By Kunal Kerai | UC Berkeley
If you are looking for an easy read, looking to confirm a bias you have prior to opening this article, or to comment about how this post belongs on Facebook, spare yourself the time and leave.
On February 1, 2017, Milo Yiannopoulos, was scheduled to speak on UC Berkeley’s campus amidst protests, and a resistance dance party. Initially, the protests attracted nonviolent protesters, but as the evening progressed and armed individuals took over Sproul Plaza, nonviolence devolved to violence, and organized peaceful demonstration devolved into disorganized chaotic rioting. The protests at Berkeley (yet again) catapulted the University and its students into the public spotlight so far as President Trump tweeted to threaten to pull federal funding from the university.
Having been at the protests personally, it is frustrating to see people, who completely unaware of the situation, consume media without questioning the narrative presented before them. A few too many people– including our president– believe that UC Berkeley infringed on Yiannopoulous’s right to free speech without realizing what “free speech” actually means. Moreover, the very same people may not realize that Yiannopoulos’s speech is not necessarily protected, and that he can be held liable for damages.
This article will cover the differences between free speech and speaking freely, what transpired at UC Berkeley, Trump’s threat to divest from UC Berkeley, and Yiannopoulos’s potential for a lawsuit. While I will cover a range of topics, at the core of this article is the highly complex topic of free speech. I am willing to admit that prior to writing this article, I was very uneducated on the topic of free speech. After 32 hours (yes, 32 hours) of researching cases, reading Supreme Court opinions, and examining legal tests used in legal scrutiny, I can say that I am more uneducated on the topic. I am in no means a legal expert– Supreme Court Justices who have decades of experience still struggle with interpreting the First Amendment. I write to present a sorely lacking legal perspective on the topic of the Berkeley protests.
With that said, let us begin.
Free Speech, or Speaking Freely?
Freedom of speech (or free speech) is one of the most misunderstood concepts in American politics. It’s often used as a defensive tactic to deflect, or to disarm dissenting opinions. Humorously enough, it’s also used to supposedly make one who says something so grossly offensive immune from harsh criticism, public ridicule, or societal ostracization. As my favorite xkcd comic puts it:
In either of the above scenarios, the First Amendment (by virtue of mentioning “free speech”) is not applicable. That when persons generally cite “free speech”, they are, rather, referring to their ability to speak freely.
But they are the same thing. Why are you being picky about word choice?
As rhetoricians, we are taught that words hold power, and even the slightest change in a word, phrase, or clause can change the semantic meaning, or the thought being conveyed. While the denotations of “free speech” and “speaking freely” may be similar (both denote the ability to convey opinions without censorship) , the connotations differ so greatly that a distinction must be made. So then, what is the distinction?
As mentioned earlier, when persons generally invoke “free speech” (remember that it is a truncation of “freedom of speech”), they are referring to the First Amendment. Since all ratified amendments are part of the U.S. Constitution– a legal document that pertains to the institution of government– and the First Amendment is a ratified amendment, persons who cite the First Amendment are citing the U.S. Constitution. It can therefore be said that the nature of “free speech” is not only legal, but also institutional. In addition, the etymology of “free speech” ties back to the English Bill of Rights (1689), and Americanism, which is further evidence that the definition is both legal and institutional.
Then there is “speaking freely”, or “to speak freely”. Simply put, there is no reference, or etymological ties to the law, or an institution when saying this. Here’s an example with both:
I am entitled to free speech.
I am entitled to speaking freely.
Notice that while both sentences have the same denotation, they differ in meaning because of the presence of legal and institutional connotations in the former, and the absence thereof in the latter. If this does not make sense, let’s break “free speech” down further by examining the exact wording of the First Amendment, which is:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – 1st Amendment, Bill of Rights
What furthers the point that the definition of “free speech” is legal and institutional is the direct reference to law (“shall make no law”), and the institution of government (“Congress”, “Government”). Yes, the First Amendment prevents an establishment of an official religion, and promotes a citizen’s rights to exercising religion, freedom of speech and press, to peaceably assemble, and to petition, but this is conditional in that the government (federal, and because of the 14th amendment, state and local, too) must be an involved party; the contested issue must be a “matter of public concern”. In other words, unless the government is involved somehow, the First Amendment does not apply for the private sector, or between private citizens.
