"That's what he wants": University weighs costs of denying Richard Spencer

Students protest Charles Murray's visit on Central Campus in October.

Students protest Charles Murray's visit on Central Campus in October. Buy this photo
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Thursday, November 9, 2017 - 9:04pm

Two weeks after the 2016 presidential election, in a speech to 200 of his supporters at the National Policy Institute's annual conference in Washington, D.C., Richard Spencer declared “America was until this past generation a white country, designed for ourselves and our posterity.”

It is our creation, it is our inheritance and it belongs to us," he said. "Hail Trump, hail our people, hail victory!”

Following "hail victory" — a translation of the German "Sieg Heil," a chant and greeting adopted by the Nazi Party in Germany during the 1930s — Spencer raised his arm in what appeared to be a Nazi salute, which was enthusiastically returned by many in the audience.

The stated mission of the National Policy Institute, of which Spencer is president, is "To elevate the consciousness of whites, ensure our biological and cultural continuity, and protect our civil rights." Spencer has also called for the creation of a white ethnostate, which, according to him, would be accomplished through "non-violent, ethnic redistribution of populations."

On Oct. 27, without an invitation from any member of the University of Michigan community, Cameron Padgett, a Georgia State University student organizing Spencer’s tour, requested to rent a room at the University of Michigan for Spencer to hold an event. News of the request was immediately met with fierce opposition and demands that the University deny Spencer's request.

In a recent interview with The Daily, University President Mark Schlissel said the University could not deny a speaker based on the content of their speech, but that it was seriously reviewing potential safety and security concerns of the event.

Spencer has also made speeches and made requests to speak at several other colleges. Following the white supremacist "Unite the Right" rally in Charlottesville, Va., — in which one woman was killed by a participant in the rally — the University of Florida denied Spencer's request, but allowed him to come after Spencer threatened to bring suit, leading to the University of Florida spending $600,000 on security for the event. When Michigan State University denied a request from Spencer at about the same time, Padgett sued. The judge presiding over the case recently ordered the parties to enter mediation.

Facing intense pressure from members of the campus and larger University community, the University's administration is still in deliberation about whether or not it can legally deny Spencer's request, and whether it is willing to go to court should it choose to do so.

"There has been no decision regarding this request," said University spokesman Rick Fitzgerald. "Beyond that, there just isn't anything else we can share."

LSA senior Leah Schneck, outreach director for the University's chapter of College Democrats, attended a recent meeting with Schlissel, all 11 University vice presidents and approximately 20 other student leaders to discuss major areas of concern on campus, including Spencer's request to speak. Schneck said no is "still on the table" for the University, she said, and she hopes the administration realizes the message it could send by doing so.

"I think that the University has been so inadequately responsive to students in particular, even if we're just thinking about the last year and a half of incidents on campus, and the particularly-marginalized feel like the University is targeting them, and I think that saying no would be hugely powerful," she said. "I don't want him anywhere near campus, and I know students don't want him on campus either."

Schneck acknowledges, however, the University is facing a tough decision, and needs to send a message regardless of how they respond to Spencer's request.

"In the event that the University decides that they do need to say yes, I'm hoping — and this is something we talked about — that, at the same time they let people know they're saying yes, they say, 'Here's our plan for how we're going to support the campus community when he does come,' " she said. "But that they have a plan of, 'We're going to support X amount of alternative events that are going to be on a spectrum of teach-ins and healing spaces,' that they maybe are giving students the option to miss class, or that faculty should be understanding of students that have to miss class, that they're giving faculty resources about how to talk about it in class."

However, students are not unanimous in thinking Spencer should be rejected. Engineering sophomore Lincoln Merrill, press correspondent for the University's chapter of College Republicans, said though he strongly disagrees with Spencer's views, he thinks Spencer has a First Amendment right to speak at the University. Protests to similar events, like the recent speech of controversial social scientist Charles Murray, Merrill said, have reflected poorly on the University.

"I want to say that the CRs definitely do not support his views in any way. We are completely opposed to the things that he stands for, and we just flat-out don't support this guy. That being said, he has a First Amendment right to speak," Merrill said. "So, we believe that he should be able to speak at the University, but we would also, after that, encourage people to go and challenge his speech in productive ways. The things we've been seeing is when people have been speaking on campus recently, people go crazy and they don't challenge their speech in a productive way."

