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January 25, 2018

Reconsidering Incitement, Tinker and the Heckler’s Veto on College Campuses: Richard Spencer and the Charlottesville Factor

Abstract

This Essay analyzes key First Amendment issues surrounding Richard Spencer and Milo Yiannopoulos speaking on public university campuses. Some institutions (Ohio State University, Michigan State University and Pennsylvania State University) have flatly banned Spencer, citing fears of incitement to violence but also sparking federal lawsuits. Other schools have permitted Spencer to speak, but at massive security costs, in an attempt to prevent a so-called heckler’s veto. This Essay examines the tension between providing a public platform for controversial speakers and the costs associated with doing so, including the relevance of the Supreme Court’s aging incitement test created in Brandenburg v. Ohio. It also questions the Court’s 1992 ruling in Forsyth County v. Nationalist Movement restricting governmental entities’ ability to shift escalating security fees to speakers based on fears of violence.

Author

Clay Calvert, Professor & Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida, Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. Member, State Bar of California. The author thanks Hannah Beatty, Gabriel Diaz, Jessie Goodman and Jayde Shulman of the Marion B. Brechner First Amendment Project for their careful review of early drafts of this Essay.

Copyright 2018 by Clay Calvert

Cite as: Clay Calvert, Reconsidering Incitement, Tinker and the Heckler’s Veto on College Campuses: Richard Spencer and the Charlottesville Factor, 112 Nw. U. L. Rev. Online 109 (2018), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1254&context=nulr_online&preview_mode=1&z=1516859046.