In a conversation with members of the California Law Review recorded in April 2017, Charles Robinson, General Counsel of the University of California, discussed the university’s approach to free speech on campus. A glance at recent headlines from outlets ranging from the San Francisco Chronicle to TIME to Fox News show a wide range of opinions about UC Berkeley’s legal and moral responsibilities in the most recent controversy around planned far-right speakers at UC Berkeley.
Unlike private universities, public universities are subject to the limits of the First Amendment. The First Amendment applies with the same force on public college campuses as it does in the broader community. See Healy v. James, 408 U.S. 169, 180 (1972).
Public universities cannot constitutionally prohibit speech based on its content, even when the content is contrary to other values that the university may hold. See Papish v. Board of Curators of University of Missouri, 410 U.S. 667, 670 (1973). That type of “viewpoint discrimination” is generally proscribed by the First Amendment. Instead, universities must rely on less restrictive limitations such as restrictions on the time, place, and manner of speech or limits on speech directed towards inciting violence and likely to incite violence. See Cox v. New Hampshire, 312 U.S. 569 (1941); Brandenburg v. Ohio, 395 U.S. 44 (1969).
In this episode, the General Counsel discusses how UC Berkeley balances the competing values of promoting free speech and taking a stand against hate speech and abhorrent viewpoints. Listen now for a perspective from someone who has been on the front lines of this pressing national issue.