When LSU earlier this month banned white nationalist Richard Spencer from speaking at its campus, it became one of many schools throughout the country grappling with fringe groups that school leaders say carry a threat of violence but whose speech is protected by the First Amendment.
The constitutional issue played out earlier this year at Auburn University, which banned Spencer from speaking there but was later ordered by a federal judge to allow him to speak.
The key difference between Auburn and LSU may be what happened in Charlottesville, Virginia, where a group of white supremacists carrying torches and donning KKK and neo-Nazi garb descended upon the college town in a tumultuous rally that led to the death of a woman counterprotesting and the injury of several others. Spencer was among the speakers of that event, called “Unite the Right,” which drew national attention and raised questions over campus safety and free speech.
LSU President F. King Alexander says the difference between Auburn’s decision and his is that Auburn banned Spencer based on the content of his speech; LSU banned him based on the threat of violence he brings, pointing to what happened at Charlottesville as evidence.
“For us it has nothing to do with content,” Alexander says. “This has nothing to do with freedom of speech. It has everything to do with violence. It has everything to do with what happened at the University of Virginia.”
Alexander cited Milo Yiannopoulos’s event at LSU last year as an example of the school protecting the First Amendment rights of such controversial figures. Yiannopoulos held an event at the school titled “Fat Shaming Works.”
In that case, Alexander says, LSU didn’t see a threat of violence with Yiannopoulos. Spencer, he says, is different.
LSU Associate Professor of Law Christine Corcos says the immediate response of a judge, if a legal challenge were filed, might be that the university should hire additional security and take other measures to prevent violence instead of banning the speaker. Speakers—even those spouting hate speech—have protections under the First Amendment.
But the Charlottesville protest—what LSU and other universities argue is a previous pattern of violence—complicates things.
Courts traditionally give significant weight to free speech, Corcos notes. But a judge would have to weigh the potential costs to the school of allowing the speaker on campus against the costs to society of shutting it down. And the school could very well point to a pattern of violence as evidence the speaker is likely to bring violence.
“A public university could certainly take that position, and given the violent reactions and protests over a series of months, a court might agree,” Corcos says in an email. “This issue is complicated, and becomes even murkier when people frame the debate as ‘free speech vs. hate speech.’ Hate speech is protected under the First Amendment. But speakers also need willing listeners.”
Spencer has not challenged LSU’s decision in court, and LSU is one of many universities that have banned him from speaking on campus in the wake of the Charlottesville protests. Alexander says speakers like him requesting a venue at LSU are relatively rare.
“This wasn’t about speech,” he says. “This was, ‘Do I predict something bad is going to happen if they come here?’ … I had reasonable forecast.”