UC Berkeley: Free speech lawsuit is unfounded

There was heavy police presence at Cal on April 27 in anticipation of Ann Coulter-related protests. Photo: Ted Friedman

UC Berkeley is asking a federal court to dismiss a case alleging the university violated the First Amendment when handling plans to bring controversial speakers to campus. In a response filed Wednesday, the university said the Berkeley College Republicans and Young America’s Foundation’s claim that Cal stifled free speech is unfounded.

“The University never banned any speech,” the university said in court documents. “Rather, UC Berkeley instituted permissible time-place-manner restrictions to address specific and credible security threats.”

The conservative groups’ lawsuit, filed in April, alleges the university unconstitutionally canceled and restricted plans to bring prominent conservatives David Horowitz and Ann Coulter to campus.

The events in question followed the appearance of far-right provocateur Milo Yiannopoulos on campus in February. That event, where Yiannopoulos was expected to reveal the identities of undocumented students, was shut down by dozens of anti-fascist protesters, who destroyed university property and reportedly punched and pepper-sprayed people.

In the wake of that event, the Berkeley College Republicans, who brought Yiannopoulos to Cal, invited Horowitz and Coulter to come speak as well. UC Berkeley told the student group that the Horowitz event must be held during the day and away from the center of campus, should be limited to students and would require a nearly $6,000 security fee.

“Rather than comply with restrictions, Plaintiffs chose to cancel the event,” UC Berkeley said in its response.

Shortly thereafter, the College Republicans, securing funding from the Young America’s Foundation, invited Coulter to campus. UC Berkeley administrators say they learned from reading the news that Coulter had been promised a specific date. Administrators told the students they would work to find a safe venue for that date but later said “extensive efforts” to do so failed.

Campus police said they had “very specific intelligence regarding threats that could pose a grave danger to the speaker, attendees and those who may wish to lawfully protest the event,” according to court documents.

Conservative demonstrators pose for a group photo before their rally in Civic Center Park April 27, the day Ann Coulter had hoped to speak at UC Berkeley. Photo: David Yee ©2017

The university proposed an alternate date for the Coulter event, but the College Republicans noted it was during “Dead Week” when few students would be on campus, and that Coulter had only signed onto the initial plan. They said UC Berkeley had canceled the event, violating their free speech rights and discriminating against conservatives.

In the new response, UC Berkeley begged to differ: “Plaintiffs’ First Amendment free speech claim fails because the relevant venues were limited public forums and the alleged restrictions were reasonable and viewpoint neutral.”

The university also laid out the process it plans to follow to create a new campus event policy. The administration will seek extensive input from the public and student groups, the response said.

On Thursday, Young America’s Foundation released a statement on UC Berkeley’s response, calling it “bizarre.”

“Berkeley’s response laughably alleges that its actions — welcoming prominent liberals, including Maria Echaveste, a top aide to President Bill Clinton and Vicente Fox Quesada the former president of Mexico, while simultaneously denying equal access for students attempting to host David Horowitz and Ann Coulter—are ‘viewpoint neutral,'” the statement said.

The organization also criticized Cal’s plan to develop an event policy with input from the public.

“The very idea that a free speech policy is open to discussion or negotiation is absurd. UC-Berkeley administrators should base any policies protecting students’ constitutional rights on the Constitution itself,” the statement said.

The conservative groups, represented by attorney Harmeet K. Dhillon, filed their suit against UC President Janet Napolitano, Chancellor Nicholas Dirks, UCPD Captain Alex Yao and other Cal officials in U.S. District Court in Northern California in April. The groups are asking for a jury trial, an injunction stopping UC Berkeley from “restricting the exercise of political expression on the UC Berkeley campus,” and damages for attorney fees. A court date is set for August 25.

Amid the tension between the conservative groups and Cal officials, Coulter threatened to come to Berkeley anyway on the initially proposed date, April 27, implying she would speak outdoors. She did not end up coming, saying the students who had supported her had failed to guarantee her safety.

UC Berkeley set up barricades around Sproul Plaza that day, and UCPD turned out in force. Little action ended up occurring on campus, but members of the far-right, including many who came from out of town, held a “free speech rally” in Martin Luther King Jr. Civic Center Park. The event was peaceful, in large part because counter-demonstrators did not show up to confront the protesters, except for a brief interaction between anti-fascists and the far-right at the end of the day.