Free Speech in the Trump Era:
The View from Berkeley
By William Bennett Turner
My U.C. Berkeley course on Freedom of Speech and the Press began the week Donald Trump was inaugurated and ended on the day Ann Coulter was supposed to speak on campus. When I told people what I was teaching this semester, the reactions were “Oooh, that’s timely!” and “Essential these days!” My pat response: “It always is.” Trump may have awakened interest in free speech issues, and changed the conversation about who is demanding the right to speak, but he can’t change fundamental First Amendment rights.
He has made some ominous threats. During the campaign, he promised to “open up the libel laws” so “we can sue [newspapers who publish a false hit piece] and make lots of money.” Consistently attacking the mainstream press, Trump has called the news media the “enemy of the American people” and asserted that “reporters are among the most dishonest beings on earth.”
After he was elected and someone burned a flag on a Massachusetts college campus, he said (in a 3:55 a.m. tweet), “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail.”
The day after U.C. Berkeley cancelled a speech by right wing provocateur Milo Yiannopolous because of a riot, Trump tweeted: “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view — NO FEDERAL FUNDS?”
On the other hand, he has said some things that you may find distasteful but in fact favor free speech. His use of Twitter, for example, is an unprecedented direct communication from president to people, not filtered through advisers, spinners and the news media. Never before have the people had such direct access to what the president is thinking and saying. That’s good, even if his ideas are frightening.
And his sneering rejection of “political correctness” actually favors free speech. He claims people should be allowed to say crudely insulting things demeaning racial, religious, and ethnic groups. Such politically incorrect name-calling is in fact protected by the First Amendment. Indeed, Trump’s improvisational and ignorant insults themselves inspire lively political speech. It’s nearly impossible these days to avoid talking politics. Trump unwittingly has given new life to the venerated First Amendment principle that the remedy for speech that you fear is not suppression but more speech, and for lies, truth.
What has he actually done about free speech? Well, he excluded some reporters he was unhappy with from a press briefing, and he decided to withhold White House visitor logs that identify the lobbyists, CEOs, and business cronies that he secretly welcomes there. There is, alas, no First Amendment right of access to government facilities (like the White House), or government information, and no president can be compelled to grant interviews or hold press conferences. It is true, under a case decided during the Reagan administration, that presidents can’t arbitrarily exclude certain disfavored reporters from press conferences. But presidents can choose favorite interviewers and ignore the questioners and questions he fears.
Fortunately, as president there is very little Trump can do about actually suppressing speech he doesn’t like. For example, he can do nothing to change the libel laws he complains about. Libel laws are state laws; there is no federal libel law. The president has no power to order states to make it easier to bring libel suits. Nor can he change the First Amendment, which the Supreme Court interpreted to bar public officials and figures from claiming libel unless they can prove both falsity and “actual malice.” Even Neal Gorsuch, Trump’s Supreme Court nominee, admits that New York Times v. Sullivan is “the law of the land.”
Similarly, there is nothing Trump can do about the Supreme Court decision three decades ago holding that burning the flag as a means of political protest is “speech” protected by the First Amendment. The late Justice Antonin Scalia, whom Trump identified as his model justice and whom Gorsuch reveres, voted with the majority in that case.
But Trump has influenced the First Amendment conversation — shifting who is demanding “free speech!” from dissidents and the dispossessed to his conservative ideological comrades, the Milo Yiannopolouses and Ann Coulters of the world and their followers. Nowhere has this shift been more visible than on the U.C. Berkeley campus. In the Sixties it was students who claimed free speech rights to assail the establishment, oppose the Vietnam war and demand civil rights. Now it is conservatives claiming the right to bring in speakers whose Trumpian ideas are diametrically opposed to those of the students in the Sixties: anti-immigration, anti-Muslim, anti-political correctness, “America First,” and white nationalism. It was Trump’s campaign and now his presidency that gave these ideas currency, bringing them out of the shadows and lending them legitimacy as policies he believes right-thinking Americans should embrace.
Unfortunately, the lawful exercise of free speech sometimes provokes unlawful violence. When Yiannopolous arrived to speak, his militant supporters — Trump supporters — came to town armed and spoiling for a fight with the “liberals” and students who opposed the university’s decision to allow the speech. On the other side, some “black bloc” Antifas (antifascists) also came prepared to fight and tried to prevent the speech by violently attacking the student union. The riot caused the university to cancel the speech, and Trump unfairly blamed the university rather than the Antifas for denying free speech.
After another serious confrontation in downtown Berkeley between right wing militants and the Antifas, Ann Coulter stepped forward to bring her Trumpian ideas to the campus. The university, though understandably concerned about its ability to keep the peace, agreed she could come and speak. After much back and forth about the venue, date and time of the speech, Coulter cancelled at the last moment. But the university was blamed for limiting speech.
Right wingers around the country, including Trump, loudly complained that Berkeley, the home of the Free Speech Movement, was now its final resting place. Liberals and the Antifas loudly complained that what Yiannopolous and Coulter had to say constituted “hate speech” that should not be allowed on college campuses. Few (except my students) seem to understand that there is no First Amendment exception for hate speech. No matter how bigoted and insulting the attacks on racial, ethnic and religious groups are, government can’t silence or punish speech unless the speaker intentionally “incites” — by something he or she says — imminent violence. The authorities have to protect the speaker, not give in to a “heckler’s veto.”
On that point, the Trumpians are correct. The slurs of Yiannopolous and Coulter are constitutionally protected. Berkeley, however, got a bad rap. The university explicitly recognized the First Amendment principles at stake and tried to accommodate the speakers and prevent violence. I can’t believe the authorities’ security concerns were pretextual and they really were trying to prevent students from hearing views the authorities didn’t want them to hear.
It’s sad to see the iconic home of free speech — the Berkeley campus — unjustifiably held up as the Exhibit A of speech suppression. I doubt the Berkeley troubles would have occurred had there been no Trump campaign or presidency. Maybe Trump will have boosted enrollment in my course for next year, but he can’t do away with the First Amendment fundamentals I hope to get my students to understand and celebrate.
William Bennett Turner teaches First Amendment courses at the University of California, Berkeley, and is the author, most recently, of Free Speech: Supreme Court Opinions from the Beginning to the Roberts Court (2017).