PADGETT V. UNIVERSITY OF CINCINNATI

I was on WLW radio yesterday with Eddie Fingers and Rocky Boiman talking about a new lawsuit filed by Cameron Padgett – the advance man for alt right hero and the guy always ready to play Rolf in “Sound of Music”, Richard Spencer.

Spencer is scheduled to appear at UC later this year.  The University has asked Padgett to pay $10,833 (in addition to the standard $500 rental fee) for “security costs and fees” given its concern for security at his event.  And given the events at Charlottesville, the concerns seem genuine.  But Padgett contends this fee infringes on his and Spencer’s First Amendment rights.

When I watch the New England Patriots play, I inevitably root for their opponent (unless the opponent is the Steelers) but I have the sense that the Patriots will win.  I am reminded of that feeling as I contemplate this lawsuit.  As much as I’d like to see Padgett and his punk lawyer Kyle Bristow lose this and every case they appear in, I think the law may be on their side.

The leading case, and the one Padgett and Bristow are citing is Forsythe County, Georgia v. Nationalist Movement, a 1992 United States Supreme Court case that challenged a local community’s decision to impose a $100 fee on the Nationalist Movement when that organization applied for a permit to demonstrate in opposition to the Martin Luther King, Jr. holiday.  The Supreme Court invalidated the charge and the regulation for two basic reasons.  And the second reason may prove most troubling for UC.

The first reason the Court cited was the arbitrary nature of the charge.  The ordinance allowed the county administrator to set the charge “up to $1000.”  In the Court’s view, there were no clear guidelines for setting the fee, so that ultimately, the administrator had too much discretion.  That alone conflicted with the First Amendment.

The Court’s second reason, however, focused on the criteria the county actually used in setting the fee.  In determining the fee, Forsythe County would “estimate the response of others to that content, and judge the number of police necessary to meet that response.”   While that sounds reasonable enough, in the Court’s view, that meant that “[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content.”   And any viewpoint based regulation almost inevitably violates the First Amendment.   In addition, charging a speaker for security costs occasioned by the reaction to the speech could amount to a “heckler’s veto” – if enough opponents gather to protest, necessitating costly security fees, the practical effect could be that unpopular speech gets shut down.

And that may be bad news for UC.  Padgett’s lawsuit notes that UC’s webpage on event rental says that UC determines the cost of security fees in part based on whether the speaker is controversial and whether it has received any threats.  That sounds a lot like the criteria the Supreme Court shut down in the Forsythe case.

So we will see.  The result may be that Spencer gets to speak and UC foots the security bill.  A result even more distasteful than another Patriots victory.