What do professional provocateur Ann Coulter and an irreverent student publication called The Koala have in common? Both have seen their unpopular speech shut down by the supposedly "viewpoint neutral" actions of public universities in California.
In a series of legal maneuvers, the University of California, Berkeley and the University of California, San Diego are attempting to blur the lines between viewpoint-neutral and viewpoint-discriminatory in ways that, if allowed to stand, will give colleges and universities much greater leeway to suppress speech they don't like.
Berkeley's College Republicans filed a lawsuit in April following the cancellation of Ann Coulter's planned speech at the university. The organization accused Berkeley of using an unwritten "high-profile speakers" policy as pretext for discriminating against conservative speakers by limiting them to times of day and locations where they were unlikely to be heard.
According to the College Republicans, Berkeley has applied its vague, disputed high-profile speaker policy—which seems to have been hatched in March at a meeting of school administrators, police officers, and city officials, but never actually written down—"in a discriminatory fashion, resulting in the marginalization of the expression of conservative viewpoints on campus by any notable conservative speaker."
In a motion to dismiss filed last week, Berkeley argues its actions with regard to Ann Coulter's planned appearance were viewpoint neutral. University officials claim, unbelievably, that they were concerned only about "clashes between opposition groups of protesters…any suggestion that the University was motivated by a particular protester's message or view is demonstrably false."
But those "opposition groups" materialized (at an event billed as a "free speech" rally) after Berkeley utterly failed to prevent left-wing demonstrators from shutting down a speech by conservative provocateur Milo Yiannopoulos. So in effect, Berkeley is arguing that if you let angry protesters from one side run so rampant that it draws angry protests from the other side, you now have a "viewpoint neutral" right to suppress controversial speech in the name of public safety. If the court were to accept this argument, it would hand California universities a giant club with which to hammer unpopular speech.
In fact, the University of California, San Diego (UCSD) is already trying to wield a similar club to bludgeon unpopular speech on its campus. Earlier this year, a court upheld a "Media Act" passed by the school's student government that eliminated student activity funding for all print media on campus.
The student government passed the act just two days after the publication of a controversial article in The Koala, a student humor publication that bills itself as "The Worst in Collegiate Journalism Since 1982!"
On November 16, 2015, The Koala published—without a trigger warning!—an article that satirized the concept of "safe spaces" and made use of numerous stereotypes and epithets in the process.
Two days later, on November 18, UCSD issued an official denouncement of The Koala, calling it "profoundly repugnant, repulsive, attacking and cruel." On the same day, student government representatives explicitly denounced the article before pulling funding for print media on campus.
The Koala has long drawn the ire of the campus' more politically correct elements for its provocative and intentionally offensive humor. As a result, over the past 15 years, the UCSD student government has attempted on at least three separate occasions to cut The Koala's student activity funds (money collected from students by the university and given to the student government to distribute, on a viewpoint-neutral basis, to student organizations).
This time The Koala sued the university for First Amendment violations. Despite what clearly appeared to be the targeting of their publication, a judge ruled the student government action was viewpoint neutral because it applied to all print media, not just The Koala.
The Koala is currently appealing the decision.
In both cases, if the courts ultimately side with the schools, California universities—and other emboldened schools around the country—are nearly certain to continue pushing the envelope, restricting an ever-increasing sphere of speech by disfavored speakers and student groups.