College Campuses as First Amendment Combat Zones and Free-Speech Theaters of the Absurd: The High Price of Protecting Extremist Speakers for Shouting Matches and Insults

FIRST AMENDMENT LAW REVIEW F A L R

Volume 16 Issue 3 Article 2

August 2022

College Campuses as First Amendment Combat Zones and Free-College Campuses as First Amendment Combat Zones and Free-

Speech Theaters of the Absurd: The High Price of Protecting Speech Theaters of the Absurd: The High Price of Protecting

Extremist Speakers for Shouting Matches and Insults Extremist Speakers for Shouting Matches and Insults

Clay Calvert

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College Campuses as First Amendment Combat Zones and Free-Speech Theaters of the

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COLLEGE CAMPUSES AS FIRST AMENDMENT COMBAT

ZONES AND FREE-SPEECH THEATRES OF THE ABSURD:

THE HIGH PRICE OF PROTECTING EXTREMIST SPEAKERS

FOR SHOUTING MATCHES AND INSULTS

Clay Calvert

On October 19, 2017, the free-speech circus rolled into

Gainesville, Florida.

The contentious crowd—Richard Spencer

and a cadre of alt-right white nationalists

—brought their

traveling spectacle

to a public university for the first time since

deadly violence erupted in Charlottesville, Virginia—home to

the University of Virginia—about two months earlier.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Professor & Brechner Eminent Scholar in Mass Communication and Director of

the Marion B. Brechner First Amendment Project at the University of Florida,

Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of

the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996,

Communication, Stanford University. Member, State Bar of California. The author

thanks Gabriel Diaz of the Marion B. Brechner First Amendment Project for his

careful review of an early draft of this Essay.

See Editorial, Open Carry + Protesters = A Recipe for Tragedy, USA TODAY, Oct. 19,

2017, at 7A (“Today, white nationalist leader Richard Spencer is to deliver a speech

at the University of Florida in Gainesville, an event that led Gov. Rick Scott to

declare a state of emergency for the surrounding Alachua County to free up law

enforcement resources.”).

See Scott Calvert & Alexa Corse, Alt-Right Leaders Brush Off Criticism, WALL ST. J.,

Aug. 15, 2017, at A4 (reporting that Spencer is “considered the founder of the alt-

right movement,” which “rejects mainstream conservatism, promotes nationalism

and views immigration and multiculturalism as threats to white identity” and is

“loosely organized”); Reid J. Epstein & Janet Hook, A New Political Order, WALL ST.

J., Nov. 10, 2016, at A1 (“Among those trying to rise in the new Republican Party

are people such as Richard Spencer, the president of the National Policy Institute, an

organization that advocates race-based identity politics and was among Mr. Trump’s

most enthusiastic supporters.”).

See Alan Blinder, Roadshow of Hate: Travelers From Afar Fuel White Supremacist Rallies,

N.Y. TIMES, Oct. 29. 2017, at A21 (describing the traveling “roadshow aspect” of

events like Spencer’s talk at the University of Florida, and asserting that “a reality of

the alt-right movement” is “that it draws energy, and some of its most violent

support, from out-of-town sympathizers who regularly travel hundreds of miles to

public events starring figures like Mr. Spencer”).

See generally Joe Heim et al., Charlottesville Protest Takes a Deadly Turn, WASH. POST,

Aug. 13, 2017, at A1 (reporting that “chaos and violence turned to tragedy” in

Charlottesville, Virginia “as hundreds of white nationalists, neo-Nazis and Ku Klux

Klan members . . . clashed with counterprotesters in the streets and a car plowed into

crowds, leaving one person dead and 19 others injured,” and adding that “[w]hite

nationalist leader Richard Spencer” spoke at the rally, which “was meant to protest

the planned removal of a statue of Confederate General Robert E. Lee”); Sheryl Gay

Stolberg & Brian M. Rosenthal, White Nationalist Protest Leads to Deadly Violence,

N.Y. TIMES, Aug. 13, 2017, at A1 (reporting that “Charlottesville was engulfed by

violence . . . as white nationalists and counterprotesters clashed in one of the

bloodiest fights to date over the removal of Confederate monuments across the

South,” and noting that Richard Spencer was scheduled to speak that day).

