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Hey, Texplainer: Texas A&M University officials recently announced they were canceling a “White Lives Matter” rally scheduled to happen on campus next month. Are they allowed to do that under the First Amendment?
Under the First Amendment, A&M can’t shut down an event based on subject matter. But if the school is challenged, there are a couple of approaches it might take to defend itself in court — including emphasizing the public safety risk the event would have posed and the disruption it would have caused on campus.
On Sept. 11, self-described “alt-right” leader Richard Spencer was expected to speak at a rally — hosted by white nationalist Preston Wiginton — on the campus of Texas A&M University. Plans for the "White Lives Matter” rally drew outrage on social media, and on Monday evening, university leaders announced they had canceled the event over "concerns about the safety" of students, faculty, staff and the public.
School officials pointed specifically to the headline of a news release circulated on Saturday announcing the event. Amid the violence surrounding a white nationalist protest in Charlottesville, the headline proclaimed, “TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M.”
Saunie Schuster, an attorney for The NCHERM Group, which provides consulting for schools on First Amendment issues, said that was the organizer's big mistake.
"You can be here and you can speak even if we hate what you're saying, but you can’t disrupt the function of Texas A&M,” Schuster said. "Because a person was killed and people were seriously injured in Charlottesville, the potential for harm is not just speculative. If he’s linking the two events together, he’s seeing that as an outcome.”
Southern Methodist University constitutional law professor Dale Carpenter said the school’s position — that the rally presents a huge public safety risk and could disrupt normal activities on campus — is “legitimate,” but the school may face some legal backlash anyway. On Monday evening, rally organizer Wiginton said as much: "I guess my lawyers will now be suing the state of Texas.”
Carpenter said the university "can’t simply ban a controversial speaker because others might react violently." He said blocking speech is an absolute last resort to prevent violence, not a first resort. He suggested the university may be able to negotiate a different time or place for the rally but said he doubts A&M will “succeed in simply prohibiting this event and its subject matter on campus.”
“That billing is too vague to constitute a true threat of violence, in my view. Indeed, the fact that Texas A&M specifically cited that billing as a justification may weaken its claim that the cancellation was for content-neutral reasons,” Carpenter added.
Meanwhile, Schuster said, “if the people coming to do a ‘White Lives Matter’ rally remain in a public area or do so in a manner that doesn’t disrupt the educational function of the institution, the school is going to be highly unlikely to be able to shut it down or restrict it."
Spencer and Wiginton are no strangers to A&M’s campus. Wiginton has hosted several events using A&M facilities, and in December 2016, Spencer spoke at the school for more than an hour — where he drew the support of a handful of people and protests from hundreds of others. A&M officials say the tension at the December event didn’t factor into the university’s latest decision; it was merely about the violence in Charlottesville.
“This is a difficult issue for any public institution to deal with because by definition the university is supposed to be a place for the public exchange of ideas," A&M System Regent Tony Buzbee told The Texas Tribune on Monday. "But, on the other hand, the administration has an obligation to keep students safe.”
A&M is a public university, and it can't block an event because of the views of its organizer. It can, however, create limitations on where rallies are held — though the argument for doing so must meet the standards of a “compelling governmental interest,” Carpenter said.
The event was also scheduled for the middle of the day, when thousands of students, faculty and staff would be on campus, A&M spokeswoman Amy Smith said. She said local police had expressed concerns about campus safety.
“There is a fact question about whether a protest or event could be held that would not present this disruption,” Carpenter said. “I would imagine questions involving possible disruption to university operations would be a matter of negotiation between the university and lawyers for the event organizers, and possibly a judge.”
The bottom line: If A&M gets sued over canceling a "White Lives Matter" rally, it might be able to defend itself in court by proving the event posed a public safety risk and would've disrupted normal campus activities.
Matthew Watkins contributed to this report.
Disclosure: Texas A&M University, Southern Methodist University and Tony Buzbee have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.