Berkeley's Battle with Free Speech - Constitutional Law Professor Sujit Choudhry Explains

Sujit Choudhry, UC Berkeley Law Professor

When former Breitbart editor Milo Yiannopoulos was scheduled to speak at UC Berkeley in February, student protests turned violent in the hours before the event causing administrators to cancel the speech. A recent Time.com article quoted a writer in San Francisco who described the campus climate as a "war zone" with "explosions happening everywhere," which led the author to lament the good old days when Berkeley was "known as a test bed for the First Amendment."

Just two months later, a speech by author Ann Coulter was initially rescheduled and later canceled amid threats of student protests. An editorial in one of the nation's most prestigious student publications, the Standford Review, echoed the irony expressed in the Time coverage noting, "If leftists at Berkeley were the champions of free speech in the 1970s, then conservatives at Berkeley have certainly taken on their mantle."

The popular narrative is best summed up by a contributor to the Herald-Mail: "The great irony is that Berkeley was the birthplace of “free speech” back in the ’60s. Now, free speech is under assault there."

While it's true that Berkeley is known for being home to the Free Speech Movement, that movement's mission wasn't always to protect unpopular liberal opinions such as opposition to the Vietnam war or the expansion of civil rights to Black people; it was at one time controlled by individuals who sought to quell those very sentiments.

The True Story of Berkeley's Free Speech Movement

UC Berkeley administrators are fond of perpetuating the perception that their university was a hotbed of counter-cultural resistance during the 1960s. The many student groups that protested various political issues during this time period have collectively been labeled "the Free Speech Movement," or FSM. However, as early as 1965, the banner of free speech was used as a vehicle to voice conservative and white nationalist agendas, just as it is today by alt-right advocates such as Yiannopoulos and Coulter.

Truthout recently published a great piece of investigative reporting on the history of the Berkeley FSM. Under the leadership of student activists like Mario Savio, the early days of what has been dubbed the FSM indeed focused on "social justice" issues such as partnering with local Black workers to protest racist hiring practices.

While people still think of the FSM as a left-wing movement, it hasn't only produced champions of social justice and liberal values. To commemorate the movement's 50th anniversary, the university's website highlighted prominent members including libertarians and UC Berkeley Young Republicans who spoke little about civil rights, yet they were grateful to have the opportunity to espouse their own political opinions.

What started as a coalition of liberal students striving to improve the lives of Black workers devolved into a fetishization of free speech led by mostly white and middle-class students. The FSM became ideologically incoherent, which is exactly what the conservative-aligned university administrators wanted.

The Future of Free Speech

The "right to free speech" has long been a right-wing rallying cry. People on all sides are fond of citing the First Amendment whenever they face backlash for voicing their opinions, but the history of free speech law in the US is riddled with contradictions. Courts have at times ruled that things like pornography and the act of burning a cross in public may legally be considered "speech," yet actual speech acts, such as yelling "Bomb!" in airport, will surely get you arrested.

Where is this wave of liberal violence coming from? It's not really new. The LA Times described the UC Berkeley violence as a black bloc operation, which has been common in the Bay area for over a decade and first occurred in Europe during the 1980s. According to local officials, the violence in February was perpetuated by an organized group that, "dressed “like ninjas” and marched onto UC Berkeley’s Sproul Plaza like a paramilitary force armed with bats, steel rods, fireworks and Molotov cocktails." This is the common scenario: masked protesters join a peaceful protest and begin committing violent acts. Such tactics are sometimes carried out by actual opponents of the protesters to undermine the peaceful protesters' credibility. Given the anonymity of the internet, it's easier to organize such actions than ever, and it's wholly possible that the violence was organized by conservative supporters of Milo Yiannopoulos. We can't know for sure, but it wouldn't be the first time a left-wing movement was high jacked by conservatives at Berkeley.

Perhaps conservative students should choose better heroes and get more on-target with their messaging rather than focusing exclusively on their right to offend liberals. Since characters like Yiannopoulos and Coulter thrive on attention, large scale protests will only embolden them; if liberal students believe their ideas are superior, then they should attend speeches by conservatives and debate their arguments. In the meantime, the Berkeley administration has an obligation to guarantee the safety of students, and they have acted correctly by uninviting Yiannopoulos and Coulter to campus; however, the administration should also own up to the role it played in creating the current campus climate.

Related: Hate Speech vs. Free Speech: A Critical Analysis By Constitutional Law Expert Sujit Choudhry

About Sujit Choudhry

Sujit Choudhry is a professor at the University of California Berkeley School of Law and the Director of the Center for Constitutional Transitions. He has published over 90 articles, book chapters and reports on the topics of comparative constitutional law and politics.

In addition to being a prolific writer and lecturer, Professor Choudhry has been a consultant to the World Bank Institute the United Nations Development Program. As a member of the United Nations Mediation Roster, he has served as an adviser in the constitution building process to governments in Africa, Asia and Europe.

For more information on Sujit Choudhry and the Center for Constitutional Transitions, visit his website or follow him on Facebook.


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