PBCBA BAR BULLETINS pbcba_bulletin_december 2017 - Page 13

DIVERSITY C o r n e r LISA KOHRING The Clash between Diversity of Opinion and Diversity of Culture in the “Marketplace of Ideas” “It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them. “ -Mark Twain, Following the Equator (1897) Universities have long been the traditional microcosm of the “marketplace of ideas,” “island[s] of intellectual inquiry and robust discourse” where higher education-goers are open to debating all forms of ideas in support of academic freedom, untamed innovation and unfettered freedom of speech and expression. Id. Freedom of speech and expression do, of course, enhance the educational environment, and are essential ingredients in the production of knowledge. Traditional notions of this “marketplace” however, may be on the edge of a precipice. A fundamental principle of the First Amendment is the belief that the government cannot censor speech because “of its message, its ideas, subject matter or content.” There are however, exceptions permitting restrictions upon the content of speech in a few limited areas including obscenity, incitement, and fighting words. Several universities are currently grappling with whether to host certain public speakers who espouse controversial viewpoints if there’s a risk of imminent violence. In February, UC Berkeley canceled an event hosting conservative provocateur Milo Yiannopolous after violent protests erupted on the school’s campus. In April, UC Berkeley cancelled an event hosting Ann Coulter, a conservative social commentator, columnist and lawyer, for fear of rioting and a lack of adequate security. In August, after one protestor was killed in Charlottesville, Virginia, Penn State University rejected a request to host an event for Richard Spencer, a self- acclaimed “identitarian,” who believes in racial and ethnic superiority, citing a risk of imminent violence. Most recently, in September and October, Ohio State University, Michigan State University, and the University of Florida also rejected requests to host events for Spencer because of public safety concerns. In October, after threatening a lawsuit against the University of Florida, Spencer was allowed to speak, but less than two hours after the speech, three men linked to white-supremacist groups were heard yelling “Hail Hitler,” “kill them,” “shoot them,” and giving the Nazi salute. The men were arrested and charged with attempted homicide after one-man fired shots at the protestors. Id. Although historically, it has been the student bodies speaking out in support of First Amendment protections at universities and campus administrators seeking to suppress demonstrations, the tides appear to be changing. Students and faculty at universities across the Country are banding together in opposition to unfettered speech that demoralizes entire races and threatens the very existence of cultural diversity. These speakers and their supporters argue that the First Amendment protects their “opinions” and expressions of those opinions no matter how offensive or repugnant to the mainstream public. Protestors argue that such offensive opinions and expressions impugn cultural diversity and incite violence, and are not entitled to First Amendment protection. Constitutional Law scholar, Erwin Chemerinsky says, according to the current state of the law, universities are running afoul of the First Amendment. United States District Judge Watkins agrees; he decided this past April, that Auburn University must allow a Richard Spencer event to go forward, and stated, “Auburn did not produce evidence that Mr. Spencer’s speech is likely to incite or produce imminent lawless action.” Nonetheless, the recent acts of violence in Charlottesville and in Florida have some universities arguing that Spensor’s speech incites lawless action and is not protected speech. Maybe these recent violent episodes could tip the scales in favor of the universities’ “imminent danger” argument, but it’s unlikely the Court will attribute the acts of protestors to the speakers their supporting without compelling evidence. PBCBA BAR BULLETIN 13 For now, the “university” remains a forum supporting all forms of debate and robust discourse. Still, Spencer and his supporters have pending lawsuits against Ohio State University and Michigan State University, which means that these courts will have an opportunity to consider the violence that erupted in Charlottesville and at the University of Florida. We will simply have to wait and see what weight, if any, the courts attribute to these senseless acts of violence. ___________________________ 1 Academic Freedom, Hate Speech, and the “Idea of a University,” Rodney A. Smolla and Arthur B. Hanson, Professor of Law, Director, Institute of William and Mary, Marshall Wythe School of Law; Law and Contemporary Problems, 1990. 2 Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 791, 131 S. Ct. 2729, 2733, 180 L. Ed. 2d 708 (2011) 3 Id. 4 A European and North American white nationalist movement that strongly opposes interracial marriage and encourages protests against Jews, Muslims, and non-white Europeans. See https://en.wikipedia.org/ wiki/Identitarian_movement. 5 Statement by President Eric J. Barron, Penn State News, August 22, 2017, found at: http://news.psu.edu/ story/478590/2017/08/22/administration/richard- spencer-not-welcome-speak-penn-state. A reaction the university expected following the explosive events in Charlottesville, Virginia that left at least one woman dead. 6 Hate speech is protected free speech, even on college campuses, updated by Erwin Chemerinsky, Oct. 25, 2017, found a t: https://www.vox.com/the-big- idea/2017/10/25/16524832/campus-free-speech-first- amendment-protest. 7 Richard Spencer’s Supporters sue universities for not allowing speeches, The Guardian, Oct. 23, 2017, found at: https://www.theguardian.com/us-news/2017/oct/23/ richard-spencers-supporters-sue-universities-for-not- allowing-speeches. Lisa Kohring is a Senior litigator with the School Board of Palm Beach County practicing Labor and Employment law. She can be reached at Lisa. kohring@Palmbeachschools.org