Yesterday morning, UC Berkeley Chancellor Robert J. Birgeneau e-mailed the campus community with regard to the horrendous mass shooting in Arizona that killed a federal judge, a 9-year-old girl, and several others while gravely injuring Congresswoman Gabrielle Giffords, the apparent target of the attack.

Like many others in the news media and on blogs and Twitter, Birgeneau chose to put the blame for the shooting on the "climate" of speech in Arizona, while lamenting what he sees as similar problems at his own institution. The key sentence: "A climate in which demonization of others goes unchallenged and hateful speech is tolerated can lead to such a tragedy." The e-mail is produced in whole below:

From: Robert J. Birgeneau, Chancellor <CALmessages@berkeley.edu>
Date: Mon, Jan 10, 2011 at 10:30 AM
Subject: Chancellor Birgeneau comments on Arizona shootings
To: "Staff, All Academic Titles, Other Members of the Campus Community, Deans, Directors, Department Chairs, Students," <CALmessages@berkeley.edu>

Dear members of our campus community:

This weekend's shooting of Congresswoman Gabrielle Giffords and the deaths and injuries of many others in the horrific event in Tucson, Arizona[,] have shocked our nation. We here at UC Berkeley offer our sincere condolences to everyone who has been personally affected by this tragedy.

Such a brutal and violent attack on an individual who has devoted herself to public service is deeply regrettable. It calls upon us as an academic community to stop and ponder the climate in which such an act can be contemplated, even by a mind that is profoundly disturbed. A climate in which demonization of others goes unchallenged and hateful speech is tolerated can lead to such a tragedy. I believe that it is not a coincidence that this calamity has occurred in a state which has legislated discrimination against undocumented persons. This same mean-spirited xenophobia played a major role in the defeat of the Dream Act by our legislators in Washington, leaving many exceptionally talented and deserving young people, including our own undocumented students, painfully in limbo with regard to their futures in this country.

On our own campus, and throughout all the campuses of the University of California, we must continue to work toward a climate of equity and inclusion for all. We must be vigilant to condemn hate speech and acts of vandalism on our campuses by those wanting to promote enmity. We must work to support dialogue about our differences and eschew expressions of demonization of others, including virulent attacks on Israel, anti-Muslim graffiti, racism towards African-Americans, Chicano/Latinos and other underrepresented minority groups, and homophobic acts. Continuing to support our principles of community will ensure a better and safer campus. We must do this now so that our students, as future leaders of this great country, will continue to set the standard for a better and safer nation.

Robert J. Birgeneau
Chancellor, UC Berkeley

Chancellor Birgeneau's e-mail is very ill-considered for a variety of reasons.

First of all, there is so far no evidence that a "climate of demonization," "mean-spririted xenophobia," or "hateful speech" had anything to do with alleged killer Jared Loughner's apparent decision to try to assassinate Giffords and kill or injure many others. The supposition that political expression created a climate that led Loughner to his choice is an idea that seems to have sprung from whole cloth out of the minds of people who likely were upset beforehand about "rhetoric" and "hateful" speech, including, apparently, Chancellor Birgeneau. Nevertheless, it has quickly become the driving force in the national discussion about the shooting.

In the United States, "hateful speech" is tolerated consistently in public forums nationwide—including public universities—because the First Amendment demands that the government tolerate virtually allspeech. By itself, "hateful speech" cannot be punished by UC Berkeley, a public institution bound by the First Amendment. In fact, the Supreme Court has stated that free speech "may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

One of the primary reasons for this tolerance is that there is not and cannot be widespread agreement on what speech is "hateful" and therefore undeserving of Constitutional protection. An excellent example of this disagreement is found in Birgeneau's own e-mail:

I believe that it is not a coincidence that this calamity has occurred in a state which has legislated discrimination against undocumented persons. This same mean-spirited xenophobia played a major role in the defeat of the Dream Act by our legislators in Washington, leaving many exceptionally talented and deserving young people, including our own undocumented students, painfully in limbo with regard to their futures in this country.

FIRE, of course, has no position whatsoever on the proposed federal DREAM Act or any state legislation regarding immigration in Arizona. But we do know that reasonable people in a democratic society take a variety of reasoned positions for and against legislation for a wide variety of reasons, not just "mean-spirited xenophobia."

Finally, Birgeneau's e-mail, if taken to its logical conclusion, seems to imply that minority groups and undocumented students at UC Berkeley might become violent if people in the campus community do not support the DREAM Act and if other examples of "hateful speech" go unchallenged on campus. While he avoids an outright call for censorship of certain opinions—such as opposition to the DREAM Act—he makes it clear that he would not be surprised if the voicing of these opinions led to another incident like that in Arizona. Birgenau thus implies that such expression is therefore both morally wrong and likely to endanger people's lives through its very utterance.

It is within the Chancellor's rights to officially encourage people at Berkeley to act and speak in accordance with the university's officially sponsored moral principles. Yet, does the Chancellor really think students on his campus are so fragile, psychologically weak, and prone to violence that the campus is less "safe" when they see mean graffiti, experience racism, or hear "virulent" language against Israel? Even if someone on campus is truly so unstable and unsafe—a possibility in any institution as large as UC Berkeley—taking the steps necessary to ensure that such a person is never "set off" by speech he or she finds offensive would result in a campus that one would not even recognize as a part of America.

Adopting the logical if unstated conclusion of the Chancellor's argument here (as some lawmakers and commentators appear to be ready to do) would result in the imposition of a variation on the "heckler's veto," where the most violent person in the community gets to decide who may speak and what they may say, on threat of violence. As UCLA law professor Eugene Volokh wrote yesterday for The Volokh Conspiracy, there is no First Amendment exception that would leave speech unprotected when "the concern is simply that a few kooks or extremists might be moved to commit a crime at some indefinite time as a result of seeing the speech." If we are to have a free society, the boundaries of acceptable speech must not be determined by what might spark the murderous rage of the craziest and/or most violent person.

Same school, different times...


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From the Foundation for Individual Rights in Education's blog, The Torch...