Should Hate Speech on Campus Be Protected?

Sophia Khan | February 22, 2018
Image of Steve Bannon by Gage Skidmore, CC BY-SA 2.0 License.

The 2017 Charlottesville protests against the University of Virginia hosting Unite the Right leader Richard Spencer marked a turning point in how universities deal with hosting controversial speakers. Universities must balance their own institutional goals—asking hard questions and probing the darkness in pursuit of knowledge—with concerns for physical safety.

When a divisive figure wants to speak on campus, a universities are faced with two options: (1) allow the speaker to use their campus as a platform for incendiary rhetoric and risk the outbreak of violent protests, or (2) reject the request and risk litigation. As an example of the latter, Mr. Spencer’s team has now brought individual lawsuits against Michigan State, Ohio State, Penn State, and most recently, the University of Cincinnati, claiming that the universities’ refusal to host him is a violation of his First Amendment right to free speech. Michigan State subsequently settled with Mr. Spencer and has agreed to host Mr. Spencer on the first day of the university’s spring break.

Universities face substantial costs when hosting speakers affiliated with the alt-right movement; for example, the University of Florida had to pay a $300,000 public safety bill when Mr. Spencer spoke on its campus last October. In addition, the Florida governor preemptively declared a state of emergency in advance of Mr. Spencer’s planned speech. The legal implications of these heightened precautions, however, require balancing the perceived costs to the hosting university and Mr. Spencer’s constitutional right to free speech. In Mr. Spencer’s complaint against the University of Cincinnati alleges that the proposed $11,000 security fee is effectively unconstitutional discrimination against the anticipated content of Mr. Spencer’s speech.

University values—such as inclusiveness—are stretched thin when a speaker who promotes hateful ideology speaks on campus. How pressing must the “specter of violence” be for a court to find that a university’s action in not allowing such a speaker is constitutionally permitted? Existing case law provides little guidance. A federal court ruled in favor of Mr. Spencer in his lawsuit against Auburn University, finding that the university violated his First Amendment rights when it turned down his request to speak on campus.

One recent example of a university grappling with these issues is the University of Chicago. The university has an open-door speaker policy that permits members of the university community to invite to campus any person they wish to speak. Recently, Steve Bannon was invited to speak on campus at the invitation of Luigi Zingales, a professor at the Booth School of Business. In response, student organizations assembled an immediate demonstration, demanding that the university rescind Bannon’s invitation. In addition, faculty signed a public letter denouncing Bannon’s alignment with white supremacy and hate speech as directly opposed to the university’s diverse and inclusive community.

In a statement to the university community, the professor defended inviting Bannon, stating, “Whether you agree with him or not (and I personally do not), Mr. Bannon has come to interpret and represent this backlash in America. For this reason, I invited Mr. Bannon to a debate on these issues with our faculty. I firmly believe that the current problems in America cannot be solved by demonizing [those] who think differently, but by addressing the causes of their dissatisfaction. Hate cannot be defeated by hate, but only by reason.” Details of Bannon’s talk have yet to be confirmed; teach-ins, controversy, and debate continue at University of Chicago.

The Northwestern University Law Review Online recently published an Essay by Clay Calvert discussing the legal merits of First Amendment claims brought by speakers, including Mr. Spencer, who have been turned away from campus speaking engagements by the hosting universities. Professor Calvert argues that the standard developed in Tinker v. Des Moines Independent Community School District (1969), which allows public school officials to stop student speech if they have actual facts to reasonably believe the speech will cause a substantial or material disruption of school activity or policy, should not be applied to universities. Instead, Professor Calvert advocates for First Amendment protection of extremist speech on university campuses, even if university administrators must pay high security costs.