Public university general counsel beware—white supremacist Richard Spencer, who led the Charlottesville, Virginia, rally that ended in violence last weekend, may soon try to speak in a campus building near you. But GCs seem reluctant to talk about this problem in public.
Calls to 11 offices of general counsel across the country Thursday elicited not one response about the free speech issue. Yet, the problem appears to be growing.
Michigan State University announced Wednesday that it is trying to decide how to handle a request from Spencer's group, the National Policy Institute, to rent a room for a speech on its campus in East Lansing. Calls to MSU general counsel Robert Noto were referred to the communications department, which did not immediately return messages.
Meanwhile, the University of Florida on Wednesday switched its position from granting Spencer permission to speak, to announcing it would deny him a permit. A Spencer supporter has vowed to file a lawsuit. GC Amy Hass declined comment.
Spencer already won a similar lawsuit at Auburn University in April.
The white nationalist leader also has asked to speak at the University of Chicago. And who knows where else? The Spencer-related turmoil is all part of a much greater free speech debate swirling around the country's colleges and their general counsel.
The turmoil includes recent incidents of free speech protest-related violence or disruptions of unpopular speakers at Evergreen State College in Olympia, Washington, in May; at Middlebury College in Vermont in March, and the University of Southern California in Los Angeles in February. Messages seeking comment from general counsel or other executives at these universities were not returned.
The debate became so heated that in June the U.S. Senate Judiciary Committee held a hearing on "the assault on the First Amendment on college campuses."
Veteran First Amendment lawyer Floyd Abrams, formerly counsel for The New York Times and now senior counsel at Cahill Gordon & Reindel in New York, testified at the hearing. "The answer to the suppression of almost any speech, the First Amendment answer, cannot be to limit expression but to discuss it, not to bar offensive speech but to answer it. Or to ignore it. Or to persuade the public to reject it," Abrams said.
Also testifying was UCLA law professor Eugene Volokh, who urged universities to keep their doors open to unpopular speakers. Volokh said banning a speaker "is an abdication of the universities' responsibility to educate—to teach their students about the importance of responding to speech with arguments, and not with suppression."
At least one of the experts, Frederick Lawrence, a senior research fellow at Yale Law School and visiting professor of law at Georgetown University Law Center, came closest to suggesting some sort of restrictions on hate speech. Lawrence noted that Canada, Denmark, Germany, New Zealand and the U.K. all have laws to punish hateful language.
Lawrence proposed applying the criminal law doctrine of "intent" to hate speech. He asked, "Is the actor intending to cause harm to a particular victim or is the actor intending to communicate views, however hateful or unpleasant those views may be?"
Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago and noted First Amendment advocate, tends to agree with the Volokh free speech view. Stone helped shape his school's principles for freedom of expression in 2015.
In an interview Thursday, Stone said a university should look at the free speech issue as "an opportunity for the university to educate its community about how to respond to this kind of expression."
Stone said students and community members are being "extremely counterproductive" when they strongly protest a speaker like Spencer. "It gives the speaker more visibility, which makes him newsworthy and more powerful," he said. "The protesters are being played by the speaker."
He said universities like Florida and Michigan that rent out space to outside parties are constitutionally bound not to discriminate against a speaker with unpopular views. The schools would need an imminent and compelling reason to ban a paying speaker, he said.
Stone did suggest one possible legal strategy for university GCs, not based on speech content but on the school's bottom line. "They are renting rooms to speakers to make money," he reasoned. "But if the cost of providing security exceeds what is being paid for the space, does the university still have to let the person speak?"
Stone, who wrote an op-ed for The New York Times in April advocating for free speech on campuses, said Spencer contacted him earlier this month and asked to be invited to speak at the University of Chicago. The university does not rent space to the public, and under its guidelines only people invited onto campus by students or faculty may speak there.
Stone said he declined the request, emailing Spencer that he would still defend the right of any student or faculty member who invites Spencer to speak. "But I have no interest," Stone said. "I am only interested in people whose views are worth serious discussion."