Richard Buxbaum, Peter Dale Scott, John Searle, and moderator Panos Papadopoulos
By Andrew Cohen
Having taught at Berkeley Law for 53 years, Richard Buxbaum is one of the school’s most accomplished professors. Back in 1964, however—when thrust into cauldron of the Free Speech Movement (FSM)—he was admittedly figuring things out on the fly.
“It brings to mind Frank Zappa’s comment that if you understand the significance of something you engaged in, then you didn’t experience it,” Buxbaum said during a recent panel event commemorating the 50th anniversary of the UC Berkeley Academic Senate’s vote supporting free speech on campus. “I experienced it, but I sure didn’t understand the significance of it at the time it was happening.”
Moderated by Professor Panos Papadopoulos, who chairs the Academic Senate’s Berkeley Division, the event assessed the movement’s impact on universities and society at large. Buxbaum shared the Wheeler Auditorium stage with professors emeritus Peter Dale Scott (English) and John Searle (Philosophy), all of whom were closely involved in the FSM.
During the movement, students called on the university administration to lift its ban of on-campus political activities and acknowledge their free speech. After 773 FSM participants were arrested for staging a sit-in at Sproul Hall on Dec. 3, 1964, Buxbaum served as one of the five defense counsel in the criminal proceedings against them.
With protests raging and normal university life at a virtual standstill, the Academic Senate passed a landmark resolution that became a model for other universities across the country. It stated in part that the content of speech or advocacy would not be restricted by the university, and that off-campus student political activities would not be subject to university regulations.
Later in the decade, Buxbaum represented campus organizations and individuals in cases arising out of Vietnam War protests. He was also defense counsel in numerous criminal proceedings arising from the Third World Strike of 1969-70, which led to the development of affirmative action programs for student admissions.
“The whole campus learned significant lessons not only from this first experience, and we were the pioneers in the Free Speech Movement, but in the events that followed,” Buxbaum said. “There’s a great tendency on the part of people in power to be stubborn about recognizing that they’re on a wrong or unproductive path, because that recognition would seem like a concession to pressure. That’s one of the most vicious inhibitions of sound governmental action in any context.”
Setting a standard
The event began with a video about the Academic Senate meeting at which the resolution was passed. Philosophy Professor Lewis Feuer introduced an amendment to alter the resolution so that speech or advocacy would not be restricted on campus provided that it is directed to no immediate act of force or violence.
Feuer asserted that without his amendment, which was voted down, a student Ku Klux Klan chapter could organize on campus and advocate for defacing Jewish synagogues and Catholic churches while claiming university protection. Professor Philip Selznick—who would go on to become an icon at the law school—provided a searing counter-argument.
“We are not in the business here of regulating speech, that is to say the content of speech,” said Selznick, who founded Berkeley Law’s Center for the Study of Law & Society and co-founded its Jurisprudence and Social Policy Program. “The university has all the resources it needs to deal with disorderly behavior on this campus … We are moving here, I sincerely hope, toward a policy that protects the content of speech and assumes the risks of that protection.
“We want to invoke the new policy not out of concession to pressure, not out of submission to outside forces, but because at long last we’re ready to adopt a policy that should have been with us all along. We adopt this policy not only because it’s consistent with the Constitution of the United States, we adopt this policy because it is the most fitting policy for a great university.”
After the video, panelists described how the FSM triggered student activism on campuses around the country—and the precarious challenge of honoring free speech while safeguarding a school’s core academic purposes. They also discussed ironic fallout from the movement, as some conservatives could not feasibly speak on the campus that purportedly championed that right.
“We in the Free Speech Movement did not achieve free speech,” Searle said. “We got the university administration off our backs, but we could not invite someone onto campus to defend the government’s policies during the Vietnam War. There was simply not that level of tolerance.”
Similar concerns prompted former U.S. Secretary of State Condoleeza Rice to not deliver the 2014 commencement address at Rutgers University after initially accepting an invitation to do so. Rice’s decision came after students protested and faculty groups passed resolutions and called for her to be “disinvited” because of her involvement in the Iraq War and the Bush administration’s approval of waterboarding.
“If you put yourself in the position of the administration and you’re told by the police chief that they can’t guarantee this is going to work, are you going to put her in the position of being the guinea pig to see if they’re right?” Buxbaum said. “What kind of policies should the administration have? What if you have the reasonable possibility that there would be a mob action problem? Do you sail into it, or do you back up? The nostalgia of the Free Speech Movement is a dangerous thing if we think we always have free speech.”