Free speech, hate and Penn State: What First Amendment experts say about Milo Yiannopoulos controversy
More than 10,000 people have signed on to a petition calling for Penn State to cancel this week’s on-campus speech of controversial far-right commentator Milo Yiannopoulos — but four First Amendment experts told the CDT the university is correct in asserting it cannot stop the event.
Yiannopoulos’ Wednesday speech, titled “Pray the Gay Away,” has drawn widespread condemnation from several student groups, the faculty senate and the State College Borough Council. He has been referred to by many as a misogynist, racist, xenophobe and transphobe who looks only to provoke.
But, because student group Uncensored America invited Yiannopoulos and because the university has not dictated groups’ speakers in the past, First Amendment experts said Penn State cannot legally bar the speech. The university said as much in a Monday statement in which three officials jointly voiced their opposition to Yiannopoulos’ appearance while at the same time acknowledging he “has the undeniable Constitutional right” to the event.
Clay Calvert, the University of Florida’s Director of the Marion B. Brechner First Amendment Project, is familiar with Penn State as he used to serve as co-director of a similar center here. He said the Constitution is clear in cases like this.
“The First Amendment generally prohibits what we call viewpoint-based discrimination,” he said. “And that means that the government — in this case, Penn State — cannot take sides and ban somebody because they don’t like the individual speech.”
Granted, there are a few exceptions to the First Amendment, such as speech that directly calls for incitement of violence. But, legally, the experts said those exceptions wouldn’t apply in this case — or just about any other case involving a controversial speaker on a public college campus.
“Penn State is a public university bound by the First Amendment, and they’re legally required to afford their students and the student groups free speech rights,” said Zach Greenberg, a senior program officer at the Philadelphia-based nonprofit Foundation for Individual Rights in Education (FIRE).
“And under the First Amendment, among these rights, is the ability to have speakers of their choice on campus. ... The First Amendment does protect offensive speech, and it protects what many people consider to be hateful speech.”
Protecting hate speech?
Ken Paulson, director of the Free Speech Center at Middle Tennessee State, wondered aloud if students and the general public might become confused about First Amendment principles because of how the country approaches hate crimes.
Hate crimes impose tougher penalties on criminals who target someone based on race, sexual orientation, ethnicity, etc. But hate speech is not illegal in the U.S., unlike in other developed democracies such as France and Germany. In fact, hate speech is also protected under the U.S. Constitution, Paulson said.
“The core of the First Amendment really is that everyone is allowed to say what they wish, and anyone who disagrees can speak equally prominently and loudly,” he said. “It is always a matter of putting up with other speech because we understand that we’ll get our turn.”
In 2011, the Supreme Court ruled 8-1 that the Westboro Baptist Church — which picketed soldiers’ funerals with highly offensive signs — was protected by the First Amendment, meaning one particular soldier’s family could not sue them for emotional distress. In 1969, in a landmark case and with help from the American Civil Liberties Union, the Supreme Court ruled unanimously that a Ku Klux Klan leader advocating illegal conduct — in this case forcibly expelling Blacks and Jews — was also protected because the threats were neither immediate nor direct.
Such speech is allowed, in part, because if it’s not, then who gets to decide what is and isn’t OK?
“We’re not protecting his speech because it has any value,” Calvert added, referring to Yiannopoulos. “If anything, it is a very low value or no-value speech. But we protect it because we don’t want the government to make choices about what speech has value and what speech doesn’t have value.
“For people who did not like President Trump, just imagine if Trump had the power to say, ‘OK, well, that’s valuable speech. We’ll allow it. That’s not valuable speech, so we won’t.’ That’s the reason we protect speech like this, not because it has great value but because we don’t want a government entity — in this case Penn State — to make a judgment call and tell us what speech is valuable and what is not.”
Gene Policinski, senior fellow for the Freedom Forum Institute’s First Amendment Center in Washington, D.C., offered another analogy.
Think back to before and during the Civil Rights era, he said. Back then, some communities and judges would’ve likely argued that leaders supporting equal rights or immigration should be labeled “hate speakers” and imprisoned for attacking the established order.
“Where would this country be today if those speakers had been judged hate speakers and there was some way to silence them on a legal level?” Policinski asked. “So there’s many, many reasons to defend speech that you or I might find hateful.
“And, again, we’ve empowered the government to restrain speech when it presents that imminent incitement to violence.”
Controversy & exceptions
Yiannopoulos is no stranger to controversy.
The 37-year-old Briton was forced to resign from Breitbart News, a far-right media outlet, in 2017 after video surfaced of him condoning sexual relationships between men and boys as young as 13. (He later apologized, saying he did not support pedophilia and that his “gallows humor” was misunderstood.) He was also banned from Twitter after hurling racist and sexist abuse against a comedian, and he was kicked off Facebook for what it perceived as “dangerous” speech.
But, as is often said, free speech doesn’t mean freedom from consequences. And the First Amendment doesn’t protect individuals from the restriction of speech by private businesses or employers. It only forces the government to allow free speech and, as a public institution, Penn State is legally considered an extension of that government.
“One of the points of having the First Amendment is to permit speakers that are disturbing and which are sometimes upsetting, maybe even angry,” Policinski added. “But nothing in the First Amendment requires the speaker to be polite or be accepted or be approved of by the general public. In fact, it exists to protect speakers on the fringe.”
