Federal Judge Rules Against Berkeley In Victory For Free Speech

Seal_of_University_of_California,_Berkeley.svgI have previously criticized the University of California at Berkeley for its highly biased history in dealing with conservative speakers who come to campus.  Now, federal judge Maxine Chesney has agreed with the Young America’s Foundation (and the U.S. Justice Department) in rejecting a motion to dismiss by Berkeley — forcing the school to deal with its policies and priorities on the exercise of free speech.  The president of the University of California system is Janet Napolitano, former  United States Secretary of Homeland Security under President Barack Obama.

The decision in Young America’s Foundation v. Napolitano is critical to forcing schools like Berkeley to deal with the rising anti-free speech movement in the United States — the subject of my lecture this week at Carnegie Mellon University.  Having said that, this is a denial of a motion to dismiss where the facts are assumed in favor of the non-moving party, the YAF.  Thus, the case must still be proven.

Nevertheless, the “unbridled discretion” afforded under the policies are a matter of concern given their use to effectively bar conservative speakers.  It is hard to look at the history of Berkeley and not conclude that this is content-based regulation (and denial) of speech.  Indeed, Berkeley and other schools like DePaul University have used the mob to justify cancelling speakers. That institutionalizes the “Heckler’s Veto” so that a mob need only threaten violence and the school then cancels the speech . . . which is what the mob was demanding.

Here is the opinion:  Berkeley opinion


51 thoughts on “Federal Judge Rules Against Berkeley In Victory For Free Speech”

    1. Let me point out that the “mob rule” was very real. I was a student at Cal during the Watergate affair, and while student groups like the Young Republicans brought in pro-war and pro-administration advocates who who were mildly tolerated.

      During and after Watergate, In 1974, the Vietnam War, was all but ended, and Nixon’s resignation was a few months off, but groups affiliated with Republicans were getting more worried and were bring in more hard-line conservative speakers, mainly in support of Nixon You must remember the students then were proud of the Free Speech movement and those who fought the Nixon’s and the Reagana who sought to suppress speech as it was part of the “Red Menace”=communism (there was one under every bed) Student tolerance finally broke one day, as I was on my way to lunch with a friend, and it started with fruit and lunches being thrown at a young Nixon defender and ended with a cadre of “students” chasing the young miscreant down the mall and pummeling him behind a building. Campus security rescued him and reported him a being attacked by some off-campus “hippies”, although everybody knew better.

      But here is the thing, its not the type of speech (conservative, liberal) that is being fought on college campuses, its the content. The students listening to conservative speakers are not Fox News watchers, they are (or will be) highly educated, well read and with ample resource to check facts. So when the Ann Coulters and Milo Yiannopoulos come and speak on campus using badly sourced information, alternative facts and just lies, these student do not want to entertain. So the question then becomes do we allow any type of “free speech” even if it include hate, lies and just plain inaccurate and bad information, or do we draw a line.

      1. Joe Pooblix – have you ever watched a Milo speech? Do. It will be educational.

      2. Joe Pooblix reminds me of a faculty member I once knew. who fancied faculty members are leftists because they are the most ‘well-informed’ in the community. He would periodically write crank letters to local newspapers, unaware of what a Dunning-Kruger exemplar he was.

    2. This seems the closest topic to pose the question I have as a non-Atty. Since Citizens United allowed corps to make campaign funds available and owners of corps can hide below layers, and McIntyre v. Ohio Elections Commission (1995) allowed for anonymous contributions, haven’t we opened doors for any foreign entity to find way in and “electioneer”? If you agree how should it be handled now and in future? If disagree, why?

      1. Citizens United allowed corps to make campaign funds available

        It didn’t.

  1. I had thought that the UCB position was the disruption to nearby classes and also the cost of protection.

    Move such events to a stadium?

  2. Simply not have public events on campus. No speech. Have a sign up at the entrance of the campus: Shut the UkFay Up!
    Look folks. Send your kids to places which teach them how to be plumbers or electricians and not teachers or what not.

  3. Being a simple minded country boy, seems to me that once we bar free speech we are no longer a democracy. Is that what the left wants? Do they want socialism? Can they not see the dangers in stamping down democracy? The real tragedy in all this social revolution in the name of “progressivism” is that once we get it even those that fought for it will want to reject it. Taking from those that work and giving it to those that don’t is never a good idea!!

  4. Free Speech does not mean only if you can afford it. If so then any word I write here or speak somewhere else and my vote are a commodity. If someone can buy it then I should be able to sell it.

    But as for the comment on the subject at hand The problem is Janet Napolitano who is currently famous fo rhosting $10,000 dinners of the California Regents and in the past as head of DOHS made the statement “The US Military (including former and retirees) is the geatest danger this administration (Obama’s ) has to face.” and thus set off a ticking time bomb in the form of a counter revolution nick named Ballots Not Bullets featuring off duty military personnel. And that was after Obama himself publicly stated he wanted to build DOHS into a ‘force’ greater than the US Military. Thus making it a Directorate Of State Security or historically speaking a protective echelon or Schutz Staffel same as the one SS used by the WWII Nazi’s and Fascists and the post WWII KGB.

