Berkeley law school dean: Trump's free speech executive order is 'unconstitutional'

In light of President Donald Trump’s executive order on free speech, Erwin Chermerinsky, dean of Berkeley Law, and Howard Gillman, Chancellor of the University of California, Irvine, penned an op-ed in which they state that the executive order does not help protect free speech on college campuses and that it is even "unconstitutional."

“[T]he order is so vague and ambiguous, it makes compliance by colleges and universities extremely difficult -- and it is almost certainly unconstitutional,” Chermerinsky and Gillman wrote for the Los Angeles Times.

"There is no crisis concerning free speech on campuses in the United States," Chermerinsky and Gillman add. "Every day on virtually every campus, speeches are given without incident, including some by very controversial speakers. Walk across either of our campuses on just about any day of the week, and the cacophony of diverse speakers is readily apparent."

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The pair's opinion of Trump's executive order goes a step further than that of the University of California System President Janet Napolitano, who previously called the order "unnecessary," but not "unconstitutional." When asked to comment on the difference in language, a spokeswoman for Napolitano's office referred Campus Reform to the UC president's previous March 4 and March 21 statements. 

“The executive order that President Trump signed today is unnecessary. Like many higher education institutions across the country, the University of California is ground zero for robust exchanges of ideas and differing viewpoints,” Napolitano, a former Obama administration official, wrote in her March 21 statement.

In a statement to Campus Reform, Chemerinsky said, “Berkeley’s policies are open to all ideas and views. The campus has no discriminatory policies. Whether students and faculty are open to all political parties is a different question." He went on to point out that Trump is the first to issue such an order: “I do not think a presidential executive order is needed in this area. No prior president ever found the need to do this.”

Despite such claims, however, Hayden Williams, an employee of Campus Reform's parent organization, the Leadership Institute, was punched in the face in February while helping conservative student groups recruit new members.

Fewer than two weeks after that incident, Napolitano released a March 4 statement responding to Trump's executive order announcement.

“President Trump’s announcement of a possible executive order mandating that colleges allow free speech on their campuses or lose critical federal research funding is misguided and unnecessary," the system president said. "UC already has clear policies and procedures in place that protect anyone’s right to peacefully protest or speak on our campus."

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Williams' assault by a former employee of the college reminded many of the 2017 riots that broke out at Berkeley over conservative provocateur Milo Yiannopoulos' scheduled appearance, a "March for Trump" rally, and subsequent altercations.

Despite all this, the university holds that the executive order is not needed.

“We do not need the federal government to mandate what already exists: our longstanding, unequivocal support for freedom of expression. That tradition is alive and thriving on all of our campuses. This executive order will only muddle policies surrounding free speech, while doing nothing to further the aim of the First Amendment,” Napolitano said.

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