FIRST AMENDMENT LAW REVIEW [Vol. 16

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The University of Florida (“UF”) afforded Spencer

access to a campus auditorium.

But a trio of other public, land-

grant institutions—Michigan State University,

Ohio State

University,

and Pennsylvania State University

—did not. All

three were sued for blocking Spencer and, in the process,

attempting to bring his speaking tour to an inglorious finish.

A major problem, however, for the schools currently

battling Spencer is that his UF appearance demonstrated he can

speak on campus without either inciting violence or using

words directed to producing imminent lawless action. In other

words, for an exceedingly exorbitant price tag,

the circus may

continue unimpeded, with the UF visit serving as Spencer’s

Exhibit No. 1. It is a supreme irony. Whereas public

universities once highlighted the violence in Charlottesville to

justify banning him,

Spencer now can point to UF to illustrate

why such censorship is unconstitutional.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Spencer’s talk occurred at the “the 1,700-seat Curtis M. Phillips Center for the

Performing Arts,” which is located “in the southwestern part of campus.” Rachel

Axon, ‘It’s Basically a Powder Keg Right Now’; Florida Braces for Speech by Prominent

White Nationalist, USA TODAY, Oct.19, 2017, at 3A.

Plaintiff’s Verified Complaint, Padgett v. Bd. of Trustees of Mich. State Univ., No.

1:17-cv-00805 (W.D. Mich. filed Sept. 3, 2017), http://dailycaller.com/wp-

content/uploads/2017/09/Padgett-v-Michigan-State.pdf [hereinafter Michigan State

Complaint].

Complaint, Padgett v. Bd. of Trustees of the Ohio State Univ., No. 2:17-cv-00919-

ALM-KAJ (S.D. Ohio filed Oct. 22, 2017),

https://mgtvwcmh.files.wordpress.com/2017/10/osu-complaint.pdf [hereinafter

Ohio State Complaint].

Plaintiff’s Complaint, Padgett v. Bd. of Trustees of the Pa. State Univ., No. 4:17-cv-

01911-MWB (M.D. Pa. filed Oct. 19, 2017),

http://www.almcms.com/contrib/content/uploads/documents/402/4903/Richard

-Spencer-PSU.pdf [hereinafter Penn State Complaint].

See supra notes 6–8 (citing the complaints filed against each of the three

universities). In January, 2018, Michigan State University agreed to let Spencer

speak on campus, thereby bringing to a close the lawsuit filed against it. David Jesse,

White Supremacist Richard Spencer Will Speaker at Michigan State After All, DET. FREE

PRESS (Jan. 18, 2018, 12:24 PM),

https://www.freep.com/story/news/local/michigan/2018/01/18/richard-spencer-

michigan-state-university/1044354001/. Kyle Bristow, the attorney who filed the

lawsuit against Michigan State on behalf of Spencer, called it both “a resounding

First Amendment victory for people of the right-wing or alternative-right political

persuasion” and a “stab[] at the very heart of left-wing censorship in academia.”

Susan Svrluga, After Suit, Michigan State to let Spencer Speak, WASH. POST, Jan. 22,

2018, at A13.

See infra note 12 and accompanying text (noting that it cost more than $600,000 in

security measures to host Spencer at UF).

For example, in denying Richard Spencer access to campus, Michigan State

University asserted its “decision was made due to significant concerns about public

safety in the wake of the tragic violence in Charlottesville.” David Jesse, Group

Decries Antifa’s ‘Heckler’s Veto,’ USA TODAY, Sept. 5, 2017, at 6B. Similarly,

Pennsylvania State University President Eric Barron denied Spencer access to the

University Park campus “[i]n light of the recent violence and tragedy in

Charlottesville.” Press Release, Eric J. Barron, President, Penn. State Univ., Richard

Spencer is Not Welcome to Speak at Penn State (Aug. 22, 2017),

2018] COLLEGE CAMPUSES AS COMBAT ZONES

456

Indeed, the UF-Spencer spectacle, thanks to more than

$600,000 in taxpayer-funded security costs, the presence of 500-

plus law enforcement personnel, and a state of emergency

declared by Sunshine State Governor Rick Scott,

went off

with only minor on-campus violence.

