a guess about the number of people the organizers expect to attend — not to say yes to one speaker and no to another, but to figure out how many police officers to deploy.

There are two wrinkles here. With events planned in advance, like Free Speech Week, the university can ask for a fair amount of information. But sometimes demonstrations are more spontaneous, as we saw in St. Louis recently, after a white former police officer was acquitted in the fatal shooting of a black man. Advance planning is impossible, and the First Amendment requires cities and universities to be more flexible.

The other wrinkle involves paying for the security. In principle, the First Amendment allows the university to charge the organizers for additional security such as police overtime pay — if they can afford to. It would be silly to say that a city can’t charge Al Gore and his friends for the costs of cleaning up after a demonstration supporting the Paris climate accord. Courts have been pretty careful, though, to insist that cities do a good job of figuring out what those additional costs are, because the courts are correctly concerned that cities will manipulate the charges to make it too expensive for the organizers to hold a controversial demonstration.

If the organizers can’t pay the additional costs, most students of the First Amendment think that the city or the university has to eat the costs. The University of California has decided not to charge the organizers of Free Speech Week anything, more a pricey formula for avoiding litigation than a constitutional requirement.

One implication of security considerations is that someone who wants to use the auditorium on a specific Tuesday in October can’t complain about a violation of constitutional rights if the university says, “Sorry, we can’t organize security fast enough for that, but four weeks later is fine with us.” It doesn’t matter if the new date doesn’t coincide with the speaker’s book tour. (But, again, the speaker can challenge the claim that it’s really too difficult to set up security on her preferred date.)

So content neutrality and reasonable alternatives are the starting point in discussions about controversial speakers and demonstrations. It would be really nice if the city or the university had rules in place about such matters before the requests came in, so observers could have confidence that the rules weren’t jerry-rigged simply to get rid of this particular demonstration. But the world changes, and lawyers for cities and universities can’t anticipate every variation that might pop up. So it’s not a conclusive argument against moving a speech that the decision didn’t come from some rule that was in place before the request was made. And, again, places with more experience are likely to do better on this score — though even Berkeley had to revise its already reasonably good rules over the summer.

There has already been skirmishing over scheduling and the supplying of speakers’ names at Berkeley: The organizers wanted to rent several auditoriums, but they missed the deadlines the university set. And as of this week, the university said they hadn’t confirmed the exact lineup of speakers, which Berkeley says is important so it can make security plans.

If events on the ground change, Berkeley can change the rules on the fly too

The recent deadly white supremacist rally in Charlottesville, Virginia, revealed another potential complication: Events don’t always play out as predicted. Suppose the speaker says, “We expect that there will be a couple of hundred people at the demonstration.” Taking the applicant at his word, the city replies, “Okay, you can hold the demonstration where you want to.” Then it becomes apparent that lots more people are going to attend. Maybe a few of the new ones are unexpected supporters, but suppose most of them are going to disagree with the speaker.

Content neutrality means that the city can’t make its regulation of the demonstration dependent on distinguishing between people who support the speaker and those who oppose him. The opponents might swell the crowd and listen respectfully, or boo only occasionally. From the city’s point of view, all it cares about is size and its implications for security.

The protest in Charlottesville turned out to be larger and more unruly than officials had expected. The police were criticized for inaction.
The protest in Charlottesville turned out to be larger and more unruly than officials had expected. The police were criticized for inaction.
Chip Somodevilla/Getty Images

Maybe a small demonstration would be fine in a small park but a larger one wouldn’t. The Constitution lets the city adjust its regulation if circumstances change. (When Charlottesville tried to switch its permission from one park to another, a federal judge held a hearing and found — probably mistakenly, as things turned out — that the city hadn’t shown that circumstances had changed.)

The city can probably tell the demonstrators and the counterprotesters that they can’t carry weapons in or near the demonstration’s site, although that’s more a question of Second Amendment law and state law than First Amendment law.

All this is pretty basic, at least to those familiar with First Amendment law. Problems come up at the next stage, though. Suppose the speaker is going to say things that are going to anger a lot of listeners — whom we now can call counterdemonstrators rather than attendees. We’re now outside of “content neutrality land.” But we have to move carefully here.

What speakers can and cannot say

Begin with two easy cases. If the speaker shouts to his supporters, “Beat that motherfucker up!” the police can move in and arrest him. He’s “inciting imminent lawless action,” as the First Amendment rule puts it. (A federal judge recently held that candidate Donald Trump might have done just that when he said at a rally, “Get ’em out of here” — referring to protesters.)

