Michigan State University (MSU) has denied a request* from Richard Spencer, a Nazi who heads up some outfit called the National Policy Institute (isn’t that quaint?), to speak on its campus. In the court of good versus evil, good wins.
But in a court of the United States, don’t bet on the same result.
In a previous post that was more about cities managing Nazi protests than universities managing Nazi speakers (although the two issues are related), I noted that cities moving demonstrators around or imposing time or conduct restrictions would have to show that 1) they were not targeting the subject matter of the speech, 2) they were acting to further important (usually safety) interests, 3) the restrictions were no more burdensome than necessary, and 4) ample channels remained available for speakers to get their message out.
You can see that MSU would flunk this test straightaway; it has told Spencer to pound sand and left no avenue at all for him and his Klan to get their message out — at least at MSU.
So MSU loses, right? Not so fast.
Here’s the difference between the city-demonstration cases and the university-speaker cases: demonstrations like the one in Charlottesville take place in parks, on sidewalks, at state buildings like courthouses and capitols, and places like that. Those are called traditional public forums — places that have historically been available for speech on matters of public concern. Presentations at universities, on the other hand, usually take place in auditoriums, arenas, lecture halls, theaters, ballrooms, and places like that — places that are not traditional public forums for speech. University auditoriums, arenas, lecture halls, theaters, and ballrooms exist for non-public-speech purposes, like sporting events, plays, concerts, fundraisers, and classes.
So unlike a city that’s managing a public square, a university that’s managing a lecture hall doesn’t have to allow public speech to take place there at all. The university may designate such a place as available only for non-speech purposes, like classes, and keep it locked up with the lights off whenever it’s not in use for that purpose.
But there’s a rub. State universities are, well, universities, meaning institutions if higher learning. It would be a strange experience indeed to attend a public university as a student and never see a political speech or a panel discussion on philosophy or a debate about religion on campus. So a university will usually designate certain facilities — again, like auditoriums or ballrooms — as available for speech. (Some universities even call these “free-speech zones.”)
When a university does that, it has created what courts call a designated open public forum. This can induce headaches, because the Supreme Court has ruled that once a forum has been designated as open, it must be made available in a content-neutral way. A university can’t let the dog people in to badmouth cat people and then tell the cat people that they can’t come in and badmouth the dog people. So as Professor Robert Sedler recently pointed out, a university can’t allow speeches that advocate racial equality and integration and then deny access to speakers who advocate racial inequality and segregation.
One must concede what one must concede: MSU has run afoul of this rule; it will allow proponents of human decency to speak on campus, but it won’t allow Spencer to speak. So where do we go from there?
Government (in this case, MSU) lawyers have a saying about strict judicial scrutiny: ruh-roh. Once the government fails the content-neutrality test, it’s decision or policy will only be upheld if it survives the dreaded strict scrutiny, a means-ends test that puts the burden on the state to show 1) that its decision serves a compelling interest, like saving lives, and 2) that the means chosen (in this case, total exclusion of a speaker) were narrowly tailored to achieving the interest — meaning there was no other way to go.
MSU will probably win on the first prong, because its lawyers will point to Charlottesville and say, “We’re trying to save lives and preserve bodies intact.” What’s a judge going to say? The fatal part of strict scrutiny is almost always the second part. Because MSU has excluded the speaker altogether rather than asking the speaker to wait until tensions have eased; or increasing security; or engaging the community in a dialogue about how to handle such speech, MSU will have to explain to a judge why any of those other ways to handle Spencer would not have been better. The danger of strict scrutiny is that if a judge can think of just one better way to have handled the situation, the government (MSU) loses.
So can MSU win? Yes, but that’s what MSU’s lawyers are up against: they will have to show that there was no other way to protect their constituents from the chaos that befell Charlottesville — that their only available course of action was to deny Spencer’s request altogether.
I’m not telling you anything that MSU’s lawyers haven’t already told MSU President Lou Ann Simon. They’ve told her what the legal rules are; they’ve told her that MSU is going to get sued; they’ve told her what it will take to defend that suit; and they’ve told her that MSU might lose. She has undoubtedly factored all that into her decision and made the calculated choice to deny Spencer’s request.
Now we sideline lawyers stock up on popcorn and watch the show.
*The University of Florida has also denied a request, but including them in the title would have made it clunky. The same analysis applies to U of F.