After the college town of Charlottesville, Virginia was wracked with violence during last month’s “Unite the Right” rally, private companies executed a sweeping purge of white nationalist and hate groups from their platforms. Taking action isn’t likely to be as simple for those colleges and universities where white nationalists are dead set on spreading their message, however.
Richard Spencer’s allies have spent the past few weeks issuing veiled threats of legal action against the slew of schools that rejected the prominent white nationalist’s requests to speak out of concern that violence could break out on their campuses, too. This weekend, a student who tried to rent space for a Spencer event filed a complaint accusing Michigan State University of violating his and Spencer’s First Amendment right to share their “Alt-Right philosophy.”
Free speech experts surveyed by TPM said court precedent, the difficulty of preemptively proving that a speaker poses a violent threat, and strong speech protections in public spaces like state school campuses make it overwhelmingly likely that Spencer’s allies will prevail.
“There is no Richard Spencer exception” to the First Amendment, Will Creeley, senior vice president of legal and public advocacy at the Foundation for Individual Rights in Education, told TPM. Though there are exceptions for incitement and intimidation, Creeley noted, those have “narrow legal definitions.”
“The Supreme Court has said that speech can only be restricted for fear that it will incite violence if it’s intended to and likely to promote imminent lawless conduct,” Eugene Volokh, a First Amendment expert at the University of California at Los Angeles School of Law, explained in a recent interview. “So if somebody were to say, ‘Let’s go and beat up the counter-protesters,’ that would be punishable. But other speech is not. And the government can’t suppress speech up front for fear that maybe when the person comes up to speak he will say these impermissible things.”
Volokh pointed to 2010 case Sonnier vs. Crain, which forced Southeastern Louisiana University to drop a discretionary security fee that it required controversial outside speakers to pay after traveling evangelist Jeremy Sonnier argued the policy violated his constitutional rights.
But the clearest parallel to the Michigan State situation came just a few months ago, when a federal judge issued an injunction allowing Spencer to speak in April at Auburn University, after that school canceled his planned appearance out of concern that the visit would provoke violence.
Self-described “alt-right attorney” Kyle Bristow cited that ruling in the Michigan State complaint, which he filed on behalf of Cameron Padgett, who tried to rent a room at the university so Spencer could speak there. Padgett, a 23-year-old senior at Georgia State University, was also behind the lawsuit that spurred the injunction allowing Spencer to speak at Auburn. The nature of his relationship with Spencer is unclear.
The Michigan State complaint argues that “the instant controversy” about Spencer’s scheduled visit there was “virtually identical” to the Auburn case, and calls the cancellation an example of “unconstitutional viewpoint discrimination.” It asks the court to issue an injunction allowing Padgett to rent a room where Spencer can speak and seeks $75,000 in damages.
Schools including Michigan State, Louisiana State University, the University of Florida, Texas A&M and Pennsylvania State University argue that they’re not issuing a blanket ban on Spencer or other white nationalists speaking on campus, but are instead trying to avoid on-campus clashes while tensions are still running high from the deadly rally in Charlottesville.
The University of Florida even issued a statement after it canceled Spencer’s event planned for Sept. 12 that reiterated its commitment to free speech and said Spencer would be allowed to speak on campus at some future date.
Still, legal experts said the one-off Charlottesville argument is unlikely to satisfy the courts.
Roy Gutterman, director of Syracuse University’s Tully Center for Free Speech, acknowledged that it was “not unreasonable to expect some sort of violence” at an event Spencer headlines after Charlottesville, where the prominent white nationalist marched in the streets alongside weapon-wielding Ku Klux Klan members and neo-Nazis.
But Gutterman cautioned that “the preemptive nature of these denials raises questions because you cannot predict the future. Just because there was violence at a rally in one place doesn’t mean there will be similar violence at the next one.”
This is the fine line that Spencer routinely walks. Shielded by degrees from elite universities, a clean record and his think tank’s benign name, Spencer aligns himself with some of the country’s most extreme white nationalist forces without explicitly advocating violence, effectively tying the hands of those who oppose his message.
“These guys know exactly what to say; they’ve got counsel,” Gutterman said. “They can craft their statements and their arguments to disclaim any sort of intent to create or cause violence.”
Spencer’s allies have not yet initiated legal action against other schools, including the University of North Carolina-Chapel Hill, which last week became the latest school to turn down his request to speak. Michigan State appears to be their test case.
But for school officials who saw torch-wielding white nationalists march through the University of Virginia’s campus shouting, “Jews will not replace us,” potential legal headaches are tolerable.
Janine Sykes, assistant vice president for public affairs at the University of Florida, told TPM that the school’s president “was certainly willing to risk a lawsuit in an effort to prevent any injuries.”
“The university’s view might be maybe they’ll sue us, maybe we’ll lose, maybe it’ll cost us some money,” UCLA’s Volokh said. “But it’s worth it.”
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