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First Amendment Professor On Richard Spencer's Right To Speak

Clay Calvert, professor and Brechner Eminent Scholar in Mass Communication at University of Florida's College of Journalism and Communications speaks about white-nationalist Richard Spencer's scheduled speaking event on campus. (Gary W. Green/WUFT News)
Clay Calvert, professor and Brechner Eminent Scholar in Mass Communication at University of Florida's College of Journalism and Communications speaks about white-nationalist Richard Spencer's scheduled speaking event on campus. (Gary W. Green/WUFT News)

White Nationalist Richard Spencer from the National Policy Institute will be speaking on the University of Florida's campus on Oct. 19. Yesterday we published an interview with Spencer about his views. Today, WUFT's Elayza Gonzalez spoke with Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. Calvert discussed why Spencer has a right to speak on campus and the importance of allowing such a discussion to take place.

Q: How is the First Amendment relevant to Richard Spencer speaking on campus?

A: Initially the First Amendment is relevant to Richard Spencer speaking at the University of Florida campus because the University of Florida is a public institution meaning it's a government entity.

The First Amendment protects against government censorship, and so therefore the First Amendment is relevant because if the University of Florida were not to allow Richard Spencer to speak on campus it would raise a First Amendment based issue.

If we were a private university, there would be no First Amendment issue and a private university could exclude Richard Spencer from campus without raising any constitutional question.

Q: How is this supported by the University of Florida Student Honor Code?

A: Well, the University of Florida student honor code suggests that the university is a marketplace of ideas, and as a marketplace of ideas, students should be exposed to all different view points, even on subjects that might offend them or even with viewpoints they might find offensive or disagreeable.

So, to add to that, I think it's very important a university, a public university especially, should not be an echo chamber or filter bubble where students are only exposed to ideas to which they agree or that they like.

So, the First Amendment is there to protect minority viewpoints, dissenting viewpoints. And by minority viewpoints, I don't mean necessarily racial minorities, or religious minorities or sexual minorities, the small fringe viewpoint.

And so, Richard Spencer talked a lot about trying to spark discourse and discussion, and that's actually a useful thing on a college campus as long as he is not trying to provoke violence, and inciting people, his followers, to commit violence. Having discussions about issues involving race especially a polarized climate in the United States today, I think, are very important.

Q: Why must public universities allow, with regard to the law, speakers such as Spencer to come on campus, no matter how “offensive or disagreeable” their opinions may be?

A: Part of the problem of trying to censor speech because it's offensive or disagreeable is defining what is offensive. The term "offensive" is hugely vague. One person is going to find something offensive that another person will not.

At the Supreme Court in a case called Cohen versus California back in 1971 said that one man's vulgarity is another's lyric, and that taps into the notion that how do we define what is offensive? What is disagreeable? Some people are going to love what he says and others won't, and is not the government's job to be in the business of drawing that line.

So think of it this way for people who don't  want Richard Spencer to speak on campus: most of those people also don't like Donald Trump, but Donald Trump is the government. Would they like Donald Trump to decide what's offensive and disagreeable to him, and therefore exclude that speech? Probably not.

So we have to tolerate under the First Amendment a lot of speech that is intolerant of others and so that's kind of an irony of having the First Amendment.

Q: What is the danger of censoring speakers such as Richard Spencer and forcing them into the shadows?

A: Part of the danger of not allowing Richard Spencer to espouse his views is that you don't get rid of him or his views you, merely drive them underground. We tend to view free speech as a type of safety valve. We would rather have people engage in speech that is offensive and disagreeable than turn it into violence later on.

So free speech is just kind of a safety valve for people to express their views, and if we didn't allow them to speak those views, it doesn't mean their views go way we just drive them underground, and that's the danger of speech codes on public university campuses.

One of the benefits of having free speech is that we get to know what people really think, and whether we want to hang out with them or associate with them. If people felt afraid or could not express how they felt how would you know who these people really are?

Q: Can you talk about the “heckler’s veto,”what that is, and how that might be applicable to the Richard Spencer event?

A: So, the heckler's veto is clearly relevant to the Richard Spencer event. So the idea of the heckler's veto is that the audience's reaction drowns out the speech of the individual who's trying to speak. So the analogy is in a comedy club, if the audience is heckling the comedian offstage then the audience wins, right? The audience gets to silence the speaker.

