Spin: Why is UC Berkeley Claiming Victory in the Free Speech Lawsuit They Settled With YAF?

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Posted: Dec 04, 2018 2:01 PM
Spin: Why is UC Berkeley Claiming Victory in the Free Speech Lawsuit They Settled With YAF?

By way of background, we covered the anti-speech machinations at the University of California at Berkeley last year pretty closely -- from the riots, to the exorbitant, mandatory, and unevenly-applied security fees, to the discriminatory, speech-squelching limitations imposed upon conservative groups.  Free expression on campus is an issue close to my heart, so I've been following the situation at Berkeley with great interest.  Although I oppose government micromanagement of speech codes and the like, I've argued that if state universities refuse to safeguard fundamental constitutional rights, the government does have an interest to intervene.  Such intervention could come in the form of withheld taxpayer funds, or through corrective judicial rulings.  

As Katie wrote yesterday, Young America's Foundation (YAF) is cheering the outcome of a lawsuit they filed against Cal, which was settled out of court.  They're calling it a comprehensive victory -- and not without reason: The school was ordered to pay YAF's $70,000 legal tab, a fate that sometimes befalls losers of legal battles, but virtually never cuts in the opposite direction.  And the university agreed to alter and abandon controversial policies that disproportionately, or even exclusively, negatively impacted right-leaning groups.  Details, via YAF:

"No longer can UC Berkeley place a 3:00 p.m. curfew on conservative speech. No longer can UC Berkeley ban advertisements for Young America’s Foundation-sponsored campus lectures. And no longer can UC Berkeley relegate conservative speakers to remote or inconvenient lecture halls on campus while giving leftist speakers access to preferred locations. Further, the policy that allowed Berkeley administrators to charge conservative students $20,000 for security to host Ben Shapiro—an amount three times greater than the fee charged to leftist students to host liberal Supreme Court Justice Sonia Sotomayor—is gone. YAF and UC Berkeley agreed to a fee schedule that treats all students equally. Unless students are handling money or serving alcohol at an event, the security fee will be zero...This win for free speech—a blow to radical Antifa mobs—means university facilities will be available to students on a first-come, first-served basis. No longer will the community’s reaction to speech be factored into decisions regarding lecture venues, meaning intolerant leftists cannot use the 'heckler’s veto' to determine who is allowed to speak or where they’re permitted to appear."

Consider the football spiked:


These are clearly positive and just outcomes, forced by more than a year's-worth of litigation.  Yet UC Berkeley is framing the settlement as a win for their side, too, calling it a 'validation' of their policies that is "all but indistinguishable from what a courtroom victory would have looked like."  According to their spin, much more money would have been spent fighting this battle through trial, so $70,000 is really tantamount to a proverbial drop in the bucket.  It's likely true that this result saved the university money (especially considering that the Trump Justice Department formally weighed in on the case, earlier this year in favor of YAF's position), but as I alluded to earlier, the victorious party generally isn't forced to pay the losing side's legal fees.  Furthermore, it's a major stretch to claim that Cal's policies were effectively "validated" by the settlement, even if the dispute over viewpoint discrimination was not resolved or conceded.  Several guidelines were updated with new verbiage to satisfy both parties.  Allahpundit thinks the biggest pro-speech victory lies in the changes to Berkeley's security policies:

They jettisoned the factors that might inflate the fee for “basic event security” as the threat to a particular event rises, which is good. And it looks like Major Events will no longer face special fees that non-Major ones do, which is also good. Presumably that means more reasonable fees, even if the schedule isn’t available online yet. The fee issue is important because it’s not limited to Berkeley...

That last bit is undoubtedly correct, as these skirmishes have arisen across the country; in fact, as AP notes, YAF just recently paid (under protest) an enhanced security fee for a Ben Shapiro event at Pitt.  Litigation may be forthcoming over the episode, too.  Hopefully the Berkeley precedent will convince public university administrators across the country that bowing to the mob, or succumbing to the heckler's veto, is not just a moral wrong, but also a legally-unsustainable course of action.  I'll leave you with a number of prominent conservatives going to bat for a far-left professor whose job is being threatened over his deeply objectionable anti-Israel (and quite arguably anti-Semitic) speech, which prompted his firing by CNN:

CNN is under no obligation to employ Hill; his bosses can fire him because they don't like his opinions. The same is not true for Temple, a state-related research university in Philadelphia, where Hill has tenure. Nevertheless, Patrick O'Connor, the chairman of Temple's board, tells Philly.com that "no one is happy with [Hill's] comments." More concerning, O'Connor—described as a prominent lawyer in the article—also said, "Free speech is one thing. Hate speech is entirely different." This distinction between "hate speech" and "free speech" is nonsense. No Supreme Court decision has ever recognized hate speech as a separate, unprotected category of speech, and any attempt to regulate hate speech at a public university would assuredly be struck down as unconstitutional...Temple administrators should stand down immediately. They can criticize Hill all they want, but anti-Israel statements are protected speech, hateful or not.


The principle of free speech is tested by provocative and offensive content. Prof. Hill's views on Israel are odious, even if he's walked back his eliminationist comments. But odious views (or alleged odious views) generally should not be a firing offense in America.