At Berkeley, the damage to free speech not easily undone

Violent protests rocked the campus of the University of California, Berkeley, Wednesday, forcing the cancellation of a planned speech by Breitbart’s Milo Yiannopoulos. Photos and video footage of the protests capture distressing images of fireworks directed at a building, fires lit, buildings and businesses vandalized, and barricades turned into battering rams.

{mosads}Sorting what we don’t know about the violence from what we do is important, and there’s plenty of the former to go around. While many Berkeley students were present and undoubtedly planned to lawfully exercise their right to protest, Berkeley blames the violence on more than 100 black-clad, non-campus individuals who “utilized paramilitary tactics to engage in violent, destructive behavior designed to shut the event down.”

In the days and weeks ahead we can hope to know more about the response of the university and its police department to the events as they unfolded, the better to help us understand how the campus descended into chaos.

What we do know paints a grim picture. Berkeley’s College Republicans had invited Yiannopoulos to address a campus audience, as was their right, and members of the community resorted to violence to ensure that this did not happen. That left Berkeley, the birthplace of the 1960’s Free Speech Movement, with a black mark on its reputation no clean-up crew can easily wash off.

Tree is now on fire at UC Berkeley #MiloAtCal #UCBerkeley. People keep shouting “it’s lit!” pic.twitter.com/ypgu6D3T4t

— Gillian Edevane (@GillianNBC) February 2, 2017

Berkeley has condemned the violence, as has my organization, the Foundation for Individual Rights in Education (FIRE), which since 1999 has defended the free speech, due process, and academic freedom rights of students and faculty nationwide. Among the principles to which we’ve hewed since our founding is that the rights of speakers to make their voices heard and of his or her critics to peacefully respond are not incompatible.

We’ve also long held that the best antidote to “bad” or hateful speech isn’t less speech, but more. Many find Yiannopoulos’ views noxious or worse, and our system of free speech gives them just the means to say so. If a full airing of clashing opinions isn’t always comfortable, polite, or kept to an agreeable volume, it is far superior to forcing the least favored viewpoints underground, where they fester and metastasize out of our sight.

If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view – NO FEDERAL FUNDS?

— Donald J. Trump (@realDonaldTrump) February 2, 2017

President Donald Trump weighed in on the fiasco, tweeting: “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view – NO FEDERAL FUNDS?” That would be premature at best. For one, eligibility for federal funding, even for public universities like Berkeley that are bound by the First Amendment, isn’t currently tied to whether a university “allow[s] free speech,” though Congress could potentially change that. In the meantime, federal law allows students to sue when a university infringes upon their First Amendment rights.

More to the point today, though, is that FIRE has yet to see any evidence that the university stifled free speech in this instance, or that it institutionally “practice[d] violence on innocent people with a different point of view.”

In fact, Berkeley Chancellor Nicholas Dirks had issued a strong statement defending Yiannopoulos’ right to speak and the right of the College Republicans to invite him, rejecting calls to step in and disinvite him from the campus. Time will tell whether, and to what extent, the university may bear responsibility for last night’s disaster.

But this general principle holds, as FIRE said in response to President Trump’s statement: “To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful.”

Even had the president not brought Berkeley’s federal funding into the discussion, enough damage has already been done, with destruction of property being just the most tangible. History has taught us far too well that using brute force to eliminate one person’s opinions from the marketplace of ideas always sows conflict and frequently amplifies those very opinions.

If Berkeley’s violent protesters don’t see this through the blinders of moral certitude, it’s clear enough to the rest of us: They could hardly have done more in the service of speech and ideas they hated if they tried.

Peter Bonilla is Vice President of Programs at the Foundation for Individual Rights in Education.