Ann Coulter will not speak at Berkeley tonight because the threat of mob violence led campus authorities to claim they could not protect her, resulting in a back-and-forth in which the speech was canceled, un-canceled, and finally canceled for good when the group sponsoring the event backed out. Similar threats led New York University (NYU) to cancel Milo Yiannopoulos’ appearance in February. These are shameful actions by two universities that purport to value free speech—one of them a public institution that is constitutionally obligated to.
Previous violence at Berkeley directed against Yiannopoulos, as well as the current threats, originated with a coalition of so-called antifas: anti-fascists, persons who believe that in Trump’s America violence to silence speech they do not agree with is justified. They probably are unaware their tactics were once used to silence civil-rights marchers, anti-war protesters, abortion-rights advocates, and the women’s movement. Because the law that now shames Berkeley and NYU comes from earlier efforts to protect those groups’ right to speak.
The idea that a university cannot ensure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t have to go to the trouble of protecting a controversial speaker, has become the go-to justification for persons on the left restricting speech from the right. Coulter and Yiannopoulos were singled out specifically for the content of their speech, which is indeed offensive to students and faculty who see danger in unpopular ideas. The universities’ actions were not content-neutral, in other words, the base requirement when a government entity restricts speech.
But what those offended people think is irrelevant, because the Constitution is clear even when their minds are muddied. While public institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is not to ban speech outright simply to maintain order. But don’t believe me; it’s the law.
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. Uncontrolled 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 that right.
The idea that the government can shut down speech requiring physical protection has failed court tests in cases involving speech as diverse as Occupy protests and a Christian group bringing a pig’s head to an Islamic arts festival. Both sides in the abortion debate have slapped down the need-to-maintain-public-order argument outside clinics in defense of their right to speak. Any of those situations is at least as volatile as whatever Ann Coulter has been saying publicly since her first book came out in 1998, or Milo Yiannopoulos’ junior-high-school-level homophobic slurs.
The courts have also long held that mobs should not be allowed to exercise the so-called Heckler’s Veto—the practice of shouting down speakers, where whoever can literally “speak” the loudest gets to choose what is said. The natural end of such thinking is mob rule, where Speaker A gets a bigger gang together to shout down the gang Speaker B controls. Or, in Coulter and Yiannopoulos cases, simply threatens to do so.
Allowing a Heckler’s Veto to keep unpopular speakers from expressing their views, as Berkeley and NYU have basically done, does damage far beyond two conservative speakers in 2017. Allowing the veto not only stifles a specific idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob while the administration and law enforcement stand aside?
The Supreme Court has concluded that the government’s responsibility in such circumstances is to control those who threaten or act out disruption, rather than sacrifice the speaker’s free-speech rights. Berkeley and NYU chose a different route.
The problems of having Ann Coulter speak on a campus are outweighed by the larger obligation to protect free speech. Getting rid of the speaker may be expedient, but it is also unconstitutional. The ACLU knows that, because it took Coulter’s side, as did Elizabeth Warren and Bernie Sanders. There are plenty of lawyers working for the universities who know it too, but figure on a liberal campus in front of a sympathetic media they can get away with ignoring it.
Supreme Court Justice Louis Brandeis held that people must be able to discuss and criticize unpopular ideas, that free speech is not an abstract virtue but a key element at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents to be applied to prevent violence and disruption are education and punishment for violations of the law, not abridgment of free speech.”
Free speech is not an ends, it is a means, in a democracy. Shame on two of America’s prominent universities for treading on that mighty concept. Free speech is messy, and it is our essential defense against fascism, whether from the left or the right.
Peter Van Buren is the author of Hooper’s War: A Novel of WWII Japan, available now. Follow him @WeMeantWell