The Berkeley Protests and the Loss of Free Speech Norms

On Wednesday night, the peaceful protest of a speaking event by alt-right troll Milo Yiannopoulos at Berkeley turned violent.  Led by masked rioters, who the UC Berkeley administration claims are not students, protesters bashed in ATMs and windows, set fires, and punched people. The riots appear to be a coordinated effort by the antifa (anti fascist and anti capitalist) movement, whose slogan is resist, to shut down Milo, a gross, unnuanced, racist troll who has signaled out students for harassment, but who does not advocate for violence against anyone.

Although Berkeley’s Chancellor recognized that, as a public institution committed to promoting challenging exchanges of ideas, it must allow Milo to speak, the event was cancelled due to the destructive nature of the protests.  The cancellation of Milo’s speaking event at Berkeley, and a previous cancellation at UC Davis, demonstrate a loss of free speech norms that is gaining momentum in this country, on both the right and the left.


On the right, President Donald Trump has, since the cancellation of the event, tweeted that he would strip Berkeley of the large federal grants it receives if violence is perpetuated at speaking events.  This is worrisome, because Berkeley did the right thing, from a First Amendment perspective, and permitted Milo to speak, even knowing his appearance would be controversial and perhaps riotous.  Donald’s Trump attempt at retaliation may have more to do with the content of Milo’s speech, where he derides lesbians, Muslims, trans people, feminists, political correctness, and liberals of all stripes, than Berkeley’s involvement in the violence.

The left has also shown a decreased interest in our norms of free speech.  At the extreme, the antifascist movement’s purpose is to stop those who espouse racist, sexist, or otherwise bigoted ideologies. Antifascist activists have connected these world views so closely to violence that they believe violence is the only way to stop them. One Berkeley protester sprayed “kill fascists” on a random window.  The antifascist movement is coordinating, via social media, and it is explicitly violent.  “Punch Nazis” is one of its mantras, and the notion of a Nazi has expanded far beyond someone putting people in concentration campus.

Perhaps as alarmingly, mainstream liberals are sympathizing with the antifascist cause, especially in these dire times where Trump’s ascendance is viewed by many as a state-sanctioned approval of bigotry, hate, and xenophobia against marginalized groups, and where the Trump administration is actively pursuing xenophobic policies.   After Milo was escorted out of Berkeley, many protesters, not just the masked antifa, continued singing anti Trump slogans in the streets.

Many, especially young people, have lost a sense of the value of a First Amendment that does not discriminate on the basis of viewpoint, the bedrock free speech principle.  They believe Milo’s speech is threatening, even though he does not incite imminent violence.  They do not appreciate that almost all speech can be described as potentially leading to violence (these arguments have been made against rock music, pornography, and the BLM movement).  The key factor that allows us to live in a pluralistic society is separating speech that is attenuated from violence from actual imminent threats of violence.  Ask the French, Muslim comedian Dieudonne, whose satire has gotten him in trouble with French authorities as “incitement to terrorism.”

Indeed, a fascinating law review article describes how the very free speech value of neutrality that protects the speech we hate (including speech that is hateful, so long as it is not a reasonable threat of or incitement to violence) has allowed our egalitarian society to come into being.  That speech value of neutrality is now being abandoned by many given a voice by it, because they don’t believe free speech is beneficial to their primary goal, equality.  In fact, many on the left believe, contrary to First Amendment principles, that any act of neutrality towards speech, especially racist or bigoted speech, actually condones that speech, instead of allowing institutions to foster a variety of speech so that ideas can thrive or atrophy based on intellectual intercourse.

Free speech has been classified as a privilege of those who are not oppressed, ignoring the many instances where free speech has served minority interests or where minorities champion its value on principle anyway.  Worse, many, if Twitter is any indication, actually think a category of speech called “hate speech” is unprotected in this country.  That is absolutely false.  Hate speech is free speech.  We are not teaching young people the value of free speech or the actual law of free speech, and we are seeing our speech norms eroded.

As a First Amendment scholar, I find this truly distressing.  The violent protest against Milo, besides evincing the hypocrisy of intolerance, only furthers his agenda.  It gave him a larger platform, wreaked havoc on innocent people, including those who have to pay the bill for smashed windows, and missed the opportunity of actually engaging him or his followers in a conversation that might alter their views.  Plus, a violent attitude towards speech is destructive to pluralism, because societies that react to speech with violence push out minority views and lifestyles.  Anti-speech movements are destroying what actually makes America great.  The one thing that truly separates us from other nations is our extraordinary free speech values.

In the past, I would look at countries where people reacted with violence to speech they found unacceptable as terrible curiosities. I thought America was special, but given enough people who don’t care about certain values, the values will erode. In that world, the pluralistic society that free speech built may also be an ironic casualty.

One thought on “The Berkeley Protests and the Loss of Free Speech Norms”

  1. Free speech doesn’t appear to be the only unique aspect of American Law.

    “Third, the experience of other advanced democracies, including those that share our British heritage, undercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty. Many of these countries place restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation. See Municipal Respondents’ Brief 21–23 (discussing laws of England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand). That the United States is an international outlier in the permissiveness of its approach to guns does not suggest that our laws are bad laws.”
    Justice Stevens’ Dissent in McDonald v. Chicago (June 28, 2010)

    The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.
    “Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

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