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A First Amendment guide to responding to Nazis and trolls on campus

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Last February, the University of California, Berkeley canceled a speech by professional right-wing troll Milo Yiannopoulos just two hours before it was supposed to begin, citing concerns about violent protests triggered by Yiannopoulos’ presence on campus.

A few months later, Yiannopoulos retaliated by issuing a press release announcing that “I am planning a huge multi-day event called MILO’S FREE SPEECH WEEK in Berkeley later this year.” Yiannopoulos promised to “hold talks and rallies and throw massive parties,” and that “each day will be dedicated to a different enemy of free speech, including feminism, Black Lives Matter and Islam.”

He’s now scheduled to return to campus late next month.

Berkeley is hardly the only college campus targeted by racists and trolls loosely aligned with the President of the United States.

The University of Florida recently refused to allow white supremacist Richard Spencer to rent event space on campus. “This decision was made,” university president W. Kent Fuchs announced, “after assessing potential risks with campus, community, state and federal law enforcement officials following violent clashes in Charlottesville, Va., and continued calls online and in social media for similar violence in Gainesville such as those decreeing: ‘The Next Battlefield is in Florida.’” The same week, Texas A&M also canceled a “white lives matter” event that would have been headlined by Spencer.

Now, a legal showdown is looming that is likely to determine the future of Nazis on campus.

As white nationalists — currently emboldened by a sympathetic president — look to college campuses as potential recruitment opportunities, these events will likely continue to be scheduled. And if schools continue to cancel them, lawsuits claiming that colleges are violating these groups’ First Amendment rights are all but inevitable. The law in this space is surprisingly unclear.

The limits of free speech

The fundamental premise of the First Amendment, at least as it’s been understood since the 1960s, is that bad ideas should be defeated in open debate rather than censored by the government.

The fitting remedy for evil counsels is good ones,” Justice Louis Brandeis wrote in an influential opinion nearly a century ago. “The best test of truth,” Justice Oliver Wendell Holmes concluded in a similar opinion, “is the power of the thought to get itself accepted in the competition of the market.”

Nevertheless, there are important limits on free speech. The right to speak freely is not the right to commit violence. It is not the right to speak without criticism or without social consequences. In limited circumstances, it isn’t even the right to disrupt a community’s peace.

It someone kills another person as an act of political protest, they are still guilty of murder. If they violate state gun laws at a protest, they can be charged for that violation. If they commit assault, they can be convicted of assault.

Don’t blame the First Amendment for these jokers, blame Virginia’s too-lenient gun laws. (CREDIT: Screenshot from video captured by fmr. Rep. Tom Perriello (D-VA))

A more difficult question is what happens if white supremacists, trolls, and right-wing provocateurs descend upon a college campus.

As a general rule, the government may not censor speech simply because it is hateful — or even because it advocates for violence in the abstract. That was the Supreme Court’s unanimous holding in Brandenburg v. Ohio, a case involving loathsome speech by a Ku Klux Klansman, which established 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.”

At public schools and universities, however, demands for free speech may sometimes yield to the need to maintain an educational environment.

Classrooms cannot function without a certain degree of censorship. A teacher can punish a student whose loud outbursts interrupt a class, for example. Principals can forbid gang signs or hate speech if those forms of expression will trigger fights in the hallways. Schools may even engage in viewpoint discrimination — which is typically a big no-no under the First Amendment — in limited circumstances. A teacher can discipline a student who calls his classmates “stupid” while praising those who are more complementary towards their fellow students. The same teacher can assign students an essay which requires the students to defend a position they may not hold.

The seminal case laying out the First Amendment’s scope in an educational setting is Tinker v. Des Moines Independent Community School District, which held that middle and high school students could not be disciplined for quietly wearing a black armband to protest the Vietnam War. The armbands, Justice Abe Fortas explained for the Court, did not “materially disrupt classwork” or involve “substantial disorder or invasion of the rights of others.”

Absent “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities,” the First Amendment protects students free speech. But when campus speech becomes a serious disruption, the school may act.

The university dilemma

On public university campuses, however, courts have explained that rules are a bit more unclear. University education focuses on inquiry and the exploration of ideas, a mission that would itself be disrupted by censorship. Students often live in dorms and spend the bulk of their time on campus, so there is no clear “schoolhouse door” that marks the place where their First Amendment rights expand and contract. Also, college students are adults, and should be able to handle adult conversations. As one federal appeals court lamented, “it is difficult to explain” how Tinker should be applied on college campuses, “and it is unlikely that any broad categorical rules will emerge from its application.”

Indeed, absent a footnote in a 1981 opinion, the Supreme Court has been fairly quiet on when campus speech grows so disruptive that a public university may intervene, and that footnote did little more than acknowledge that “a university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities.”

Nevertheless, there are good reasons why something like Tinker‘s shield against disruption should apply to university campuses, even if the standard for what constitutes “substantial disruption of or material interference with school activities” is much higher. A college lecture can be disrupted by a loud student just as easily as a high school class. A seminar can fall apart if students don’t maintain a degree of professional decorum. University students should be able to travel freely to their classes, not having to fear that they will be caught in a literal crossfire between rival protest groups.

The First Amendment requires the government to tolerate odious speech, but it does not require innocent bystanders to risk their safety.

For this reason, extraordinarily disruptive speakers — those that, for example, are likely to endanger student safety or trigger massive brawls between neo-Nazis and militant anti-racists — can almost certainly be banned from campus. Similarly, universities can almost certainly require such exceptionally disruptive speakers to cover the cost of maintaining the peace if their visit requires added security or a heightened police presence. In some cases, these costs may be so high that they prevent the speaker from appearing.

The First Amendment requires the government to tolerate odious speech, but it does not require innocent bystanders to risk their safety.

Yet, even assuming that the Supreme Court will apply something similar to this modified Tinker standard to white supremacists on campus, Tinker suits are, by their very nature, tied to the facts of a particular campus and its unique community. A speaker like Yiannopoulos might attract violent protests at a school like Berkeley, and therefore be unprotected by the First Amendment, while he may be more welcomed at a conservative campus. Universities also may not know which speakers are likely to disrupt their campuses until long after the disruptions begin.

It’s also worth noting that Tinker creates a bit of a perverse incentive for protest groups. Because a school’s power to ban speakers grows as those speakers’ presence becomes more and more disruptive, protesters have an incentive to be maximally disruptive, ramping up violence if necessary, in order to give a campus the power to remove a speaker.

Yet while such disruptions might expand a university’s lawful power, that does not mean that they are always in the best interests of anti-racists. As the Southern Poverty Law Center warns in a guide for students dealing with the so-called “alt-right,” “when an alt-right personality is scheduled to speak on campus, the most effective course of action is to de­prive the speaker of the thing he or she wants most – a spectacle.”

People like Yiannopoulos thrive on confrontation. They live to be the victim of overbearing liberals banning them from their liberal universities with their liberal speech codes. If a campus gives them the confrontation they seek, it risks feeding the trolls.

Sometimes the best solution to a problem isn’t legal. It’s just to humiliate the racists. As the SPLC explains, “denying an alt-right speaker of such a spectacle is the worst insult they can endure.”

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