As the Miami Herald

reported, “[w]hat conflict did occur—pepper spraying,

punching, chasing—was largely instigated by anti-fascist

protesters.”

Furthermore, Spencer’s words were nowhere close to

meeting the high threshold for unlawful incitement to

violence—one of the rare categories of speech unprotected

the First Amendment

—created by the United States Supreme

Court nearly fifty years ago in Brandenburg v. Ohio.

Instead, the

speech devolved into a futile shouting match between Spencer

and “a boisterous audience packed with opponents”

who

came not to praise him, but to bury Spencer with a raucous

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

http://news.psu.edu/story/478590/2017/08/22/administration/richard-spencer-

not-welcome-speak-penn-state.

See Paige Fry, Alt-Right Speech at UF Relatively Peaceful, PALM BEACH POST (Fla.),

Oct. 20, 2017, at 1A (“The state’s flagship public university spent more than

$600,000 on security on and near its campus to prepare for Richard Spencer’s

appearance and brought in more than 500 uniformed officers to police streets and

control crowds under a state of emergency declared by Gov. Rick Scott.”).

See Cindy Swirko & Daniel Smithson, Behind-Scenes Logistics at Protest Let Officers

Control Chaos, GAINESVILLE SUN (Fla.), Oct. 21, 2017, at A1, A6 (“Few incidents

occurred on the University of Florida campus when Spencer, who espouses white

nationalist beliefs, spoke.”).

A shooting later transpired off campus, approximately ninety minutes after

the conclusion of Spencer’s talk. Susan Svrluga & Lori Rozsa, Three Men Charged in

Shooting After White Nationalist’s Speech in Florida, WASH. POST, Oct. 22, 2017, at

A18. Three men, identified by police as white nationalists who attended the Spencer

event, where charged with attempted homicide. Id.

Alex Harris & Martin Vassolo, UF Drowns out Spencer with ‘Peace and Unity,’ MIAMI

HERALD, Oct. 20, 2017, at 1A.

See Ashcroft v. Free Speech Coal., 535 U.S. 234, 245–46 (2002) (“The freedom of

speech has its limits; it does not embrace certain categories of speech, including

defamation, incitement, obscenity, and pornography produced with real children.”)

(emphasis added).

The First Amendment to the U.S. Constitution provides, in pertinent part, that

“Congress shall make no law . . . abridging the freedom of speech, or of the press.”

U.S. CONST. amend. I. The Free Speech and Free Press Clauses were incorporated

more than ninety years ago through the Fourteenth Amendment Due Process Clause

as fundamental liberties to apply to state and local government entities and officials.

See Gitlow v. New York, 268 U.S. 652, 666 (1925).

395 U.S. 444 (1969). The Court in Brandenburg held that “that the constitutional

guarantees of free speech and free press do not permit a State to forbid or proscribe

advocacy of the use of force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or

produce such action.” Id. at 447.

Rick Neale, Spencer’s Words Wasted on Unwelcoming Ears in Fla.; Protesters Outside,

Hecklers Inside: White Nationalist’s Speech Flops at University, USA TODAY, Oct. 20,

2017, at 2A.

FIRST AMENDMENT LAW REVIEW [Vol. 16

457!!!

cacophony of chants and jeers.

In that endeavor, they

certainly succeeded and “mostly drowned out his speech.”

As one newspaper succinctly encapsulated it,

“[s]houting and booing from the protesters in the hall—which

included plenty of empty space and a small contingent of his

supporters in the first few rows—left Spencer unable to make a

sustained speech. Instead, he traded insults with the crowd.”

Indeed, the protestors greeted “Spencer with mocking chants

and raised fists, denying the provocateur an unchallenged

platform to share his widely derided views on race in

America.”

