August 21, 2017

Free speech at the University of Florida after Charlottesville

By Mark Miller Senior Attorney
Florida alligator ready to greet Nazis and KKK members in Gainesville.

How should local public officials, be they police officers, city officials, or university presidents, protect First Amendment free speech rights when the safety of the public is put at risk by those looking for permits to march or protest in a public forum (or when safety is put at risk by those protesting the marchers)? In the wake of the tragic deaths of two law enforcement officers and a paralegal named Heather Heyer during protests that became deadly last week in Charlottesville, that’s a question on many Americans’ minds. It’s definitely on mine.

The University of Florida‘s President, W. Kent Fuchs, had no choice but to face that question this past week. A racist white supremacist nazi named Richard Spencer sought a permit from the University of Florida to spew his hatred somewhere on campus next month. Spencer, purportedly one of the ringleaders for last week’s Charlottesville march of neo-Nazis and KKK members, is not welcome at the University of Florida—no student group is sponsoring Spencer’s effort to stir up trouble in Gainesville—but even non-students have First Amendment rights in public collegiate forums, which would include the University of Florida campus. One political cartoonist suggested scheduling Spencer to speak in the middle of beautiful Lake Alice, located in the heart of campus just off Museum Drive, where some actual Florida alligators could welcome him.

Alligator jokes are undoubtedly funny, but Gainesville specifically, and the State of Florida in general, have a long and troubled past when it comes to the KKK and their ilk. In Gainesville in the 1920’s, the Klan assaulted and castrated the first Catholic priest assigned to minister to UF students, because the Klan members accused him of turning Protestant students into Catholics. White racists destroyed the African-American town of Rosewood (just a bit down State Road 24 driving west to Cedar Key from Gainesville) at around the same time in our history, killing at least six blacks and forcing the other residents to flee the town. And in more recent years, the Klan could be seen marching in Starke, Florida. Your scribe saw them march in their hoods down Route 301 in Starke himself on a Florida vs. Florida State game day not that many years ago. Moreover, there are recent reports that government officials in Florida were members of this most anti-American and despicable of organizations.

In the movie The Blues Brothers, the brothers encounter a march of Nazis in the streets of Skokie, Illinois. Elwood Blues (Dan Aykroyd) sighs and says to his brother Jake:

Illinois Nazis!”

To which Jake—John Belushi—responds:

“I HATE Illinois Nazis.”

Here at the Florida office of Pacific Legal Foundation, we hate Florida Nazis, and every other Nazi and white supremacist, too. Same goes for the rest of PLF.

But, barring credible and specific threats of violence, even Nazis and Klan members have a First Amendment right to speak. There are any number of reasons for this, but the most obvious to me is this: if they are not allowed to speak, then someone has made that decision to prohibit their speech. Who do you want deciding what viewpoints are fit for public consumption in the United States?

President Trump?

President Obama?

Attorney General Holder?

Attorney General Sessions?

Speaking for myself, I do not want any government official deciding what I am allowed to say or not say. That is not freedom. That is not liberty. That is not what our fathers, mothers, brothers, sisters, and children fought to protect when they went off to war in Europe, the Pacific, and Vietnam. And it is not what America’s brave soldiers and sailors fight for today in the Middle East. They fight for the rights of all of us to speak our minds about important issues in an effort to reach consensus and forge a just path for our future as a nation.

If you’ve read this far, then my hope is you similarly are not willing to cede your constitutionally-protected right to speak to a government official who may see things differently than you do. As Justice Louis Brandeis explained in his Whitney v. California concurrence nearly a century ago:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

***

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

Although the Whitney case is no longer good law, the point of Justice Brandeis’s Whitney concurrence was later effectively adopted in Brandenburg v. Ohio, which remains the law today.

Should he sue the university as expected, I suspect the despicable Richard Spencer will successfully force the University of Florida to provide a public forum for him to rant about whatever it is he wants to rant about. It reflects the strength of our nation and its ideas that in a nation of 300 million this troll can only find a few noxious adherents. Law enforcement in Gainesville is up to the task of protecting public safety while he and his fellow miscreants speak.

In her widely read Sunday column this week, well-respected Florida journalist and newspaper editor Eve Samples of the USA Today family of papers wrote about Spencer, UF, Charlottesville, and what we may expect to occur in Gainesville in regards to Spencer and his request to speak on campus. Before writing the column, Ms. Samples asked me what I thought would happen in Gainesville with Spencer. I shared with her much of what is written above—that unless it could be shown that Spencer’s speech was going to be directed to inciting or producing imminent lawless action and likely to incite or produce such action, the school would be ordered by a federal judge to allow him to speak (assuming he sues for a permit to speak, as is expected). She included those thoughts, and some others we shared, in her very thoughtful column, published in the Tallahassee Democrat and the TC Palm network of newspapers. Her column is well worth a read.

At the end of her excellent column, Ms. Samples invokes the Reverend Martin Luther King, Jr., and notes that he once said our nation was “tied in a single garment of destiny.” She asked whether our nation could knit back the garment where it has frayed, not an unfair question in light of the feelings that run so hot right now in our country. She answers her own question by saying she’s an optimist, implicitly asserting (it seems to me) she has faith that our country will rise above the division-sowing hatred of a few and see better, more unified days in the future.

As Americans, we all must share her optimism. Our Founding Fathers, and the American leaders who followed them like Martin Luther King, Jr., Abraham Lincoln, John F. Kennedy, Frederick Douglass, and Ronald Reagan, demand nothing less from us if we expect to live up to the inheritance they bequeathed us.

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