The legal experts are weighing in.
Saunie Schuster, an attorney for The NCHERM Group, which provides consulting for schools on First Amendment issues, said that was the organizer’s big mistake.
“You can be here and you can speak even if we hate what you’re saying, but you can’t disrupt the function of Texas A&M,” Schuster said. “Because a person was killed and people were seriously injured in Charlottesville, the potential for harm is not just speculative. If he’s linking the two events together, he’s seeing that as an outcome.”
Southern Methodist University constitutional law professor Dale Carpenter said the school’s position — that the rally presents a huge public safety risk and could disrupt normal activities on campus — is “legitimate,” but the school may face some legal backlash anyway. On Monday evening, rally organizer Wiginton said as much: “I guess my lawyers will now be suing the state of Texas.”
Carpenter said the university “can’t simply ban a controversial speaker because others might react violently.” He said blocking speech is an absolute last resort to prevent violence, not a first resort. He suggested the university may be able to negotiate a different time or place for the rally but said he doubts A&M will “succeed in simply prohibiting this event and its subject matter on campus.”
“That billing is too vague to constitute a true threat of violence, in my view. Indeed, the fact that Texas A&M specifically cited that billing as a justification may weaken its claim that the cancellation was for content-neutral reasons,” Carpenter added.
Meanwhile, Schuster said, “if the people coming to do a ‘White Lives Matter’ rally remain in a public area or do so in a manner that doesn’t disrupt the educational function of the institution, the school is going to be highly unlikely to be able to shut it down or restrict it.”
See here for the background. The racist organizer had talked about having a march on campus instead, which might be harder to restrict, but in the end decided to call it off, at least for now. He’s still talking lawsuit, however. My layman’s opinion of what A&M did was that it was defensible on public safety grounds, but that is no guarantee they would prevail in court if it comes down to it, which it may yet do. Other legal experts were less sanguine.
“If all it took to shut down a speaker was to threaten a riot, we would all find ourselves with very little free speech at all,” said Ari Cohn, the director of the Individual Rights Defense Program, a campus civil rights watchdog group. “Allowing the possibility of a bottle-throwing mob to justify curtailing speech only incentivizes violence. That is an untenable result, from a legal and practical standpoint.”
Cohn said that the [racist jerk]’s link between Charlottesville and the planned A&M rally—a main reason the university gave for canceling the event—is protected under free speech. “Under applicable constitutional precedent, it constitutes neither incitement to imminent lawless action nor a true threat, and without more, that notice does not justify canceling the event,” Cohn said. “Moreover, violence committed in one place does not justify curtailing freedom of expression in other places. We do not discard the First Amendment’s protections because someone, somewhere reacted inappropriately to speech—and to be clear, violence is never an acceptable response to speech. But to sacrifice our First Amendment rights on the altar of preventing violence is incompatible with our understanding of free speech.”
[…]
“[Texas A&M], in denying White Lives Matters [and other racist jerk]’s access to public areas to engage in speech—notwithstanding how deplorable and lacking in value that speech may be—more likely than not is violating the First Amendment by engaging in viewpoint-based discrimination,” JT Morris, an Austin-based attorney specializing in First Amendment law, said in an email. Morris said [racist jerk] could file a lawsuit immediately seeking an emergency temporary restraining order or preliminary injunction, asking a judge to force the university to grant [racist jerk]’s group access to campus for the rally. “This is a really tough situation to balance First Amendment rights and public safety,” Morris said. “We’re looking at protecting speech of minimal value—to put it gently—that is espoused by a very small group of people, at the risk of serious harm to public safety.” As Morris notes, the First Amendment protects what most of us consider to be hate speech, unless that speech crosses the line and incites violence. “I’m not sure the White Lives Matter [and] [other racist jerk] stuff is quite there—yet,” Morris said.
As I’ve said, I support A&M’s actions here. If they wind up losing in court, that would be unfortunate, but at least they tried. Slate, which takes a national look at this issue, has more.
A & M should fight it all the way. Make them sue.
If you’re calling the shots in Aggieland, getting sued for denial of a permit is a far lesser evil that getting sued by parents of students killed/injured if things went bad. IANAL, but tweeting something like “Today Charlottesville, tomorrow TAMU” can’t help this guy’s case here.
It’s at the least an interesting question about the defined borders where speech meets government interests. I would bet money that it wouldn’t go past the 5th Circuit without an apparently contradictory ruling in another circuit.