It could have consulted its own law professors, but Texas A&M University can thank a scholar from a nearby institution for his free legal advice.
It’s pretty unambiguous: You can’t constitutionally block a “White Lives Matter” campus rally on Sept. 11.
Southern Methodist University’s Dale Carpenter, whose legal scholarship focuses on the First Amendment and LGBT issues, writes in The Washington Post that TAMU’s justification for canceling the planned rally by a local white nationalist flatly fails the constitutional test.
The university – backed by the Republican governor and a bipartisan legislative chorus – said the outdoor rally would present “a major security risk” because it was inspired by the “Unite the Right” march and rally in Charlottesville, which ended with one woman dead and many seriously injured.
Carpenter flags several problems with this, starting with the fact that the planned site for White Lives Matter is a designated free-speech zone for everyone, not just campus community members.
Organizer Preston Wiginton’s publicity for the rally with the phrase “Today Charlottesville, Tomorrow Texas A &M” is also insufficient to demonstrate an “unprotected true threat,” and there’s no evidence he’s clearly advocating “actual lawlessness” that could be committed “immediately,” says Carpenter:
Undoubtedly, many people feel provoked to violence when they see swastikas or Confederate flags or hear slogans that evoke genocide like “Jews will not replace us.” … But provocation is not incitement. The university cannot bar controversial speech simply because listeners might be deeply offended or might themselves react violently when they hear the speech. Federal courts are wary of allowing such a “heckler’s veto” of controversial speech–especially based on an undifferentiated fear that violence might possibly ensue.
TAMU is also trying to argue itself out of its legal obligation to engage in good faith with Wiginton and his team, with a judge’s oversight, Carpenter says:
The university’s cancellation is an opening bid in a negotiation with lawyers for the speakers. It may be that a different date or time or specific place on campus for the event can be arranged to address safety and other concerns. Certainly the university can take steps to protect the peace, like increasing police presence and erecting barriers between opposing groups.
What TAMU can’t do as a public institution: flatly cancel public events because they’re a pain for the administration.