Established 1874.

The Oberlin Review

Berkeley Protesters Exercising, Not Curtailing, Free Speech

Nick Bassman, Contributing Writer

Hateful speaker and Breitbart News senior editor Milo Yiannopoulos was prevented from speaking at University of California, Berkeley on Feb. 1 by students and community members in a massive, successful exercise of the First Amendment rights of free speech and free assembly.

Yes, you read that correctly. Free speech won on Feb. 1.

Outraged columnists and public figures — including President Donald Trump, who tweeted a vague threat to cut Berkeley’s federal funding — would have you believe that individuals protesting to prevent another individual from speaking constitutes an attack on free speech. Nothing could be further from the truth. It seems we’ve collectively forgotten how free speech operates, who is allowed to exercise it and who is responsible for enforcing it.

To begin, here’s the entire text of the First Amendment. Don’t worry, it’s short.

“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.”

That’s the whole thing.

Only the state can curtail free speech, because only the state can grant it. And only individual citizens and private institutions can exercise it. Nowhere does the First Amendment say that individuals cannot exercise their free speech in a way that prevents other individuals from being heard. Berkeley students speaking out against Milo Yiannopoulos is an instance of free speech versus free speech — a conversation in which one party speaks louder than the other.

It could be argued that the extensive property damage and fights instigated by members of a masked group at the protest mean that it was not a “peaceable” assembly. But if the only assemblies to be protected are “peaceable” ones, then Milo Yiannopoulos has no right to one either. On Dec. 15 at the University of Wisconsin, Milwaukee, he targeted a trans student, misgendering her and using transphobic slurs against her. On Jan. 27 at the University of New Mexico, Yiannopoulos declared that “illegal people are not a race” and displayed a slide that read, “PURGE YOUR LOCAL ILLEGALS.” Many believe he planned to publicize the identities of undocumented Berkeley students at his event. Defending Yiannopoulos’ assembly while condemning the protesters’ implies a hierarchy of violence that prioritizes property damage over revealing personal information with clear intent to harm targeted individuals.

Acting UNM President Chaouki Abdallah defended allowing Yiannopoulos to deliver this hate speech by declaring that UNM is part of the “marketplace of ideas.” But the whole concept of an idea marketplace — the underpinning of most Supreme Court decisions regarding free speech throughout the 20th century — frames speech as inherently competitive. It assumes that interruption is inevitable and that the most-demanded voices will drown out others. And as with other free market environments, our speech may be technically “free,” but there is nothing equitable about who has access to it. In most cases, money speaks louder. Whiteness speaks louder. Masculinity speaks louder. The “market” is monopolized by people who wield these privileges. This is a rare and welcome instance of a mass refusal on the part of the market to acquiesce to those dominant forces.

Why do we lament a supposed loss of free speech when protesters shut down violent speaking events, but not when the protesters themselves are beaten, pepper-sprayed and silenced by state forces? Why do we fail to recognize these monopolies in our “marketplace,” and rush to protect them by stifling dissenting voices?

Arguments against interrupting a speech rely on moral propriety, not legality. It’s intellectually dishonest to say that a disruptive protest is a hindrance to free speech. What you really mean is that these protests break the expected decorum for a speech — the expectation, in other words, that everyone else remains silent.

I can’t think of a more vital time and place to exercise the right to free speech and free assembly than when everyone else demands respectful submission to hate.

When President Trump accuses protesters of opposing free speech when they are embodying it, that’s what an attack on free speech looks like. That is a state effort to suppress dissent. This is also true when the president attacks the press by bemoaning all incriminating media reports as “fake news” and “the opposition party.”

The right to speak is not a right to speak unopposed. If Yiannopoulos has the right to speak and assemble despite his violence, so do his opponents. At Berkeley they spoke louder and should be celebrated for it.

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1 Comment

One Response to “Berkeley Protesters Exercising, Not Curtailing, Free Speech”

  1. Andrew on February 12th, 2017 4:09 PM

    I don’t really feel like going into a huge amount of detail regarding why you are objectivly wrong regarding what constitutes free speech, but I will try to explain to the best of my ability.

    Basically, the purpose of the first amendment is not only to protect people from censorship by the government, it is also intended to protect minority viewpoints from the tyranny of the majority. The reason for this is because the founding fathers recognized that what is a majority opinion today could be a minority opinion tomorrow, and thus advocating for the silencing of the minority by the voices of the majority would create a dangerous precident that would allow one’s own views to be silenced should he ever find himself in the position of the minority.

