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UF's move to deny white nationalist Richard Spencer a venue sets up a First Amendment court fight

Legal experts say the University of Florida will have an uphill battle in court proving that fears of violence from an appearance by white nationalist Richard Spencer will override the First Amendment. "There's a fine line between inciting lawlessness and engendering a situation where lawlessness arises," said Peter Lake, higher education law professor at Stetson University College of Law. [Getting Images]
Legal experts say the University of Florida will have an uphill battle in court proving that fears of violence from an appearance by white nationalist Richard Spencer will override the First Amendment. "There's a fine line between inciting lawlessness and engendering a situation where lawlessness arises," said Peter Lake, higher education law professor at Stetson University College of Law. [Getting Images]
Published Aug. 17, 2017

In denying a notorious white nationalist his request to speak on campus, the University of Florida has brought a thorny legal battle to Gainesville in the name of keeping its students safe.

First Amendment protections do not mean UF has to "risk imminent violence" in giving Richard Spencer a stage, President Kent Fuchs said on Wednesday.

"The likelihood of violence and potential injury — not the words or ideas — has caused us to take this action," Fuchs wrote in a statement.

Spencer's group, the National Policy Institute, immediately said it would sue, touting its victory in a similar situation at Auburn University.

UF said this weekend's bloodshed in Virginia changes the conversation.

"The difference between Auburn and us, obviously, is Charlottesville," said UF spokeswoman Janine Sikes. "Should they challenge us legally, we will vigorously defend our decision."

PREVIOUS COVERAGE: In Gainesville, UF grapples with the specter of its own brush with white nationalists

First Amendment experts expect an uphill battle for UF in a system that ferociously protects speech — particularly speech that has not yet been uttered.

"I think (Spencer) would likely have a serious claim," said Floyd Abrams, a preeminent First Amendment attorney.

UF would have to prove that Spencer's speech, based on his past statements, constitutes an incitement to violence. That would render it unprotected, Abrams said. But that's a high bar under the First Amendment, which protects even hateful speech.

"There's a fine line between inciting lawlessness and engendering a situation where lawlessness arises," said Peter Lake, higher education law professor at Stetson University College of Law. "Spencer's group is extremely well-versed in First Amendment technicalities."

Public officials may restrict speakers in time, place and manner, especially if safety is a concern, but generally cannot shut down speech because of a speaker's ideas. The Supreme Court has even defended Neo-Nazis against viewpoint discrimination.

The courts are also wary of what's called a heckler's veto — when speech is suppressed in anticipation of a hostile audience.

"I certainly can understand the university preferring he not come, and I certainly can understand a judge taking a second or third look," Abrams said. But once a university invites speakers, he said, "it's an open door to anyone whose speech is constitutionally protected."

Spencer has been described by the Southern Poverty Law Center as "a kind of professional racist in khakis," one who dreams of a white "ethno-state" achieved by "peaceful ethnic cleansing."

Fuchs first notified students of Spencer's application last weekend amid chaos in Charlottesville. There, at a "Unite the Right" demonstration organized by Spencer, white supremacists bore torches, screamed Nazi slogans and brawled with protesters. A woman was killed when a man drove into a crowd of peaceful protesters.

Spencer, Fuchs wrote, wanted to make UF one of his next stops, a prospect the president found "deeply disturbing." But, he told students, school rules about renting space to outside groups meant there was little UF could do. Any group that paid the requisite costs could access public space, regardless of its platform.

Calls and emails poured in by the hundreds. A protest rally drew a thousand RSVPs, then a thousand more. Police talked strategy. Gov. Rick Scott called the National Guard. Alarmed students exchanged screenshots in which commenters declared, "The Next Battlefield is in Florida."

Meanwhile, Texas A&M University canceled a September event with Spencer, citing security concerns.

On Wednesday, Fuchs changed course.

"Denying this request for university space is the safest and most responsible decision we can make," he wrote, calling Spencer's "racist rhetoric … counter to everything the university and this nation stands for."

UF has not denied other applications to rent space, at least in recent memory, its spokeswoman said.

"It's important to stress that we were not pushed into any decision," Sikes said. "It wholly has to do with safety and security, and the conversations we were having last week changed in light of what we watched in Charlottesville, with death and destruction."

Fuchs' decision was the right one in the battle between free speech and safety, Gainesville Mayor Lauren Poe said.

"What Mr. Spencer and his many followers are espousing is an incitement to violence, not open discourse in the marketplace of ideas," he said, noting threats to make Gainesville a battle zone.

"S---'s going to be a little different in a stand your ground state," one commenter wrote on 4chan, an anonymous message board. Another said, "If there was a time for a false flag this would be it. You can basically open carry and pop someone for saying, 'I'm going to kill you.'"

RELATED: Gators coach Jim McElwain calls white nationalists 'unacceptable' as Richard Spencer applies to speak at UF

Other commenters used racial epithets and described Gainesville as a hub for "social justice warriors," much scorned by Spencer's ilk.

"It shows that you have a small group of people out there who have no respect for human life, and that puts every one of our residents in danger," Poe said.

Evan McLaren is executive director of the National Policy Institute, of which Spencer is the president. The group is dedicated to the "heritage, identity and future of people of European descent." He said he was not expecting the denial from UF considering Auburn's failed attempt to do the same.

This spring, Auburn canceled a planned event with Spencer "based on legitimate concerns and credible evidence that it will jeopardize the safety of students, faculty, staff and visitors." Police agreed, citing "possible civil unrest and criminal activity."

The event organizer sued. Spencer said he would not back down. A federal judge ruled in his favor on First Amendment grounds. Auburn officials bowed to the ruling, but released a statement defending its "responsibility to protect our campus."

Spencer eventually spoke in April as hundreds protested peacefully. According to the Associated Press, Auburn is paying the event organizer nearly $30,000.

"There is no reason why we should not be permitted to speak at the University of Florida," McLaren said. "I'm surprised that a university would attempt to subvert the law."

What's clear is that these cases will continue to go to court.

"We're seeing a movement to try to turn college towns and colleges themselves into First Amendment battlegrounds and for colleges to play referee in the fight," Lake said.

Organizers of the rally against Spencer took a moment to celebrate Monday, lauding Fuchs for his decision. But protesters said their fight is far from over. They expect Spencer to win in court, so their rally in September will go on.

Times staff writer Kathryn Varn and news researcher Caryn Baird contributed to this report. Contact Claire McNeill at (727) 893-8321 or cmcneill@tampabay.com.

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