Ohio State has once again denied white supremacist Richard Spencer’s request to use campus space for a speaking event, garnering support from many of its students and faculty for standing firm against his racist messages, but the legality of this move is questionable, according to First Amendment experts.
The university issued a vague letter to Spencer’s lawyer, Kyle Bristow, Friday. In it, Ohio State cited safety concerns as its reason for rejecting the requested speaking event, but stated it plans to consider “alternatives.”
Four days later, Ohio State remains mum on what these possible alternatives could be, declining to comment on the matter beyond what was stated in the letter. Until more information is released, its current stance on Spencer’s speech is potentially infringing upon Spencer’s First Amendment rights, depending on Ohio State’s campus space policies and its definition of safety concerns.
Spencer’s potential visit to Ohio State, while controversial, is protected under the First Amendment, so long as it does not pose imminent danger to those present during the event, said Daniel Tokaji, a Moritz College of Law professor specializing in constitutional law.
And, while the university is a public institution, it functions in a variety of capacities, such as a performance space. This means there is more leeway for the university to reject a request to use a building’s space because the university is acting as a rental hall, not a public entity, he said.
Spencer requested to use the Ohio Union Performance Hall, which can fit about 500 people, for a Nov. 15 event.
“A lot of people seem to be OK with silencing a message they don’t like, but many seem to not understand that once you open up that door, you’re coming after somebody else next.That seems to be the history of our country.” – Gary Daniels, chief lobbyist for the Ohio American Civil Liberties Union.
To deny this request and legally uphold the provisions protected under the First Amendment, Ohio State would need to have the capability to prove Spencer’s speech is obscene and elicits danger, Tokaji said.
“The court says this only applies when the basis for the restriction is the content of the speech, but that clearly seems to be the case here,” he said. “It’s the endangerment of public safety which has everything to do with Mr. Spencer’s speech.”
Ohio State governs the usage of campus spaces through its university space rules, which includes rules for events and the general usage of spaces. For some events, a reservation is required for students, university departments, faculty, staff and groups not affiliated with Ohio State to use university spaces, Ohio State spokesman Ben Johnson said in an email to The Lantern in September.
“Non-affiliates require authorization under these rules to make speeches or presentations, to erect displays, to engage in any commercial activity, or to conduct similar activities on university-owned or university-controlled property,” according to the university space rules.
“Ohio State evaluates requests on a case-by-case basis and the [University Police] works with event organizers to evaluate potential risks to personal safety, university property or facility security; to promote safety; and to protect the rights of all members of the university community,” Johnson said.
Discriminating against somebody like Spencer, who has expressed white supremacist ideologies, for his beliefs alone is unconstitutional, Tokaji said.
The vagueness and lack of transparency Ohio State has displayed since Friday could mean the refusal to allow his event is, in fact, a discrimination of Spencer’s ideology, said Ari Cohn, director of individual rights defense program for the Foundation for Individual Rights in Education.
“They haven’t expressed what threat to public safety the event would cause and why it is unable to ensure safety for the event,” Cohn said.
He said FIRE — an organization which works to protect constitutional rights on campus — sees this ambiguity a lot “where vague security concerns are cited as a reason for not allowing a speaker to rent facilities or speak on campus.”
“To say security concerns could beg the question whether the university is really trying to keep a specific view off of campus,” he said. “That would be problematic from a First Amendment standpoint.”
Spencer’s far-right viewpoints can be compared to that of another controversial speaker, Milo Yiannopoulos, who visited Ohio State last November and spoke at the Union.
However, the circumstances of the two events differ, which in turn can be reason for why Yiannopoulos was allowed on campus, and why Spencer is currently not allotted his requested space.
Yiannopoulos was invited by a student group, which Tokaji said hinders the university’s capability to say no to a speaker of radical ideologies. Spencer’s request for space was made by a Georgia State graduate student.
“If the university made an effort to restrict student groups that wanted to bring someone like Spencer to campus, that would be very problematic and unconstitutional,” he said.
Yiannopoulos’ and Spencer’s controversial and arguably hateful rhetoric often creates tense environments, but concluding that they bring violence is a discrimination that could be taken to court, said Gary Daniels, the chief lobbyist for the Ohio American Civil Liberties Union.
“They can’t just simply say ‘We’ll look at the speaker; this is somebody who inflames passions and does things that people don’t like, so we anticipate that there are going to be safety concerns, and so that’s why we’re not allowing him to speak,’” he said.
Should the university decline to provide the alternatives they alluded to regarding Spencer’s request, they would have to define the danger in which they cite, Daniels said, also adding the ACLU finds Spencer’s white nationalist messages reprehensible, but the restriction of his speech unconstitutional.
Daniels said an issue arises when a university like Ohio State picks and chooses who can speak because declining one request could lead to a snowball effect of sorts, which can silence entire groups or ideologies over time.
“A lot of people seem to be OK with silencing a message they don’t like, but many seem to not understand that once you open up that door, you’re coming after somebody else next,” Daniels said. “That seems to be the history of our country.”