Public colleges, the cancellation of white nationalist events, and the First Amendment

As the nation reels from the tragedy in Charlottesville, Virginia, two public colleges this week have canceled or disallowed campus events featuring white nationalist Richard Spencer. Yesterday, Texas A&M University canceled a “White Lives Matter” event, featuring Spencer, planned for Sept. 11. This morning, the University of Florida denied a request from Spencer’s organization, the National Policy Institute, to rent campus facilities.

FIRE defends the expressive rights of college students and faculty. Neither the Texas A&M event nor the University of Florida event involved students or faculty. (The Texas A&M event was planned by an alumnus; the University of Florida event was organized by the National Policy Institute.) FIRE will not intervene in either situation.

However, in the wake of the deeply depressing events of this past weekend, we have been asked by numerous media outlets to comment on the First Amendment issues raised by the decisions of these two public institutions. In the hope of clarifying the discussion moving forward, and because more such cancellations may be likely, it is useful to examine the relevant legal and normative considerations at play.

First, as a nonpartisan, nonprofit civil liberties organization dedicated to defending the First Amendment rights of all students and faculty, FIRE believes that public universities must make every reasonable effort to facilitate expressive activity on campus and to ensure the physical safety of speakers, audience members, protesters, and counter-protesters. Freedom of expression is vital for the health of our liberal democracy, and our colleges and universities must continue to fulfill their unique role as the marketplace of ideas — even those ideas that some, many, or all of us find repugnant. For society’s benefit, speakers should not be banned from campus because of their viewpoint, and students and faculty must have the freedom to peacefully engage, protest, or ignore them.

Second, public universities that permit off-campus, uninvited speakers to rent or use university facilities or properties must treat all such requests equally, pursuant to published, objective, viewpoint-neutral guidelines. The viewpoint of off-campus speakers’ messages alone should not be a consideration in granting or denying access.

Third, per well-established First Amendment jurisprudence, public universities may maintain and enforce reasonable time, place, and manner regulations on expressive activity in open areas of campus. These regulations must be viewpoint- and content-neutral, narrowly tailored to serve a significant governmental interest, and must leave open ample alternative means of communication. A court would likely find that ensuring that a public college remains open, operating, and safe for its students and faculty is a significant governmental interest, but would require the university to demonstrate that its regulation of speech was narrowly tailored.

It is important to note that some courts have drawn distinctions between students and non-students in assessing the limits of a public university’s ability to regulate campus speech, and have granted public universities a freer hand to regulate the speech of non-students. For example, if a court examining Texas A&M’s decision were to conclude that the public university campus is a “limited public forum” for non-students, as the United States Court of Appeals for the Fourth Circuit did in 2005 in ACLU v. Mote, then its restrictions on non-student speech must simply be “viewpoint neutral and reasonable in light of the objective purposes served by the forum” — a relatively low judicial threshold to clear.  

Fourth, the use of protected speech in promotional materials for an event should not justify its cancellation. For example, the language used in a media notice sent by the organizer of the Texas A&M event — “Today Charlottesville, Tomorrow Texas A&M” — is protected by the First Amendment, as it does not meet the legal standards for incitement, a true threat, intimidation, discriminatory harassment, or other exceptions to the First Amendment. Without more, the media notice does not justify canceling the event.

Fifth, if a public university and law enforcement are aware of legitimate threats to public safety associated with the event, they should be as transparent as possible about those threats. Both Texas A&M and the University of Florida consulted with law enforcement, and both noted safety concerns in canceling or refusing to host the events. They should both be as forthcoming as they reasonably can be about those concerns. Nonspecific concerns about safety or disruption must not be used as a pretext for canceling unpopular speakers, or else public universities will be granted a dangerously cynical means to ban minority, dissenting, unwanted, or merely inconvenient viewpoints from campus.

For example, nearly a decade ago, campus appearances by former Weather Underground member and now-retired professor of education Bill Ayers were cancelled by the University of Nebraska-Lincoln in 2008 and the University of Wyoming in 2010, with each institution citing threats of violence. In criticizing the University of Nebraska-Lincoln’s decision, I wrote:

Invoking the threat of violence as justification where it does not actually exist serves to trivialize the necessary gravity of real security concerns, and grants far too much power to administrators to cite vague and unverifiable threats any time the university wants to shut down an event with which it is merely uncomfortable. The safety of a university community should not be cited to provide cover for purely political decisions.  

In 2010, after Ayers’ invitation to campus by a student was cancelled by the University of Wyoming, Ayers and the student challenged the decision in federal court. FIRE watched the proceedings closely, and we were pleased that a federal judge issued an injunction allowing the speech to take place. In issuing the injunctive relief, we noted that Chief United States District Judge William F. Downes took the university to task for citing the text of hostile emails (e.g., “Bill Ayers is a scumbag, and you are bigger assholes for inviting this terrorist to the UW facility”) as sufficient evidence of violent threats to justify canceling the speech. Downes observed:

In contrast to the evidence of the undifferentiated, general and veiled threats at issue in this case stands a long line of cases presenting much more particularized threats of violence and violent confrontation and sometimes, sadly, even a recent history of actual violence. […]

In March of 1965, Judge Frank Johnson of the United States District Court for the Middle District of Alabama was asked to enjoin the State of Alabama from interfering with the march of civil rights leaders from Selma to Montgomery, Alabama. Judge Johnson’s decision in the case of Williams versus Wallace, 240 F.Supp. 100, Middle District of Alabama 1965, was issued just 12 days after what’s now known in history as “Bloody Sunday.” On Bloody Sunday, March 7, 1965, 600 or so civil rights marchers headed east out of Selma on U.S. Route 80. They got only as far as the notorious Edmond Pettus Bridge, six blocks away, where state and local lawmen, acting under the color of law, attacked them with billy clubs and tear gas and drove them back into Selma.

At a time when the American south was a virtual powder keg of racial hostility and social unrest, arguments were made to Judge Johnson that violence would likely be carried out against the marchers, a fact all too well known to Judge Johnson based on the events of March 7.

Nonetheless, Judge Johnson rejected the State of Alabama’s position that threats of violence from those who opposed the exercise of free speech can serve as a sufficient justification to cancel constitutional dictates. Judge Johnson wrote: The State’s contention that there is some hostility to this march will not justify its denial. Nor will the threat of violence constitute an excuse for its denial. Id. at page 109, citations omitted.

With regard to the situations at Texas A&M and the University of Florida, it is unclear whether the safety concerns cited in the cancellation notices involved threats to the speakers, attendees, counter-protesters, or all present, and we do not know what evidence law enforcement professionals considered in advising the universities to cancel the events, if they in fact did so. If the decisions are challenged in court, we may find out. But the institutions should remember that as government actors, they have an obligation to ensure both physical safety and expressive activity, and they should make every reasonable attempt to do so.

Finally, as FIRE has had to repeat depressingly often in recent months, violence is never an acceptable response to protected speech or peaceful protest. Further, violence committed in one location by members of a group is generally not a sufficient justification for canceling or prohibiting group members from speaking in another location. In 1972's Healy v. James, for example, the Supreme Court of the United States found that neither the actions of Students for a Democratic Society chapters on other campuses nor the group’s “philosophy of violence and disruption” provided sufficient justification for Central Connecticut State University’s decision to deny recognition to its own prospective chapter.

If the relentless tumult of recent months is any indication, the coming academic year may pose a severe test to our national commitment to peaceful assembly and freedom of expression. We issue a sincere plea to all students, faculty, and campus visitors to express themselves nonviolently and respect the rights of others to do the same.