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Texas A&M Could Face Legal Action for Canceling a White Nationalist Rally

The decision to cancel a White Lives Matter rally could land the Aggies in court.

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Demonstrators hold signs as they chant outside the venue where Richard Spencer, who leads a movement that mixes racism, white nationalism and populism, spoke at Texas A&M University on December 6.
AP Photo/David J. Phillip

A Texas-based white nationalist didn’t wait for the dust to settle in Charlottesville, Virginia, where neo-Nazis and white nationalists spurred violence that left dozens of counter-protesters injured and a 32-year-old woman dead over the weekend, before announcing his plan to hold a “White Lives Matter” rally on Texas A&M’s campus on September 11. “TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M,” Preston Wiginton, who organized a talk with white nationalist Richard Spencer on the campus last December, wrote in a press release announcing the event this weekend. The backlash was immediate, as Aggie alums, the entire House chamber of the Texas Legislature, and many others called on the university to stop the rally from happening.

On Monday afternoon, the university announced that the event would be canceled, citing “concerns about the safety of its students, faculty, staff, and the public.” A&M’s statement said that Wiginton “linking the tragedy of Charlottesville with the Texas A&M event creates a major security risk on our campus,” and that “the risks of threat to life and safety compel us to cancel the event.”

For many, the university’s decision to cancel the rally seemed like a move to protect its students. But to others it looked like a free speech violation.

“If all it took to shut down a speaker was to threaten a riot, we would all find ourselves with very little free speech at all,” said Ari Cohn, who works with the Foundation for Individual Rights in Education. “Allowing the possibility of a bottle-throwing mob to justify curtailing speech only incentivizes violence. That is an untenable result, from a legal and practical standpoint.”

Cohn said that the Wiginton’s link between Charlottesville and the planned A&M rally—a main reason the university gave for canceling the event—is protected under free speech. “Under applicable constitutional precedent, it constitutes neither incitement to imminent lawless action nor a true threat, and without more, that notice does not justify canceling the event,” Cohn said. “Moreover, violence committed in one place does not justify curtailing freedom of expression in other places. We do not discard the First Amendment’s protections because someone, somewhere reacted inappropriately to speech—and to be clear, violence is never an acceptable response to speech. But to sacrifice our First Amendment rights on the altar of preventing violence is incompatible with our understanding of free speech.

And now, A&M could have potentially opened itself up to a lawsuit. After learning that his rally was canceled, Wiginton told the Texas Tribune that he was preparing to sue the university. “I guess my lawyers will now be suing the state of Texas,” Wiginton said. “We have two lawyers in Texas who are alt-right leaning who will get in on the action too. We will probably get the ACLU to file suit as well.”

The ACLU hasn’t responded to requests for comment on whether it plans to be involved in any potential court proceedings, and, as of Tuesday afternoon, A&M spokesperson Amy Smith said the university hadn’t received any notice of a lawsuit. But there’s certainly precedent for legal action. In April, student groups at the University of California at Berkeley filed a lawsuit against the school for canceling a talk by prominent conservative media figure Anne Coulter amid safety concerns. The lawsuit, which had the backing of a prominent Republican lawyer, alleged that the university acted to silence the speech of conservative students, who are in the minority at Berkeley.

Similar legal action could be taken in College Station. “[Texas A&M], in denying White Lives Matters [and Richard] Spencer’s access to public areas to engage in speech—notwithstanding how deplorable and lacking in value that speech may be—more likely than not is violating the First Amendment by engaging in viewpoint-based discrimination,” JT Morris, an Austin-based attorney specializing in First Amendment law, said in an email. Morris said Wiginton could file a lawsuit immediately seeking an emergency temporary restraining order or preliminary injunction, asking a judge to force the university to grant Wiginton’s group access to campus for the rally. “This is a really tough situation to balance First Amendment rights and public safety,” Morris said. “We’re looking at protecting speech of minimal value—to put it gently—that is espoused by a very small group of people, at the risk of serious harm to public safety.” As Morris notes, the First Amendment protects what most of us consider to be hate speech, unless that speech crosses the line and incites violence. “I’m not sure the White Lives Matter [and] Richard Spencer stuff is quite there—yet,” Morris said.

Texas A&M, meanwhile, doesn’t seem particularly worried about fighting this out in court. “Our statement on the compelling reasons to block this event from happening stands on its own,” Smith said in an email, adding that the potential for legal ramifications did not weigh heavily in the university’s decision to cancel the rally. “The safety of our students, faculty and staff was—as it should have been—the critical factor in this decision,” Smith said. It remains to be seen, however, if that rationale could hold up in court.