And that is actually anathema, or in opposition, to everything that the First Amendment stands for.  It is the government's responsibility to defend the right of the speaker in the face of a hostile mob-like audience that could silence him.

So unfortunately for the University of Florida, this means more than a half million dollars in security costs. But that essentially can be considered a price that the First Amendment makes the University of Florida pay.

So Spencer’s paying about $10,000, but the university cannot raise the costs to him for security based upon an anticipated hostile reaction of others to his speech. If it did that, then that raised $500,000 would be equivalent to a heckler's veto because the money becomes so expensive essentially. If you said, 'Well it will cost you $2 million, Richard Spencer, to speak on campus,' he might not be able to afford that and that’s silencing his views.

So the best way to think about that is that the $500,000 plus, the half a million plus the University of Florida will pay out to law enforcement agencies to cover the cost of security, is just simply a cost born by the First Amendment that we all have to kind of tolerate.

Q: Can you also talk about how what’s happening at the University of Florida compares to the Skokie, Illinois case?

A: So, the courts made it clear in the 1970s that the Nazis had a right to march through Skokie, Illinois, despite the fact that Skokie at that time, had a large Holocaust survivor population.

That was a clear chance to be a heckler's veto.  In other words,  Nazis marching through an area heavily Jewish Holocaust survivors, there's a large chance for a hostile reaction against the Nazis to silence them. It’s not that the Nazis are going to commit violence, it’s that people are going hate them so much, they'll attack them, and ultimately what the courts held was that the government has a burden of protecting hostile, offensive speakers, in this case, the Nazis marching in Skokie.

It’s very much equivalent to the government, University of Florida, having the burden to protect Richard Spencer and his Nazi, Neo-Nazi, white-nationalist views.

Q: Looking to how Spencer’s speaking in Charlottesville resulted in violence, should his speech be protected at UF, even if his speaking incites violence by his supporters?

A: There is one exception to the First Amendment that might be relevant here and that is incitement to violence.

So, the Supreme Court has made it clear that speech that is directed, meaning intended, to inciting or producing imminent, meaning timely, lawless action and is likely, meaning probable to result in, can be censored before the violence actually happens. But all of those conditions must be satisfied.

One, Richard Spencer must have an actual intent to incite his followers to commit violence against others and it must also be likely to occur. That is very different then Richard Spencer espousing hateful views about non-whites.

He can advocate in the abstract, sending people back to different continents and different countries all he wants. What he can't do is urge his followers and basically the courts have said, steal them to action,  give them the means.

If he armed all of his followers with weapons and said, ‘I want you all right now to go over and shoot those blacks, or those Jews or whoever the minority group is, that's not going to be protected. But, in the abstract he can say hateful things all that he wants and espouse his theories. It's just like people can espouse racial inferiority or racial superiority. We would allow that speech, even though it's worthless.

And so sometimes, and I think it's important point no matter where it goes, sometimes the First Amendment has to protect worthless ideas and that’s kind of just a price paid by the First Amendment that we have. Consider it like collateral damage, I guess might be a good phrase for it. We just have to suck it up, that those are certain things that there's going be a lot of good speech that comes out there but how you define good speech from bad speech and that's an impossible line to define even though most people believe they can make it for themselves. We don't want the government making that decision for us. In this case, the government's the University of Florida, but if it were at the national level that would be Donald Trump and so you might ask the protestors to ask would they want Donald Trump, the government, protesters to ask what they want Donald Trump the government defining what speech is good or bad in which speech can be censored, and the answer is probably no.

Q: With regards to the counter speech doctrine, is there a concern that more speech by more people in the “marketplace of ideas” will lead to more violence?

A: There's always the possibility of that, so the marketplace of ideas says that all ideas, excuse me, all viewpoints on any topic should be allowed to come out. So whether it relates to racial issues in the United States today or sports all ideas should be able to come out on that topic.

