The University of California at Berkeley's thuggish request to throw out an important civil rights lawsuit that could hold the school accountable for its blatant viewpoint discrimination that involves slapping unreasonable restrictions and fees on appearances by conservative speakers like David Horowitz and Ann Coulter was refused this week by the federal judge hearing the case.
It has long been known that the administration at UC Berkeley only pretends to adhere to the First Amendment’s speech protections. When conservatives are scheduled to speak on campus the administration typically doesn’t forbid their appearances. Instead, it makes the speeches inconvenient to the point of impossibility, requiring the use of venues a mile off campus at times when students can’t attend.
This bears more than a passing resemblance to the shadow-banning practices of social media giants like Twitter and Facebook that secretly limit politically disfavored users’ reach online. It’s ugly, Orwellian stuff but that’s what the Left is all about today.
But Twitter and Facebook are private for-profit businesses so when they push conservatives around and arbitrarily punish them the First Amendment isn’t implicated. Not so with UC Berkeley, which as a taxpayer-supported university must abide by the First Amendment or suffer legal consequences.
In San Francisco, U.S. District Judge Maxine M. Chesney, appointed in 1995 by President Bill Clinton, said Young America’s Foundation and the Berkeley College Republicans may pursue their claim that UC Berkeley applied policies for high-profile speakers in a way that unfairly burdened conservative speech, Reuters reports. Chesney preliminarily rejected the transparently false arguments by campus administrators that the school’s speaking policies were enforced equally against all speakers regardless of ideology or politics.
(The case is Young America's Foundation et al. v Napolitano et al., in the U.S. District Court, Northern District of California. The Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss, dated April 25, may be viewed here.)
Of course conservatives and civil libertarians shouldn’t break out the champagne just yet.
The good guys could still lose the case in the end, but this is a rare instance of a Democrat-appointed judge within the geographical boundaries of the notorious, oft-overturned Ninth Circuit of the U.S. Court of Appeals, making a judicial decision that isn’t laughably unconstitutional or seemingly driven by left-wing political objectives.
In a written ruling on a pre-trial motion, the judge recounted that the university “instituted an unwritten ‘HighProfile Speaker Policy’” on March 1, 2017, “to place various restrictions” on two speaking engagements by David Horowitz and Ann Coulter. On Aug. 14 that year the university published a written “Major Events Hosted by Non-Departmental Users” policy to impose restrictions on conservative radio host Ben Shapiro.
The odious policies aimed at non-leftists came into being after the campus administration pulled out all the stops the night of Feb. 1-2, 2017, to sabotage a high-profile conservative’s planned speaking engagement at the university.
The speaker that evening was to be iconoclastic conservative firebrand Milo Yiannopoulos who was to deliver a David Horowitz Freedom Center-sponsored speech demanding the end of “sanctuary campuses” that harbor illegal aliens. The address never happened. Police stood down and allowed leftist students and Antifa thugs to riot to “no-platform” Yiannopoulos, who at one point was whisked off the campus by security. A reported $500,000 in damage was caused to the campus and off-campus by fire-setting angry mobs.
Yiannopoulos is an outspoken, gay, Roman Catholic, ethnically Jewish, Greek-born British citizen who ardently supports President Trump. He revels in his self-appointed status as “the world’s most fabulous supervillain.” Because he swears like a sailor and is in-your-face about his sexuality, Milo is not everyone’s cup of tea, but he has a way of putting things that young people easily grasp.
His rapier wit and mastery of the art of ridicule that allows him to puncture politically correct shibboleths, has won him many admirers in conservative circles, including conservative intellectual David Horowitz, who calls him “indisputably the most effective conservative on campus battling the anti-American, identity-obsessed, racist left.”
In the lawsuit, YAF and the campus Republicans are challenging UC Berkeley’s restrictive policies because they violate First Amendment free speech rights and constitute “First Amendment Retaliation,” as well as violate the equal protection and due process guarantees in the Fourteenth Amendment.
In the new ruling, the judge allowed all but one of the two groups’ claims to go forward.
She dismissed the claim for punitive damages on flimsy grounds, writing she was "unpersuaded" by claims that the school deliberately engaged in viewpoint discrimination.
In the order she stated:
A plaintiff alleging a § 1983 violation pleads a claim for punitive damages where the complaint includes facts sufficient to show the defendant’s conduct was “motivated by evil motive or intent, or . . . involve[d] reckless or callous indifference to the federally protected rights of others.” See Smith v. Wade, 461 U.S. 30, 56 (1983).
The judge found that the groups “have failed to plead facts sufficient to show defendants were motivated by viewpoint discrimination or retaliatory animus,” and failed to present facts proving “improper motive” or “any facts sufficient to show defendants acted with ‘reckless or callous indifference’ to plaintiffs’ rights.”
Given UC Berkeley’s extensively documented history of suppressing politically incorrect thinking and expression in recent years, one might guess the judge knows nothing about the school or its students’ civil rights struggles.
But she goes way back with the school. Born in 1942, Judge Chesney earned a bachelor’s degree in 1964 and a law degree in 1967 from UC Berkeley.
This means Chesney was on campus during the heyday of the (misnamed) Free Speech Movement that Mario Savio started at UC Berkeley in 1964. The FSM was a clarifying moment for the activist Left that launched a new era of radical, destructive activism. As Horowitz has written, it was an “eruption that had culminated in the occupation of the university administration building, Sproul Hall and the arrest of 800 student trespassers.”
It was the first “takeover” of a campus building in the history of American higher education and set the stage for political actions on college campuses for the next generation. It had done more than that. It had reshaped the very idea of the university.
The FSM was a declaration of war against the norms of society in which campus radicals proclaimed themselves above the law and not subject to the usual constraints on conduct in the American democratic process. All forms of leftist agitation, including physical violence, became regarded as legitimate forms of protest, so long as the actions advanced the fundamental transmogrification of America. Legitimate force used by the authorities to combat leftist mayhem was deemed fascist or whatever descriptor was fashionable at the time. Today Antifa goons dressed all in black self-righteously assault their opposition, cloaking themselves in the same moral garments as their forebears, while campus administrators at Berkeley and elsewhere sit idly by doing nothing.
That Judge Chesney isn’t on top of these free speech-related developments at her highly influential alma mater simply beggars belief.
But at least the judge is allowing most of the claims made by Young America’s Foundation and Berkeley College Republicans against the left-wing fascists of UC Berkeley to move forward. Next up in the civil proceeding is a case management conference scheduled for June 1.
UC Berkeley spun the unwanted result, claiming the $9,000 fee it charged Ben Shapiro for appearing on campus was "lawful and appropriate."
Harmeet Dhillon, a lawyer for the plaintiffs, was upbeat.
"It is good news that the case is going forward," Dhillon said Thursday.
"The First Amendment is a core constitutional principle, and every government policy that restricts, censors or bars otherwise legal speech is unconstitutional."