This Essay analyzes key First Amendment issues surrounding Richard Spencer and Milo Yiannopoulos speaking on public university campuses. Some institutions (Ohio State University, Michigan State University and Pennsylvania State University) have flatly banned Spencer, citing fears of incitement to violence but also sparking federal lawsuits. Other schools have permitted Spencer to speak, but at massive security costs, in an attempt to prevent a so-called heckler’s veto. This Essay examines the tension between providing a public platform for controversial speakers and the costs associated with doing so, including the relevance of the Supreme Court’s aging incitement test created in Brandenburg v. Ohio. It also questions the Court’s 1992 ruling in Forsyth County v. Nationalist Movement restricting governmental entities’ ability to shift escalating security fees to speakers based on fears of violence.
Clay Calvert, Reconsidering Incitement, Tinker and The Heckler’s Veto on College Campuses: Richard Spencer and the Charlottesville Factor,112 Nw. U. L. Rev. Colloquy 109 (2018)