Even though we’ve been called “free speech absolutists”—sometimes, but not always, as a compliment—we will not pretend that Spencer’s speaking cancellations make for a slam-dunk First Amendment lawsuit. Yes, hateful, bigoted and racist speech is fundamentally protected under the First Amendment, as it should be. However, if we’re honest about the law, we have to recognize that Spencer faces tough—though not insurmountable—legal challenges.
First, he is not a student at any of the aforementioned universities and was not invited to the campuses by students or faculty. He was seeking space on campus that is available to the general public to rent out. In at least some cases, courts have found that public colleges have a somewhat freer hand to regulate the speech of non-students on campus who are not invited by students or faculty.
Second, although a general, unsubstantiated fear of violence is not enough to justify cancelling an approved speaking event, recent violence in Charlottesville and the fact that one of the organizers of the Texas A&M rally used the promotional tagline “TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M” make security concerns more concrete, at least in the short term. The more concrete the security concerns are, the easier it is to justify the cancellation or denials.
Third, as David Frum, Dahlia Lithwick and Mark Joseph Stern point out, judges might decide cases differently when protesters are liable to show up brandishing guns, as happened in Charlottesville. Bad facts make bad law, so the saying goes. The general legal standard now is that if a public college opens itself up to outside speakers, it cannot engage in viewpoint discrimination. Most cases of prior restraint censorship will fail in court under this standard. But in the immediate aftermath of the tragedy in Charlottesville, judges may look differently at these facts.
And that should trouble us: If a court decides in favor of the prior restraints, it could set a precedent that would do considerable harm to the free speech rights of speakers, students and faculty far beyond Spencer.
But what happens in a court of law is one thing. What happens in the court of public opinion is perhaps more important. As the famous jurist Learned Hand once said, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
And, unfortunately, there is evidence that freedom of speech needs a pacemaker.
If your social media newsfeed doesn’t provide ample anecdotal evidence that free speech is suffering a public relations crisis, look to the polling: A recent Knight Foundation study found that fewer than 50 percent of high school students think that people should be free to say things that are offensive to others.