Bluntly put, more than half a million dollars was wasted

in the name of the First Amendment on an event featuring

neither a formal speech nor anything close to serious dialogue

and discussion. If the massive police presence at UF prevented

a so-called heckler’s veto

and allowed Spencer to talk without

being physically assaulted by a hostile mob, it also didn’t

forestall a tsunami of counter speech

that swamped Spencer. It

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

See Joe Heim et al., Spencer Speech Met by Protests, WASH. POST, Oct. 20, 2017, at

A3 (reporting that Spencer was “drowned out . . . by a hailstorm of chants, shouting

and mockery,” noting that “[t]he protest and chants in the auditorium began as soon

as the event began and continued until Spencer finally walked offstage 90 minutes

later,” and quoting Spencer as calling the audience “shrieking and grunting

morons”).

Associated Press, Ohio State Sued Over Refusal to Let White Nationalist Speak, ST.

LOUIS POST-DISPATCH, Oct. 23, 2017, at A8.

Andrew Pantazi & Nate Monroe, Shouting Match; Hostile Audience Drowns Out

White Nationalist’s Speech, FLA. TIMES-UNION, Oct. 20, 2017, at A-1.

Id.

See generally DON R. PEMBER & CLAY CALVERT, MASS MEDIA LAW 42 (19th ed.

2015) (asserting that a heckler’s veto transpires “when a crowd or audience’s reaction

to a speech or message is allowed to control and silence that speech”); Brett G.

Johnson, Heckler’s Veto: Using First Amendment Theory and Jurisprudence to Understand

Current Audience Reactions Against Controversial Speech, 21 COMM. L. & POL’Y 175,

215–19 (2016) (explaining that “[i]n hostile audience cases, the referees are the police

who provide protection for unpopular speakers, as well as the jurists who continue

to uphold the principle that these speakers are deserving of such protection,” and

contending that the heckler’s veto doctrine “stand[s] for the principle that state actors

have a duty to protect speakers from hostile audiences who would seek to either do

harm to speakers, or threaten to do harm and thereby force law enforcement to

silence speakers”).

Justice Louis Brandeis famously explained the counter speech doctrine ninety

years ago, asserting that “[i]f there be time to expose through discussion the

falsehood and fallacies, to avert the evil by the processes of education, the remedy to

be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S.

357, 377 (1927) (Brandeis, J., concurring); see also Robert D. Richards & Clay

Calvert, Counterspeech 2000: A New Look at the Old Remedy for “Bad” Speech, 2000 BYU

L. REV. 553, 553–54 (“Rather than censor allegedly harmful speech and thereby risk

violating the First Amendment protection of expression, or file a lawsuit that

threatens to punish speech perceived as harmful, the preferred remedy is to add more

speech to the metaphorical marketplace of ideas.”).

2018] COLLEGE CAMPUSES AS COMBAT ZONES

458

was all very much theatre of the absurd, with a complete

breakdown of coherent communication.

At least two intriguing issues arise from the UF

experience. The first is the collapse of on-campus, civilized

conversations when an audience is confronted by a speaker

who espouses offensive, disquieting viewpoints. The second is

the exploitation by extremist speakers of public universities to

garner high-profile stages from which to gain the media

spotlight they crave. These twin issues are addressed below.

I. THE COLLAPSE OF CAMPUS CONVERSATIONS:

EITHER SHUT UP OR WE’LL SHUT YOU UP

Richard Spencer has no one to blame but himself for

allowing protestors into the auditorium where he spoke at UF.

After all, it was his organization—the National Policy

Institute—that distributed the tickets to the event.

But the

spectacle that ensued in the auditorium raises larger cultural

questions about whether, in the era of Twitter rants and instant

outrage, it is even possible for people to respectfully listen to

discomfiting messages on a college campus.

Columbia University Professor Tim Wu recently

lamented the deterioration of the expressive environment in the

United States.

Although Wu focused on what he aptly called

“[t]he angry, censorial online mob”

and “abusive online

mobs,”

similar attention must be paid to abusive, real-world

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

See Martin Esslin, The Theatre of the Absurd, 4 TUL. DRAMA REV. 3, 5 (1960)

(noting, in the seminal article on the topic, that theatre of the absurd is characterized,

among other things, by a “futility and pointlessness of human effort” and the

“impossibility of human communication” that “shows the world as an

incomprehensible place”).

