Free Speech on Berkeley Campus

By Lori Smith (Rutgers Law Student) As the birthplace of the free speech movement, it is ironic that the University of California, Berkeley (UC Berkeley) has been under attack with allegations of stifling free speech on its campus. It started when the Berkeley College Republicans booked controversial writer and now former Breitbart news editor, Milo Yiannopoulos, to be a guest speaker. Almost 100 faculty members immediately signed letters of protest urging the administration to cancel his visit; and on the night Yiannopoulos arrived, 1,500 people showed up to protest. While initially peaceful, the protests escalated to dangerous riots when roughly 150 anti-fascist radicals appeared with clubs and shields and caused over $100,000 in damage. The “masked agitators” lit fires, hurled Molotov cocktails, smashed windows, and tore down police barricades. Out of concern for public safety, UC Berkeley administrators canceled the right-wing event just hours before Yiannopoulos was set to speak. Believing UC Berkeley was obstructing conservatives’ First Amendment right to free speech, critics reacted strongly, including President Trump who tweeted this threat: Federal funds account for $370 million of the total $673.9 million UC Berkeley receives in research funding from external sources each year. This figure does not include the millions of federal dollars that flow to UC Berkeley in the form student loans and grants to cover the cost of attendance (e.g. 31% of students receive income-based federal Pell grants). Coupled with Trump’s viewpoint of California in general, one cannot help but wonder whether President Trump was just engaging in another Twitter rant, or if UC Berkeley should brace itself to lose a significant chunk of change, including more than half of its total research funding. While the federal government is permitted to impose certain conditions on federal spending, there are no prior instances of a POTUS linking free speech and federal funds. President Obama once issued a warning to public schools regarding the use of bathrooms by transgender students, but it was grounded in Title IX law that penalizes schools found to be discriminatory with a loss of Title IX funds. While the executive branch may try to pull federal funds from public institutions for civil rights violations, experts agree that, as of now, it cannot do so on free-speech grounds. For Trump to withdraw funding from UC Berkeley, he would first have to ask Congress to pass a new law. Hypothetically, at President Trump’s urging, the Republican-majority Congress could pass a law or budget bill that puts conditions on the federal funding provided to “out-of-control” California and liberal-leaning UC Berkeley, but numerous Supreme Court decisions have imposed limits on any such conditions that protect states from vindictive policymaking. For starters, if Congress wants to condition states’ receipt of federal funds, it must do so unambiguously, enabling states to knowingly exercise their choice of participating in a federally funded program. Conditions must also be legitimately related to the federal interest in the particular project or program being funded. But more importantly, and on point with the situation here, any conditional spending must not be “coercive,” whereby a state is unconstitutionally forced to comply because it needs the federal money to operate. For example, in an opinion primarily authored by Chief Justice Roberts, the Court held that Congress’ conditioning of a state’s federal Medicaid funds on whether the state acted in accordance with the Affordable Care Act was unconstitutionally coercive. While they did not unite under any single opinion, a majority of the Justices concluded that Congress has no authority to order the states to regulate according to its instructions. Congress may offer the states grants and require the states to comply with accompanying conditions, but the states must have a genuine choice whether or not to accept the offer. Thus, given relevant case law, it is unlikely that Trump and Congress could succeed in penalizing UC Berkeley for events like that which occurred with Yiannopoulos’ visit, for they would have to show that withholding federal funds is uncoercive, unambiguous, and legitimately related to their interests in subsidizing UC Berkeley’s research program and in providing tuition assistance. Not only is case law against President Trump here, but so are the facts of this case. Despite strong protest, UC Berkeley had actually refused to ban Yiannopoulos, and only cancelled the event (to be later rescheduled) due to real violence, i.e. not just the threat of imminent violence. Moreover, in an open letter to the campus community, UC Berkeley Chancellor Nicholas Dirks deemed the violence “an attack on fundamental values,” and reaffirmed UC Berkeley’s commitment to free speech not only as a “vital component of . . . campus identity but as essential to [UC Berkeley’s] educational mission.” And so, rather than attempt to unconstitutionally coerce UC Berkeley into complying with conditional funding, President Trump should just allow UC Berkeley to continue on with its unwavering pledge to honor the First Amendment.