The High Cost of Free Speech on College Campuses

Public universities carry a heavy burden in upholding free speech in this charged political environment.
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Protesters shout at each other during a free speech rally with right wing commentator Milo Yiannopoulos at U.C. Berkeley on September 24, 2017 in Berkeley, California. Hundreds of protesters came out to support and demonstrate against Milo Yiannopoulos as he held a free speech rally at U.C. Berkeley.

Photo by Justin Sullivan/Getty Images.

When white nationalist leader Richard Spencer tried to bring his particular brand of politics to the University of Florida shortly after the deadly protests in Charlottesville this summer, the school denied his request on safety grounds.

But under pressure from the white supremacist and his lawyers, UF administrators reversed that decision, citing the legal obligation public universities have for being a space for open exchange of all ideas—even those some may find repugnant. And on Thursday, Spencer, who led the Charlottesville rally and advocates for a white ethno-state, will speak on the Gainesville campus at a security cost to the university of $500,000.

The decision to allow Spencer on campus, and the outcry over why the school is footing the security bill for his visit, highlights the tenuous line public colleges and universities must walk when it comes to free speech in this charged political environment. There is such concern over the potential for violence in connection with Spencer’s appearance, Florida Gov. Rick Scott has declared a state of emergency for Alachua County, where he’s to speak.

Controversial figures are pushing the bounds of free speech rights.

“Recent events have inspired rethinking the American approach, which is more speech-protective than is the case even in the rest of the open democratic developed world,” Frederick Schauer, University of Virginia law professor. There’s also more conversation these days about costs, he said, a direct result of the reaction of hostile audiences. “So in that sense, the conversation has been changed both by the white supremacist speakers and by those who aggressively protest against them.”

Public colleges and universities have long been a bastion for open and public discourse in this country, whatever the tenor of the protest or speech. In the ’60s and ’70s, they were places for students to air their grievances and outrage—particularly over the Vietnam War—and campuses such as the University of California, Berkeley, became a hotbed for activism.

But since Donald Trump’s election, regular violent encounters at protests have dogged conservative speakers. And from Michigan State to North Carolina to Auburn, controversial figures are pushing the bounds of free speech rights and testing public universities in a way rarely seen in American history.

Conservative speaker Milo Yiannopoulos’ appearance at Berkeley last February “marked a real dramatic change for the university,” UC Berkeley spokesman Dan Mogulof said, recalling an event where protesters threw fireworks, rocks, and Molotov cocktails at police. “That was an event when we saw something unprecedented.”

In September, a four-day event that had been billed as Free Speech Week at Berkeley, and that was to have featured a platform of conservative presenters, fell apart after its on-campus, student group sponsor, the Berkeley Patriot, canceled. The conservative student publication filed a civil rights complaint accusing university administrators of suppressing their First Amendment Rights.

“The situation at UC Berkeley has become downright physically dangerous this past year for conservative students who merely wish to exercise their God-given rights to freedom of speech and association that are enshrined in the Constitution,” the group said in the complaint with Department of Justice.

“Universities as a forum is the embodiment of the marketplace of ideas.”

And while Berkeley, because of its history, has become a flashpoint for these actions, it’s not the only American college campus where conservatives and protesters have clashed.

In the spring, a federal judge reversed Auburn University’s cancellation of a planned campus appearance by Spencer on First Amendment grounds. And in August, Michigan State University canceled for public safety reasons a planned visit by Spencer citing the violence at Charlottesville. He has since filed a suit against the school.

“Universities as a forum is the embodiment of the marketplace of ideas,” Jacksonville University communication assistant professor Courtney Barclay said. “Now the conversation is when student groups are inviting speakers or when speakers want to use university property, how can the universities continue to support this when necessary costs have skyrocketed?”

UC Berkeley, for example, is still tallying how much several conservative speaking events will cost them in police presence, rentals, and cost of hotels for out-of-town law enforcement. Mogulof said the estimate for two events so far is $1.4 million, but costs are likely “far, far in excess of that,” he said.