See Noah Feldman, Richard Spencer Has Only Himself to Blame for Hecklers,

BLOOMBERG: VIEW (Oct. 19, 2017, 4:40 PM),

https://www.bloomberg.com/view/articles/2017-10-19/richard-spencer-has-only-

himself-to-blame-for-hecklers (noting that the hecklers “held tickets distributed by

Spencer’s own National Policy Institute”); Janae Muchmore, National Policy Institute

Takes Over Ticket Distribution For Richard Spencer, WUFT (Oct. 17, 2017),

https://www.wuft.org/news/2017/10/17/national-policy-institute-takes-over-ticket-

distribution-for-richard-spencer/ (describing how the National Policy Institute took

over distribution of all tickets after it “caught wind of local organizations and

businesses intent to encourage locals to get tickets and not show up”).

Tim Wu, Is the First Amendment Obsolete?, in EMERGING THREATS 2 (David Pozen

ed., 2017),

https://knightcolumbia.org/sites/default/files/content/Emerging%20Threats%20Ti

m%20Wu%20Is%20the%20First%20Amendment%20Obsolete.pdf (“We live in a

golden age of efforts by governments and other actors to control speech, discredit

and harass the press, and manipulate public debate. Yet as these efforts mount, and

the expressive environment deteriorates, the First Amendment has been confined to a

narrow and frequently irrelevant role.”) (emphasis added).

Id. at 14.

Id. at 11.

FIRST AMENDMENT LAW REVIEW [Vol. 16

459!!!

mobs that, as the University of California, Berkeley witnessed

in 2017, sometimes resort to violence to squelch speech to

which they object.

Even when physical violence does not occur, speakers

are still not permitted to talk when hostile students take over a

venue. For instance, at William & Mary in October 2017,

members of the college’s Black Lives Matter chapter, chanting

“[l]iberalism is white supremacy,” rushed the stage and

thwarted an attorney from the American Civil Liberties Union

from making a presentation innocuously called “Students and

the 1st Amendment.”

Also in October 2017, a chanting group

of students at the University of Oregon in Eugene “stormed the

stage as President Michael Schill was to give his annual State of

the University speech. The students, some holding signs,

including one that said ‘Take back our campus,’ were protesting

Schill’s leadership, including the treatment of minority students

and tuition increases.”

The speech was cancelled and “Schill

walked out of the auditorium without ever taking the

podium.”

Lurking behind such incidents are shifting cultural

views, as well as divisions along racial and political lines, about

the importance of protecting free expression. The Cato

Institute’s 2017 survey of Americans’ attitudes toward free

speech and tolerance reveals the following:

• The vast majority—76%—of those surveyed felt

“that recent campus protests and cancellations of

controversial speakers are part of a ‘broader

pattern’ of how college students deal with

offensive ideas.”

Put bluntly, if an idea offends

you, then shut up the speaker. Why bother

listening?

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

See Thomas Fuller & Stephanie Saul, Latest Battle at Berkeley: Free Speech Versus

Safety, N.Y. TIMES, Apr. 22, 2017, at A10.

Editorial, Let Campus Speakers Speak, L.A. TIMES, Oct. 17, 2017, at A10; Editorial,

Free Speech Besieged, N.Y. POST, Oct. 6, 2017, at 24; Francesca Truitt, Black Lives

Matter Protests American Civil Liberties Union, FLAT HAT (Oct. 2, 2017),

http://flathatnews.com/2017/10/02/black-lives-matter-protests-american-civil-

liberties-union/.

Associated Press, Students Disrupt Speech by Oregon President, SPOKESMAN REV.

(Spokane, Wash.), Oct. 7, 2017, at C6.

Therese Bottomly, Student Protesters Disrupt University of Oregon’s Announcement of

$50 Million Gift, OREGONIAN (Oct. 6, 2017),

http://www.oregonlive.com/education/index.ssf/2017/10/protesters_disrupt_anno

uncemen.html.

