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Spencer's UF Speech Raises First Amendment Questions

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On Oct. 20, white supremacist Richard Spencer left the University of Florida campus with a state of emergency declaration, hundreds of thousands of dollars spent on security, 2,500 protesters, five minor injuries and two arrests in his wake.

He was still allowed to speak, so he considers the visit a success.

Spencer is the president of the white supremacist think tank National Policy Institute, which is known for promoting white supremacy and identifying with the alt-right. Spencer's supporters had been trying to arrange a speaking engagement for him since the August white nationalist protest in Charlottesville, Virginia, where violence resulted in the death of one counter-protester.

Anna L. Pearson, an ethics professor at UF, wrote in a piece for The Conversation that the university had initially attempted to block Spencer from speaking. He threatened to sue, as he had done previously at Auburn University, and university officials accepted there was little they could do to prevent him from renting out the campus's performing arts center.

UF warned students to stay away from Spencer's event. It spent $600,000 on campus security. Republican Florida Gov. Rick Scott declared a state of emergency over the upcoming engagement.

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But Spencer did speak, and the protesters out the handful of white men who showed up to support him. Reuters reports there were approximately 15 in attendance, while The Washington Post's Joe Heim claimed on Twitter there were about 40.

All things considered, the engagement could have gone a lot worse. There were no major injuries, vandalism or deaths involved despite the large crowd of emotionally charged people opposing the speaker.

But a tragedy could have occurred if it weren't for the poor aim of one supporter.

Tyler Tenbrink, 28, who spoke to The Washington Post at the event, allegedly shot at a group of protesters at a Gainesville bus stop following the speech. Fortunately, none of the protesters were hit. Tenbrink admitted to the shooting and was arrested, along with two other supporters who had reportedly encouraged him to shoot.

Shooting at people and the shouts of his friends -- "I'm going to f**king kill you," "Kill them" and "Shoot them" -- are not legal, and rightfully so. But the speaking event to which they showed up as supporters is protected under the First Amendment, even though their alleged illegal behavior later was anticipated by the university and state government.

Discussion about what differentiates free speech from hate speech is nothing new. Students' attempts to block controversial speakers regularly drive heated debates on what constitutes censorship. Although you may hear certain opinions from all parts of the political spectrum about whether students should be allowed to shut down protesters they believe are promoting hate speech, the legal definition is still murky.

Hate speech is not explicitly defined and exempted from protection under the First Amendment, but "fighting words" are. Nahmod Law describes fighting words as "in-your-face insults that can be based on race, ethnic origin, religion or sex but don't necessarily have to be." The U.S. Supreme Court detailed its reasoning on the exemption of fighting words from First Amendment protection in the 1942 case Chaplinsky v. New Hampshire.

"[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality," the court said in its ruling.

By that definition, Spencer calling the crowd "shrieking, grunting morons" in response to them chanting "Go home, Spencer!" as  reported by The Washington Post, is protected because he is speaking of them generally as a group, rather than specifically as individuals. If he were to go up to one of them and say, "You are a shrieking, grunting moron," that could be construed as fighting words.

The Supreme Court's purpose of excluding fighting words to maintain "the social interest in order and morality" is understandable, but also slightly inconsistent. Was Spencer's speech -- which was protested by thousands more people than it was supported by and nearly resulted in a death -- an example of order and morality? Spencer is unharmed. Only a few people are injured, but is everyone fine? Should free speech require everyone to be fine?

To answer that question would require creating an actual definition for insult speech that fits the definition of fighting words but is not "in-your-face." If a form of speech is so contentious it incites a state of emergency, it might be a good idea to make it legally distinguishable from any other lecture at a university.

Sources: The Washington Post (2), The Conversation, Reuters via CNBC, Joe Heim/TwitterNahmod Law / Featured Image: Newtown Grafitti/Flickr / Embedded Images: V@S/FlickrPer A.J. Andersson/Wikimedia Commons

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