The following by SMU Law Professor Dale Carpenter, an expert in constitutional law, first appeared in the Aug. 16, 2017, edition of The Washington Post.
August 17, 2017
By Dale Carpenter
At the height of the deadly racist mayhem last Saturday in Charlottesville, a so-called white nationalist named Preston Wiginton announced that he would hold a “White Lives Matter” rally on September 11 on the grounds of Texas A & M, a public university in College Station. The rally would feature Richard Spencer, a well-known white nationalist whose speech at an auditorium at the university in December sparked outrage and near violence on campus. The headline of Wiginton’s press release blared in all caps, “TODAY CHARLOTTESVILLE, TOMORROW TEXAS A&M.”
An opposing group immediately announced a counter-protest to be called “BTHO Hate,” borrowing from a campus sports-program acronym meaning “beat the hell out of.”
On Monday night, Texas A & M announced it was canceling Wigginton’s rally, and issued the following statement:
After consultation with law enforcement and considerable study, Texas A&M is cancelling the event scheduled by Preston Wiginton at Rudder Plaza on campus on September 11 because of concerns about the safety of its students, faculty, staff, and the public.
Texas A&M changed its policy after December’s protests so that no outside individual or group could reserve campus facilities without the sponsorship of a university-sanctioned group. None of the 1200-plus campus organizations invited Preston Wiginton nor did they agree to sponsor his events in December 2016 or on September 11 of this year.
With no university facilities afforded him, he chose instead to plan his event outdoors for September 11 at Rudder Plaza, in the middle of campus, during a school day, with a notification to the media under the headline “Today Charlottesville, Tomorrow Texas A&M.”
Linking the tragedy of Charlottesville with the Texas A&M event creates a major security risk on our campus. Additionally, the daylong event would provide disruption to our class schedules and to student, faculty and staff movement (both bus system and pedestrian).
Texas A&M’s support of the First Amendment and the freedom of speech cannot be questioned. On December 6, 2016 the university and law enforcement allowed the same speaker the opportunity to share his views, taking all of the necessary precautions to ensure a peaceful event. However, in this case, circumstances and information relating to the event have changed and the risks of threat to life and safety compel us to cancel the event.
Finally, the thoughts and prayers of Aggies here on campus and around the world are with those individuals affected by the tragedy in Charlottesville.
Texas A & M is a public university subject to the demands of the First Amendment. It cannot ban speech on campus simply because the content of that speech is objectionable to many or all. Even hate speech like that of White Supremacists is fully constitutionally protected. Courts long ago held that Nazis bearing swastikas must be allowed to march down the streets of a neighborhood populated by Holocaust survivors. Furthermore, Texas A & M permits Rudder Plaza to be used as a free-speech zone, whether or not the speakers are sponsored by a student group.
University lawyers know this, so officials have not announced a total ban on racist hate speech on campus. They are “cancelling” this particular event. And they are offering purported content-neutral justifications for the cancellation. Are they on solid First Amendment ground?
The first and potentially most compelling justification for the cancellation is a public safety concern. Given violent clashes in other places where political extremists have rallied, and especially the demonstration four days ago at the University of Virginia, it’s easy to sympathize with the university. Moreover, September 11 is an especially sensitive day on the American calendar–which is no doubt the reason it was chosen for the rally. Protecting public safety is certainly a legitimate and indeed powerful concern of public officials. Speakers may not threaten violence or incite others to violence. Any actual acts of violence by speakers or counter-protesters could be punished.
The problem for Texas A & M is that, judging by the public record, we have no indication so far that organizers have made what courts would likely consider threats of violence. It’s true that Wiginton linked his event to Charlottesville. But a vague publicity reference to “Today Charlottesville, Tomorrow Texas A &M” is not enough to qualify as an unprotected true threat.
There’s also no evidence that organizers directly encouraged–incited–others to commit acts of violence. To constitute unprotected incitement, the speech must clearly advocate actual lawlessness (not merely hint at it) and be likely to immediately cause such lawlessness (not merely increase its likelihood). Under this test, the Supreme Court reversed the criminal conviction of a Klan leader who told armed members at a cross-burning rally that “there might have to be some revengeance [sic] taken” against “niggers” and “Jews.”
The second justification for the cancellation is that the event would disturb the normal activities of the campus during a school day, including possible disruption to class schedules, and would impede the safe and free movement of pedestrians and vehicles through campus. These are legitimate content-neutral concerns of the government, but there is a fact question about whether a protest or event could be orchestrated in a way that would minimize disruption and allow adequate traffic flow. These are matters that could be negotiated by lawyers for the university and the speakers, with differences adjudicated by a judge. Again, these concerns won’t justify wholly forbidding the speech.
The university’s cancellation is an opening bid in a negotiation with lawyers for the speakers. It may be that a different date or time or specific place on campus for the event can be arranged to address safety and other concerns. Certainly the university can take steps to protect the peace, like increasing police presence and erecting barriers between opposing groups. But I doubt the University will succeed in simply prohibiting this event on campus.
Texas A & M is not a one-off. The newly emboldened and brazen white racist movement is seeking similar publicity around the country. The constitutional issues raised by the university’s purported cancellation of a White Supremacy rally will recur. The First Amendment is not an alt-right slogan. We can’t let it be distorted by our fear of bigots. And we can’t let it be a tool for them alone.
Undoubtedly, many people feel provoked to violence when they see swastikas or Confederate flags or hear slogans that evoke genocide like “Jews will not replace us.” Thus, the planned counter-protest in response to Wiginton employed the language of force (“beat the hell out of hate”). But provocation is not incitement. The university cannot bar controversial speech simply because listeners might be deeply offended or might themselves react violently when they hear the speech. Federal courts are wary of allowing such a “heckler’s veto” of controversial speech–especially based on an undifferentiated fear that violence might possibly ensue. Shutting down or prohibiting speech is the last resort, not the first.
Minimizing and containing the threat of violence at the rally is a matter for negotiation between the speakers and the university, with a judge resolving outstanding differences. But safety concerns are unlikely to prevent the speech altogether.