1 00:00:00,080 --> 00:00:03,040 Speaker 1: And Cultures speech at the University of California, Berkeley has 2 00:00:03,080 --> 00:00:07,040 Speaker 1: been canceled sort of. The conservative commentator told media outlets 3 00:00:07,080 --> 00:00:09,559 Speaker 1: she still plans on visiting the campus today to talk 4 00:00:09,560 --> 00:00:12,760 Speaker 1: to supporters, and meanwhile, groups on the right are planning rallies. 5 00:00:13,160 --> 00:00:15,720 Speaker 1: It all comes after the university and then the student 6 00:00:15,720 --> 00:00:18,959 Speaker 1: groups that originally invited her withdrew their support for a 7 00:00:19,000 --> 00:00:22,919 Speaker 1: more formal speech, citing security concerns. It fits into what 8 00:00:22,960 --> 00:00:25,360 Speaker 1: has become a pattern on college campuses where the First 9 00:00:25,400 --> 00:00:29,400 Speaker 1: Amendment is increasingly being tested. Bomb throwing Conservatives are invited 10 00:00:29,400 --> 00:00:31,840 Speaker 1: to speak and are greeted with protests and even violence. 11 00:00:32,240 --> 00:00:35,440 Speaker 1: Sometimes the speech goes on and sometimes it doesn't. The 12 00:00:35,479 --> 00:00:37,880 Speaker 1: campus classes are raising a host of First Amendment issues, 13 00:00:37,920 --> 00:00:40,120 Speaker 1: and with us to sort those out are Michael Dowarff, 14 00:00:40,200 --> 00:00:43,360 Speaker 1: a professor at Cornell University Law School, and Eugene Volack, 15 00:00:43,560 --> 00:00:46,600 Speaker 1: professor at u c l A School of Law. Welcome 16 00:00:46,640 --> 00:00:49,440 Speaker 1: to you both, Mike. Let's start with just kind of 17 00:00:49,440 --> 00:00:53,760 Speaker 1: the basic First Amendment principles here. What obligation does a 18 00:00:53,840 --> 00:00:58,840 Speaker 1: public university have to accommodate a controversial speaker. Our public 19 00:00:58,880 --> 00:01:01,920 Speaker 1: university is a state actor. That means it's bound by 20 00:01:01,920 --> 00:01:06,160 Speaker 1: the Constitution, including the First Amendment, which applies to state 21 00:01:06,200 --> 00:01:10,959 Speaker 1: actors in virtue of the fourteenth Amendment, and so UM 22 00:01:11,000 --> 00:01:15,399 Speaker 1: in general, the state UH can exclude people from property, 23 00:01:15,440 --> 00:01:20,480 Speaker 1: but not from so called public Flora University campus is 24 00:01:20,520 --> 00:01:24,399 Speaker 1: not entirely a public forum, but generally the way that 25 00:01:24,440 --> 00:01:28,720 Speaker 1: they're structured, student groups are entitled to invite outside speakers, 26 00:01:28,760 --> 00:01:31,480 Speaker 1: and so that means that the university is entitled to 27 00:01:32,080 --> 00:01:38,160 Speaker 1: enforce what the doctrine calls UH content neutral, reasonable time, place, 28 00:01:38,200 --> 00:01:40,760 Speaker 1: and manner restrictions. So it doesn't mean anybody can give 29 00:01:40,760 --> 00:01:43,399 Speaker 1: a speech at any time anywhere, but if a student 30 00:01:43,400 --> 00:01:46,760 Speaker 1: group invites a speaker, then the university has to try 31 00:01:46,760 --> 00:01:50,720 Speaker 1: to accommodate and can't exclude based on disagreement with the 32 00:01:50,840 --> 00:01:55,600 Speaker 1: perspective of the speaker. Eugene University officials said that the 33 00:01:55,640 --> 00:02:00,880 Speaker 1: Berkeley College Republicans invited culture without following the rules, which 34 00:02:00,920 --> 00:02:05,400 Speaker 1: were notifying campus officials in advance and failing to submit 35 00:02:05,440 --> 00:02:08,480 Speaker 1: to a security assessment so