Emily Ekins, The State of Free Speech and Tolerance in America: Attitudes About Free

Speech, Campus Speech, Religious Liberty and Tolerance of Political Expression, CATO INST.

1, 3 (2017), https://object.cato.org/sites/cato.org/files/survey-reports/pdf/the-

state-of-free-speech-and-tolerance.pdf.

2018] COLLEGE CAMPUSES AS COMBAT ZONES

460

• Demonstrating support for a heckler’s veto,

58% of those surveyed by Cato think that

“colleges should cancel controversial speakers if

administrators believe the students will stage a

violent protest otherwise,”

with the figure rising

to a whopping 74% among Democrats

surveyed.

In stark contrast, 54% of Republicans

surveyed said that colleges should not cancel the

speaker if students threaten violence.

• Reflecting both racial and political divisions, the

survey found that “[s]trong liberals (52%),

African Americans (54%), and Latinos (54%)

stand out with slim majorities who believe it’s

more important for colleges to prohibit offensive

and biased speech on campus. Conversely,

majorities of regular liberals (66%), conservatives

(73%), and white Americans (73%) think colleges

need to expose students to a wide variety of

perspectives even if they are offensive or

prejudiced.”

A 2017 survey of college students conducted by YouGov

on behalf of the Foundation for Individual Rights in Education

revealed divisions along the lines of political affiliation when it

comes to disinviting controversial speakers. “Democratic

students are 19 percentage points more likely than their

Republican peers to agree that there are times a speaker should

be disinvited,” the report notes.

Specifically, “[a]lmost half of

Republicans (47%) and two-thirds of Democrats (66%) support

disinvitations in some instances.”

A 2016 survey conducted by Gallup for the Knight

Foundation and the Newseum Institute reflected differences in

beliefs among college students based on race. Specifically, 41%

of black students surveyed believed that colleges should be able

to restrict the expression of “political views that are upsetting or

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

See supra note 23 and accompanying text (discussing the concept of a heckler’s

veto).

Ekins, supra note 34, at 4.

Id.

Id. at 41.

Kelsey Ann Naughton, Speaking Freely: What Students Think About Expression at

American Colleges, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC. 1, 15 (Oct. 2017),

https://d28htnjz2elwuj.cloudfront.net/wp-

content/uploads/2017/10/11091747/survey-2017-speaking-freely.pdf.

Id.

FIRST AMENDMENT LAW REVIEW [Vol. 16

461!!!

offensive to certain groups.”

In contrast, only 24% of white

students felt colleges should restrict such political views.

Perhaps the growing intolerance in college for hearing

disagreeable speech is simply generational. As Erwin

Chemerinsky and Howard Gillman recently wrote, the current

crop of college students “is the first generation of students

educated, from a young age, not to bully. For as long as they

can remember, their schools have organized ‘tolerance

weeks.’”

Ironically, of course, the only thing that some of

them seem unable to do is tolerate the intolerant speech of

others.

Ultimately, and regardless of why it occurred, what

transpired at UF when Richard Spencer attempted to speak

there was disappointing. As a columnist for one Florida

newspaper put it, “As much as I hate what Spencer has to say,

he should have been able to say it. The danger in not allowing

free speech is the tide during these contentious times can turn

quickly and take aim at different beliefs tomorrow.”

Lata Nott, executive director of the First Amendment

Center of the Newseum Institute, stresses another problem with

shouting down speakers. “It demonstrates a visceral fear of

ideas, as if it’s not enough to disagree with someone’s opinion,

or even vehemently oppose it—instead, they must not be allowed

to express it in the first place,” she writes.

She adds that:

Shouting down a speaker like Richard Spencer

makes students feel like they’ve defeated a neo-

Nazi—but it’s uncertain what kind of impact this

has on the white supremacist movement as a

whole. Sometimes we forget that freedom of

speech doesn’t just refer to the right to talk; it also

encompasses the right to hear others speak. The

rising antagonism toward speech we disagree

with doesn’t necessarily violate the First

Amendment, but this attitude can be corrosive to

its spirit.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

GALLUP, INC., FREE EXPRESSION ON CAMPUS: A SURVEY OF U.S. COLLEGE

STUDENTS AND ADULTS 13 (2016),

https://www.knightfoundation.org/media/uploads/publication_pdfs/FreeSpeech_c

ampus.pdf.

