Public universities face free speech questions in light of controversial speakers

Citing safety concerns stemming from the Charlottesville protests, Texas A&M canceled a White Lives Matter rally earlier this week. So what rights does a public university have when it comes to managing freedom of speech?

As public universities seek to avoid becoming the next target of potentially violent protests, they also walk a fine line between free speech and safety. 

"It's a difficult situation for universities," explained Peter Kennedy, a shareholder with the law firm Graves Dougherty Hearon and Moody in downtown Austin. 

Kennedy said universities generally don't discriminate based on the content of speech, but pay close attention to other factors. 

"A call for people to attend armed with weapons is something that a university is going to be concerned about I'm sure, because they have an obligation to maintain a safe environment for students," said Kennedy.

While public universities are on state-owned land, Kennedy says there's a general distinction between a public park or a sidewalk and a college campus. 

"Universities, at least campus wide are not considered a public forum," Kennedy said. 

Because of that, Kennedy says universities can put restrictions on the time, manner and place of an event to prevent it from becoming a disruption to campus activities. 

But he did say an area on campus can become a public forum - if it's been historically used for that purpose. 

"It would be harder for a university, any government body, to restrict the prior use of the area which has been traditionally been used and been open for free speech. But that doesn't mean any property that they own or control is fair game for protests or activity at any time of the day," said Kennedy.  

On Thursday, Preston Wiginton, the organizer behind the now-canceled Texas A & M rally, spoke out against the university's decision and reasoning. 

"I don't think there are safety concerns that our Texas police couldn't handle," Wiginton said while standing in front of the state Capitol. 

Wiginton told KVUE a fellow organizer has reached out to the ACLU for assistance in mounting a legal challenge against the university. 

The Foundation for Individual Rights and Education, a free speech advocacy group, criticized the university's actions, but said it would not intervene. 

In a statement, the group argued the media notice sent out by Wiginton, titled "Today Charlottesville, Tomorrow Texas A & M" did not amount to incitement, and was protected speech.

They further called on the university to be specific and transparent about their safety concerns.

"Although we've seen some incidences of violence, in truth they're very rare," explained Kennedy. "And I think universities, cities, police officers, police units, should be looking at ways to allow speech to go forward while minimizing the threat of violence."

Kennedy added that canceling an event should be viewed as a 'last resort.' 

"I'm proud of the students who show up and make it clear that they disagree with the speaker who may be on campus.  Not so proud of the folks who actually disrupt the events. But it is important for everybody to be able to engage in the great marketplace of ideas that we have in this country," Kennedy said. 

In Texas A & M's statement, they noted that none of the university's 1,200-plus campus organizations had invited or agreed to sponsor Wiginton. University policy states that individuals not affiliated with the school cannot reserve on-campus facilities without sponsorship. 

© 2017 KVUE-TV


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