“We’re simply honoring two non-negotiable commitments at this point, and one is free speech and one is the safety of our students and our guests,” Mogulof said.

But the costs of such security could grow to threaten the long-term viability of public institutions, Barclay said.

“$500,000 for an hour event, that’s a tough burden to place on a public university that is already struggling with budget problems,” she said of the University of Florida’s security costs for the Spencer visit.

Universities, Barclay said, frankly don’t know how they’re going to balance their budgets against a mandate to allow controversial speakers in the future. She said she can imagine some schools restricting controversial speakers’ audience sizes, restricting venues to areas that are easier to secure or requiring speakers to be sponsored by a campus group.

The legal requirement that public entities pay for security associated with free speech events isn’t new. Various court cases established precedents that forbid a public meeting place from charging a speaker for the cost of security. The original intent was to avoid allowing a public space to use security fees as a way to keep that person’s voice from being heard, either intentionally as a loophole or unintentionally as a de-facto ban on low-income speakers.

A 1951 case, Feiner v. New York, raised the question of whether police presence and the attendance of a so-called “hostile audience” is a good enough reason to suppress someone’s views. The speaker himself was arrested and that conviction upheld by the U.S. Supreme Court because he was allegedly inciting a race riot between attendees—by encouraging black residents to push back against white oppression.

That case brought the debate of free speech versus public safety to the forefront, and other cases strengthened legal protection against the “heckler’s veto,” in which an aggressive audience, or the anticipation of aggressors, could force the government to deny a controversial figure a forum to speak or protest.

Part of the change historically is that people’s reactions to racist, hateful speech has changed.

Some of those free speech cases were surprisingly similar to the modern era: white supremacist and KKK speakers denied space for marches and speeches because officials thought they could turn violent or because the municipality banned certain types of violent or hateful speech.

While many Civil Rights leaders were denied this protection during peaceful protests and speeches, this precedent was later used by the U.S. Supreme Court to reverse the conviction of 187 black civil rights demonstrators who were peacefully marching in South Carolina, University of Virginia's Schauer said.

“If we are reluctant to allow the audience to shut down the Civil Rights demonstrators, we find ourselves equally reluctant to allow an audience to shut down the white supremacists,” Schauer said.

The question of cost was later settled in the 1992 U.S. Supreme Court case, Forsyth County v. Nationalist Movement. A white supremacist group wanted to host a rally in Forsyth County, Georgia, to protest the existence of Martin Luther King Jr. Day, but refused to pay a sliding scale fine—in this case, $100.

The high court focused on the fact that the fee was subject to permit-granters’ support or opposition of the event, concluding that it wasn’t legal to consider the message of the protest or speech at all when deciding what to charge a speaker.

Speaking fees at public venues have to be a flat fee that is charged regardless of the content of a speech—whether that speech supports disenfranchised minorities, uplifts hateful rhetoric or falls anywhere in between, according to the court.

Barclay said she had previously thought issues raised by the Forsyth County case were becoming historical artifacts because the case hadn’t been used in a popular culture context in decades. Now, she said, “heckler’s veto” is becoming a more commonly used term and University of Florida officials even used the Forsyth County case to explain why the university has no choice but to allow the event and pay for security itself.

The University of Florida will charge Spencer about $10,000 in speaking fees, but the rest to cover police from at least five law enforcement agencies will fall on the school. Spencer did not respond to a request for comment in time for publication.

Barclay said part of the change historically is that people’s reactions to racist, hateful speech has changed, and in this current political environment is less receptive, less tolerant, even, of such behavior.

“I think not so much the speakers, but the students reactions’ to the speakers have raised the inherent struggle we have with the First Amendment,” she said. “It also has to protect the most repugnant speech we disagree with. The concern is that if it doesn’t protect that, it won’t protect what we agree with today.”