So counter speech is the notion that rather than censoring the speaker in the marketplace of ideas in drowning out his or her views we should add more speech, and that's kind of a self help remedy. So people who don't like Richard Spencer certainly have a First Amendment right to peaceably assemble, and the assembly clause is very important under the First Amendment, people have a right of the First Amendment to peaceably assemble and then they have a right to engage in speech once they've assembled. But again, it has to be peaceable. So the first that's important under assembly clause, peaceably assemble, it's not violently assemble, to engage in speech rights.

The other option that people have instead of engaging in counter speech is to simply not attend, and thereby deny Richard Spencer an audience that he probably craves and the media attention that he probably craves. Unfortunately, in this case, the media will be there regardless of whether students show up or not or whether members the crowd show up.

So in a way, this is somewhat analogous to Klan rallies. So most rallies held by the Klan are really non-news events. They're just a bunch of guys in robes burning crosses and espousing racial, hateful things. But, what the Klan depends on are media cameras because this is great footage. We got burning crosses, we got guys in hoods in robes and they're saying hateful things, so it becomes a news story.

So there's attention both for people who want to show up as well as for the news media, I think here, in terms of how much coverage is given to Richard Spencer.

Q: Richard Spencer has spoken predominantly at Southern public universities. Do you think there will be more or less tolerance for his First Amendment rights if he is able to speak at Northern universities such as Penn State, as he suggested?

A: I don't think the level of tolerance for him will be any greater among the student body or administrators at any university. He's already filed a lawsuit against Michigan State University, so that lawsuit is pending. He has not sued the Penn State yet, but there is one lawsuit pending against Michigan State University. He successfully sued Auburn in the South to do this.

The South certainly has the better context for him because Charlottesville hinged on the removal of a statue of Robert E. Lee, that's why they were there. It was the Unite the Right, I believe is what he called it, rally in Charlottesville to protest the removal of a statue in a public park of Robert E. Lee. And so that was kind of the entree for him, so in the North we're not going to find statues of Robert E. Lee. 

But so the South has more monuments, like the one that was just taken down in downtown Gainesville, as well. So you know, plus, there are more people, clearly, in the south who identify with the Confederacy in the Civil War and identify, not necessarily with racism, but with southern, what they were could consider to be, southern heritage and southern pride. The kind of Lynyrd Skynyrd crowd, whether or not that's racism. But they would like to identify with that.

So it certainly creates a much greater potential for a flash point on free speech issues in the South than the North, but certainly people in the North are not going to tolerate him. It's going be the same reaction, I think, on any public university campus that you would face, especially public university campuses. 

I would add this if I can add one more thing, there's no reason why Richard Spencer can't speak at a Holiday Inn in Gainesville, Florida, but he has chosen to speak at the University of Florida catch media attention and to push the First Amendment issues to its limits. 

So as Tom Petty, the late Tom Petty a Gainesvillian, once said, ‘you know you can stand me up to the gates of hell, but I won't back down.’ Richard Spencer is standing the First Amendment up to the gates of hell, and it's up to the University of Florida to make sure that it doesn't back down in the face of Richard Spencer. 

Q: You talked about how speakers, such as Spencer, are really utilizing the media to get their message out and its good theatre. What is the responsibility from a local, or regional, or national news organization to give certain attention to speakers such as Spencer? In specific, WUFT has received a lot of negative attention for our covering of his interview and really giving him a voice and a platform. From your perspective, do you think the media have a responsibility to cover such events, or would we simply be better off to not cover it as though it didn’t happen and therefore not give him a platform?

A:  I think the news media have a responsibility to cover events, such as Richard Spencer or the religious figure in Gainesville who was burning the Quran a couple years ago. Those are news events. The question is really a matter of proportionality of coverage and covering all sides fairly. And so the news media do have a responsibility to inform people of what Richard Spencer believes in because there are other people who believe in it. It is also important for people who don't believe in it to hear that his views because it helps them crystallize and reconfirm their own beliefs, why they don’t like him.

And so, to not cover it all would be disingenuous, especially at this point, but it is a matter proportionality in the scope of coverage as well as the context in which it is in. Because by context I mean there are other major issues going on right now. Whether it's North Korea, or healthcare, or religious entities not, you know, having to fund contraception, there are major issues going on in the United States. And whether it's our racial injustice, Black Lives Matter and Colin Kaepernick in taking a knee issues. So there is a danger that an individual like Richard Spencer can hijack media coverage and distract us from what is real.