Id.

ERWIN CHEMERINSKY & HOWARD GILLMAN, FREE SPEECH ON CAMPUS 10

(2017).

Ron Littlepage, Richard Spencer’s Supremacist Views are Terrible, but He Should be

Allowed to Speak, FLA. TIMES-UNION, Oct. 25, 2017, at A-7.

Lata Nott, Shouting Down Free Speech, NEWSEUM INST. (Oct. 27, 2017)

http://www.newseuminstitute.org/2017/10/26/shouting-down-free-speech/.

Id.

2018] COLLEGE CAMPUSES AS COMBAT ZONES

462

Thus, it is readily evident that free speech advocates

and, in particular, free speech educators now face a daunting

task of promoting ideals of civil discourse and discussion when

speakers with disagreeable viewpoints come to campus. It is not

mere hyperbole to believe that the very notion of a public

university as a marketplace of ideas—something embraced by

the U.S. Supreme Court

—lies in the balance.

II. EXPLOITING PUBLIC UNIVERSITIES:

THE BILL FOR COVERING COSTS OF EXTREMIST CIRCUSES

Beyond the collapse of conversation, Richard Spencer’s

UF visit highlights another issue. Specifically, a critical problem

today, as UF President Kent Fuchs opined in the pages of the

Wall Street Journal shortly after Richard Spencer’s UF visit, is

that public universities “may become hostage to Nazis or other

extremists—forced to stand by as these groups capitalize on

their university’s visibility and prestige to amplify their vile

messages.”

In brief, Richard Spencer is causing the

militarization—recall the more than 500 law enforcement

personnel to keep the peace at UF

—and weaponization of

government property. A Tampa Bay Times article crisply

captured Spencer’s exploitation and hijacking of the First

Amendment this way:

Spencer and other fringe-right provocateurs have

seized on prestigious public universities as

launching pads for their viral stunts. Beyond a

built-in audience of students and press, these

speakers get to stand upon the First Amendment,

which makes it difficult for public institutions to

push away speakers with even the vilest of

beliefs, and with even the most hostile of

potential audiences.

It’s an issue now spilling over from the halls of academia

to the chambers of the U.S. Capitol. As Senator Lamar

Alexander, R-Tenn., chairman of the Senate Committee on

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

See Healy v. James, 408 U.S. 169, 180 (1972) (opining that “[t]he college

classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’”

(quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967))).

Kent Fuchs & Glenn C. Altschuler, How White Supremacists Exploit Higher

Education, WALL ST. J., Oct. 23, 2017, at A17.

Supra note 12 and accompanying text.

Claire McNeill & Kathryn Varn, Richard Spencer Speaks, and Gainesville Emerges

Weary but at Peace, TAMPA BAY TIMES, Oct. 20, 2017, at 1.

FIRST AMENDMENT LAW REVIEW [Vol. 16

463!!!

Health, Education, Labor & Pensions, asserted during an

October 2017 hearing:

there is the question of deliberately inflammatory

speakers, and the protests and riots in response

that push the freedom of speech to a limit that

creates chaos. Sometimes these demonstrations

turn into tragedy as we saw recently in

Charlottesville. And just last week at the

University of Florida, when the white

supremacist Richard Spencer was speaking, his

supporters and protestors caused the university to

spend $600,000 on security, bring in over 1000

law enforcement officers and cause the governor

to declare a state of emergency. It is a familiar

problem in a country that prizes freedom. If

you’re a university president, what do you do

about this?

The answer to Senator Alexander’s question, of course,

varies. As noted above, some university presidents have denied

Spencer access and now face lawsuits.

But for those like UF

President Kent Fuchs that grant him access, the price tag is

high, and their campuses are turned into militarized zones. UF

had to cover the cost of the security, rather than shifting it to

Spencer, because the U.S. Supreme Court held in Forsyth

County v. Nationalist Movement

that “[s]peech cannot be

financially burdened, any more than it can be punished or

banned, simply because it might offend a hostile mob.”

