Feb 08, 2018
January Event Recap
The First Amendment: Navigating the Balance in the Trump Era
Feb 08, 2018
By Nicole Çabalette
MCBA’s first General Membership Meeting of 2018 featured U.C. Berkeley Assistant Vice Chancellor and Director of Communications Dan Mogulof discussing the challenges of navigating the balance of First Amendment rights in our current political climate.
Mogulof gave an engaging first-hand account of how the protest against conservative activist Milo Yiannopoulos’ visit to the Berkeley Campus in February 2017 turned violent, and what it felt like to come face to face (or close) with Antifa at the height of the protest. He also shared the details of the aftermath, including the many challenges the University faced as further visits by conservative political commentators such as Ben Shapiro, Ann Coulter, Milo Yiannopoulos (again) and his “Free Speech Week” in September 2017 approached.
Mogulof noted some distressing trends in these events. One is that for some of these speakers, their appearance at Berkeley was primarily about generating support and outrage among their base, particularly through social media and right-wing news outlets rather than any genuine interest in debating issues. His insider accounts were enlightening with the facts behind baseless claims by potential speakers that UC Berkeley was prohibiting them from speaking. (And be on the lookout for a New Yorker article about campus speech that will include the events at UC Berkeley.)
He also commented about the changing nature of the media and the news cycle. He has observed that with the twenty-four-hour nature of the news cycle, very few news outlets do what he considers, as a former journalist, real reporting. The pressure to report something immediately leads much of the media to simply report what someone—like many of these potential campus speakers—said without any investigation of the facts. Sometimes there may be a quote from someone on the opposite side of events but rarely is there any examination of what actually happened not to mention any context or nuance.
Another trend particularly distressing to attorneys was the degree to which members of the UC community, in these cases from the left of the political spectrum, called for the administration to actually prohibit the speakers. Particularly troubling was the small but not insignificant number of faculty members who took this position. Mogulof recounted his conversation with one faculty member who insisted that Yiannopoulos be prohibited from speaking and when Mogulof asked why the answer was “Because he’s wrong.”
Despite the calls of some within the University for cancellation of the potentially violent visits, Mogulof noted that the University, in addition to its strong desire to uphold its long tradition of supporting free speech and avoid stoking the anti-Berkeley narrative, was bound by the doctrine of prior restraint. At least two federal courts have held that universities cannot ban speakers, and that a generalized concern about violence is not sufficient to bar such speech.
When asked about the costs to the University associated with Ben Shapiro’s visit and Yiannopoulos’ second brief visit to the Berkeley campus in September 2017, which were estimated at $3,000,000 over three days, Mogulof noted that such costs are paid out of unrestricted donor funds, and not tuition or state funds.
Past MCBA President Randy Wallace recalled his experience on the Berkeley campus in 1968, when the political climate was equally as charged, but there seemed to be more respect and dialogue and asked Mogulof what he thinks has changed. Mogulof responded that it was a number of factors, including a change in parenting styles, a shift towards identity politics, lack of modeling for compromise, a prevalence of a “winner take all” attitude and the absence of national leadership.
However, Mogulof reported that there are some recent signs of change within the University community. For example, the Berkeley Conservative Society, a new student group formed in an effort to “bring back political decency” and foster civil bipartisan discourse, recently met with the Cal Berkeley Democrats to debate health care, climate change and taxation. There has also been a leadership change within the Berkeley College Republicans that appears to reflect a shift away from extreme conservative leadership. He also cited Ben Shapiro as a speaker who is genuinely interested in dialogue on the issues rather than pure political posturing, going so far as to give priority to audience questioners who disagree with him. Mogulof noted that two years ago, Shapiro spoke on campus, attracted a small crowd, cost UC nothing and resulted in no news articles. Now the cost is seven figures.
As Mogulof noted, “Free speech is a process. It’s a work in progress.”
Nicole Çabalette is a member of MCBA's Board of Directors and a partner at Keegin Harrison LLP, with a transactional practice emphasizing business, real estate law and estate planning.