    It appears with the FBI and DOJ that tinkering with our Constitutional Republic was partially successful.

    And that is the importance of genuinely valid free speech and more.

    We used to be called the Sister Republic to Switzerland prior to WWI. It’s a real Democracy which we are not but the lessons learned should be considered.

    This court decision is turning us in the correct direction but with people like Janet Napolitano as with Jackboot Janet Von Flamethrower the First it needs more starting with firing Napolitano who failed as Governor, as DOHS Secretary, and now as a University Administrator.

    Cannot make effective change keeping the same ‘criminals’ in power.

    1. Michael Aarethun – I am not sure the Janet so much failed as governor as she just was not good at it. Although she did scoop all the money from the funds of all the regulatory agencies to help balance the budget.

  5. These victories are only going to be deferred by the inevitable appeals and challenges by the university. So the present students will be the ones who’s liberty is restrained. Maybe future students will not be as compromised.

  6. While JT would love to have you all think it’s only the right that cannot speak, The right does a good job itself, RedState web site just fired everybody that has a problem with Trump. Good people on both sides?

    1. Redstate’s a political blog with an editorial policy. So’s Daily Kos.

    2. thanks for the tip I signed up but note the true color for the left is RED as in Red Army, etc. and the Socialist Fascist liberal Progressives hijacked the color since they are decidedly Marxist leninist and not Democratic at all. No such thing as a good progressive

  7. The response of higher education will be the same as it has been to a raft of measures restricting racial-preference schemes: try every door noncompliance. The courts and administrative regulators will let them get away with it. You’re going to be much more coercive with higher education if you want authentic reform. Politicians haven’t the stones for it.

    1. Nutchacha, you should know that if Bekeley had no Affirmative Action model (for admissions), the student body would be almost entirely Asian. In fact, The University Of California system has genuine fears that Asian students will, in the not-so-distant future, dominate every campus. And ‘no’, Asians are not that big of a minority here; they’re just awesome students. But one has to ask if White’s, Blacks and Hispanics should compose only a small fraction of the U.C. student body.

      1. I’ll take meritocracy over the current system. If Asian students deserve admission what ethical duty is fulfilled by denying them?

        1. Level the playing field – implement the manifest tenor of the Constitution. Remove the unconstitutional tilt toward minorities. Compensate Americans for the abuses and confiscated wealth of the past half century.

          Asian students and “immigrants” enjoy favor and subsidy in an environment which would not naturally, and in freedom, facilitate any aspect of their success. But one example was the mortgage subsidy program. Americans were working hard to buy homes and Asians received affirmative action jobs and taxpayer assistance to buy theirs (have you ever been to California?).

          Do “Affirmative Action Privilege” and redistribution of wealth reflect “merit?”

          Do unfair “Fair Housing” and discriminatory “Non-Discrimination” laws reflect freedom of assembly, speech, thought, religion, belief and the right to private property “…in exclusion of every other individual?”

          James Madison –

          Private property is”…that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

        2. doing and saying whatever is necessary to advance the party. one of the main regulations in being a socialist regressive going back to the originators of that foriegn ideology. Carville used it during the Al Bore campaign.

        1. What does “racist” mean? Does it mean that Americans cannot discriminate and must do as they are ordered? Can a Coloradan love the Broncos and hate the Raiders? Does it mean that socialist liberals arbitrarily nullify the freedoms of assembly, association, speech, thought, religion, belief, etc., to impose their will as a tyrannical and oppressive dictatorship? Can you nullify the right to private property to favor minorities with “Fair Housing?” Not under the Constitution.

          You might enjoy the dictatorship in Cuba or China.

          Individuals are almost totally free and the government is almost totally limited.

          You have no concept of the Constitution or American freedom.

        2. Maybe but to have a leftist make the claim as the Party of Slavery, the Anti Civil Rights Party and the Party of one party, one leader no franchise your comment is slightly more than ridiculous.

      2. 1. I don’t care. There are nine other public research universities in California as well as a couple dozen state colleges. About 85% of the population of California is not Oriental or East Indian. There’s a limit to the amount of space they can occupy.

        2. It wouldn’t be. Freshmen matriculants at California’s nine research universities account for just north of 10% of each cohort. Coast-to-coast, matriculants at private research universities and those private colleges with a certain amount of cachet capture a similar share of each age cohort. If performance measures of your population place the 40th percentile of the Oriental and East Indian population at the 78th percentile of the white-anglo population and at the 86th percentile of the hispanic population and at the 91st percentile of the black population, your qualified applicant pool will be 26% Oriental / East Indian, 43% white Anglo, 26% hispanic, and 3% black, give or take.

