Confusion About Free Speech at U. of Tennessee at Chattanooga

November 19, 2013

Last week, University of Tennessee at Chattanooga (UTC) student Cole Philip Montalvo was arrested while trying to engage in dialogue with a campus visitor preaching outdoors. Campus police officers approached Montalvo after he stepped within a perimeter, designated by orange cones, set by the school around Angela Cummings, the visitor. Several videos uploaded to YouTube suggest that campus police overreacted to Montalvo’s peaceful verbal challenge. But supporters of Montalvo are calling for an unnecessary—and potentially unconstitutional—fix: banning the visitor from campus.

Almost 3,000 people have signed a petition on asking University of Tennessee (UT) President Dr. Joe DiPietro to “[s]top allowing verbally abusive protestors to scream on UTC’s campus.” The petition does offer a potentially valid reason to limit Cummings’ speech, if true: “It’s been said that some professors have had to cancel classes because her screams can be heard through the windows.” Rather than focus on the alleged disruption to class and offer a narrowly tailored solution to that problem (requiring Cummings to lower her voice), though, most criticism of UTC’s decision to allow Cummings on campus focuses on the content of her speech.

Student Alyssa Fjeld, for example, told the Times Free Press, “It is hate speech that UTC itself is allowing. … If someone spoke to our school as a member of any other hate organization I do not think UTC would allow it and I find it incredibly repugnant that they allow these people to come to our campus day after day.” To the contrary, though, UTC may not refuse to let people speak on campus simply because their words are deemed “hateful,” unless those words fall into one of the few and narrowly-defined categories of unprotected speech, like true threats or incitement to imminent violence. As FIRE’s Sean Clark has explained here on The Torch, “hate speech” is not one of those unprotected categories of speech.

Further, Torch readers might recall John McGlone, a preacher who frequently visits university campuses to speak and whose recent court victories reaffirmed his First Amendment right to speak at UT-Knoxville and Tennessee Technical University.

And Cummings, who wrote on her YouTube page that she has been “open air” preaching since 2001, followed UTC’s policies for outside speakers; the Chattanooga Times Free Press reported that Cummings obtained a permit to speak on UTC’s Heritage Plaza on nine days in October and November.

UTC Associate Vice Chancellor of Communication and Marketing Chuck Cantrell acknowledged the controversy surrounding Cummings’ message, but supported her right to share her viewpoint:

As a public campus, we are legally required to provide for the expression of diverse ideas on our campus. We believe that a college campus should be a place for free exchange of ideas and expressions. This individual had filled out the proper paperwork to appear and the person who was arrested was violating the procedure established by our campus police.

Cantrell’s message regarding Cummings’ right to speak is correct: Public college campuses are obligated to “provide for the expression of diverse ideas,” even those ideas some, many, or even all would rather not hear.

Video footage of the UTC incident suggests that charging Montalvo with “inciting a riot” is a mischaracterization of his calm questioning, and critics of UTC campus police have more than ample grounds to question the charge. But an assertion that Cummings was threatening students or inciting imminent lawless action is just as inaccurate. Absent evidence that Cummings’ speeches really resulted in canceled or disrupted classes, Cummings’ speech is protected under the First Amendment.

The incident raises questions about what limitations of speech are allowable, though. Huffington Post College Assistant Editor Tyler Kingkade explained in a video that UTC set up the perimeter around Cummings so she could “move about freely without any students coming in there.” UTC may and should take reasonable measures to protect Cummings’ safety. Students, however, in video footage and in the petition to Dr. DiPietro, suggest that the perimeter is too wide, cutting off a wide section of campus that students normally use on their way to classes. Although he steps within the coned perimeter, Montalvo remains several yards away from Cummings for the duration of videos online and never appears to be a threat to Cummings. Indeed, it appears as though he is simply trying to get close enough that she could hear what he is saying. Content-neutral “time, place and manner” restrictions are allowable consistent with the First Amendment, but they must be reasonable, and it is debatable whether Cummings’ safety required such a large space to be closed off to access by students.

Throughout the videos, Montalvo and onlookers argue that the officers’ decision to arrest Montalvo, wrestle him to the ground, and use pepper spray were an overreaction to him stepping within the perimeter around Cummings. This, too, is a valid concern. But it is important to remember that UTC’s treatment of Montalvo has no bearing on whether Cummings should be permitted to speak on campus. To conflate the two issues poses a risk to all speakers on campus, essentially putting their free speech rights up for debate if the school responds inappropriately to a counter-protester.

Cantrell was right to focus on the importance of a “free exchange of ideas and expressions.” The best way to foster this exchange is to allow controversial speakers like Cummings and to ensure that students are not unnecessarily impeded in their ability to engage in a dialogue with, or criticism of, those visitors.

Image: University of Tennessee at Chattanooga sign – Eric Baxter