The Volokh Conspiracy

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New controversy about UC Berkeley and Ben Shapiro [UPDATE: Event will go forward on Sept. 14]


Ben Shapiro speaking at the 2016 Politicon at the Pasadena Convention Center in Pasadena, Calif. (Gage Skidmore)

[UPDATE: Berkeley has decided to assume responsibility for the usual rental fees for one of its large spaces, so that Shapiro can indeed speak on September 14 at 7 pm. As the Foundation for Individual Rights in Education reports, Dan Mogulof, Berkeley's assistant vice chancellor for public affairs, said, "This event is going to happen. We just need to sit down with the College Republicans to talk through the details [to have successful event planning]. We didn't have any options in terms of the spaces available free of charge, but because of the extent of our commitment to free speech, the campus will help fund any fees associated with hosting this event if need be." (Mogulof confirmed this to me as well, and confirmed that "help fund any fees" means that the campus will assume responsibility for paying for the venue, if need be, though there might be some security fees.)]

The Daily Wire, founded by conservative commentator Ben Shapiro, reports:

On Wednesday, Young America's Foundation and the Berkeley College Republicans were told by the University of California, Berkeley administration that Berkeley would not facilitate an event by Daily Wire editor-in-chief Ben Shapiro on September 14 on campus. Instead, administrators have informed YAF and BCR that they are "unable to identify an available campus venue." They have not provided a list of other events taking place on campus on that time and date that would prevent Shapiro from speaking.

As YAF reports:

In an email to [Berkeley College Republicans] members, Dean of Students Joseph Greenwell and Student Organization Coordinator Millicent Morris Chaney denied the students' request for a venue for September 14, 2017, despite what the Morris Chaney calls "extensive efforts."

Berkeley had earlier explained, "Ben Shapiro is welcome on our campus, and we are committed to supporting his, and your, rights to free speech."

Obviously, that isn't true. The administrator states that Berkeley can only host Shapiro "when events are held at a time and location that allow for the provision of any required security measures."

Berkeley has not yet provided any alternative times, dates, or locations.

I've criticized universities—including the University of California at Berkeley and UCLA—for their interference with speech, and it's certainly possible that Berkeley is indeed trying to exclude Shapiro because of his viewpoint. But at this point, such a conclusion strikes me as, at most, a suspicion.

Here is the email Berkeley sent to the College Republicans:

Dear [BCR leader] –

We hope you are doing well and enjoying the summer. Please know that despite extensive efforts, we have been unable to identify an available campus venue that meets your stated criteria: a space that is available on Thursday, 9/14/17 at 7pm and capable of accommodating an audience of 500 people. As you may know, there are but a handful of venues of that size on campus and for that reason they tend to get booked up long in advance.

Although it is not common practice for the Dean of Students office or the LEAD Center to work on securing space reservations on behalf of a Registered Student Organization (RSO), our interest in supporting your ability to host speakers of your choice has led us to make additional efforts on your behalf. However, given that a venue meeting all of your criteria has not yet been determined, we hope and expect that no one has signed, or will sign a contract committing your organization to a specific time, date, and location before a venue is identified and agreed to, as per standing campus policy and practice.

Before we describe the other venue and timing options we have been able to identify, we must emphasize that before we can move to finalize the event's date, time, and location, there must be a UCPD security assessment, as per longstanding policy that applies to every RSO interested in hosting an event. We plan on scheduling, without delay, a meeting with UCPD to initiate the review and gather needed information. UCPD Special Events Officers have the following dates and times available for this meeting:

Thursday, 7/20/17, 8:00-9:00 am; 11:00 am—1:30 pm
Monday, 7/24/17, 8:00 am—3:00 pm
Tuesday, 7/25/17, 8:00 am—3:00 pm
Thursday, 7/27/17, 8:00 am—3:00 pm

We remain cognizant of your understandable and clearly stated desire for appropriate security at BCR events. As you know, the security assessment can lead our law enforcement professionals to offer important security-related recommendations, including guidance for the timing and location of an event.

