Overbreadth in UC Berkeley’s Free Speech Battle

By: Gianna Fienberg, L’19

The University of California at Berkeley is considered to be a bastion of free speech.[1] Berkeley started the Free Speech Movement in 1964, when students held a sit-in to protest restrictions on free speech at the University that prevented students from distributing flyers about major political issues, such as the Civil Rights Movement or the Vietnam War.[2] Today however, some conservatives are questioning whether Berkeley is still strongly committed to protecting free speech after the University experienced numerous conflicts with conservative organizations and speakers in 2017.[3]

 

The clash began in February 2017, when Berkeley canceled a speaking event by Milo Yiannopoulos, a former Breitbart editor.[4] In anticipation of Milo’s appearance on campus, more than 1,500 people protested outside the venue.[5] However, the peaceful protest quickly turned violent as individuals started fires, attacked other students, and threw objects at police.[6] Ultimately, six people were injured and the campus suffered over $100,000 in damages before Berkeley canceled the event and dispelled the crowd.[7] A month later, a pro-Trump march on campus led to seven injuries and ten arrests when marchers and counter-protesters clashed.[8] Everytime a conservative speaker wanted to visit the campus the school faced riots, vandalism, and upwards of $600,000 in security costs.[9]

 

In response, Berkeley imposed a new policy that placed burdens on the times and locations that “high-profile” speakers could hold events on campus.[10] The policy imposed a 3 p.m. curfew for all speaking events featuring “high-profile” or controversial speakers and gave university officials wide discretion to issue additional security and venue restrictions.[11] The curfew minimized the audience size that “high-profile” speakers could attract because they were forced to hold their events at hours that conflicted with class times.[12] Berkeley reasoned that by holding events during the day when less students would be able to attend the crowds would be smaller, more manageable for police, and less likely to turn violent.[13] However, Berkeley received push-back from student organizations because the “high-profile” speaker policy offered no guidance on how university officials were to distinguish between “high-profile” or controversial speakers and “low-profile” ones.[14] Instead, university officials had complete, unreviewable discretion to determine whether a guest was a “high-profile” or controversial speaker.[15]

 

The clash continued when the Young America’s Foundation (YAF), a national conservative youth organization, and the Berkeley College Republicans (BCR) invited Ann Coulter, a conservative political commentator, to speak on campus about illegal immigration in April of 2017.[16] In response, Berkeley officials exercised their authority under the “high-profile” speaker policy and forced the students to schedule the event before 3 p.m. and pay a higher security fee.[17] Despite YAF and BCR’s attempts to comply with these restrictions, the University canceled the event out of concern that it was too dangerous for students.[18] Although the University allowed the student groups to reschedule the event, Coulter was unable to attend at the later date.[19] As a result, YAF and BCR filed suit against Berkeley.[20]

 

YAF and BCR alleged that school administrators  used the “high-profile” speaker policy to target and silence conservative speakers but not liberal ones.[21] In support of their allegation, the student groups pointed out that Berkeley allowed two liberal speakers, former Mexican President Vicente Fox and former Bill Clinton Deputy Chief of Staff Maria Echaveste, to hold talks on illegal immigration, the same topic Coulter was scheduled to address, after the 3 p.m. curfew.[22]  The Department of Justice (DOJ) agreed with these conservative student organizations.[23] On January 25, 2018, the DOJ filed a Statement of Interest in YAF and BCR’s case against UC Berkeley.[24] The DOJ argued that Berkeley’s “high-profile speaker” policy gives school administrators “unfettered discretion” to decide which speakers are “high-profile” and therefore burdened by the 3 p.m. curfew, high security costs, or undesirable venues.[25]

 

YAF, BCR, and DOJ argue that Berkeley’s “high-profile” speaker policy violates the First Amendment overbreadth doctrine.[26] The overbreadth doctrine enables a party to claim that an entire statute or policy violates the First Amendment because it restricts a substantial amount of protected speech, even if the party’s own exercise of expression is not protected by the First Amendment.[27] The purpose of the overbreadth doctrine is to create some breathing space around the First Amendment  to ensure that restrictions on speech are aimed only at unprotected, impermissible speech.[28] The overbreadth doctrine requires that any statutes or policies regulating the time, place, and manner of speech provide clear standards to guide officials in implementing any discretion given to them.[29] The purpose of this provision of the overbreadth doctrine is to prevent officials charged with implementing a content-neutral restriction on speech, one that regulates the time, place, or manner of speech without regard to who the speaker is or what the message is, from using their discretion to block speech that they do not agree with. The DOJ, YAF, and BCR believe Berkeley’s “high-profile” speaker policy is overbroad because it does not provide sufficient standards or limits on university officials’ power to determine who is a “high-profile” speaker.[30] Therefore, Berkeley officials are able to use their discretion to ban conservative speakers, or at least limit the audiences they can reach.[31]

 