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  • Charlie Primero

    This is stupid. We need to get rid of this “First Amendement” thing if it lets Nazis spew their hate all over the place.

    My grandfather didn’t fight Hitler so we could have Nazis in Texas.

    • Chichi Hermosa

      If the First Amendment does not stipulate that hate CANNOT -in any form of communication – BE SPREAD, then it is time to make the First Amendment more specific.

      • Charlie Primero

        I agree. Speech we don’t like must be outlawed.

        • robintexas

          Then we should start with you?

          • Chichi Hermosa

            ROBIN, THE NEO-NAZIS WERE CHANTING HATE SONGS. MORE SPECIFIC, THEY CANNOT BE!!

          • Kevin Schmidt

            I think we should start with people who don’t recognize satire when they see it.

      • robintexas

        “I disagree with what you say, but will defend to the death your right to say it” Patrick Henry in quoting Voltaire and Elizabeth Hall

        The SCOTUS recently upheld Unanimously (that means all of them agreed, conservative, liberal and centrist) that their is and can be no hate speech limitation on freedom of speech. Mostly because someone would have to be the arbiter of what is hate speech. That is different form one person to the next, from one political point of view to the other, and can too easily be used to control and condemn any part of the population that those in power would so choose.

        Freedom of speech is a good thing. The answer to hate speech is nit less freedom, it is more… If you disagree speak up and explain WHY, perhaps you will win the argument.

        On the other hand if you do not even want to listen to it, fine.. Walk Away, Turn the Channel, Leave that website, turn off the device, put down the paper or magazine…. In a free land you do NOT have to hear it or see it if you do not want to… But the answer is not to shut the other person or people up, it is either have a better idea or a better speech, or walk away. There is no Right to not be offended, You have the right to be offended, take all the offense you want.

        There is no right to beat the crap out of someone because you disagree with them.

        • Chichi Hermosa

          Robin, Our U.S. Constitution is too generic. It MUST be more specific in order to be adapted to the faster Social Media Communications of these days. No other reason, but to make people ACCOUNTABLE for their hate words & actions. Please, read an expert on the First Amendment.

          ” The First Amendment is often referenced by Americans in both public and private spaces, especially when our “freedoms” are questioned. What are some of the biggest misconceptions about the First Amendment and the rights it grants us?”

          ” David L. Hudson Jr. :One misconception is that the First Amendment limits both public and private actors. Under the state action doctrine, the First Amendment limits only public actors. Another misconception is that many people don’t realize that the First Amendment protects a great deal of obnoxious, offensive, or repugnant speech. Justice Brennan once referred to this as a “bedrock principle” of the First Amendment.”

          See, the Neo-Nazis – even Trumpzilla- had broken this law. Trumpzilla is always taking in an obnoxious way to almost all minorities in this country. Ok. as a candidate because he was not government, but now, he is government.

          And, again, ou constitution MUST be more specific. Period !!

        • Wesley Stubbs Sandel

          Right, just because the white supremacists have been lynching defenseless Black people, blowing up their churches, shooting them at prayer and modeling themselves after the people who conducted the Holocaust for half a century doesn’t mean that we should despise them and throw bricks at them.

          • Kevin Schmidt

            I think we should throw the song, ‘Amazing Grace’ at them. If you know the history of the song, then you will know why it is appropriate for both sides. It’s not enough for one to see the error of his ways, everyone else must forgive him too. Olive branches are much more effective than big sticks.

          • Wesley Stubbs Sandel

            Right – if we are just patient long enough the nazis will stop acting like nazis. Meanwhile, back in the real world, America’s Black population continues to be subjected to systematic, violent racist oppression daily, white supremacists stalk and murder Black children with complete impunity (and even get rewarded for it) and 80% of the people in America’s prisons had no trial.

      • borgerboy

        So if you don’t like something you should change it until you do like it? Regardless of the fact that it’s worked for over 200 years.

      • Kevin Schmidt

        There is already plenty of legal precedent for that, so no change in the 1st Amendment is necessary. We just need to enforce existing law.

  • José

    It is a dilemma all right. Last weekend I saw a number of folks distancing themselves from the ACLU because of its principled stand to protect the rights of Nazis to hold a public rally, just like any other group. There don’t seem to be any simple solutions. Clearly these anti-American hooligans have rights, it’s just not clear what rights.

    • Jed

      It’s actually not that complicated. Since freedom of (political speech) is a “fundamental right,” then the Supreme Court will apply what is called “strict scrutiny” to determine whether any abridgment of speech is justified. Strict scrutiny says that the only justifiable (government) abridgment of free speech would be a “narrowly tailored” means to a “compelling (state) interest.”