There are several exceptions to free speech — including true threats, incitement to violence and what’s known as “fighting words.” But, again, the experts said Yiannopoulos’ speech would not meet any of those high thresholds and, because it’s not taking place during an actual class, it wouldn’t interfere with Title IX.
Take the difficulty of applying “fighting words” to this speech, for instance. That doctrine means that you cannot walk up to someone, get in their face and use a word — or words — intended to provoke violence, saying something that any reasonable person would throw a punch over. Paulson said that doctrine would not apply in this case because it essentially requires one-on-one interaction and Yiannopoulos is speaking in an auditorium. He also said it is “rarely applied.”
When it comes to true threats and incitement to violence, the bar is exceptionally high with political speech and requires immediate action. Policinski looked at it this way. If a hateful speaker says a certain ethnicity should be expelled by the U.S., that speech would be fully protected no matter the pain it causes those opposed. If that same speaker later said that ethnicity is holding a protest at noon tomorrow and tells his crowd they should show up and let that ethnicity know how they feel, Policinski said that speech would still “probably” be protected — although it’s approaching unprotected speech.
“Now, if then I spot somebody in the back of the room and I say, ‘There’s one! Now go get them!’ I’ve clearly moved in the area of unprotected speech,” Policinski said. “So it’s a proximate thing. It’s an ability to make something happen.”
Added Calvert: “You’ve got to have three things: I intend my words to produce violence, the violence has to be imminent, and it also has to be likely.”
Some student-victims of “conversion therapy,” a widely disavowed practice that seeks to change one’s sexual orientation/identity and one which Yiannopoulos touts, have called posters around campus “trauma-inducing,” according to a joint statement released by the local student government and two LGBTQ groups. They called Yiannopoulos’ presence a “threat.”
At Friday’s State College Borough Council meeting, Councilman Evan Myers went so far as to say he believed the speech violated the Constitution because it was “meant to intimidate and do harm.” Councilwoman Janet Engeman agreed, saying she considered the advocating of conversion therapy to be a form of violence.
But, Calvert said, none of those arguments meet the legal definitions of threats or violence, nor permit disallowing the speech. Yiannopoulos’ comments may be hateful. They may offend the senses of the majority, and they may be of little value. But, just like the KKK leader’s free speech rights that were championed by the ACLU and just like the Wellsoboro Baptist Church, Yiannopoulos’ speech is still permitted.
“I can see how people could be offended by that,” Calvert said, “but the remedy in this case is just to state your counter-protest to him.”
So what should you do?
Each of the four First Amendment experts interviewed by the CDT expressed the same sentiment when it comes to combating Yiannopoulos’ appearance: Ignore him and/or promote counter-speech.
“I work on a college campus and have found, over time, that it’s very difficult to get students to come to a guest speaker without offering credit or some other incentive,” Paulson said. “I almost feel as though, if there were no outrage, you would end up with a room of just the 17 people or so who may have invited a controversial speaker. ... The goal of the protesters should be to encourage a half-empty room.”
Penn State administrators expressed a similar sentiment Monday.
“If you oppose bigotry, misogyny, transphobia, and anyone who is determined to make their living by dividing us, make that opposition known by uniting against Yiannopoulos in the most effective way possible — by ignoring him,” the statement read. “Commit yourself instead to expressing care and support for those who are the object of his hate.”
Penn State’s Office of Student Affairs is organizing such a counter-event, titled “Love is Louder,” from 6-10 p.m. Wednesday at the HUB Heritage Hall, overlapping with Yiannopoulos’ speech. The event has already been endorsed by both the faculty senate and the State College Borough Council.
The local student government, the University Park Undergraduate Association, also not only endorsed the event but announced Wednesday it would cancel its own weekly Wednesday meeting in order to attend “Love is Louder.” A separate protest, organized by Students Against Sexist Violence, will also take place near Thomas Building, the venue of the “Pray the Gay Away” speech.
That student group has encouraged students to eschew “Love is Louder” for their own event. Likewise, the undergraduate student government has called for students to avoid that protest in favor of “Love is Louder.”
“The MILO event’s goal is to provoke a response, and protesting the event is counterproductive,” student government president Erin Boas and vice president Najee Rodriguez wrote in a joint statement. “Those who choose to protest, please make sure to review your rights.”
Some private universities, like the University of Miami, essentially disallowed Yiannopoulos from speaking by charging the student group hosting him with additional security fees it could not pay. And Cal-Berkeley was forced to cancel the event and evacuate him after 150 masked protesters caused $100,000 of damage and some hurled Molotov cocktails that ignited fires.
But, experts said, public schools cannot pass those fees on to the groups. (A Penn State spokesperson told the CDT there would be increased security, but it would pay for it.) And an event cannot be pre-emptively canceled over such concerns, Calvert said, in addition to a university being legally obligated to preserve student safety.
So, the experts added, counter-protests and counter-events are ideal.
“I always go back to, I believe, a quote from Justice (Robert) Jackson in the late 1940s, that sometimes we need to hear speech that is repellent or repugnant if only to be better prepared to argue against it,” Policinski said. “Now there’s also the practical matter that silencing the speaker never silenced an idea. If you don’t like the idea, counter-speech is the idea.”
Added Greenberg: “We encourage students that when they encounter speech they don’t like, the answer is always more speech — and not violence.”
This story was originally published October 31, 2021 at 5:00 AM.