they could determine a suitable 36 00:02:08,520 --> 00:02:12,160 Speaker 1: time and place for the event. Is that a good 37 00:02:12,320 --> 00:02:17,280 Speaker 1: reason for their first refusal to have the speech? Though 38 00:02:17,639 --> 00:02:21,840 Speaker 1: content neutral policies were not followed, then yes, that would 39 00:02:21,880 --> 00:02:26,160 Speaker 1: be a permissible reason in many situations. But the College 40 00:02:26,200 --> 00:02:30,480 Speaker 1: Republicans are very much disagree with that. Uh. They say 41 00:02:30,520 --> 00:02:35,320 Speaker 1: they indeed gave UM the university proper notice about that, uh, 42 00:02:35,560 --> 00:02:39,280 Speaker 1: and that the real reason the university gave isn't that, 43 00:02:39,720 --> 00:02:43,760 Speaker 1: and the actual reason for for the university's action isn't that, well, 44 00:02:43,919 --> 00:02:48,400 Speaker 1: you didn't submit it in time. It's that we're afraid 45 00:02:48,480 --> 00:02:50,720 Speaker 1: that there will be to this kind of disruption, And 46 00:02:50,760 --> 00:02:54,600 Speaker 1: they were essentially university was caving in to this content 47 00:02:54,760 --> 00:02:58,040 Speaker 1: based fear of disruption, the fear that the that the 48 00:02:58,120 --> 00:03:01,000 Speaker 1: content will draw people who will be this uptive. Uh. 49 00:03:01,120 --> 00:03:05,160 Speaker 1: So Uh, that's the College Republicans position on the fact. 50 00:03:05,240 --> 00:03:09,080 Speaker 1: And from what little scene of the evidence that there's 51 00:03:09,120 --> 00:03:11,920 Speaker 1: a lawsuit now file, so maybe we'll get more of information, 52 00:03:12,200 --> 00:03:14,480 Speaker 1: they have a pretty credible claim that they had alerted 53 00:03:14,520 --> 00:03:17,920 Speaker 1: the university in plenty of time. Well, Mike, at what 54 00:03:18,000 --> 00:03:20,639 Speaker 1: point can a university say, as I as I think 55 00:03:20,960 --> 00:03:25,519 Speaker 1: Berkeley did in this case, we can't guarantee safety. Um, 56 00:03:25,560 --> 00:03:27,800 Speaker 1: that that there's so much of a threat of violence 57 00:03:28,080 --> 00:03:30,959 Speaker 1: that even though uh, you know, normally we would accommodate 58 00:03:31,040 --> 00:03:34,480 Speaker 1: the speaker, we need to cancel it because we're genuinely 59 00:03:34,520 --> 00:03:36,840 Speaker 1: concerned that somebody is going to get hurt. Well, I 60 00:03:36,880 --> 00:03:40,160 Speaker 1: think it's useful to distinguish two sorts of disputes here. 61 00:03:40,680 --> 00:03:44,720 Speaker 1: One is the factual dispute to which my friend Eugene referred, Right, 62 00:03:44,720 --> 00:03:48,200 Speaker 1: there's a question of what were the actual motives of 63 00:03:48,240 --> 00:03:51,760 Speaker 1: the university officials who have now been sued. Uh, So, 64 00:03:51,960 --> 00:03:54,640 Speaker 1: you know, were they actually concerned about safety? But even if, uh, 65 00:03:54,680 --> 00:03:57,880 Speaker 1: if university officials are concerned about safety, which is a 66 00:03:57,960 --> 00:04:01,760 Speaker 1: legitimate concern and at some point would just defy postponing 67 00:04:02,000 --> 00:04:07,800 Speaker 1: or moving of speaker, there is a question of, um, 68 00:04:07,880 --> 00:04:10,640 Speaker 1: you know, whether you put the onus on the speaker 69 00:04:11,280 --> 00:04:15,520 Speaker 1: or whether you take additional measures. The law frowns upon 70 00:04:15,600 --> 00:04:18,159 Speaker 1: what sometimes referred to as the Heckler's veto. You don't 71 00:04:18,240 --> 00:04:22,080 Speaker 1: want to say that because people