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A legal brouhaha at the University of California, Berkeley over rescheduling conservative author Ann Coulter’s speech shines a spotlight on an unanswered question from a similar First Amendment trial in 1969.
University administrators announced on Wednesday that they could not accommodate Coulter’s April 27 event that the Young America’s Foundation, a national organization, paid $17,000 to support, citing concerns about public safety after recent violence on campus. On Thursday, the school offered to instead host her on May 2, but a lawyer representing conservative students who helped organize the event threatened to sue if university officials did not maintain the original date.
“If UC Berkeley continues to insist on violating the constitutional rights of its students and our clients by marginalizing or banning Ms. Coulter’s speech, we will seek relief in federal court,” lawyer Harmeet Dhillon wrote to the university.
The letter was met with even more resistance by the school, capping a tense week that put it at the center of a classic debate about whether liberals on the campus, who have a legacy of promoting free speech, can maintain their standards for conservatives. As some pundits latched onto this narrative, some even arguing that inviting Coulter was a deliberately divisive maneuver, a First Amendment lawyer in Missouri started to pay close attention.
Dave Roland, the director of litigation at the Freedom Center of Missouri, said that public universities do have discretion over which speakers they host, but the Constitution requires a few things: All approved speakers have to be treated equally, and any restrictions on the time, place and manner of the event have to be justified.
Moving the event to a quiet week before finals and to a venue that requires a shuttle, like Berkeley offered to do, could reduce the access students might have and may affect their right to hear Coulter speak, he said.
“The school has got a really heavy burden to show why it’s justifiable,” Roland said. “You can’t kill a fly with a sledgehammer when it comes to these constitutional rights.”
But if Dhillon files a suit and the school continues to argue it was necessary to change the date in order to keep everyone safe, then such a case could address a hole in existing First Amendment litigation.
In 1969, students and faculty at Auburn University in Alabama requested that the chaplain Rev. William Sloane Coffin at Yale University come to speak on campus. Auburn’s president denied the request because Coffin had been convicted of conspiring to encourage draft evasion of the Vietnam War and, the president said, might advocate breaking the law.
The Fifth Circuit ruled that the president, even if his intentions were good, made the decision based on what he anticipated Coffin would say, which encompassed a violation of the student rights at a state university.
“The right of the faculty and students to hear a speaker … cannot be left to the discretion of the university president on a pick and choose basis,” the opinion reads. “[The president] was denying them their First Amendment right to hear the speaker.”
However, the court did not address the president’s fear of violence.
“There was no claim that the Reverend Coffin’s appearance would lead to violence or disorder or that the university would be otherwise disrupted,” the ruling reads. “There is no claim that [the president] could not regulate the time or place of the speech or the manner in which it was to be delivered.”
This is exactly what Berkeley is testing.
In a public response to Dhillon’s threat on Friday, the school’s lawyers reaffirmed that security, not speech, is why they made their decision, and that it offered the best it could, given time restraints.
“Differences in the management of event security have nothing to do with the University’s agreement or disagreement with the opinions of the speakers,” the letter reads.
Dhillon reaffirmed her stance to the NewsHour on Sunday, saying unless the school accommodates Coulter on Thursday, she will file a lawsuit.
Roland said the school could use recent events, one involving a far-right speaker, as evidence to support its claim.
In February, the Berkeley canceled a speech with former Breitbart News editor and agitator Milo Yiannopoulos after people, some dressed in all black, interrupted a campus protest against him, throwing rocks, setting fires and breaking windows.
READ MORE: Trump suggests Berkeley could lose federal funds over violent protests at university
Pranav Jandhyala was attacked. Jandhyala is the president of BridgeCal, the local chapter of BridgeUSA, which is a group run by students to help blur party lines and had a hand in organizing Coulter’s speech.
“It’s a personal issue for me,” said Jandhyala. “I really wish the campus police would work to do their job to protect the community more and also protect free speech.”
And on April 15, fights broke out during what has been described as competing protests between white nationalists and anti-fascist protesters, though the violence hijacked any attempt at making political statements.
These clashes are the basis for legitimate concerns leading up to Coulter’s event, Roland said.
“That is really the linchpin for how the court will resolve the issue,” he said.
He referred to another case in 1969, when students wanted to host Vietnam Moratorium Day Observance at Clemson University in South Carolina and had hoped 3,000 people would join.
The administration rejected the request, citing a prior event that led to unrest and concerns that it might become a riot — but they said they would approve a smaller event focused only on the university’s students. The court ruled in favor of the university, stating that the school had the right to protect itself against the possibility of violence and disruption.
Still, it was a district court that does not have jurisdiction over California and the decision may not necessarily influence a federal judge. The Auburn University case was the only federal court of appeals case that resembles Berkeley’s situation, but it is also non-binding on federal courts in California.
“Amazingly enough, very few courts have dealt with this particular issue,” said Roland. “Since there is really only one federal court of appeals decision … and particularly since that case is a half-century old, the courts dealing with this situation will have a lot of flexibility to find whatever balance they think is appropriate.”
Jandhyala said he had initially worried about bringing Coulter to campus, describing her as “polemic” and a “pundit” but had hoped to provide a platform for her opponents to engage in a respectful conversation. BridgeCal committed $3,000 to the event in addition to the $17,000 provided by the foundation.
“She’s someone who represents something that a lot of people in this nation believe,” he said. “There’s no denying the fact that if we disagree with her it’s something we need to confront eventually.”
After Coulter said she would still speak in Berkeley on April 27, despite the school declining to host her, BridgeUSA’s director for chapter development said in an email it would pull its support, denouncing her assertion as a publicity stunt.
“We were actually one of the organizations to push for a reschedule in which security concerns could be met — which would have taken place on May 2nd,” Roge Karma wrote. “However, we are disengaging from the attempt to still host Ann Coulter on the original date outside of the University.”
Kamala Kelkar works on investigative projects at PBS NewsHour Weekend. She has been a journalist for a decade, reporting from Oakland, India, Alaska and now New York.
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