Free Speech, Campus Safety, or Both

Concrete barriers were erected and a security perimeter was created around six buildings, all reinforced by hundreds of police officers. Weapons, backpacks, helmets, and masks were forbidden. This was not some distant capital in a war zone. This was the University of California at Berkeley last night.

The occasion? A speech by the conservative writer Ben Shapiro, which attracted an audience estimated by one source to be around 1,000. Newspapers reported a few hundred protesters, mostly peaceful, and nine arrests. On other parts of the campus, people went about their work.

Given prior outbreaks of violence with other right-wing speakers, the university was adept at handling a volatile situation. Chalk that up to the leadership of Chancellor Carol Christ, careful planning and execution, and the police presence. But, as Shapiro himself noted, free speech is not free. The university estimated that the entire exercise cost over $600,000.

Berkeley is not likely to be an isolated case. Other right-wing speakers will be going there and to other campuses this fall. Some universities have declined to allow such speakers to address campus groups, fearing an outbreak of violence. Some have denied access altogether, resulting in several lawsuits. And the specter of Charlottesville hovers over the academy. The issue: How to honor free speech rights amid the potential bedlam.

To answer this question, one should begin with the constitutional framework. The historic core of First Amendment jurisprudence, applied to regulation of speakers on public-university campuses, is that the rules shaping access must be content-neutral. Those rules should neither privilege nor limit speech because of disagreement with the views of the speakers — whether white supremacists or proponents of racial equality, advocates or opponents of boycotting Israel, or support or opposition to the immigration policies of the Trump administration. Even nonviolent hate speech, heinous words vilifying African-Americans, gays, or Jews, for example, is protected under the prevailing view.

No doubt, hate speech is hurtful and distressing, but that alone does not justify censorship. There must be more for the government to act; abstract advocacy alone does not suffice. There must be an intention to incite immediate violence against specific individuals in a context that makes that outcome likely. If the speakers do not cross the incitement test, university administrators and the police are to use all reasonable efforts to control counterprotesters who may be bent on silencing a speaker or engaging in violence.

To say that the First Amendment applies to public-university campuses begins but does not end the discussion. As Robert C. Post, until recently the dean of Yale Law School, has shown, in much of their work universities routinely engage in assessment of the content of speech. One student receives an A for her final examination and another a failing grade. Some professors are granted tenure and others denied it based on the quality of their work. There are disciplinary truths, though sometimes they are wrong or limited, and yet that is the appropriate framework for making decisions about the quality of research, teaching, and student performance.

The complication occurs because the public areas of universities — Sproul Plaza at Berkeley, the West Mall at the University of Texas at Austin, the Lawn at the University of Virginia — have long been treated as limited public forums, differentiated from classrooms, libraries, and laboratories. Limited public forums are those set aside for expressive activities in line with the educational mission of welcoming a variety of speakers, ideologies, and ways of thinking.

Some universities have designated free-speech areas, seeking to regulate the time, place, and manner of speech. For example, it is desirable to limit the use of loudspeakers adjacent to buildings when classes are in session. But courts are increasingly skeptical about such zones, and many universities have abandoned them. The resulting situation is precarious and dangerous, both to the physical safety of those on campus and to free-speech values. In the weeks since deadly violence erupted in Charlottesville, Va., five universities have refused access to the white-supremacist Richard Spencer to speak on campus.

Campus leaders in all of those cases are confronted by the prospect of uncontrollable violence — sometimes because of the speakers, more often because of those antagonistic to the speakers. Universities may confront the agonizing choice of mounting a large and costly police presence, as at Berkeley, or else becoming vulnerable to lawsuits by those who are barred from access. Such a lawsuit had already been filed against Berkeley before last night’s speech, and at Michigan State University. The courts will examine whether security concerns serve as a pretext for content discrimination or represent good-faith efforts to ensure order in volatile situations.

There is plenty of blame to go around for the current situation. Elements of the left, which are present on many campuses, equate speech that they abhor with action. Their purpose is to protect the campus from such verbal assaults: Freedom of expression must yield to the righteousness of their cause. On the extreme right, with a more limited constituency on campus, agents provocateurs often come from outside, hoping to incite disarray and gain attention.

After the debacle in Charlottesville, the University of Virginia determined to undertake a review of campus rules and security resources to be better prepared to respond. That is probably a notable prelude to what may be a general rethinking among campus leaders about the challenge of maintaining open access. There are several possibilities, none wholly attractive:

• Instead of allowing open access to speakers or renting space to external speakers and organizations, a university might require, in keeping with its educational mission, that only the administration, appointed faculty members, and recognized student groups be permitted to issue invitations to speakers. Inevitably they would be making content-based decisions. They already do — whether the Hispanic-student association invites an opponent of a border wall, the Young Republicans invite an opponent of the Affordable Care Act, or the environmental engineers invite a luminary on global warming.

Most campus speakers address curriculum or research-related topics, and inevitably the line is fuzzy. One practical issue is that given the range of faculty and student-organization opinion, it is not clear that the array of speakers would change markedly. The Supreme Court in Healy v. James laid down some strictures on the recognition of student organizations at public universities. The courts probably would apply some version of a good-faith test, drawing on prior cases.

• Requirements that speakers and potentially hostile audiences not be armed (guns, knives, brass knuckles) and not conceal their identities by covering their faces are already in effect on many campuses. Berkeley, laudably, embraced that approach. These requirements should be strongly enforced, and could be ripe fodder for state legislatures to consider as they devise rules on the open carry of weapons.
• Another approach is to embrace more-careful planning, gathering better intelligence, and enhancing coordination between the campus police and administrators. Many campuses, including Berkeley this week, are doing so. Where the likelihood of violence is high, universities might limit the venues that are available, to ensure the safety of the speakers; facilitate policing of the site; and, alas, make certain that an emergency exit is available if the speaker’s safety is threatened. It is not clear how the courts would respond to such moves; there is a difference between providing a more secure site and attempting deliberately to reduce the size of potential audiences.

Many university presidents and chancellors, including Berkeley’s Carol Christ, proclaim their commitment to open discussion and the expression of sharply divergent views. We agree. But given the high stakes on campuses in turmoil, there also is an acute need for thoughtful re-evaluation, discussion, and improved planning to find reasonable ways to sustain free speech and also protect campus constituencies.

Mark G. Yudof is president emeritus at the University of California and a professor emeritus at the University of California at Berkeley School of Law. Kenneth A. Waltzer is a professor emeritus at Michigan State University and executive director of the Academic Engagement Network.