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Identifying a Lawful Rally From a Violent Angry Hate Mob

BANNING RALLIES

Universities are being pitted against the First Amendment as racists and homophobes scramble for attention on America's college campuses.

As violent images of white supremacists clashing with counterprotesters filled news broadcasts around the clock, the University of Florida last week announced that the National Policy Institute, headed by white nationalist Richard Spencer, requested a permit for a September 12 protest on campus. University officials originally responded to the query with marked chagrin, but released a statement announcing the school had no choice but to let the group hold an event.

"Non-university groups, organizations and persons may rent space on campus, provided they cover rental expenses and security costs like all other third-party renters," university president Kent Fuchs said in a statement.

But as the conflict in Virginia grew deadly, culminating with the murder of Heather Heyer and the deaths of two Virginia State Police officers patrolling the events, the university pursued legal options in preventing Spencer's group from doing anything on the Florida campus. On August 16, the university announced it would deny the request.

"This decision was made after assessing potential risks with campus, community, state and federal law enforcement officials following violent clashes in Charlottesville, Va., and continued calls online and in social media for similar violence in Gainesville such as those decreeing: 'The Next Battlefield is in Florida,'" Fuchs wrote in an open letter to the campus community.

The move came shortly after a similar decision by Texas A&M University to abruptly cancel a White Lives Matter event featuring Spencer scheduled for September 11, a day before the Florida event. In both instances, violence incited by white nationalists gave cover to university officials taking a stand. But legal experts with the American Civil Liberties Union say the schools may still have overstepped their bounds, and suggest the extremist groups can still claim the First Amendment requires the schools to allow demonstrations to go forward. Michael Barfield, vice president of the ACLU of Florida, said the organization had been prepared to stand by UF's original decision to allow Spencer to speak and doesn't see good reason for a turnabout. "We certainly think it quite troubling on First Amendment grounds, that [Fuchs] has revoked that permission," Barfield said.

So what can institutions and organizations do to keep the sort of violent protests that plagued Virginia this month outside of their own safe spaces?

Inciting Violence

Both UF and Texas A&M ultimately cited fears for public safety in decisions to deny permits to Spencer or the groups associated with his appearances. In the case of Texas, the decision has been months in the making. The White Lives Matter event had been scheduled by former Aggie and current skinhead Preston Wiginton, who according to TheTexas Tribune had organized events for years that attracted little attendance -- until the election of President Trump. Wiginton made national headlines in December for hosting an event featuring Spencer. That event drew about 400 people, CNN reports.

That prompted Texas A&M to change its policies so that no outside individual or group could reserve campus facilities without the sponsorship of a university-sanctioned group. No group on campus would sponsor the September 11 event, but Wiginton announced that instead of renting space for an indoor event, he would hold the event at Rudder Plaza in the middle of campus. A media notification used the line "Today Charlottesville, Tomorrow Texas A&M."

"Linking the tragedy of Charlottesville with the Texas A&M event creates a major security risk on our campus. Additionally, the daylong event would provide disruption to our class schedules and to student, faculty and staff movement (both bus system and pedestrian)," reads a statement from Texas A&M. "Texas A&M's support of the First Amendment and the freedom of speech cannot be questioned. On December 6, 2016 the university and law enforcement allowed the same speaker the opportunity to share his views, taking all of the necessary precautions to ensure a peaceful event. However, in this case, circumstances and information relating to the event have changed and the risks of threat to life and safety compel us to cancel the event."

Likewise, UF's Fuchs stressed the significance of free speech while denying a permit for Spencer to speak. "I find the racist rhetoric of Richard Spencer and white nationalism repugnant and counter to everything the university and this nation stands for," Fuchs said. "That said, the University of Florida remains unwaveringly dedicated to free speech and the spirit of public discourse. However, the First Amendment does not require a public institution to risk imminent violence to students and others. The likelihood of violence and potential injury -- not the words or ideas -- has caused us to take this action."

Heckler's Veto

The ACLU doesn't accept that logic. Notably, the civil liberties organization intervened when the city of Charlottesville attempted to move the march by white nationalists a mile and a half away from Emancipation Park, the desired venue for the group because of a statue of Confederate Gen. Robert E. Lee. After a legal challenge, white nationalists were allowed to hold their now-infamous torchwalk through downtown Charlottesville.

The ACLU of Virginia came under fire for that work, with one board member resigning over the decision and Gov. Terry McAuliffe assigning partial blame to the group. But the organization stood by the decision in a statement that condemned racism while defending the rights of racists. "We condemn the voices of white supremacy heard in Charlottesville today, and all violence. Our hearts are with those killed and injured," the statement reads. "...The First Amendment is a critical part of our democracy, and it protects vile, hateful, and ignorant speech. For this reason, the ACLU of Virginia defended the white supremacists' right to march."

Barfield says ACLU of Florida leaders feel the same way, and warn that UF wanders into dangerous legal waters with its decision to deny a permit to the National Policy Institute. Citing violence in Charlottesville doesn't help. Barfield referred to the concept of the "heckler's veto," basically holding a speaker responsible for the bad behavior of those around him. "The fact that other people have advocated for violence or have engaged in acts of violence can never be the litmus test by which freedom of speech can be curtailed or restrained," he said. Otherwise, outsiders who are opposed to any message could compromise an individual's rights by causing violence and attributing that to a speaker.

When violence erupted before an appearance by alt-right speaker Milo Yiannapoulos, UC Berkeley famously canceled an event in February. The school also canceled an Ann Coulter event in April. Incidentally, when a federal judge ordered Auburn University to allow the aforementioned Richard Spencer to hold a speech in Alabama, the event did incite violent protests at the school.

"To date, I have not seen any message by Mr. Spencer that advocates for violence," Barfield noted. Now, should that change, so would the position of the ACLU, he said. "If Mr. Spencer were to advocate for that, the ACLU would not only walk away from him but would certainly side with the University of Florida in terms of their right to prevent people from advocating for violence."

And notably, the ACLU this week announced in the wake of Charlottesville that it would stop representing hate groups that protest with guns.

And in the cases of a city or public university making decisions, it's publicly run institutions making the call to censor speech. Private-sector organizations have far more levity when it comes to discouraging onerous speech.

Canceling Reservations

As a privately held company, online rental company Airbnb could easily cancel the accounts of users who booked large Charlottesville properties for the purpose of attending the white nationalist event. In a statement to a local NBC affiliate, the company explained it did not want its brand associated with hate. "Those who are members of the Airbnb community accept people regardless of their race, religion, national origin, ethnicity, disability, sex, gender identity, sexual orientation or age," the statement reads. "We asked all members of Airbnb to affirmatively sign on to this commitment. When through our background check processes or from input of our community we identify and determine that there are those who would be pursuing behavior on the platform that would be antithetical to the Airbnb Community Commitment, we seek to take appropriate action including, as in this case, removing them from the platform."

Likewise, a growing number of leaders in tech announced they would stop doing business with websites selling merchandise for nationalist groups. Officials from Apple, run by out CEO Tim Cook, confirmed to BuzzFeed that the company disabled Apple Pay support for a number of websites selling goods with Nazi or White Pride imagery. Likewise, Paypal, cofounded by out Trump supporter Peter Thiel, issued a statement about Charlottesville and committed to screening out any business supporting hate groups including the Ku Klux Klan, other white supremacists, and Nazis.

"While the challenges and the landscape are continually changing, we will continue to work hard to limit the efforts of those who try to use our services inappropriately," reads the statement. "PayPal will always remain vigilant and committed to ensuring that our platforms are not used to perpetuate hate and violence or racial intolerance."

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