        3. Establishing a patronage mill manned by Democratic Party operatives is a bad solution to social and cultural problems.

        1. These stats are from an NBC News story dated 4,24/09. I don’t believe this trend has changed since then and that was 9 years ago.

          “Asian-Americans are the single largest ethnic group among UC’s 173,000 undergraduates. In 2008, they accounted for 40 percent at UCLA and 43 percent at UC Berkeley — the two most selective campuses in the UC system — as well as 50 percent at UC San Diego and 54 percent at UC Irvine”.

          1. Again, so what? There are nine state research universities in California, not to mention private options in state and out of state. Orientals are not some race of supermen.

    2. Berkeley needs a culture change not a court ruling. NII has it right. People won’t comply; they’ll jargon their way around it.

  8. The First Amendment’s legal guarantee of Freedom of Speech was designed to protect UNPOPULAR and OFFENSIVE speech. Popular speech and popular ideas don’t need protection by the supreme law of the land. The American system never was designed to be a Nanny-State, where authoritarian leaders protect us from ugly speech. All government officials – including educators – swear a supreme loyalty oath to uphold our constitutional rights as a condition of employment and authority.

    As cynical as many of us are about this generation of adults – sacrificing essential liberties for the perception of better security – we always had hope in the next generation receiving vital Civics Education and restoring American constitutional law. That can’t happen if our kids and young adults are indoctrinated into foreign models of government.

    We have heard reports where children were expelled from elementary school for chewing a Pop-Tart into the shape of a gun – permanently on their school record until age 18 – based entirely on arbitrary unwritten rules. Unequal enforcement of school dress codes by public school officials – also a 1st and 14th Amendment violation. Now at the college level, we are seeing more European-style Nanny-State practices and less American practices. Constitutional violations are also criminal vioations under federal law (ie: Title 18 US Code 242, Title 42 US Code 14141), maybe enforcing federal law would provide a deterrent?

    If this generation of adults doesn’t value their guaranteed constitutional rights and the next generation isn’t taught American Civics Education – the republic is dead! There is no way back.

    1. Good post, however there is a way back. But I don’t see it happening peacefully. That would require a degree of civics literacy not currently common among the electorate or being taught to the next generation. We’ll have to suffer enough loss of rights by a majority of voters that are enlightened enough not to continue in an unjust way. That cultural transformation is nowhere in sight.

      1. certainly is a way back and doing it as a counter revolution made our independent 40% of the legal votes cast gain control and help us destroy Clinton and smash the DNC. Sorry we couldn’t get the RINOs as well one thing at a time. And w are not left nor right, red nor lbue but Constitutional Centrists and Self Governing Citizens. Thanks to our off duty members of the combat arms it was put in ‘legal’ form unlike using the term ‘revolution’ or ‘resistance’ and not only guided by them in that respect but it became the Ballots not Bullets movement to regain our Constitutional Republic from the progressively regressive left. Zero budget and represented by those who asked to join in as well as our own like thinkers.

        What you thought that 40% of the vote came out of nowhere?

  9. They do not need any so called “speakers” to come on campus in California schools. We do not need schools in CA either.
    Teacher, teacher, I declare: I can see your underwear!

  10. I do understand the free speech idea but see the other side when bringing in bomb throwers like Coulter costs the institution thousands of dollars to maintain safety

    1. You see the other side? You need a taste of living in Turkey, where they jail people for having just spoken out like you have, sympathizing with the enemy. Are you so ignorant of the value of free speech that you’re willing to actually give it up, just so you can have your way only?

    2. Free Speech isn’t just an idea, it is one of the glories of our nation as enshrined in the First Amendment.

      “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

      Supreme Court Justice Robert Jackson, 1943

    3. The point is that Ann Coulter has a right to speak. Maybe a few more gazillion dollars shelled out by these intolerant universities for security is what it’s going to take to get the snowflakes out of their safe closets, remove their puppies and their little petting rabbits and make them into adults who understand that the world was not built just for them to do with as they please.

    4. You have emotional problems and fancy that Ann Coulter and her sponsors are obligated to pay the University of California at Berkeley to keep people like you at bay.

    5. The additional cost of bringing in speakers like Coulter is not due to the speech but the radical behavior of those that want to silence it.

        1. Shutting down free speech is never as simple as the fascist left tries to sugar coat the situation It is also sympto matic of the inability to discourse and debate in an intelligent fashion. They are not muchabove the car bombing antifa and BLM types.

    6. UBerkley is funded by taxpayers and is answerable to them. Neapolitan cannot make it into a bubble of thinking that confirms her own. (It is not a private university.)

    7. This is just a learned behavior. If it had been nipped in the bud, it wouldn’t be as bad as it is these day. Besides, the speech of the “likes of Coulter” should not enrage anyone to the point the cupcakes allow.

    8. Whose your programmer? Really poor answer from the Red Army of the Left.

    9. Your leftist contribution was a very smelly F Bomb… as in Bronx Cheer

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