The government and the University of Florida did all they could to protect his free speech. The white supremacist invited in the protesters.
It was Richard Spencer’s party, and he can cry if he wants to. But the hecklers who shouted down the white supremacist Thursday at his University of Florida speech were invited guests, not government crashers. They held tickets distributed by Spencer’s own National Policy Institute. So they didn’t violate Spencer’s free speech rights by drowning him out with chants telling him to go home.
Only the government is obligated to respect free speech rights — and the university and law enforcement did everything by the book, to protect Spencer’s safety and preserve law and order outside the venue.
The key to understanding what happened in Gainesville in free speech terms is to recall that the First Amendment applies only to government conduct. If Spencer had been shut down by the state, his rights would have been violated.
That isn’t how it went down, however. Spencer wasn’t invited by anyone at the university to speak. His group rented a hall on campus, like any other member of the public could do. After that, he was on his own, hosting an event sponsored by his own organization.
Inside the venue, Spencer would have been within his rights to ask the protesters to leave. If he’d had a big security crew of his own, he probably could have even ejected those chanting and booing by using some modest force of the kind appropriate to removing trespassers.
The government, though, isn’t under any duty to help a private organization run its event. Spencer was hoist with his own petard.
Nor should the university have any reason to be ashamed of what happened. At an academic or university-sponsored event, it would be an outrage for hecklers to shut down a speaker. It would violate the core principle of academic freedom. That’s a different principle from constitutional free speech, but it’s extremely important in its own right.
Yet academic freedom doesn’t apply here; the Spencer talk wasn’t a scholarly event. It had nothing to do with the university.
It’s worth remembering that this particular event arose only because the law treats the University of Florida as a branch of the state government. If a racist had sought to rent a hall at a private university, he could be turned away for any reason, including his beliefs. And as I’ve argued before, public universities probably should be treated like private universities when it comes to free speech.
But under current constitutional law, public universities are state actors, governed by the First Amendment. That meant the university couldn’t deny Spencer a venue on the basis of his viewpoint or the content of his speech.
Indeed, after the university refused to let Spencer rent back in September, in the wake of the terrible events in Charlottesville, Viriginia, he threatened to sue. The University of Florida had little choice but to relent.
The university deployed unusual security. State and local police were out in force. The governor declared a legal state of emergency, which not only enables better coordination among law enforcement groups but also signals the potential seriousness of disruption.
And the city of Gainesville issued an executive order banning all sorts of items from the area around the venue. The laundry list included guns, knives and tasers. For good measure, and in view of Charlottesville, it also included open flames or torches as well as masks and goggles that could be used to evade tear gas.
Some of the items on the list might have been a bridge too far, constitutionally speaking. Megaphones were banned — but they can be part and parcel of free speech. Water bottles were prohibited, too. In theory they might be used as projectiles, but the ban seems like it might have been designed to keep people from staying on the street after they got thirsty.
Nevertheless, law enforcement was right to be prepared. An overwhelming show of police force is a way to show that free speech will be allowed while order is preserved.
The twist came when Spencer’s audience turned on him. So long as there was no violence, the state and university had fulfilled their obligations. The mess that followed was on Spencer.
So don’t let anyone tell you that Spencer’s free speech rights were suppressed or that academic freedom on campus was dealt a setback. A racist held a party in a rented hall, and it blew up in his face.
~Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University.