It is not clear, however, whether a denial of Spencer's request would necessarily be a violation of his First Amendment rights. In a panel discussion of several University of Michigan law professors on the issue of Spencer's request, Prof. Don Herzog, who specializes in the First Amendment, noted that fighting words — defined by the Supreme Court as words which, “by their very utterance, inflict injury or tend to incite an immediate breach of the peace" — were not protected under the First Amendment, but said the possibility of violence brought by Spencer's speeches didn't necessarily meet that criterion.

"There are moments where lower courts think it's too strict to say you have to be intending to incite an act of violence and it has be highly likely to produce the violence, but actually lower courts are usually very serious about this standard," he said. "So, absent more, the thought there might be grievous bodily harm if Richard Spencer shows up on campus is not yet enough in First Amendment law for the government to silence him."

Merrill thinks if violence were to break out at Spencer's event, it would be the fault of the protesters, not Spencer.

"That's where I think people have been going wrong. What's been going on recently with the violence and the protests, that isn't necessarily, in my opinion, the speakers' fault," he said. "If there were some sort of unsafe environment created, it wouldn't be as a result of him, it would be as a result of protesters who are not keen on letting somebody have free speech and challenging it with their own free speech."

Even if it were Spencer's fault, Herzog said it wouldn't matter. What matters, he said, is the reasoning provided by the University to deny his request.

"What you want to think about, if you think Spencer ought not to be permitted on campus, you need to think, 'Well, what policy, what maxim, what guideline could the University produce to explain why he wasn't able to speak?' " he said. "And it looks to me like the doctrine as we now have it makes it exceedingly difficult to imagine plausible justification."

However, there are other areas of law besides the First Amendment important to consider in the case of Spencer's request, Law professor Margo Schlanger pointed out. The Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964, which states that recipients of federal funding cannot discriminate based on race, are also applicable.

"Setting up a hostile environment for members of one race or another counts as discrimination under established doctrine, under, I think, both the Equal Protection clause, but certainly under Title VI," she said.

Additionally, Schlanger said, it isn't completely clear whether or not the University should be considered a forum always open to the public. Renting the Michigan Union for a wedding, she said, isn't the same as giving a speech.

"I don't know if right now we have a public forum or not," she said. "I think if we do, that puts the University in a place where it's pretty hard to say to Richard Spencer, 'It's a public forum, but not for you.' I think we need to be very open to people who get invited by us — I'm not so sure that we need to be open to anybody who writes a letter or clicks a few dots on a website."

If the University determines the law is on Spencer’s side, it would be making a mistake in denying him, Prof. Richard Primus said.

"I think that would be a mistake for a couple of reasons. The first is because that's what he wants," he said. "If Richard Spencer comes and gives one more speech to one more group of people, most of whom don't like him anyway, that's not what spreads his message. What spreads his message is reports of big unrest at the University of Michigan, or, better yet: 'The University wouldn't let me speak.' That's his best case scenario. Now he's a martyr for free speech."

Areeba Jibril, a Law student present at the event, took issue with Primus's hope that students will simply ignore Spencer if he comes to speak, as he could still cause a lot of harm.

"I feel like you're operating under this assumption that the room will be empty, and I don't think a lot of students here are also operating under that assumption, that if we let him speak and ignore him, that there will be no one there to listen to him," she said. "I think there are concerns that he would bring people with him, and also that people in this community will feel like they want to attend his talk, and will walk out of it feeling empowered, and will walk out of it feeling empowered enough to distract our lives in a way that physically puts us in danger."

Ultimately, Primus thinks, the decision will come down to a vote from the Board of Regents, advised by the University's General Counsel. He said it's a decision they've been pondering for months.

"The decision is not going to be made by the General Counsel. The decision will be made by the Regents," Primus said. "And it's not just now — I should say, the Regents and the General Counsel have been thinking deliberately about what to do if it's presented since the week of Charlottesville."

It is not yet clear if the Board will vote on the issue. If it does, however, several members have already made statements of their intent to deny him.

“Spencer is a disgusting and dangerous man. This has been expressed by many members of the University community,” Regent Ron Weiser (R) wrote in an email obtained by The Daily. “I hope we are successful in keeping him off Campus.”

Regent Andrea Fischer Newman (R) agreed, stating she “would be happy to defend a lawsuit.”

“I hope Richard Spencer is not allowed to speak on Campus,” she wrote. “I have expressed my sentiments to the President. I do not think it’s a good idea for Richard Spencer to speak on campus.”