      In this case, the compelling interest is public safety. This qualifies because the police power is specifically a state function (one of few, actually).

      The question then will be simply whether canceling the event is a “narrowly tailored” solution. Which is to say, that it will accomplish the objective, is the best to do so, and will have only that effect (and not other, undesirable effects).

      (This part of the test is where voter ID fails, by the way. It is not narrowly tailored.)

      In the abstract, it might be a toss up as to whether this court would find canceling the event to be narrowly tailored. Arguably they could say that simply providing better security would also achieve the same objective.

      But after Charlottesville, it would take some serious cojones for the court to dispute a public safety justification from the state of Texas.

      So I think a&M will be fine.

  • Gabriel

    The issue we face here is how we value individual rights over others rights to include safety. This goes to many other laws that are in place that are abused and introduce risk and conflict with public safety. This is my take. Whereas, in the exercise of your First Amendment right, the message is blatantly and overtly divisive or incites violence by its very nature as it is the sole belief of individuals and not society as a whole that additionally impinges on the rights or the welfare of others in that society that undermines democracy and the nature by which the law was intended to convey and be lived out; life, liberty and the pursuit of happiness, therefore, in exercising the First Amendment right, the people or individuals must abide by usual and customary practices by the institution where the demonstration occurs that first and foremost protect the public by taking prudent demonstrative practices to up to including proof of fiduciary liability insurance enforceable by law. This insurance provides a level of protection for the public for losses incurred by violent demonstrations and provides the State a level of control over the types of risk these groups historically pose through the use of actuarial science. Institutions should be able to provide a level of governance on the property in order to protect the physical safety of the non-demonstrating public.

  • borgerboy

    this article makes it sound as if the alt-left had nothing to do with the riots in Charlottesville. The leftist snowflakes has as much to do with the riots as the ‘right’ !

    • robintexas

      More so, since the politicians and Police stood away from the crowds and allowed the leftists to attack the White supremacists. No-one shows up to peacefully protest with clubs, ball-bats, pepper spray, urine filled bottle and balloons, bags of feces etc. They were invited to Charlottesville to attack the protestor and that is exactly what they did. That is the true HATE and the groups that should be outlawed as gangs, and organized crime. ALSO go after those who fund them. Follow the Money, the people hiring protestors $15 per hour to protest $25 per hour to be violent and assault others. Who paid for the busses? The Hotel Rooms? The Meals? As much as I despise white supremacists, I equally despise racists of any color. But anti-American haters… Well many of us took an oath “To protect and defend the constitution of the United States from ALL enemies foreign and domestic. “

      • Wesley Stubbs Sandel

        I know, it’s a tragedy! All the nazis and white supremacists did was spend a century lynching defenseless Blacks, conducting genocide against Europe’s Jews and subjecting America’s Black population to systematic, violent racist oppression. It’s just not fair!

    • Wesley Stubbs Sandel

      Right – just because the nazis and white supremacists have a long history of murder, lynching and blowing up bombs in public spaces doesn’t mean that they’re bad?

  • Chichi Hermosa

    Senator Ted Cruz can say whatever he wants in a Monday morning analysis but he voted for ” The Neo-Nazi -in Chief” and he is guilty by association !

  • Redeemed

    First Amendment-protected speech is paramount to a free republic…a free people. To say that hate speech isn’t (or shouldn’t be) covered by the Constitution is to either not understand those protections, or to not care. Hate speech is exactly why our Forefathers sought to protect speech. People should be allowed to voice their opinion and thoughts, even if some of us find their speech to be hateful or hurtful. Why? Because what folks like Charlie Primero and Chichi Hermosa may find hateful or hurtful, may be encouraging or uplifting to me. “Build the Wall” may rile the anger and dismay of some, while others may agree with that sentiment. Should those who don’t like that comment be able to shut-up those making the statement judt because they don’t like it … may even deem it to be hate speech? We want ALL to have the freedom to have a voice – even when we don’t like (or may hate) what is said. To not allow it.takes away another person’s freedom.

  • robintexas

    Texas A&M should NEVER be in the business of censorship or trying to halt freedom of speech. Rather it should be leading the way in properly educating people correctly in truth. ALL Texas and Texans should stand up for the U.S. Constitution, and the freedoms written therein.

    • Wesley Stubbs Sandel

      And in opposition to racism and the terrorism and murder that white supremacists are famous for.

  • Phish Phillet

    There is no such thing as free speech. All speech has a cost that must be paid.

    • Kevin Schmidt

      That’s your opinion and nothing more.
      The cost of free speech is being criticized by opposing viewpoints and being held accountable.
      Everyone gets a say, and no one gets the last word.