Young America’s Foundation v. Napolitano, the case between YAF, BCR, and UC Berkeley, is currently being heard in the California Northern District Court.[32] A hearing was held on February 16, 2018, to determine whether the overbreadth claim holds any merit.[33] YAF and BCR argued that Berkeley has in fact used the “high-profile” speaker policy to force conservative groups to hold events at undesirable locations and times but does not place these same restrictions on liberal groups.[34] Moreover, the conservative groups noted that conservative speakers have been completely barred from speaking on campus because of the prohibitive security costs placed upon them.[35] However, Berkeley contended that it wants conservatives to speak on campus, but it has a responsibility to ensure that students attending the events are safe.[36] The University claimed that liberal speakers simply do not pose the same security threats as their conservative counterparts.[37] In fact, YAF and BCR’s lawyer was unable to point to a single event with a liberal speaker that posed the same safety risks that conservative events do.[38] Thus, Berkeley says it restricts threatening speech, not conservative speech.[39] At a time when universities all across the nation are grappling with the boundaries of free speech on campus, the district court’s decision could have broad implications for the extent of universities’ power to regulate speech on their campuses.[40]

[1] Andrea Fabián-Checkai, UC Berkeley and Free Speech in 2017: A Year in Review, Wᴀꜱʜ. Exᴀᴍɪɴᴇʀ (Dec. 16, 2017), http://www.washingtonexaminer.com/uc-berkeley-and-free-speech-in-2017-a-year-in-review/article/2643704.

[2]  Richard Gonzales, Berkeley’s Fight for Free Speech Fired Up Student Protest Movement, NPR (Oct. 5, 2014), https://www.npr.org/2014/10/05/353849567/when-political-speech-was-banned-at-berkeley.

[3] Andrea Fabián-Checkai, UC Berkeley and Free Speech in 2017: A Year in Review, Wᴀꜱʜ. Exᴀᴍɪɴᴇʀ (Dec. 16, 2017), http://www.washingtonexaminer.com/uc-berkeley-and-free-speech-in-2017-a-year-in-review/article/2643704.

[4] Andrea Fabián-Checkai, UC Berkeley and Free Speech in 2017: A Year in Review, Wᴀꜱʜ. Exᴀᴍɪɴᴇʀ (Dec. 16, 2017), http://www.washingtonexaminer.com/uc-berkeley-and-free-speech-in-2017-a-year-in-review/article/2643704.

[5] Andrea Fabián-Checkai, UC Berkeley and Free Speech in 2017: A Year in Review, Wᴀꜱʜ. Exᴀᴍɪɴᴇʀ (Dec. 16, 2017), http://www.washingtonexaminer.com/uc-berkeley-and-free-speech-in-2017-a-year-in-review/article/2643704.

[6] Andrea Fabián-Checkai, UC Berkeley and Free Speech in 2017: A Year in Review, Wᴀꜱʜ. Exᴀᴍɪɴᴇʀ (Dec. 16, 2017), http://www.washingtonexaminer.com/uc-berkeley-and-free-speech-in-2017-a-year-in-review/article/2643704.

[7] Madison Park & Kyung Lah, Berkeley Protests of Yiannopoulos caused $100,000 in Damage, CNN (Feb. 2, 2017), http://www.cnn.com/2017/02/01/us/milo-yiannopoulos-berkeley/index.html.

[8] Andrea Fabián-Checkai, UC Berkeley and Free Speech in 2017: A Year in Review, Wᴀꜱʜ. Exᴀᴍɪɴᴇʀ (Dec. 16, 2017), http://www.washingtonexaminer.com/uc-berkeley-and-free-speech-in-2017-a-year-in-review/article/2643704.

[9] Jocelyn Gecker, The Cost of Free Speech Isn’t Cheap at UC Berkeley, US Nᴇᴡꜱ (Sept. 15, 2017), https://www.usnews.com/news/politics/articles/2017-09-14/uc-berkeley-under-tight-security-for-conservative-speaker.

[10] Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[11] Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[12] Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[13] See Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[14] Habib Olapade, Berkeley Deals Another Blow to Free Speech, Sᴛᴀɴ. Rᴇᴠ. (May 7, 2017), https://stanfordreview.org/berkley-deals-another-blow-to-free-speech-d9cfce3ae013/.

[15] Habib Olapade, Berkeley Deals Another Blow to Free Speech, Sᴛᴀɴ. Rᴇᴠ. (May 7, 2017), https://stanfordreview.org/berkley-deals-another-blow-to-free-speech-d9cfce3ae013/.

[16] Eliott C. McLaughlin, Ann Coulter Controversy Tests Berkeley’s Free Speech Credentials, CNN (Apr. 27, 2017), https://www.cnn.com/2017/04/27/us/berkeley-ann-coulter-free-speech/index.html.

[17] Habib Olapade, Berkeley Deals Another Blow to Free Speech, Sᴛᴀɴ. Rᴇᴠ. (May 7, 2017), https://stanfordreview.org/berkley-deals-another-blow-to-free-speech-d9cfce3ae013/.

