Floridian State of Emergency and University Protest: A First Amendment Case Study

On October 19th, 2017, Richard Spencer, an infamous Nazi and white supremacist, delivered a speech at the University of Florida. Prior to Spencer’s presence on the college campus, Florida governor Rick Scott declared a State of Emergency in Alachua County. Being a public forum, or a space for public speech designated by the government, the University was required to give Spencer an area to speak under the first amendment. Although student groups as well as the University were unaffiliated with the event, the public institution had to help pay for security costs. This payment by the University was reviewed by the Supreme Court through Forsyth County v. Nationalist Movement.[1] The Court outlined the ability for a public entity to charge a group for use of a public space. It was deemed unlawful to charge groups with adjusted amounts of money on an ambiguous scale based on public safety.[2] Thus, it was mandatory for the University of Florida to participate in funding the speech when there was no desire for Richard Spencer’s presence in the first place.

A public forum is an area designated by the government as a space that can be used “by the public for speech-related purposes.”[3] The degree of this usage by the public varies between spaces. A public university, like the University of Florida, is often considered a “limited public forum.”This means that the institution can limit the use of this space by certain speakers and topics. However, the restriction cannot occur unless it is justified. Locations such as meeting halls, classrooms, and auditoriums fall under the “limited public forum” category.[4] Justification lies in how the speech is administered rather than its content.[5] Richard Spencer’s first attempts to speak at the University of Florida were denied due the violence that occurred in Charlottesville after he lead a group of white supremacists across the University of Virginia. The death of a protester at the hands of a white supremacist gave the University of Florida evidence for speech misconduct and allowed the university to postpone the event. Even so, Spencer pushed for a speech event and was eventually given a spot on October 19th after challenging the university's initial decision with a lawsuit.[6]

When a state of emergency is declared in the state of Florida, a number of rights are given to the governor so that safety and peace can be maintained. However, in many instances the rights of citizens are altered. According to the statute 252.36, emergency management powers of the governor, “the governor may issue executive orders, proclamations, and rules… [that] have the force and effect of law”. The governor is also given the power to “suspend the provisions of any regulatory statute” as well as to “take measures concerning the conduct of civilians”.[7] Furthermore, the governor is granted the ability to instruct law enforcement agencies to action so that civilians must comply with provisions created during the state of emergency. In the case of Richard Spencer’s speech, these measures were taken to ensure the safety of the public. Even so, the presence of restricting actions under a state of emergency can prohibit protesters from exercising their right to freedom of speech. Within these powers, Rick Scott had the capability to create provisions and utilize law enforcement for the purpose of subduing a protest on the grounds of “public safety” which infringes on the rights of protesters.

Although this infringement did not occur, a state of emergency affecting the freedoms of one entity over another violates the first amendment as it is unconstitutional for the government to intervene in one group's desire to peacefully be heard.[8] This is a content neutral restriction as the method in which the protesters voice their opinion is theoretically limited with the implementation of the state of emergency.[9] This is similar to the concept of martial law as civilian rights can be suspended during periods of unrest. The difference between a state of emergency and martial law exists under the heavy military presence that characterizes martial law. Otherwise, the rights of citizens can be altered under both declarations and can be administered by governors of each state. Martial law was tried by the Supreme Court through the case Duncan v. Kahanamoku 327 U.S. 304 (1946). During the ambiguous period of Hawaii’s admittance as a state, martial law was instituted on the island. Duke Kahanamoku, a military officer, unlawfully arrested two men that were subsequently tried in a military court. Because of martial law, their writs of habeas corpus were revoked.[10] Making its way to the Supreme Court, the arrest was ultimately deemed unconstitutional as the citizens’ rights never should have been withdrawn due to the presence of active civilian courts that could have given them a fair l trial.[11]

Martial law has also been administered by governor’s rather than the military at the state level. In the case, Scheuer v. Rhodes 416 U.S. 236 (1974), students involved in a protest at Kent State University surrounding the Vietnam War were attacked by National Guard troops after the governor, James Rhodes of Ohio, called for martial law. As a result of the incident four protesters were shot and killed.[12] The Supreme Court ruled that the governor could be sued for acting outside the breadth of state laws and the constitution.[13] The incident at Kent State University bears connection with the protests at the University of Florida surrounding the speech given by Richard Spencer. In both instances, students protested against an entity that they viewed to be abhorrent. Although the ramifications of a state of emergency during such an event did not result in fatality in Florida, the dubious call for a condition that could affect the rights of citizens counters the freedoms provided by the first amendment. At both Kent State University and the University of Florida the government interfered with the rights of citizens to express their beliefs through the implementation of martial law and a state of emergency.