Please let me know if there are any other BCR members we should be including in the planning process, what your availability is for an on-campus or phone meeting within the above dates/times, and if Mr. Shapiro has a representative that would be available to be included in that meeting.

Because Mr. Shapiro is welcome on our campus, and we are committed to supporting his, and your, rights to free speech, we very much hope that the BCR and Mr. Shapiro can be flexible when it comes to the timing and location criteria you initially established. In that context we have tentatively reserved a few venues on BCR's behalf that can be discussed as part of the event's security review. These venues include smaller spaces on the date requested and larger venues on other dates in September. Please note that some of these potential venues require rental fees, but your ASUC funds and/or other campus grants might be available to go toward those costs. We must also caution that there exists the possibility that the security review will result in recommendations from UCPD that would preclude the use of some of these venues and/or might rule out certain hours for the event. We want to stress that the outcome of these UCPD security reviews are not based on a speaker's perspective, or those of the hosting organization, but reflect the police department's professional assessment of the likelihood that unlawful efforts could disrupt or shut down the event.

Lastly, we should mention that there will be a new interim event policy that was recently shared with RSOs, and this event, like all others planned for the fall, will need to comply with the terms of the new event policy. Like the existing policy, it will support the right and ability of organizations to host speakers of their choosing without regard for the speakers' perspectives or positions. In addition, for this policy to be effective, legal, and consistent with our values it will in the future, as previous policies have in the past, be applied in a uniform, consistent fashion without regard for the identity of eligible outside users or student organizations, or the speakers they may wish to host. Nothing is going to change on that front. The draft policy and timeline can be reviewed on this web page, and we would welcome your feedback, that can be conveyed by using this Google Form.

Please be assured we will continue to do everything in our power to support BCR in hosting a safe and successful event. That commitment can be fulfilled only when events are held at a time and location that allow for the provision of any required security measures.

[Student Affairs]

Universities should certainly treat student-invited speakers equally, without regard to viewpoint. But dealing with such speakers is, understandably, not their highest priority. Rooms suitable for 500 people or more are limited on any campus, and they are often occupied with other things—concerts, lectures and the like. They are often indeed booked two months out, or more.

When I checked with the university, a spokesman told me that they have a standard set of venues available to students without a room rental fee. Three, he told me, fit 500 people or more, and all are booked on that date. Some other venues may be available, but they're not on the no-rental-fee list; because university officials haven't yet met with the College Republicans, they don't know if the Republicans would be willing to pay the rental fee, or whether they'd prefer a smaller room that night or a larger no-rental-fee room at a different day or time. The email to BCR, as you can see, expressly stated the university's willingness to host Shapiro, including in a large enough venue.

And the email offered a prompt meeting at which these matters could be resolved; the email was sent July 18, and offered to meet July 20, 24, 25 or 27. It looks like the university is offering to figure out a way to have the Shapiro talk go forward—and it's reasonable, I think, to ask for a discussion of how and when that can happen, given that 500-room spaces at Berkeley are a scarce resource.

I appreciate that many conservatives suspect the worst of many universities, including Berkeley. There is some reason for that suspicion. Alleged scheduling conflicts may be a smoke-screen for viewpoint discrimination; so can security requirements. Indeed, even if the university is imposing extra security requirements (high costs for police overtime, time windows that limit the likely audience, and so on) solely because of a good-faith belief that the speaker will bring a hostile audience, and not because of the university's own hostility to the speaker, that could itself be seen as impermissible viewpoint discrimination. (As four of the eight Supreme Court justices in Matal v. Tam, the Slants trademark case, noted, "The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker's audience.")

But sometimes our suspicions prove unfounded. Sometimes a request for a meeting to discuss some slightly different alternatives to a request really is an attempt to satisfy the request as well as possible, given the circumstances (here, the space constraints). Condemning Berkeley before any such meeting takes places strikes me as premature.