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11/04/2014 12:26 pm ET Updated Jan 04, 2015

5 Important Points About the Bill Maher-UC Berkeley Controversy

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As you probably already know, the University of California, Berkeley, is embroiled in a commencement speaker controversy. Students are protesting UC Berkeley's invitation to evangelical atheist and comedian Bill Maher to speak at the school's December graduation.

The controversy comes in the wake of a headline-grabbing exchange with actor Ben Affleck on Maher's HBO show, Real Time with Bill Maher, last month. On the show, Maher and neuroscientist, author, and fellow atheist Sam Harris squared off against Affleck in a heated debate about what Maher and Harris argue are intolerant attitudes toward religious diversity, homosexuality, women's rights, and dissent in the Islamic world. This is how Maher introduced his argument:

"I have been trying to make the case [...] that liberals need to stand up for liberal principles. This is what I said on last week's show. Obviously I got a lot of hate for it. But all I'm saying is that liberal principles like freedom of speech, freedom to practice any religion you want without fear of violence, freedom to leave a religion, equality for women, equality for minorities including homosexuals -- these are liberal principles that liberals applaud for, but then when you say, 'in the Muslim world, this is what's lacking,' then they get upset."

Now, a petition started by UC system students demanding that the "bigot" Maher be disinvited has gathered over 5,000 signatories. The student committee that issued Maher's invitation even reversed itself. But last Wednesday, UC Berkeley's administration insisted that the invitation to Maher would not be rescinded.

After a week of relative silence, Maher finally addressed the issue on Real Time this past Friday night. For now, Maher remains committed to give the speech -- but he did leave himself a big out, as discussed in more detail below.

Maher's guest on the show was Italian-Palestinian journalist Rula Jebreal, who began by saying, "I don't think its about free speech" -- a point that has been repeated again and again by those who advocate for disinvitation. Jebreal's argument seemed to be that since Maher's commencement speech would not be a debate, it somehow doesn't count as free speech.

This argument just doesn't make sense. Expressive activity of any kind -- including the clothes you wear, the books you read, the books and columns Jebreal writes, and, of course, the speeches you give -- should be considered part and parcel of free speech, and thus deserves protection from viewpoint-based censorship. And just because students won't be allowed on stage to debate Maher point-by-point doesn't mean he isn't participating in an exchange of ideas. Students are free to answer Maher with speech of their own -- protesting, writing letters, even boycotting the speech, if they so choose. But trying to exclude him on account of his viewpoints before he even speaks is absolutely a rejection of the value of free speech. Indeed, excluding speakers from college campuses because you don't like their point of view on one topic or another not only implicates free speech, but also the very function and values of higher education itself. I've tackled this issue in numerous articles and at length in my new book Freedom From Speech.

While much has already been said about this controversy -- for example, check out Robin Abcarian in the Los Angeles Times, urging students to respond with more speech, not censorship -- here are several points to keep in mind as this debate rages on.

1. This controversy is far from over, and there's a good chance Maher will still bow out.

Maher's announcement on Friday has been interpreted as a defiant declaration, but Maher left himself plenty of wiggle room to bow out before December 20. On Friday, he said, "My only reservation in not coming is the argument that it will be a media circus and turn what should be a day about the graduates, which it should be, you, into something else. I don't want to do that. It's the only reason I would ever pull out."

That's a very qualified commitment. Of course, after all the attention this has garnered, if Maher chooses to give the speech, the likelihood it will not be a "media circus" is pretty close to zero.

Last March, when I first wrote about "disinvitation season," I highlighted how Rutgers had defended the choice of Condoleezza Rice for its commencement speaker despite criticism. At the time, I thought Rice was going to brave the protests and give her speech, but as the day drew closer, faculty and student resistance became increasingly intense. Finally, Rice withdrew from the speech -- and I have little doubt that behind the scenes, Rutgers University was counseling her to do so.

There is no telling how much pressure to withdraw Maher is receiving behind the scenes, but, just like with Rice, the scale of student protests to Maher will likely only increase as the date grows closer. The only way the speech is going to happen is if Maher decides the inevitable media circus is worth it in order to make a statement about free speech on campus.

2. The push to disinvite Maher is part of a troubling trend against dissenting speakers on campus.

Maher is only the latest target of the nebulous movement behind what my organization, the Foundation for Individual Rights in Education (FIRE), has dubbed "disinvitation season." While the push by students and faculty to get speakers they dislike disinvited from speaking on campus really heats up each spring around graduation time, the effort against Maher reminds us that disinvitation efforts are a year-round phenomenon. In fact, almost half of the campus disinvitation efforts we have identified in our research focused on regular speeches, debates, and other events outside of commencement. This point is crucial to understand, because students or faculty who are fixating on getting a particular speaker disinvited also like to claim that they would allow a speaker to "come on any other day, just not on my special day." The facts say otherwise.

FIRE has collected 263 examples of campus disinvitation attempts over the last 14 years, and sadly, our research indicates that they've been on the rise since 2009. Speakers who have either withdrawn their name in the face of protest or had their invitations rescinded include former UC Berkeley Chancellor Robert Birgeneau, Oscar-winning screenwriter Dustin Lance Black, current Indian Prime Minister Narendra Modi, International Monetary Fund chief Christine Lagarde, and actor James Franco.