are opposed to this speaker, 72 00:04:22,520 --> 00:04:25,719 Speaker 1: that creates a safety concern, and that means that we 73 00:04:25,800 --> 00:04:28,000 Speaker 1: can shut it down. So, even if the university officials 74 00:04:28,000 --> 00:04:31,920 Speaker 1: were not trying to censor and culture of the student group, uh, 75 00:04:32,000 --> 00:04:34,919 Speaker 1: they do have some obligation to try to protect their 76 00:04:35,000 --> 00:04:38,520 Speaker 1: speech by first going after the people who are going 77 00:04:38,560 --> 00:04:42,000 Speaker 1: to cause the risk of safety, Eugene. What is the 78 00:04:42,120 --> 00:04:46,560 Speaker 1: answer if there is one, to these violent outbursts that 79 00:04:46,680 --> 00:04:49,520 Speaker 1: are taking place not just at Berkeley but at other 80 00:04:49,600 --> 00:04:53,840 Speaker 1: campuses in the country. Well, one thing that we know 81 00:04:54,240 --> 00:04:56,880 Speaker 1: from life and from psychology is that behavior that is 82 00:04:56,960 --> 00:05:03,040 Speaker 1: rewarded is repeated. Uh At when people learned that if 83 00:05:03,040 --> 00:05:05,000 Speaker 1: they want to shut down a speaker, all they need 84 00:05:05,040 --> 00:05:08,800 Speaker 1: to do is even sometimes just threatened violence, some of 85 00:05:08,839 --> 00:05:11,599 Speaker 1: these things end up being canceled because of anonymous threats 86 00:05:11,600 --> 00:05:14,040 Speaker 1: that are submitted, or sometimes you actually need to show 87 00:05:14,120 --> 00:05:17,080 Speaker 1: up at one of these things and act violently. UH. 88 00:05:17,200 --> 00:05:20,680 Speaker 1: Then in that case, lots of groups with lots of 89 00:05:20,720 --> 00:05:25,200 Speaker 1: political views will will learn the lesson from that that 90 00:05:25,400 --> 00:05:29,320 Speaker 1: uh this is an effective technique, and the only way 91 00:05:29,360 --> 00:05:31,600 Speaker 1: to prevent this technique from working, the only way to 92 00:05:31,720 --> 00:05:34,760 Speaker 1: deter future violence at the future such threats of violence 93 00:05:34,800 --> 00:05:37,360 Speaker 1: that suppress speech is to say, we're going to protect 94 00:05:37,400 --> 00:05:39,440 Speaker 1: the speaker, We're going to allow the speaker to come, 95 00:05:39,560 --> 00:05:41,599 Speaker 1: We're going to assure that there's enough of a police 96 00:05:41,600 --> 00:05:46,039 Speaker 1: presence uh to protect the speaker. And if people act violently, 97 00:05:46,120 --> 00:05:48,880 Speaker 1: they will be arrested. If their students, they will be disciplined. 98 00:05:48,920 --> 00:05:52,320 Speaker 1: They might be expelled. Uh. And Uh, we're not going 99 00:05:52,400 --> 00:05:55,560 Speaker 1: to tolerate this. Uh. The more you give into the thugs, 100 00:05:55,640 --> 00:05:58,760 Speaker 1: the more likely not only the the thugs will themselves 101 00:05:58,760 --> 00:06:01,679 Speaker 1: repeat their actions, but that other people will start engaging 102 00:06:01,680 --> 00:06:05,719 Speaker 1: in fuggish tactics in order to um, in order to 103 00:06:05,720 --> 00:06:09,039 Speaker 1: take advantage of this avenue for speech suppression. I will say, 104 00:06:09,040 --> 00:06:11,280 Speaker 1: the lawsuit against u C. Berkeley claims, and again it's 105 00:06:11,279 --> 00:06:13,719 Speaker 1: just a claim at this point, but that the Berkeley 106 00:06:13,720 --> 00:06:17,320 Speaker 1: police basically have a policy of not intervening even when 107 00:06:17,400 --> 00:06:22,920 Speaker 1: people get violent, uh, unless people's lives are in danger. 