SAN FRANCISCO (CN) – Proving that officials intentionally sought to suppress conservative speech at the University of California Berkeley last year won’t be easy, despite a vague policy that gives college administrators broad power to restrict speaking events, a federal judge said Friday.
“My first impression is that you have enough,” U.S. District Judge Maxine Chesney said of a lawsuit claiming the university uses “unconstitutionally vague” rules to curb conservative speech. “It’s not bombs away great, but you have enough to say here that people on the other side of the spectrum were treated more favorably.”
The Young America’s Foundation, a Tennessee nonprofit, and the Berkeley College Republicans sued UC Berkeley last year after it nixed a planned April 27 speech by conservative firebrand Ann Coulter, citing public safety concerns.
During a motion to dismiss hearing Friday, plaintiffs’ attorney Harmeet Dhillon argued that the university has a pattern and practice of imposing unfair restrictions, including high security fees, on conservative speakers while treating liberal speakers more favorably.
For instance, the university allowed former Mexican president Vicente Fox and former Clinton White House official Maria Echaveste to speak at a central campus location during the late afternoon and evening hours on April 17 last year.
But the university insisted that it could only accommodate Coulter during the no-classes “dead week” in early May at a venue a mile away from the main campus with a 3 p.m. curfew, according to the lawsuit.
The university also required “exorbitant” security fees for events featuring conservative commentator Ben Shapiro in September 2017 and conservative writer David Horowitz, whose event was cancelled in April 2017 because of those costs, according to the complaint.
“There is a difference as to how the UC Berkeley treats conservative speakers versus liberal ones,” Dhillon said.
The university says it only imposes those restrictions on events due to legitimate safety concerns, especially after a violent riot erupted during the planned speech of conservative provocateur Milo Yiannopoulos in February 2017.
“Miss Coulter was never told that she couldn’t come to campus,” University of California attorney Bryan Heckenlively said in court Friday. “College Republicans were told they needed to find a room and a date that was securable and appropriate. The university proposed one, and the College Republicans rejected that.”
Heckenlively contended that College Republicans can’t point to a liberal speaking event where fears about violence and rioting were present.
Chesney said safety concerns would justify restricting certain events, but she struggled to get Dhillon to identify an event featuring a liberal speaker where the same security concerns were at play.
“If you’re concerned about violence, you can obviously put in restrictions,” the judge said.
Dhillon said the plaintiffs shouldn’t have to prove there are “no differences” between the liberal and conservative speakers on campus, and she urged the judge not to accept the university’s security rationale at face value.
Addressing the university’s event policies, Chesney said an unwritten “high profile speaker” policy that the college used to restrict Coulter’s planned speech appeared blatantly unconstitutional.
“It wasn’t announced, and there’s no history of how it was used,” Chesney said. “It just seems very broad in terms of discretion.”
In July 2017, the university rolled out a new “major events” policy that includes some lines the judge also found problematic.
The policy authorizes campus officials to designate speaking engagements as “major events” subject to stricter rules if they “determine the complexity of the event requires the involvement of more than one campus administrative unit.”
Dhillon argued that “complexity” is a completely subjective term, and that almost any event could require more than one administrative unit, such as event booking and ticketing.
Chesney agreed that section of the policy appears vague and overbroad.
“I have no idea what they mean by complexity,” Chesney said. “Who back there in the legal office at the University of California came up with this term?”
But because that policy was enacted after most conservative speakers were allegedly suppressed, Chesney said she’s not sure if she can find there was an “unconstitutional application” of the rules.
Dhillon argued that because the policy continues to have a chilling effect on campus, her clients should be entitled to a court order striking down the policy.
“Student groups are self censoring to limit the size of their events and the complexity of their events,” Dhillon said.
Chesney suggested the complaint could benefit from allegations on steps the university could take to provide security for events without restricting speech. The judge said if she dismisses the lawsuit, she will likely do so with leave to amend for some claims.
At the end of the four-hour hearing, the judge urged both sides to try mediating the dispute and coming up with a solution that would protect the security needs and free speech rights of both parties.
“There has to be a way to secure everyone’s legitimate interests,” Chesney said.