Free speech experts weigh in on University’s decision to allow ‘anti-trans’ events

For Jon Pushinsky, a lawyer and an adjunct professor of law at Pitt who teaches a First Amendment class, the “way to battle hate speech is to counter it with good speech, not to stop the speaker.” 

“The University is certainly permitted to express its own opinions,” Pushinsky. “What they can’t do is allow students to express one side of an issue and not allow the other side.”

Throughout the past three weeks, two “anti-trans” speakers — Riley Gaines and Cabot Phillips — have inspired large protests on campus and spurred conversations about free speech and Pitt’s responsibility to protect LGBTQ+ students. On Tuesday, Pitt’s College Republicans and the Intercollegiate Studies Institute will host Michael Knowles to debate Brad Polumbo on the topic, “Should transgenderism be regulated by law?” in the O’Hara Ballroom. Knowles recently called for an eradication of “transgenderism.” 

Four legal experts offer their opinions on Pitt’s decision to allow the events to continue, despite the University receiving significant pushback from students and lawmakers. 

In terms of whether the University could face legal repercussions if it canceled the “anti-trans” events, some first amendment experts have varying viewpoints on the answer, but they agree that the University is upholding the principles of free speech and the First Amendment.

Bruce Ledewitz, a law professor at Duquesne University and a free speech expert, said he believes that the University’s response was “cowardice.”

“I think they’re protecting the idea of free exchange of ideas, and they don’t have the courage to face the student, the trans students, and say, even though genuinely this casts your very identity into question, we still feel that this speaker has a right to speak,” Ledewitz said. “They’re just unwilling to honestly say that and you know, they should honestly say it, because I think the students could respect that.”

When asked if the University was legally able to cancel the “anti-trans” events, University spokesperson Jared Stonesifer said “as a general matter, under the First Amendment, public universities that permit student organizations to invite speakers to campus can’t discriminate against any particular speaker chosen by a student organization on the basis of the speaker’s viewpoint.” 

“For this reason, the University generally cannot preemptively reject or block speakers that have been invited to speak as part of campus events hosted by recognized student organizations solely because of the views that may be expressed by the speaker — even if those views may be offensive or run contrary to the values held by the University — so long as the speaker is engaging in constitutionally protected speech,” Stonesifer added. 

Ledewitz said he thinks Pitt should uphold the First Amendment by allowing the events to continue. However, he said there isn’t a legal precedent set by specific court cases that forbids a university from making “a judgment call” when it comes to allowing speakers on campus.

“I am not aware of any instance in which a university has been forbidden from making a judgment call that a particular speaker is so offensive, so much advocating illegal conduct or so denigrating the groups of vulnerable people, that this person simply should not be permitted on campus,” Ledewitz said. 

He said some universities have made these “judgment calls” to allow or not allow controversial speakers to speak on campus — citing the Penn State Proud Boys event. 

Penn State University canceled an event featuring Proud Boys founder Gavin McInnes less than an hour before its scheduled start on October 24, citing a threat of violence. Protestors and counter-protesters confronted each other, causing campus police to deem the event too dangerous to proceed. 

Daxton Stewart, a lawyer who specializes in free speech and a professor of journalism at Texas Christian University, said Penn State’s inability to provide proper security and decision to cancel the event was handled “poorly.” 

“Penn State probably acted negligently or inappropriately in allowing it to go as bad as it did with the security measures, and then also was pretty bad in its shutting down of the speech portions,” Stewart said.

Stewart said there are only narrow exceptions to the First Amendment for public institutions, including obscenity, hardcore pornography, false advertising, directed threats of violence and fighting words — none of which Stewart said legally pertain to the recent “anti-trans” events at Pitt. 

“The First Amendment is not a right not to be offended,” Stewart said. “The first time it has a right to speak, it belongs to the speaker, and so if the university is going to accommodate speakers in general, they have to make that available to basically all speakers, regardless of their viewpoint.” 

In an email sent to students on March 22, Dean Carla Panzella said “this is not the first time, nor will it be the last, that controversial speakers visit Pitt’s campus.” Panzella added that she understands Pitt’s policy to “uphold the principle of protected speech will not feel sufficient to some in our community.”

“If you disagree with these speakers and you choose to act, then you can participate in a peaceful counter demonstration or engage in productive dialogue with others, or an organization you are part of can host a counter speaker,” Panzella said. “Your voices are powerful.” 

Zach Greenberg, senior program officer at the Foundation for Individual Rights and Expression who specializes in campus rights advocacy, said the University has an “obligation” to uphold the First Amendment.

“The University has an obligation to allow the speaker to come and allow the group to have its own right to express themselves through their speaker, and this is because the First Amendment encourages students to react to speakers using their own speech, their own events, their own dialogue, debate discussion, rather than through censorship and shutting down opposing speakers,” Greenberg said. 

Greenberg added that hate speech lacks a clear definition. 

“One of the issues with hateful speech is that it lacks a clear definition, what’s hateful to me not being hateful to you, and so generally offensive speech — hateful speech — is protected by the First Amendment. Universities have to allow the speech to occur on its college campus, on their campuses,” Greenberg said. 

Stewart said both the presence of protests and allowing controversial speakers on campus are examples of Pitt upholding the First Amendment. His recommendation for students who are angry with the events is “combatting speech with speech.”

Despite the events being “protected speech” in line with the First Amendment, there are still some ways Pitt could potentially cancel the event, according to the experts.

Stewart said if the University canceled the event, it could potentially claim “qualified immunity,” which protects public officials and institutions from facing legal repercussions, even if courts rule that they violated the First Amendment. 

“Often public officials will claim this doctrine called qualified immunity, which is where they say ‘we were unsure whether we were breaking the law or not by doing this, we thought we were acting in good faith, we relied on that advice of counsel,’” Stewart said. “So a court may say, ‘Yes, you violated the First Amendment rights, but no, you don’t owe them any money because you’re immune under this doctrine.’”

Pushinsky said the statute of limitations for an organization to sue a university for limiting free speech is about two years. Pushinsky added that if a university canceled an event due to the content of the speech, the plaintiff would have a “very good probability of winning.”

Pushinsky said there are two things that are commonly considered when determining the regulation of speech in a public institution.

“Advocacy of violence by itself is protected by the First Amendment — what is not protected is advocacy of or incitement designed to produce imminent, lawless action,” Pushinsky said. “Unless they say something to the effect of ‘when you leave here today, pick up a bat and go bash someone’s head, and here’s the bat to do it with,’ the speech in the events is considered protected speech.” 

Pushinsky said there are a couple repercussions for violating free speech rules including injunctive relief — where the University would have to provide a future date for the speech to take place — or monetary compensation. Pushinsky added that the more substantial financial repercussions involve paying the opposing side’s lawyer fees.

While the experts agreed that the University is upholding its duty as an academic institution to allow free speech and discourse, Ledewitz said the University’s statements seem a “bit hypocritical in hiding behind the First Amendment,” and advised that the University be up front about their judgment in allowing the speakers on campus.

“If they are giving the impression that they’re legally powerless to act, they’re being hypocritical, and they should defend robust speech, not as a legal matter, but as a desirable goal for a university,” Ledewitz said.