The Corner

Law & the Courts

The Cost of Free Speech

Florida governor Rick Scott has declared a state of emergency in Alachua County ahead of a speech by white nationalist Richard Spencer at the University of Florida, scheduled for Thursday. In a statement, Scott said, “We live in a country where everyone has the right to voice their opinion, however, we have zero tolerance for violence and public safety is always our number one priority.”

The heightened security follows a concern that Spencer’s speech will attract a white nationalist demonstration similar to the one in Charlottesville in August and a protest by Florida students and locals. According to statements made by Vincent Adejumo, a lecturer in African-American studies at UF, to USA Today, minority students “are scared” and “many of them have already left town.” Fraternities and sororities have hung banners from their houses imploring Spencer and the “Nazis” he will attract to stay away from campus. Spencer’s speech has raised several important First Amendment questions: Do UF officials have to allow him to speak? And who pays to secure the event and the school?

Back in August, UF officials denied Spencer’s request for space to speak at the school on September 12 because of “the likelihood of violence and potential injury,” according to a statement by UF president Kent Fuchs. But because UF is a public school, declining a speech due to the reaction it may cause violates the First Amendment, which local lawyer Gary Edinger quickly pointed out in a threat to sue the school. Despite disagreeing with Spencer’s views and voting for Bernie Sanders in November, Edlinger took the case pro bono, purely to defend the First Amendment. Government entities like UF must provide a venue for the speaker and adequate protection from “the heckler’s veto,” the phenomenon whereby audience members who disagree with a speaker’s message can shut down the speech by shouting the speaker off the stage. In other words, they have to guarantee that the speaker can actually speak.

Security fees are a bit more complicated. Legally, UF can only charge Spencer for the cost to give the speech itself, which includes normal security within the venue, the cost to rent the venue, and administrative fees; this totals just over a $10,000 bill for Spencer, $3,870 of which will go toward venue security. Charging a speaker the remaining cost to secure the campus as a whole against dissenters to the content of the speech is unconstitutional, according to the 1992 Supreme Court case Forsyth County v. Nationalist Movement. Justice Harry A. Blackmun, writing the majority opinion in Forsyth, explains it this way: “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Because of Forsyth, UF will pay the remaining $500,000.

The University of California, Berkeley has suffered under the financial burden of the ramifications of Forsyth as well. UC-Berkeley officials have shelled out $2.1 million to protect their campus against the protest of right-wing commentators by the radical left-wing activist group Antifa. The bill began in February, when Antifa cost the school nearly $100,000 during their protest of a since-cancelled talk by right-wing provocateur Milo Yiannopoulos. In late August, the school dropped an additional $600,000 in security fees during the weeks leading up to an also-cancelled Ann Coulter talk. Security for a September 15 speech by Ben Shapiro brought the total up to $1.3 million, and then, ten days later, the school spent $800,000 on security for a 15-minute meet-and-greet with Yiannopoulos.

Forsyth can be hard on colleges, but it’s the only way to enforce a structure that forces colleges to stop disruptions to speech instead of the speech itself. Without it, government entities — such as public universities — could pass their duty to protect natural rights onto those attempting to exercise them.