Public universities can’t legally stop Richard Spencer from speaking

October 25, 2017, 11:19am

Richard Spencer has put American public universities in a legal quagmire: Allow him to speak, and face exorbitant security costs and the possibility of injuries or death. Or don’t let him come to campus, and risk a lawsuit and the prospect of paying a white supremacist directly in the form of a judgement or legal settlement.

First Amendment and constitutional legal scholars agree that Spencer, the tweed-clad, erudite face of the so-called “alt-right,” has the weight of the First Amendment on his side, putting the nation’s public universities on the defensive.

“Public universities cannot exclude a speaker based on their viewpoint, even a very offensive viewpoint. The law is clear,” said Erwin Chemerinsky, the dean of the UC Berkeley School of Law and an expert in First Amendment law. “I loathe him, but the First Amendment protects him.”

“Public universities cannot exclude a speaker based on their viewpoint, even a very offensive viewpoint.”

In June, the U.S. Supreme Court reaffirmed that hate speech is protected by the Constitution if it does not incite “imminent lawless action.” But this last point gives universities a narrow opening in the wake of the violence committed by Spencer’s followers in Charlottesville and Gainesville in the past weeks.

“Lawless action”

With one dead in Virginia and one attempted murder in Florida, some public universities are arguing that Spencer does indeed incite “lawless action” and can be barred on that basis from campus. But legal experts say it’s a difficult argument to make. “To prevent him from speaking, they’d have to show that there was a compelling interest in security,” said David L. Hudson Jr., an adjunct professor at the Vanderbilt Law School and a First Amendment expert.

Eugene Volokh, professor at UCLA School of Law, believes universities will be fighting a losing battle if they try to hold Spencer accountable for the actions of his supporters. “Every movement writ large has people who sympathize with it and are willing to use violence to accomplish its goals,” he said.

READ: Protester shot at by Nazis in Gainesville tells his story

Chemerinsky agrees the events in Charlottesville and Gainesville are not enough to constitute “illegal incitement,” and therefore don’t justify schools’ efforts to reject his requests to book space on campus to speak.

Spencer and white nationalist blogs have worked overtime trying to distance themselves from both incidents, even casting doubt on the official account of events that led to Heather Heyer’s death in Charlottesville. Heyer was killed when a neo-Nazi Spencer fan drove a car into a crowd of counterprotesters.

“The three people charged were not with our group, regardless of what outlook they expressed to the media.”

On Monday, Evan McClaren, executive director of Spencer’s National Policy Institute, a white nationalist think tank, tried to distance Spencer from the three men charged with attempted murder in Gainesville for firing a shot at a protester. “The three people charged were not with our group, regardless of what outlook they expressed to the media,” he said.

Blocking Spencer

The shooting in Gainesville last week was enough for Ohio State University to reject a request from Spencer, which was made through Cameron Padgett, a Georgia Tech graduate student who books speeches for the alt-right figurehead.

“The University values freedom of speech,” Ohio State’s legal counsel wrote to Spencer’s lawyer Kyle Bristow. “Nonetheless, the University has determined that it is not presently able to accommodate Mr. Padgett’s request to rent space at the University due to substantial risk to public safety, as well as material and substantial disruption to the work and discipline of the University.”

READ: White supremacist Richard Spencer shut down a Florida town for nothing

On Sunday, Bristow sued Ohio State, saying the school’s decision violates his client’s free speech rights. Bristow argues that Spencer has previously spoken at universities ”without engaging in or advocating violence” and that the real threat of violence comes instead from antifa protesters, who are an increasingly visible presence whenever someone like Spencer shows up to speak.

Rejecting Spencer’s request due to “violence implicitly or explicitly threatened by antifa and not by the speakers,” Bristow charges, “constitutes unconstitutional content discrimination in the form of a heckler’s veto.”

“The heckler’s veto” is when free speech is suppressed because of the possibility of violent reaction to it. On this front, Spencer has an ally in President Trump’s Department of Justice, which has made enforcing campus free speech a priority.

“Heckler’s veto”

Attorney General Jeff Sessions, in a speech at Georgetown University on Sept. 26, warned that collegecampuses were sheltering “fragile egos” and said that the decision to rescind invitations to controversial speakers was giving into the “heckler’s veto.” Sessions also promised he would direct the Justice Department to intervene in campus free speech disputes.

WATCH: Charlottesville: race and terror

Sessions also cited statistics from the Foundation for Individual Rights in Education, a staunch advocate for free speech on campus. “A college can’t be considered safe if it’s not safe for controversial figures to speak there, or for students to attend — or protest — those speeches,” said Executive Director Robert Shibley in a statement. “There are many effective ways to express opposition to a speaker, including ignoring them, attending their speech and asking tough questions, and even using humor to mock or satirize them.”

Spencer successfully sued Auburn University in April, winning a $30,000 settlement and then speaking on campus shortly after. That had an immediate chilling effect on universities that were considering denying Spencer a forum.

Spencer spoke at Texas A&M last December at an event that drew hundreds of protesters but remained largely peaceful. He was slated to speak again on September 11 at a “White Lives Matter” rally, but university officials cancelled his appearance after it became clear it would spark violence.

The event’s organizer put out a release with the headline “Today Charlottesville, Tomorrow Texas A&M,” and campus security became aware of direct threats to student safety in the run-up to the event.

‘It was social media, somebody talking about how to assemble and disassemble a weapon once you got through security,” said Amy B. Smith, Texas A&M chief marketing and communications officer. “When you’re worried about somebody dying, that trumps everything.”

The University of Florida initially cancelled Spencer’s appearance in the wake of Charlottesville and then rescheduled after he threatened to sue. “We always had Charlottesville in the back of our heads,” said Janine Sikes, assistant VP of public affairs at the University of Florida.

Financial burden

Aside from the threat of violence, universities are struggling with the cost burden. University of California Berkeley last month had to pay $600,000 to secure a speech by Milo Yiannopoulos. The University of Florida said they anticipated paying upwards of $500,000 to secure Spencer’s speaking appearance last week — evident in the hundreds of police and checkpoints set up across campus.

“It’s not a sustainable thing for us to do,” Sikes said. “I don’t know what the solution is. That’s really all I can say.”

Some cast a jealous eye at private universities, which have no free speech obligation and can simply deny Spencer and his cohorts from campus. “Private schools don’t have this issue because they don’t have to take anybody,” said A&M’s Smith. “They don’t have to take these costs.”

University of California at Berkeley spokesman Dan Mogulof says there’s an “inherent tension” between protecting students and upholding the First Amendment.

“Most Western democracies have laws against hate speech. We don’t,” said Mogulof. “We have huge percentages of first-generation students, underrepresented minorities. They come to a place like this not to be assaulted. You can imagine if you’re an undocumented student, and somebody comes and says, ‘You don’t have a right to exist. You don’t have a right to be in this country.’ How are you going to feel?”

Spencer’s next campus speaking appearance will likely be at the University of Cincinnati, which agreed to host him after he threatened to sue. They haven’t settled on a date yet, but the university’s president, Neville Pinto, has made it clear where he stands on Spencer’s rhetoric.

“At other public universities, presidents have asked their constituents to steer clear of such events, attempting to deny these attention-seekers the spotlight they so desperately desire,” Pinto wrote in a letter to the university community. “Frankly, if or how you engage with Spencer’s event is your decision to make, and I will respect and support whatever civil and peaceful course you take.”