    Now of course, the protesters do indeed have their own protected right to freedom of speech. However, the protesters cannot use their freedom of speech to limit that same freedom as held by others. There is an old proverb which states, “my right to swing my fist ends where another man’s nose begins”. I believe this applies to speech as well, as a protestor’s right to speak freely does not allow him to silence the speech of others.

    The campus police, acting on behalf of a public school which is sponsored by the state, have a duty to maintain the peace by quelling violent disruptions. Once the protests devolved from peacefully picketing the event to outright disruptive and violent behavior, the protestors had stopped exercising their right to speak freely and had begun to infringe upon the rights of others. Although the Constitution does not explicitly define what should be done in such a scenario, we should not forget that there is also a large corpus of statutory and common law that can be turned to for guidance in such situations. In particular, the federal court of appeals for the Sixth Circuit has ruled that in such instances, it is the duty of law enforcement officials to protect the speaker from a hostile crowd, so long as the speaker does not exceed the boundaries of protected speech as defined by common law. Here is an relevent except from the court’s decision:

    “Maintenance of the peace should not be achieved at the expense of the free speech. The freedom to espouse sincerely held religious, political, or philosophical beliefs, especially in the face of hostile opposition, is too important to our democratic institution for it to be abridged simply due to the hostility of reactionary listeners who may be offended by a speaker’s message. If the mere possibility of violence were allowed to dictate whether our views, when spoken aloud, are safeguarded by the Constitution, surely the myriad views that animate our discourse would be reduced to the “standardization of ideas . . . by . . . [the] dominant political or community groups.” Democracy cannot survive such a deplorable result. When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. “[U]ncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of th[at] right.” If the speaker, at his or her own risk, chooses to continue exercising the constitutional right to freedom of speech, he or she may do so without fear of retribution from the state, for the speaker is not the one threatening to breach the peace or break the law.”

    Even if this ruling somehow did not apply to public universities, the protesters would still be in gross violation of UC Berkeley’s student code of conduct, which states in no uncertain terms that any of the following conduct would constitute a punishable offence:

    “102.13 Obstruction of University Activities
    Obstruction or disruption of teaching, research, administration, disciplinary procedures, or other University activities.

    102.14 Disorderly Conduct
    Disorderly or lewd conduct.

    102.15 Disturbing the Peace
    Participation in a disturbance of the peace or unlawful assembly. (See Berkeley Campus Regulations Implementing University Policies for further information.)

    102.16 Failure to Comply
    Failure to identify oneself to, or comply with the directions of, a University official or other public official acting in the performance of the official’s duties while on University property or at official University functions; or resisting or obstructing such University or other public officials in the performance of or the attempt to perform their duties.”

    So even though the Constitution does not explicitly state that hecklers cannot use their speech to silence others, restrictions on this particular usage of speech can be found in both United States Common Law and UC Berkeley Statutory Regulations.

    Now I will agree that Milo does have a tendency to be a total scumbag sometimes and I absolutely do not condone his singling out and shaming of individual students whom he deems deserving of such treatment. I would even argue that such behavior falls outside the bounds of protected speech and can be classified as “fighting words”, which the Sixth Circuit court of appeals has defined as follows:

    “A second type of speech that is categorically excluded from First Amendment protection is known as “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” We rely on an objective standard to draw the boundaries of this category — no advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.”

    However, I don’t agree that Milo should be silenced simply because he *might* say something that would fall into this category (an approach that would not seem out of place in a George Orwell novel). I think it would have been much more productive if the protestors had petitioned the university to restrict Milo from singling out any individuals on campus using personally identifiable information. They could have demanded that the university inform Milo that such acts would not be tolerated and would result in his immediate removal from campus. They could have picketed outside the event or peacfully protested from within the event itself. They could have even prepared a well thought-out counter argument to present to Milo during the Q and A period. What they chose to do instead is not only utterly reprehensible, it is absolutely illegal.

    Sources:

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/28/sixth-circuit-rejects-hecklers-veto-as-to-anti-islam-speech-by-bible-believers/

    http://sa.berkeley.edu/student-code-of-conduct#102.13

Established 1874.
Berkeley Protesters Exercising, Not Curtailing, Free Speech