So again, and this is not to say that his views are not harmful or offensive to people, but the harm of offense is that the First Amendment puts on the speaker to tolerate. It is not physical violence. And part of living in a free society is that we have to tolerate speech that we don't like. 

The First Amendment is not there to protect happy speech, if it was there would be no need for the First Amendment, right? It's to protect the outlying view. And so, this case will be a real test for the First Amendment, it will also be a test upon Florida students, Florida faculty, Gainesville citizens and Richard Spencer’s supporters. Whether we can have civilized discussion about racial issues that clearly polarize our climate, or whether we will let it go to mob violence, and that will be a sad thing that will reflect negatively not just on the University of Florida but on Gainesville, generally. And so I would urge people to exercise as much restraint and try to keep those First Amendment principles in mind.

Q:  Can you talk about how allowing for certain speech to take place does not predicate that the university or media is complicit to the message?

A: Sure well, part of the difficulty in defending the First Amendment is to make people understand that you are not defending somebody's underlying substantive viewpoint. To defend somebody's right to speak is not to defend their viewpoint. And that is something that I think is lost on many people today and that's very difficult for people to understand. So, the First Amendment and advocates the First Amendment will defend Richard Spencer's right to speak at the University of Florida up until his speech crosses that line where he threatens incitement to imminent violence, or any other exception of the First Amendment would come up then we would not support de his view. 

So the university's not complicit to this at all. The university creates centers like the Phillips Center, which are forums for speech. So the Phillips center hosts musical acts, it hosts TEDx, all of those are First Amendment protected speech activities. And when the university creates a forum such as the Phillips Center for speech-based events, it cannot discriminate against a speaker based on his or her viewpoint and that's very important. The First Amendment prohibits viewpoint- based discrimination. So when you create a public forum like the Phillips Center for anybody to rent, whether it's a comedian, whether it’s a music act, whether it's TedEx or a play. Those are all speech based events, and imagine I said, ‘you can't perform Rent on campus because I don't like the language in this and it deals with AIDS and different issues, so we're not going to allow it.’ Well, that would be offensive to most people, right? They would say that's clearly unconstitutional. 

So again it comes down to the idea that the First Amendment is a viewpoint neutral document. It does not allow for viewpoint based censorship, and we are on a public university campus, and there is almost an obligation, not to go hear Richard Spencer, but to hear views sometimes that don't simply jive with your own. If you wanted a degree where you only heard views that were with your own you might as well pay $50,000 in a private liberal arts college in the Northeast, and you'll be protected because it's private and they can throw anybody off campus, and all your professors will say exactly what you want here and that's not an education. 

Q: Is there anything else relevant to either this conversation or our previous coverage on Spencer?

A: I think that the coverage given to Richard Spencer's views is clearly warranted as long as it is in proportion and other people with counter views get to speak as well. To say that he's coming here and then not to say what he believes would be disingenuous. Journalists have an obligation to try to be as best they can, be balanced in their coverage, to be neutral in their coverage, to show all sides of the story, and to only show the people who protest him and not to show his view simply doesn't conform with the tenets of basic journalism, and again sometimes we have to tolerate speech that we disagree with. And he's going to have very few people here in Gainesville relative to the tens of thousands people living in Gainesville and attending the university here very, few actually support his views. 

Last thing would be that I hope that the University of Florida, its student body, its faculty and the surrounding Gainesville community, in terms of their reaction to Richard Spencer, serves as a model for the rest of the country and other public universities how to handle a speaker such as Richard Spencer. We do not become and that we as an audience don’t allow it to become a violent affair. 

If he incites his people to commit violence then his First Amendment rights end, and the police can arrest him and their supporters, but that violence, if there's any, should not be sparked by our student body, our faculty or our staff, or Gainesvillians generally. It should also not be sparked by the Antifa people, who have been known to commit violent acts and sometimes basically border on anarchists. 

So you know if they started, then they should be arrested, right? So hopefully we’ll become a model template for how you handle one of the most controversial speakers in recent decades.


Editor's note: This interview has been edited for brevity and clarity. 

Elayza is a reporter for WUFT News and can be reached by calling 305-877-5852 or emailing