But if the speaker says only, “Beat up every black man you see after you leave this demonstration,” the police can’t do anything to him. There’s a threat of violence, but it’s not imminent. (The Supreme Court held that the government couldn’t punish a speaker who shouted to a crowd being pushed off the street by the police, “We’ll take the fucking street later,” because the word “later” took the case out of the imminence category.)

The theory is twofold: Someone who’s inclined to go along might change his mind before he runs across a black man. And if someone does beat up a black man, the government should punish the actual assailant, not the speaker.

There’s another case that I think is easy one way, although I know lots of people who think it’s easy in just the opposite way: when a raucous crowd shouts down the speaker. A report from the Brookings Institution last week describes as troubling the fact that a narrow majority of students think that’s okay.

As far as I’m concerned — and, I think, as far as the First Amendment is concerned — it is okay. The jeerers are simply people attending the rally, no different from the supporters who cheer the speaker. It just so happens that the opponents vastly outnumber, or at least outshout, the supporters.

The opponents aren’t the government, so even if they prevent the speaker from getting his message across, that’s just too bad — or it’s speech countering speech.

I suppose you could say that the First Amendment gives the government a duty to make sure that the speaker is able to get his message across. But that’s implausible as a general principle. I have a lot of things I’d like to have lots of people hear, but I can’t dragoon the government into helping me get my message to them. Maybe you can figure out why the government has a duty in the context of demonstrations but not in the context of my political views, but I haven’t yet seen anyone do so effectively.

That’s not to say that shouting down a speaker is a good idea. I think it’s sometimes worth doing, but not often, and maybe universities should have unenforceable “civility” guidelines counseling against it. The First Amendment, though, doesn’t say anything either way about heckling.

The police must target lawbreakers first, but they can shut down a speaker to stop violence

There is one government duty, though: The government has to protect speakers against violence directed at them. This is the real problem when people talk about a “heckler’s veto,” but it’s not a problem about heckling. It’s a problem about violence.

Janet Napolitano, president of the UC system, has agreed to subsidize security for “Free Speech Week” — possibly to reduce the chances of a lawsuit.
Janet Napolitano, president of the UC system, has agreed to subsidize security for Free Speech Week — possibly to reduce the chances of a lawsuit.
Justin Sullivan/Getty Images

Oddly, the few relevant Supreme Court decisions — relatively old ones — suggest that the government can “protect” speakers against violence by arresting them, not the people who are threatening them. Since they were decided in the middle of the last century, though, a strong consensus among First Amendment scholars has developed that points the other way: If a speaker is likely to say things that will provoke listeners to attack him, the government’s (or Berkeley administrators’) first response has to be to put the police between the speaker and the angry crowd.

The response if violence erupts will be shaped partly by whether the government has properly gauged the size and unruliness of the protest, and sent enough officers.

Even if it has, there are limits to what the police can do. A small public college’s police force might be overwhelmed by a large, angry crowd. So might Berkeley’s. Even getting support from city police and state police agencies might not be enough, since every officer devoted to protecting the speaker is an officer who isn’t patrolling the city to prevent crime or make sure traffic is flowing freely elsewhere in the city.

If violence breaks out, the job of the police is to stop it. And the first way to stop it is by arresting the lawbreakers, whether they are counterdemonstrators or people supporting the speaker.

What if the police are overwhelmed and can’t stop the violence by arresting everyone who’s throwing stones or pointing guns? If it turns out that the police are overwhelmed by the violence, they can shut down the demonstration. If the speaker resists, the police can arrest the speaker as well as violent demonstrators and counterdemonstrators. “Can” here means: without violating the First Amendment. Under the First Amendment, the priority is stopping the violence, not stopping the speakers, which should be viewed in this context as an unwanted side effect.

At some point, however, violent clashes in the street — of the sort that we’ve seen in Berkeley already, and in Charlottesville — threaten to render legalistic discussion of the First Amendment beside the point.

When the arrival of controversial speakers provokes large-scale violent conflict, beyond the capacity of the police to control — and the speakers themselves aren’t even “inciting” this violence — we’re in pretty bad shape as a society. We probably should be worrying about more than free speech.

Mark Tushnet, a leading scholar of constitutional law and legal history, is the William Nelson Cromwell professor of law at Harvard Law School. He contributes to the blog Balkinization.


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