This theoretically means that a private employer can fire persons “employed-at-will” (most people) for expressing their beliefs (although five states prohibit this completely), because “An employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” In other words, the fired employee cannot file a suit against the employer on the basis of the First Amendment as Dr. Cox, an employment discrimination lawyer, mentions.
This theoretically means that a persons’ speech is not protected by the First Amendment on a private university campus. This is particularly evident when NYU cancelled Yiannopolous’s appearance without infringing on his First Amendment rights, simply because he does not have any on a private campus.
This theoretically means that a social media company could ban a person, or delete their posts because “free speech” does not apply, and instead is governed by its own Terms of Service. This was the case when Milo Yiannopoulos targeted actress Leslie Jones. Despite Milo’s cries for free speech, Twitter maintained the ban on account that he violated Twitter’s “abusive speech” clause. In this case, Twitter is a private corporation, and Milo is a private citizen, therefore the First Amendment is not applicable–Milo cannot have his rights violated if they are not protected by the law.
Hate speech is free speech. BUT there are exceptions.
“Hate speech”, in the conventional sense, is protected by the First Amendment. The Supreme Court has upheld the rights to free speech for the KKK, Nazis, and Westboro Baptist church in Brandenburg v. Ohio (1969), National Socialist Party v. Skokie (1977), Snyder v. Phelps (2011), respectfully. In addition, individuals are allowed to use offensive words and phrases to convey a political message as established in Cohen v. California (1971). It is terribly unfortunate and disheartening that people have to suffer, or fear for their lives in name of free speech, but as UC Irvine Chancellor Howard Gillman put it,
Universities “support free speech and condemn censorship for two reasons — to ensure that positive, helpful, illuminating messages can circulate widely, and to expose hateful or dangerous ideas that, if never engaged or rebutted, would gain traction in the darker corners of our society. Hate speech is like mold: Its enemies are bright light and fresh air.”
However, there are certain aspects of speech that are not protected by the First Amendment, which include: defamation (libel and slander), sedition, incitement to crime, actions that would cause imminent harm/ lawlessness (shouting “fire” in a theater when there isn’t one), and “fighting words”. Should “hate speech” include one of the following exceptions, only then would that speech be subject to a lawsuit or governmental interference.
Yiannopoulous claims U.C. Berkeley violated the First Amendment. He is wrong.
Let’s take a look at the Facebook status he posted the following day of the protest to see if his claims are true.
Does U.C. Berkeley demonstrate a commitment to the First Amendment?
Yes. Despite pressure from certain students, student groups, and a petition/letter signed by over 100+ faculty members, the administration allowed for Yiannopoulos to speak on campus. While the move was considered by many distasteful, it was in line with both the campus’s designation as a limited public forum, and the ruling from Supreme Court case Lamb’s Chapel v. Center Moriches Union Free School District(1992), that disallows public universities from refusing its space to certain groups on the basis of “viewpoint discrimination”. Should the administration have cancelled the event, or refused providing space for Yiannopoulos, the campus would have been in violation of the First Amendment, but this is not the case as the University did not refuse space to him. UC Berkeley upheld its legal obligation to the First Amendment.
Did U.C. Berkeley take all the measures it could to guarantee the safety of its speakers, students, and visitors?
Yes. The administration provided all the safety to the fullest extent of its power. Having been at one of the protests myself, I can attest that there was a more than sizable security force in place in addition to an abundant amount of barricading to protect Yiannopolous and the audience. Berkeley College Republicans (BCR) paid the standard $10,000 that any student organization has to pay for security and should they have wanted more, then they should have spent more money on more security.
After all, they were warned by the administration that things may get violent, and they had a more than foretelling track record with a man being shot in Seattle, and heated protests that have occurred on other college campuses. In the campus’s own words:
“UC Berkeley officials and [University police] went to extraordinary lengths to plan for this event, working closely with the Berkeley College Republicans and putting the appropriate resources in place to maintain security. Officials were in contact with other university campuses where Yiannopoulos had been asked to speak, and they paid close attention to lessons learned. Dozens of additional police officers were on duty for Wednesday’s scheduled event, and multiple methods of crowd control were in place. Ultimately, and unfortunately, however, it was impossible to maintain order given the level of threat, disruption and organized violence.”