But as

UF spokeswoman Janine Sikes explained, “[p]ublic institutions

cannot continue to pay this kind of money.”

In his Wall Street Journal column, Fuchs suggested that a

“partial solution could entail a new Federal Extremist Speakers

Fund to help universities with their exorbitant security costs.

That would shift the financial burden of following the First

Amendment to the government that requires universities to do

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Exploring Free Speech on College Campuses: Hearing Before the S. Comm. on Health,

Educ., Labor & Pensions, 115th Cong. (2017) (opening statement of Sen. Lamar

Alexander, Chairman, S. Comm. on Health, Educ., Labor & Pensions),

https://www.alexander.senate.gov/public/index.cfm?p=SpeechesFloorStatements&

id=43BEFB1D-1CBF-4460-8CEA-DB9C2D09BA69.

See supra notes 6–8 (citing the complaints filed on behalf of Spencer against

Michigan State University, Ohio State University, and Pennsylvania State

University).

505 U.S. 123 (1992).

Id. at 134–35.

Douglas Belkin, U.S. News: Colleges Face High Security Expenses, WALL ST. J., Oct.

23, 2017, at A3.

2018] COLLEGE CAMPUSES AS COMBAT ZONES

464

so.”

Such a proposal, however, merely moves the burden from

one governmental entity (a public university) to another (the

federal government), with taxpayers ultimately paying in the

end.

The fact, of course, is that Richard Spencer could just as

easily rent space in a ballroom at a Hilton or Hyatt hotel and, in

turn, have total control over the audience. Such venues,

however, would not allow Spencer to invoke the First

Amendment and play the role of victim when he is denied

access to a public university campus. They also would not

provide him with the large, angry crowds that generate massive

news media coverage for his message. For now, then, public

universities are being exploited for events that carry little

educational value.

III. CONCLUSION

One of the more interesting tidbits of data gleaned by the

Cato Institute survey cited earlier is that “51% of strong liberals

say it’s ‘morally acceptable’ to punch Nazis.”

Outside the

auditorium where Richard Spencer spoke at UF, white

nationalist Randy Furniss—wearing a shirt festooned with

swastikas—was punched in the face by an unknown assailant.

Furniss, who wasn’t speaking and was merely walking through

the crowd when he was punched, told the Gainesville Sun that

people “were hitting me on the back of the head and sitting on

me . . . . It wasn’t black people, it was white people, they were

getting everybody riled up.”

Indeed, the presence of extremist speakers on college

campuses certainly has many riled up. As this Essay suggested,

a larger issue raised by Spencer’s UF appearance is whether the

riling up and agitation he provokes also reflects a societal

change in how people respond to messages with which they

vehemently disagree. The collapse of conversations on public

university campuses and the rise of attitudes in favor of stifling

speakers are profoundly troubling developments for the future

of the First Amendment freedom of speech. Yet at the same

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Fuchs & Altschuler, supra note 49, at A17.

Ekins, supra note 34, at 1.

Mary Hui, A Black Protester Hugged a White Nationalist Outside Richard Spencer’s Talk.

‘Why Do You Hate Me?’ He Asked, WASH. POST (Oct. 20, 2017)

https://www.washingtonpost.com/news/inspired-life/wp/2017/10/20/a-black-

protester-hugged-a-white-nationalist-outside-richard-spencers-talk-why-do-you-hate-

me-he-asked/?utm_term=.bebddb4d5820.

Sara Marino, After Punch at Richard Spencer Protest, an Unlikely Friendship,

GAINESVILLE SUN (Oct. 21, 2017, 1:31 PM),

http://www.gainesville.com/news/20171021/after-punch-at-richard-spencer-

protest-unlikely-friendship.

FIRST AMENDMENT LAW REVIEW [Vol. 16

465!!!

time, as this Essay pointed out, it is equally worrisome that

educational institutions are being exploited and held financially

hostage in the name of the First Amendment by extremist

speakers. There are no easy solutions to either problem, but

starting to examine them now, as the Richard Spencer circus

raucously rolls on, is critical.