The Justice Department has won a small but significant victory in the campus free-speech case of Young America’s Foundation and Berkeley College Republicans v. Napolitano. Justice didn’t have to get involved in the case, but it did so and has helped the cause of free speech. Justice’s work in the case and others like it is a reminder that good government is possible in the agencies, despite the daily White House drama.
According to a Justice Department summary of the case, the plaintiffs, YAF and BCR, allege that the University of California, Berkeley, has a double standard when it comes to free speech. BCR says that Berkeley applies more rigorous and highly discretionary policies to the events BCR seeks to offer than the university does to those arranged by other campus groups, especially for events featuring “high-profile” speakers.
The student nonprofit organizations filed their lawsuit in April 2017 having discovered how hard it is for them (though not so much for those to their left) to satisfy the university’s free-speech regulators, with some speeches by conservative figures being canceled in the wake of violent protests. The plaintiffs contend that Berkeley’s “High-Profile Speaker Policy” (which is not written down) and its “Major Events Policy” (which is) violate their First Amendment rights by granting university administrators unfettered authority to decide event locations, times, and security fees.
Janet Napolitano, the former Democratic governor of Arizona, is the defendant in the case by virtue of her status as president of UC-Berkeley. And her school, ironically the home of the 1964-65 Free Speech Movement, has lost on a motion to dismiss. YAF and BCR will now have the chance to prove their allegations.
A filing in the case that the presiding judge might have found persuasive was the Justice Department’s “statement of interest.” That is an obscure term (for all perhaps but lawyers). Yet the authority for filing such a statement is in the federal code, which (clumsily) empowers the attorney general to send any department officer to any state or federal district court to attend to the interests of the United States in a suit pending in a federal or state court. Attending to those interests is done via a “statement of interest,” which has a structure and length similar to those of other briefs. And while the statement in this case doesn’t say which party should win, it clearly supports the plaintiffs.
Last September Attorney General Jeff Sessions announced that Justice would use statements of interest to protect free-speech rights on campus, even as his aides were making the department’s first filing of such a statement. The case is Uzuegbunam v. Preczewski, and at issue is the constitutionality of a policy at Georgia Gwinnett College (a state school) that limits student expressive activity to two very small free-speech zones totaling 0.0015 percent of the campus. Students wanting to use the space are required to secure prior authorization from the college, limit their expressive activity to a specified date and time, and comply with the student code of conduct’s prohibition of speech that “disturbs the . . . comfort of person(s).” In its statement of interest, Justice said the college’s speech policies were not neutral as to content, established a heckler’s veto, which can curtail speech, and were not “narrowly tailored to achieve a compelling government interest.” A motion to dismiss is pending, and procedural matters have postponed a decision.
In addition to the Georgia Gwinnett and UC-Berkeley cases, Justice has also filed a statement of interest in Shaw v. Burke, challenging a 616-square-foot “free speech area” at Los Angeles Pierce College. To use the area, a student must first apply for a permit. In its statement of interest, Justice said that this policy amounted to an unconstitutional prior restraint that chilled free expression. The motion to dismiss was denied, and the case will now be heard.
These uses of statements of interest are of recent vintage, as it used to be that the only interests an administration of either party would attend to were those involving national security and diplomacy. That changed under President Obama, whose Justice Department decided to file statements of interest in cases involving domestic matters—civil rights in particular.
The New York Times was quick to see the story, calling it “a novel legal campaign that began early in the Obama administration and has expanded.” The cases in which Justice had filed concerned legal aid, transgender students, juvenile prisoners in solitary detention, and auto dealers’ installation of hand controls for disabled individuals. Said the Times: “The Obama administration is saying it has an interest in preserving [what it regards as] constitutional rights [just as it] has an interest in [securing the nation].” The Trump administration can say the same thing, though its domestic-side interest is politically much different, involving as it has (and will) the preservation of students’ free-speech rights in often politically correct campus environments. Of course, Sessions could find other interests to advance, assuming he stays in his job. The “interest” agenda could expand.
The key question raised by the filing of a statement of interest in a case is whether the government’s involvement might help in getting to the right outcome. In the cases in which Justice has filed, it certainly hasn’t hurt. And in the Berkeley case, the most important of the three controversies, lawyers who follow free-speech issues said that the judge’s order denying a motion to dismiss was based on the arguments Justice made in its statement of interest and that had Justice not filed a brief in the case, it might have been dismissed outright. Good lawyering can of course make a difference with any relevant task and apparently did so in the Berkeley case.
Governing by statements of interest is something that can’t be done other than by the Justice Department. And in an era of increasing polarization in our politics, it’s not surprising that the Trump administration decided to follow the Obama administration precedent by filing such statements. The interest that the attorney general has chosen to protect has supporters everywhere—after all, we’re talking about the free-speech components of the First Amendment. As Sessions says often, “a national recommitment to free speech on campus and to ensuring First Amendment rights is long overdue.” We’ll see whether he’s right about that as more interests are stated and statements filed.
