Pennsylvania State University responded to FIRE’s letter requesting clarification of the university’s decision to shut down a student-hosted comedy show headlined by Proud Boys founder Gavin McInnis and comedian Alex Stein. Unfortunately, the justifications for canceling the event leave FIRE, First Amendment advocates, and Nittany Lions with more questions than answers.
Penn State interim Vice President and General Counsel Frank Guadagnino told FIRE yesterday that he and other senior leaders of Penn State were present outside the lecture hall in which the event was set to take place. When Stein came out to the crowd, “presumably with the intent to taunt the protestors,” according to Guadagnino, an “intense environment of anger and hostility” resulted.
“Taken all together and in the context of the moment,” Guadagnino said, “even with the significant police presence (supplemented with, among other things, Pennsylvania State Police on horseback) it was determined to be a safety risk to continue to move forward with the event and University Police made the recommendation that it be canceled so that the crowd would disperse without further incident or physical injury.”
Penn State had at its disposal vast resources and the legal obligation to prevent such an outcome, but failed to do so.
Despite facing calls to shut down the show in the weeks leading up to the event, Penn State was — at first — steadfast in its defense of free expression, insisting the event continue. After hosting controversial speaker Milo Yiannopoulos in 2021 amid protests, this was not the university’s first rodeo in giving a stage to someone likely to draw a hostile reaction. This experience gave Penn State an idea of what to expect, and it seemed to attempt to prepare accordingly.
However, Penn State said Monday’s crowd was “significantly larger, more angry, and more unruly, than in 2021,” even though reports from the event suggest there were only two or three isolated instances of violent conduct among a crowd of hundreds — including the use of pepper spray and an individual spitting on an invited speaker — and that nearby police could have intervened to stop it. If that is indeed the case, Penn State appears to have failed to meet its legal obligation to remove law-breakers so as to allow the expressive event and peaceful protest to continue.
In Bible Believers v. Wayne County, the U.S. Court of Appeals for the Sixth Circuit cited Supreme Court precedent in outlining precisely how government entities must respond when violence threatens protected speech. In that case, county officials violated the First Amendment rights of a Christian evangelical group when they removed them from a predominantly Muslim film festival in order to protect them from a hostile audience, rather than preventing the violence that was impairing the group’s right to speak. As we wrote today in our second letter to Penn State:
[S]tate action limiting protected speech in the name of public safety will be deemed unconstitutional “unless the restriction is narrowly tailored to be the least-restrictive means available” to do so. When balancing these important interests, “the scale is heavily weighted in favor of the First Amendment,” and shutting down events is almost never the least restrictive means of addressing potential disruptions.
Absent some other more substantial threat that Penn State has yet to reveal, the decision to cancel the event amounts to capitulation to an unconstitutional heckler’s veto, in which those threatening violence to shut down a speaker get their way.
In that regard, Guadagnino told FIRE yesterday there are “details that I am not at liberty to share with you due to ongoing police investigations, but which also played a part in our decision making.” However, as the Sixth Circuit suggested in Bible Believers, when students’ core expressive rights are at stake, transparency is necessary to avoid the appearance that the university silenced speech as “an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals.”
“Nor can an officer,” the court wrote, “sit idly on the sidelines—watching as the crowd imposes, through violence, a tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his or her own protection.” Yet, as is clear in video from the scene at Penn State (at 55:15), one of the violent incidents appeared to take place just feet from armed law enforcement officials who look on as injured students and witnesses scream for their help.
Penn State assembled a plethora of resources in its effort to host the event. Penn State cannot, as a multi-billion-dollar institution, credibly claim it is unable to contain two or three isolated acts of violence in a crowd of hundreds, despite ample police presence. Instead, Penn State looks to have taken what it thought was its first opportunity to cancel the event by citing “violence,” when having the police remove the few lawbreakers was the less speech-restrictive approach that the First Amendment demands.
In our second letter, we cite a statement posted by President Bendapudi Tuesday lamenting that Penn State was “forced” to cancel the event, and that “the message too many people will walk away with is that one can manipulate people to generate free publicity, or that one can restrict speech by escalating protest to violence.” Penn State had at its disposal vast resources and the legal obligation to prevent such an outcome, but failed to do so. As we wrote:
[S]tudents will walk away from Monday night with a message about what it means to express themselves on Penn State’s campus: that students who peacefully protest risk being assaulted while police stand by and watch, and that those who threaten violence have ultimate control over which ideas are allowed at Penn State.
We trust this is not the message Penn State wants to send. We urge the university to look again at its First Amendment obligations, learn from this experience to ensure Monday’s unfortunate events are never repeated, and publicly assure students they can safely exercise their rights on campus.
FIRE will continue to try and work collaboratively with Penn State until we are reasonably confident they will make these important changes.
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