How Trump and DOJ Can Protect Free Speech at Berkeley

The protection of freedom of speech, ostensibly one of the nation’s founding principles, appears to have been jettisoned on the campus of the University of California, Berkeley.

On Wednesday, conservative author Ann Coulter finally backed out of a scheduled appearance at the university. Coulter had initially vowed to speak anyway after campus administrators cancelled the event, but when the student groups that had invited her withdrew their support, she relented. Both the university and the students groups cited threats of violence from radical leftist agitators in their decisions.

“Reagan did not trifle with the spoiled brats of Berkley.”

Despite withdrawing their support for Coulter to come to campus and speak despite the cancellation, the Berkeley College Republicans and the Young America’s Foundation have brought suit against members of the UC Berkeley administration. The lawsuit claims the original cancellation violates their constitutional rights to free speech, due process, and equal protection under the law.

This isn’t the first time UC Berkeley revealed itself to be an unwelcoming home for conservatives and free speech. Earlier in April, a pro-Trump, free-speech rally in close proximity to the university descended into utter mayhem after attendees were attacked by the violent left-wing extremist group Antifa. In February, an appearance by Milo Yiannopoulos also met with similar violence.

“If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view — NO FEDERAL FUNDS?” President Trump tweeted following the Yiannopoulos incident.

President Trump’s comments raised the possibility of federal action to protect free speech at Berkeley, and both his tweet and the Berkeley College Republicans’ lawsuit demonstrate the two avenues of pursuit available to do so — to threaten funding or to pursue a civil rights investigation.

“Trump has the power to impound federal funds and then 45 days to ask for congressional approval,” noted Craig Shirley, Reagan biographer and presidential historian. “He can also direct the attorney Ggeneral to sue Berkeley under several statutes and constitutional guarantees, including hate crimes, discrimination, free speech, right of association, and other laws,” Shirley told LifeZette.

As Shirley noted, Trump certainly has the means to go after UC Berkeley’s funding. The 1974 Impoundment Control Act authorizes the president to request that Congress withdraw appropriated funding. The act specifies that the president may halt funding temporarily for 45 days upon which the funds are reinstated pending a congressional vote on the president’s request.

But, as one lawyer who wished to remain anonymous told LifeZette, such a move may invite political or legal challenges. Indeed, a similar move by Trump’s to cut off federal funding to sanctuary cities was recently partially blocked in court.

Moreover, as UC Berkeley is tied to the UC system as a whole, it may not be possible to isolate its funds, and attacking funding that could be used for cancer research at University of California, San Francisco, may not be the most politically or legally advisable course of action.

“It may not pass the rather low scrutiny,” the lawyer said.

The lawyer who spoke to LifeZette suggested President Trump could instead ask Congress to address the situation and create a process to withhold funding from institutions that subvert freedom of speech and intellectual freedom.

The more efficient, and potentially more politically safe, way to address the issue is to look at potential civil rights violations that could be charged under the law by the civil rights division of the Justice Department.

And of course, the violations that could be investigated by the civil rights division are conveniently laid out in the Berkeley College Republicans/YAF lawsuit. The lawsuit alleges violations of both the defendants’ First and Fourteenth Amendment rights.

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In addition to the basic violation of the First Amendment right to free speech, the lawsuit also alleges that conservative students were retaliated against after the fact for exercising their rights. It also alleges violations of equal protection under the law and due process as guaranteed by the Fourteenth Amendment. The Department of Justice can investigate all of these violations.

Finally, “Trump also has the bully pulpit to denounce the criminality of Berkeley, and he should use this,” said Shirley. “He was accused of many … things during his campaign. Now he has the ability to turn the tables on the criminal left.”

Trump can also look to lessons of the past.

“Reagan did not trifle with the spoiled brats of Berkeley,” noted Shirley. “Reagan was asked to negotiate with the student protesters and he replied, ‘What is there to negotiate?'”