Even in today's overheated political environment, Berkeley's administration has lived up to its principles and its legal obligations, or tried: It has negotiated to facilitate speeches by invitees of campus conservatives, even highly controversial ones, and spent hundreds of thousands of dollars on security — notwithstanding objections from progressive students and faculty, who, wrongly, see free speech as an excuse for spreading hatred. The university has done so notwithstanding violence, actual or threatened, from violent ultraleft off-campus groups.
So why has Mr. Sessions's department just thrown its weight behind a lawsuit accusing Berkeley of violating conservatives' First Amendment rights? Young America's Foundation and Berkeley College Republicans filed suit late last year in connection with two proposed campus speeches by conservative celebrities — David Horowitz and Ann Coulter — that got scrubbed amid complaints by organizers that Berkeley unduly limited the times and venues for the events. This was discrimination based on ideology, the lawsuit alleged. On Jan. 25, the Justice Department filed a statement in San Francisco federal court urging the judge to reject Berkeley's motion to dismiss it — no doubt pleasing those on the right, President Trump included, who love to hate Berkeley.
As Berkeley recognizes, the Constitution requires state universities to let conservative invitees (and all others) speak on campus, subject only to reasonable time, manner and place restrictions. The plaintiffs in this suit argue that Berkeley's policies are vague and therefore give administrators excessive, easily abused discretion, which makes them unconstitutional. Berkeley's rationale for proposed limitations — security — amounts to granting violent elements a "heckler's veto," they say.
This is not an inherently mistaken argument, just a deeply unfair one in the Berkeley context. It's in the same spirit of Trump's tweeted threat a year ago to trim Berkeley's federal funds for purportedly failing to protect free speech. That came just after black-clad rioters invaded the campus, sowing destruction and stopping a planned speech by right-wing provocateur Milo Yiannopoulos. Berkeley's approach since that calamity has been understandably shaped by the experience; the school is being prudent, not enforcing a heckler's veto. In September, conservative talk show host Ben Shapiro spoke to hundreds of students at Berkeley's Zellerbach Hall, as hundreds more protested outside. Everything proceeded peacefully, thanks in part to a $600,000 university-funded police operation. Yet the lawsuit claims damages for that, too. Needless to say, the president did not tweet in appreciation.
Berkeley is making tough choices to balance safety and freedom, not selectively suppressing speech. A fair-minded president, and Justice Department, would have recognized that.
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