The state has a duty to protect the rights to speech and association guaranteed in the First Amendment. They also have a duty to protect property rights and personal safety.
For these reasons, presumably, NYU began coordinating Monday with the NYPD in order to ensure that the university and its agents would be protected by the NYPD from spontaneous or premeditated violence and / or property destruction. As it has been reported, when the NYPD decided that it could not or, crucially, would not guarantee the safety and property of participants, de Blasio requested that it, a private institution, cancel the talk.
This raised alarms for me because, while this all looks like voluntary action by private entities, and therefore not a 1A issue, there is 1A case law establishing that it is unconstitutional for agents of the state to make soft requests for private entities to “cooperate” with “requests” to alter, postpone, edit, or discard private expressions. That is state censorship. The state implies with these requests a threat to escalate to the state enforcement of speech, so says the law. In Milo’s case, the state is saying that it will not protect citizens from crime. This is practically equivalent to aiding and abetting those crimes.
The state’s duty to control crowds and prevent property and violent crimes against speakers is well established in our history. Berkeley shelled out half a million dollars to protect Ben Shapiro when he spoke at Berkeley two years ago. The Skokie police protected neonazis when they marched there. Police were supposed to protect all parties at the Unite The Right rally in Charlottesville (and failed to, resulting in the death of Heather Heyer). Those were all instances of public enforcement of the law on public land. Now, there may be blurry lines around the duties the state has to enforce the law, similarly, on or around private lands. This is a question for the lawyers who know more case law.
There are, admittedly, time, place, and manner carve outs in 1A precedent that allow some leeway for the state to censor speech. These are very, very narrowly defined, and must be enforced neutrally with respect to the content of the speech in question. Since Milo’s speech was timed during Halloween, and was about Halloween, the postponement is not content neutral, and it is not an acceptable time, place, and manner carve out. Postponing the talk directly offends and undermines the meaning of Milo’s thesis, and Michael’s thesis in scheduling the talk for Halloween.
Without knowing more about the details of the NYPD’s assessment — which no one may ever know without legal discovery, without suing — this simply looks like a budgetary and public relations decision by the NYPD and city government to not protect private citizens from threats to their property and bodily freedoms. The NYPD and de Blasio would have to establish that it was physically impossible to fulfill its constitutional mandate, in order to constitutionally order the postponement. Something like, “we don’t want to pay officers overtime and there is a premeditated violent mob fomenting on the internet in plain sight,” is not an excuse.
Michael and Milo likely have grounds for a 1A suit and will hopefully be in touch with legal advocacy groups to explore this option more fully. The ACLU has turned coat on 1A issues and is probably moot. FIRE is focused on education and campus outreach, and their legal defense team is extremely conservative (technical sense) about which cases they will take. Most employees at FIRE are appalled at Milo and have a variety of preloaded justifications to not advocate for his rights.
The Wisconsin Institute for Law and Liberty, however, recently won their case against Marquette University, and this demonstrates their willingness to pursue more zealous legal action than other civil liberties shops will. Please feel free to forward this letter to anyone concerned. I would like very much to speak with Milo or Michael about this, and to do whatever I can to help find them legal advocates.
Our constitutional rights need enforcement with legitimate violence channeled through the processes that are proper and due to each of us. That is something that most free speech advocates have gotten squeamish about, since they see enforcement of the law as it is written, as a worse threat, inviting authoritarian abuse. This has to stop. The normative and legal precedents surrounding free speech and association are quickly eroding, and this is a threat to us all. Milo and Michael are likely in an unmatched position to stem the tide.
Reprinted with permission from an email we received Tuesday.
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