108 00:06:23,640 --> 00:06:26,480 Speaker 1: And that seems to suggest that the message being sent 109 00:06:26,839 --> 00:06:30,239 Speaker 1: is if you want to react violently to a police 110 00:06:30,279 --> 00:06:34,239 Speaker 1: approach police to a speaker, Uh, that in that case 111 00:06:34,400 --> 00:06:36,400 Speaker 1: Uh Uh that in that case, you're going to get 112 00:06:36,400 --> 00:06:38,520 Speaker 1: away with it. And it's unsurprising that as a result 113 00:06:38,600 --> 00:06:43,360 Speaker 1: we're getting more such violent reactions, Mike. Uh. Former Democratic 114 00:06:43,440 --> 00:06:47,200 Speaker 1: National Committee Chairman Howard Dean recently tweeted that heat speech 115 00:06:47,360 --> 00:06:49,760 Speaker 1: is not protected by the First Amendment, and that drew 116 00:06:49,760 --> 00:06:52,599 Speaker 1: a lot of controversy, and you had a pretty provocative, 117 00:06:53,000 --> 00:06:55,920 Speaker 1: interesting post about that. I think you you disagree with 118 00:06:55,960 --> 00:06:59,000 Speaker 1: them on that. As a matter of constitutional law. But uh, 119 00:06:59,160 --> 00:07:00,720 Speaker 1: what do you think about the new US about whether 120 00:07:00,920 --> 00:07:03,360 Speaker 1: heat speech and this may or may not be hate 121 00:07:03,360 --> 00:07:06,360 Speaker 1: speech by a culture, whether that should be protected by 122 00:07:06,360 --> 00:07:09,080 Speaker 1: the First Amendment. Yes, let me say for two things. First, 123 00:07:09,120 --> 00:07:12,040 Speaker 1: I completely agree with your summary. That is, hate speech 124 00:07:12,400 --> 00:07:15,520 Speaker 1: is not a category of unprotected speech in the United States. 125 00:07:15,560 --> 00:07:19,200 Speaker 1: We are constitution has been construed to protect what's sometimes 126 00:07:19,200 --> 00:07:21,520 Speaker 1: called hate speech. Is no doubt about that. Howard Dean 127 00:07:21,640 --> 00:07:24,360 Speaker 1: was clearly wrong about that. Second, I want to say 128 00:07:24,360 --> 00:07:28,760 Speaker 1: that I actually agree with the American approach. What I wrote, though, 129 00:07:28,960 --> 00:07:32,560 Speaker 1: was that the American approach is an outlier in the 130 00:07:32,640 --> 00:07:37,280 Speaker 1: democratic world. Virtually every other constitutional democracy, including places that 131 00:07:37,280 --> 00:07:41,040 Speaker 1: we would consider to be pretty much open societies like 132 00:07:41,160 --> 00:07:46,440 Speaker 1: Canada the United Kingdom, for example, UH, do restrict what 133 00:07:46,480 --> 00:07:51,240 Speaker 1: they call hate speech UM in ways that prevent people 134 00:07:51,600 --> 00:07:57,400 Speaker 1: from defaming individuals on the basis of UH group characteristics 135 00:07:57,560 --> 00:08:02,360 Speaker 1: or causing humiliation on on those grounds. UH. And that 136 00:08:03,000 --> 00:08:07,120 Speaker 1: all I was suggesting was that we oughtn't to reflexibly say, well, 137 00:08:07,160 --> 00:08:09,640 Speaker 1: of course hate speech ought to be protected just because 138 00:08:09,680 --> 00:08:11,800 Speaker 1: it is protected. I have to leave We're gonna have 139 00:08:11,880 --> 00:08:13,320 Speaker 1: to leave it there. Thank you so much to our 140 00:08:13,360 --> 00:08:16,800 Speaker 1: guest law professors Michael Dorriff and Eugene Vallack. That's it 141 00:08:16,840 --> 00:08:19,200 Speaker 1: for this edition of Bloomberg Law. Coming up on Bloomberg 142 00:08:19,280 --> 00:08:22,920 Speaker 1: Radio bloom Bloomberg Markets with Carol Masser and Corey Johnson. 143 00:08:23,160 --> 00:08:26,080 Speaker 1: Stay tuned for that. This is Bloomberg