To the reasonable person, what else could be done by the university to protect the speaker, audience, and protesters without impeding on anyone’s right to free speech?
Can Trump divest federal funds from U.C. Berkeley?
Following the extensive coverage of the Berkeley protests, President Trump tweeted the following tweet:
No. He cannot divest federal funds from the University without violating the First Amendment, or having his decision reversed by a federal court. This is because Berkeley’s administration took all the steps necessary to protect the First Amendment rights of Yiannopoulos and the audience. To hold Berkeley accountable for the actions of the violent few is as absurd as holding all white people accountable for the actions of the KKK and Westboro Baptist Church– the argument does not stand. Moreover, the University cannot be held liable for the actions of private citizens (violent protesters) simply because the violence occurred on campus.
Yiannopoulos plans to return to Berkeley, but may not be protected by the First Amendment. In fact, he could be sued.
On his Facebook page, Yiannopolous mentioned he has plans to return to Berkeley within the next few months. Should he return, he may not be protected under the First Amendment, based on his current track record.
During his speech at UW Milwaukeee, Yiannopoulos spoke on the issue of Title IX, then outed Adelaide Karen Kramer, a trans student, by putting their picture up in front of hundreds of people. Yiannopoulos said the following about Kramer: “I have known some passing trannies in my life. Trannies—you’re not allowed to say that. I’ve known some passing trannies, which is to say transgender people who pass as the gender they would like to be considered. The way that you know he’s failing is I’d almost still bang him.” In her own words, Kramer responded,
“I have never, ever, ever been more terrified in my life of being outed. Ever.”
It eventually got to the point where she no longer felt safe at her school, and transferred to another institution to finish her education.
Before proceeding, it is crucial to understand that even though Yiannopoulos is on public property, that his speech is not automatically protected by the First Amendment. It very much depends on the factors that play out.
Yiannopolous is not protected under the First Amendment because his attack on Kramer can be considered defamation, and his speech can constitute as “fighting words”. In Kramer’s case, she was subject to both public ridicule, and it injured her profession as a student by forcing her to dropout, re-apply to a different school, transfer, and pay the associated fees in resuming her education.
The First Amendment protects a speaker as long as the topic they cover is a matter of public concern, not private concern. In Time, Inc. v. Firestone (1976), the Supreme Court asserted that in order to be a public figure, one must ” assume any role of especial prominence in the affairs of society” or “thrust [oneself] to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” Prior to the incident, Kramer was neither in a role of “especial prominence” nor thrusted herself “to the forefront of any particular public controversy”. The case supports that she is not a public figure, and therefore the nature of her business is of private concern.
Justice Alito, a conservative Bush appointee, powerfully dissented in Snyder v. Phelps (2011) where he asserts,
“A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].” And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure”.
Yiannopolous could have made the same statement on bathroom politics without needing to directly target Kramer, who again is a private citizen, into the public spotlight by posting her picture in front of hundreds, then ridiculing her. Yiannopolous executed an intentional attack on Kramer. Breyer asserts in Snyder v. Phelps (2011) that
“the constitutionally protected nature of the end would not shield [his] use of unlawful, unprotected means.”
That is to say that even though Kramer became a matter of public concern after Yiannopolous targeted her, that does not protect his means of doing so.
Going back to a point made earlier, one cannot violate an individual’s right to free speech if it isn’t protected in the first place.
So, why is this relevant to Yiannopolous’s appearance at Berkeley?
Several anonymous sources revealed that Yiannopoulos planned to out undocumented students to his crowd at UC Berkeley. While he claims that this not true, his track record proves otherwise. Should Yiannopoulos return to the campus, and should he out undocumented students as he outed Kramer at UW Milwaukee, he will not be protected by the First Amendment.
This article in no way is as comprehensive and thorough as I would like it to be, even though it is by far the longest post I have seen or written. But I hope that the information presented generates a logical, intellectual concurrence or dissent on the matter of free speech.
Kunal is a senior studying psychology and rhetoric at UC Berkeley. He works in the tech industry and advocates for social issues and education within the field.