Experts: White nationalist can’t legally be barred

As the University of Florida prepares to allow white nationalist Richard Spencer to speak on its campus, experts said the school is making the legally correct decision, even as other colleges hold firm in rejecting him.

UF is one of several universities recently forced to grapple with a planned visit by Spencer, who in the past has advocated for the creation of a white “ethnostate” in North America and what he describes as “peaceful ethnic cleansing.”

After violence erupted during a white nationalist rally in Charlottesville, Va., UF rejected Spencer’s request to speak on its campus Sept. 12. However, facing a possible lawsuit, the university this month relented, setting a tentative date for Oct. 19.

“The only foreseeable bar to the speech is if UF imposes an unreasonable fee for security,” said Gary Edinger, an attorney for Spencer, in an email.

Several attorneys who specialize in First Amendment law said the courts have set a high bar for a public university to deny event space to a controversial speaker, even in a charged racial climate.

“There is a line, and the line is if the speech incites immediate violence,” said Lawrence Walters, a Longwood-based attorney and anti-censorship advocate. “A speaker can talk about engaging in violence, can discuss violence, can discuss hate and anger and so forth. Those types of speech are protected by the First Amendment.”

Walters argued UF was never justified in denying Spencer’s original application, which he called a “knee-jerk reaction to a pretty traumatic event for the country,” which was “obviously motivated by the… politics of Mr. Spencer.”

Ari Cohn, an attorney for the Foundation for Individual Rights in Education, said it was difficult to judge if UF’s initial rejection was justified because the university “didn’t explain if there were any credible threats” as opposed to “vague security concerns.”

“If there’s no actual threat, then we don’t sacrifice the First Amendment simply because something bad happened somewhere else,” he said. “It all depends on the particular circumstance. It’s not a one-sizefits-all approach.”

UF first issued a statement Aug. 12, the same day the Unite the Right rally in Virginia, which Spencer attended, erupted into chaos. A 32-year-old woman was killed when a car plowed into counterprotesters and two Virginia state troopers were killed in a helicopter crash.

A supporter of Spencer’s National Policy Institute had by then already applied to hold an event Sept. 12 at UF’s Curtis M. Phillips Center for the Performing Arts and signed a cost estimate, though not a contract, officials said.

UF’s Aug. 12 statement said Spencer’s views did not align with the university’s values, but “we must follow the law, upholding the First Amendment not to discriminate based on content and provide access to a public space.” Four days later, however, university President W. Kent Fuchs said the event would not be allowed.

In an email, university spokeswoman Janine Sikes said the decision “had everything to do with” the violence in Charlottesville, “coupled with the imminent threats of violence found on social media directed toward UF and the state.”

“The topic of the speech and the content has no bearing,” she said.

Spencer’s group quickly raised the possibility of a lawsuit, though that appears to have been avoided with UF agreeing to the tentative date of Oct. 19. Details for securing the event are still being determined.

In recent months, Spencer’s group hasn’t been shy about going to court when universities hold firm in denying him event space.

A Spencer supporter sued Auburn University in Alabama after administrators tried to cancel an April 18 speech on its campus. Auburn lost the federal suit, an outcome that has loomed over other universities’ decisions since, experts say.

U.S. Chief District Judge W. Keith Watkins in that case found Auburn hadn’t provided enough evidence that Spencer was likely to incite violence. Spencer spoke, and the event attracted raucous, but largely peaceful, protests.

The same supporter, Cameon Padgett, filed suit against Michigan State University on Sept. 3 after the school, again citing public safety concerns after Charlottesville, refused to rent space for a Spencer event. The suit is pending. An attorney for MSU declined to comment.

Robert O'Neil, a former University of Virginia president and Association of Governing Boards of Colleges and Universities senior fellow, said administrators increasingly have sought to craft policies giving them more control over on-campus facilities.

Texas A&M University, for example, after protests in December, instituted a policy that outside groups can only reserve campus venues if sponsored by a university-sanctioned group. The school cited the new policy in rejecting a Spencer event last month. The key, O’Neil said, is that any policy must be “content neutral.”

“You can’t allow the Young Democrats to sponsor an event but not allow the Young Republicans,” he said.

Jesse Choper, Earl Warren Professor of Public Law at the University of California-Berkeley, said universities are allowed “reasonable” restrictions on the “time, place and manner” of speech. What’s reasonable? That depends on the judge, he said.

“You can find a federal district judge, or a state judge, for that matter, who will do most anything,” he said.

AP FILE Richard Spencer has a tentative date of Oct. 19 to speak at the University of Florida.