[18] Habib Olapade, Berkeley Deals Another Blow to Free Speech, Sᴛᴀɴ. Rᴇᴠ. (May 7, 2017), https://stanfordreview.org/berkley-deals-another-blow-to-free-speech-d9cfce3ae013/.

[19] Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[20]  Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[21] Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[22] Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726; Habib Olapade, Berkeley Deals Another Blow to Free Speech, Sᴛᴀɴ. Rᴇᴠ. (May 7, 2017), https://stanfordreview.org/berkley-deals-another-blow-to-free-speech-d9cfce3ae013/.

[23] Office of Public Affairs, Department of Justice, Justice Department Files Statement of Interest in California College Free Speech Case, U.S. Dᴇᴘ’ᴛ Jᴜꜱᴛ. (Jan. 25, 2018), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-california-college-free-speech-case.

[24] Office of Public Affairs, Department of Justice, Justice Department Files Statement of Interest in California College Free Speech Case, U.S. Dᴇᴘ’ᴛ Jᴜꜱᴛ. (Jan. 25, 2018), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-california-college-free-speech-case.

[25] Office of Public Affairs, Department of Justice, Justice Department Files Statement of Interest in California College Free Speech Case, U.S. Dᴇᴘ’ᴛ Jᴜꜱᴛ. (Jan. 25, 2018), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-california-college-free-speech-case.

[26] Rishabh Nijhawan, US Department of Justice Supports Free Speech Lawsuit Against UC Berkeley, Dᴀɪʟʏ Cᴀʟɪꜰᴏʀɴɪᴀɴ (Jan. 28, 2018), http://www.dailycal.org/2018/01/28/us-department-justice-supports-free-speech-lawsuit-uc-berkeley/.

[27] Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

[28] Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).

[29] Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

[30] Office of Public Affairs, Department of Justice, Justice Department Files Statement of Interest in California College Free Speech Case, U.S. Dᴇᴘ’ᴛ Jᴜꜱᴛ. (Jan. 25, 2018), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-california-college-free-speech-case.

[31] See Office of Public Affairs, Department of Justice, Justice Department Files Statement of Interest in California College Free Speech Case, U.S. Dᴇᴘ’ᴛ Jᴜꜱᴛ. (Jan. 25, 2018), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-california-college-free-speech-case.

[32] Kat Greene, Conservative Groups Sue Berkeley Over Ann Coulter Speech, Lᴀᴡ360 (Apr. 24, 2017), https://www.law360.com/articles/916726.

[33] Nicholas Iovino, Conservatives Face Tough Slog in UC Berkeley Free Speech Fight, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ Sᴇʀᴠ. (Feb. 16, 2018), https://www.courthousenews.com/conservatives-face-tough-slog-in-uc-berkeley-free-speech-fight/.

[34] Nicholas Iovino, Conservatives Face Tough Slog in UC Berkeley Free Speech Fight, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ Sᴇʀᴠ. (Feb. 16, 2018), https://www.courthousenews.com/conservatives-face-tough-slog-in-uc-berkeley-free-speech-fight/.

[35] Nicholas Iovino, Conservatives Face Tough Slog in UC Berkeley Free Speech Fight, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ Sᴇʀᴠ. (Feb. 16, 2018), https://www.courthousenews.com/conservatives-face-tough-slog-in-uc-berkeley-free-speech-fight/.

[36] Nicholas Iovino, Conservatives Face Tough Slog in UC Berkeley Free Speech Fight, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ Sᴇʀᴠ. (Feb. 16, 2018), https://www.courthousenews.com/conservatives-face-tough-slog-in-uc-berkeley-free-speech-fight/.

[37] Nicholas Iovino, Conservatives Face Tough Slog in UC Berkeley Free Speech Fight, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ Sᴇʀᴠ. (Feb. 16, 2018), https://www.courthousenews.com/conservatives-face-tough-slog-in-uc-berkeley-free-speech-fight/.

[38] Nicholas Iovino, Conservatives Face Tough Slog in UC Berkeley Free Speech Fight, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ Sᴇʀᴠ. (Feb. 16, 2018), https://www.courthousenews.com/conservatives-face-tough-slog-in-uc-berkeley-free-speech-fight/.

[39] Nicholas Iovino, Conservatives Face Tough Slog in UC Berkeley Free Speech Fight, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ Sᴇʀᴠ. (Feb. 16, 2018), https://www.courthousenews.com/conservatives-face-tough-slog-in-uc-berkeley-free-speech-fight/.

[40] See Beth Howard, Colleges Tackle Free Speech, Trigger Warnings, Safe Spaces, US Nᴇᴡꜱ (Sept. 21, 2017), https://www.usnews.com/education/best-colleges/articles/2017-09-21/colleges-tackle-free-speech-trigger-warnings-safe-spaces.

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