In order for an inflammatory speech to be considered unlawful the Supreme Court has created the Brandenburg Test. This was instituted in 1969 after the court made a ruling on Brandenburg v. Ohio. After a rally spurred by the KKK leader Clarence Brandenburg in rural Ohio featuring derogatory speech and violent imagery such as the burning of crosses and carrying of firearms, the Ohio court system arrested and fined Brandenburg under Ohio’s criminal syndicalism. Essentially, Brandenburg was arrested for promoting doctrines that incited violence for social or political gain. The Supreme Court reversed the rulings of of the Ohio court system on the basis that “criminal syndicalism” was too ambiguous.[14] However, with the Brandenburg test, guidelines were provided for the means of convicting inflammatory speech meant to incite violence. The first guideline is that the speech is “directed to inciting or producing imminent lawless action.” The second guideline states that the speech is “likely to incite or produce such action.”[15] Evidence surrounding Richard Spencer’s inability to pass the Brandenburg Test exists in his march across the University of Virginia and the immediate violent actions taken by his followers against protesters in Charlottesville. This allowed for the University of Florida to deny is speech request the first time. However, the content of Richard Spencer’s speeches that promote hateful rhetoric surrounding religious and racial groups not only is meant to incite violence against those very people but also creates an anger among those protesting his speech, hence the declaration of a state of emergency.

The state of emergency called by Rick Scott for the purpose of avoiding danger during Richard Spencer’s speech at the University of Florida has implications on the first amendment rights of the protesters. Enacting laws that could potentially restrict the protesters abilities to voice their anger against Spencer’s words obstructs their rights as citizens of the United States. The first amendment allows civilians to speak at any public forum of their choosing and UF is indeed a public forum, however, the ramifications of calling a state of emergency due to that speech shows a blatant acknowledgment of the danger that can be caused by the words of the speaker. In turn, this acknowledgment embodies the fulfillment of the Brandenburg Test by Richard Spencer’s speech as Rick Scott identified the inflammatory nature of the white supremacist speech and the potential inflammation of violence through the announced state of emergency.

[1] Laurel Wamsley, “Florida’s Governor Declares State of Emergency Ahead of Richard Spencer Speech,” NPR, 17 Oct. 2017.

[2] “Forsyth County v. nationalist movement.” Oyez, 28 Nov. 2017.

[3] “What is a Public Forum?” First Amendment Schools, 26 Nov. 2017.

[4] “What is a Public Forum?” First Amendment Schools, 26 Nov. 2017.

[5] Sergey Tokarev, “Universities and Public Forums,” uscivilliberties.org, 21 Sept. 2012.

[6] Susan Svrluga, “Richard Spencer gets OK to speak at the University of Florida, his first campus event since U-Va.” The Washington Post, 5 Oct. 2017.

[7] The 2017 Florida Statutes. Chapter 252.36 Emergency Management Powers of the Governor, Emergency management 2017.

[8] Tala Esmaila, “First Amendment.” Legal Information Institute, June 2017.

[9] “Limitations on Expression.” LawShelf

[10] Duncan v. Kahanamoku, 327 U.S. 304 (1946)

[11] Duncan v. Kahanamoku, 327 U.S. 304 (1946)

[12] “Scheuer v. Rhodes 416 U.S. 236 (1974)

[13] Scheuer v. Rhodes 416 U.S. 236 (1974)

[14] Brandenburg v. Ohio, 395 U.S. 444 (1969)

[15] “Brandenburg Test.” Legal Information Institute.