Take a look at the list of controversial speakers. You'll surely find a speaker you'd like to hear on that list.

Students can and do have every right to protest speakers. Yet, increasingly, they're not satisfied with picket signs -- they want speakers they oppose to never publicly say a word on their campus. When students get what they want (as they too often do), the unique marketplace of ideas that the academy should be is reduced to an echo chamber.

3. Being critical of ideas -- especially religions or doctrines -- is at the very core of the history of freedom of speech.

A common tactic used by the students who are critical of Maher is to label him a racist because he criticizes Islam. But, as Maher and everyone else is quick to point out, Islam is not a race. Islam is a religion -- a set of ideas and beliefs -- and debating ideas and beliefs is the lifeblood of freedom of speech.

And there is no special carve-out for religion. To the contrary, modern ideas of freedom of speech were forged in the religious wars of Europe in the 16th and 17th centuries. Those struggles were all about the right to be a religious dissenter, to be free to have your own ideas about religion, and to choose for yourself. That's why at the time of the founding of the United States, the Framers not only made sure that freedom of speech and of the press were protected by the First Amendment, but also the freedom to believe as you choose and the freedom from state-established religion. In a very real sense, the right to blaspheme is at the root of freedom of speech--because someone's religious dissent is by its very nature another person's blasphemy.

And make no mistake about it, if we were to ban any speaker who was a blasphemer or heretic in someone's eyes, every single one of us could be silenced.

4. The argument that a university endorses the views of every commencement speaker they invite is not just wrong -- it's literally impossible.

Last week, I debated Ibrahim Hooper from the Council on American-Islamic Relations (CAIR) on MSNBC. The heart of his argument was that while he believes in supporting freedom of speech -- everyone says that, by the way, just before they tell you what their exception is... and it's usually a doozy -- Maher should be disinvited because speaking at commencement is an "honor" and inviting Maher implies that the college "endorses" Maher's point of view on this issue.

This argument is nonsense. It would be literally impossible for colleges to endorse the views of every commencement speaker they've ever invited. For instance, Harvard hosted famous Republican Colin Powell as commencement speaker in 1993, followed by even more famous Democrat Al Gore in 1994. Are we to believe that either invitation signalled Harvard's institutional endorsement of the obviously conflicting views of both of these speakers? If not, then why would any reasonable person ascribe all of Maher's views to Berkeley?

The "but speaking at commencement is an honor" argument is also a red herring, as it relies on the idea that in order to be a commencement speaker, a university has to agree with everything you have said, which is, again, impossible. While my college years (the mid '90s) were no great model for the best principles of free speech and pluralism, my fellow students and I at least understood that people were invited to speak on campus because we believed they would have something interesting to say, not because the university endorsed everything they had to say. The problem, of course, is that if every student's potential objections were treated as vetoes, it would be impossible to find a graduation speaker who had done anything serious or interesting with his or her life.

And just to make things crystal clear, UC Berkeley also stated on Wednesday that Maher's invitation "does not constitute an endorsement of any of Mr. Maher's prior statements." Obviously, such a disclaimer should never been necessary in the first place. If future colleges want to make this disclaimer more explicit to head off the "endorsement" argument, that's up to them. But I sadly doubt it will have much effect in convincing students who cannot tolerate the thought that a speaker with whom they disagree could give them 20 minutes worth of life advice on "their special day."

5. No matter how much more convenient it would make things, not everyone who disagrees with you is either the Grand Dragon of the KKK or Hitler.

At one point in the MSNBC debate about Maher, Hooper pivoted to: "So what if they invited the Grand Dragon of the KKK?"

If you watch the video, you can see how little tolerance I have for this tactic. It's used as a way to do two things: First, to implicitly associate a speaker to an embodiment of human evil -- typically the Klan or Nazis -- while pretending not to; and second, to attempt to switch the topic over to more sympathetic ground. Such comparisons are nearly always farfetched. Generally, once an advocate for censorship starts working the Klan or the Nazis into the argument, at minimum you need to get them to clarify if they think the person they want to censor is in any way equivalent to the Klan or the Nazis. And if they answer "no," the question quickly becomes "then why did you bring up the Klan/the Nazis?"

But there's another reason why I have so little tolerance for this kind of evasive maneuver. It envisions a world in which the only thing standing between campuses inviting Hitler to give commencement addresses, or the proliferation of KKK student groups, is an enlightened elite that stands ready to censor us for our own good. The truth is that the Grand Dragon of the Ku Klux Klan would never be invited to be a commencement speaker in the first place. (And if he were, that would tell students something they desperately needed to know about the university they chose to attend!) The views of the Grand Dragon of the Ku Klux Klan are and should be protected by the First Amendment, but the only world in which those views are popular on campus are those that exist in the hypotheticals of pundits struggling to justify why they are trying to censor a liberal atheist comedian.

Millions of Americans and I will be following this particular controversy over the next few weeks and however it resolves it will speak volumes about the state of free speech and our tolerance for dissent both on campus and off.