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A&M law professor weighs in on potential Wiginton lawsuit

Preston+Wiginton+was+the+organizer+of+last+Decembers+Richard+Spencer+speech.
Photo by Courtesy of The Eagle

Preston Wiginton was the organizer of last December’s Richard Spencer speech.

Following the cancellation of his planned white lives matter rally, Preston Wiginton said he is weighing his options, which includes filing a lawsuit against the university.
Wiginton previously told The Battalion that he and his lawyers do plan on initiating legal proceedings.
“We do plan on legal action, we do plan to continue forward,” Wiginton said.
Wiginton said the cancellation of his rally violated his First Amendment rights.
“What they’ve said is the First Amendment doesn’t apply to white people,” Wiginton said. “We are in a new era of civil rights and it will be white people fighting for their rights.”
In a press release from Aug. 14, the university cited concern over the safety of the public as the reason for the cancellation.
Texas A&M University School of Law professor Lynne Rambo, who specializes in constitutional law, said that if Wiginton were to file a suit, his case could be valid.
“I think he has a relatively good argument, because I’m not confident that the university can rely on the violence that happened in Charlottesville as a given,” Rambo said.
Rambo stated under the First Amendment, you cannot punish a speaker for the listener’s reaction, the exception being unless the speaker used words that would push the average person to violence.
“The important part is that fighting words can only happen if they are directed at the hearer,” Rambo said. “The type of words spoken in Charlottesville were probably fighting words, but to qualify legally, fighting words must be directed at a specific audience.”
It appeared that a large portion of the university’s worry came from Wiginton’s press release for the rally, which he titled “Today Charlottesville, Tomorrow Texas A&M.” The press release was sent out around 12 p.m. on Aug. 12, before major violence broke out in downtown Charlottesville, Virginia. However, Rambo said that the title could not be considered “fighting words,” as it was directed at a general audience, not a specific group.
Rambo said that unless the university could prove that violence was almost absolutely certain, the court would have a hard time upholding the lawfulness of A&M’s canceling of the rally.
“Preventing speech before it happens, as opposed to punishing it after it happens, is prior restraint and the courts presume that such restraints are unconstitutional,” Rambo said.
Rambo said that the court will want to know that violence will occur, and what the university plans to do to prevent it, because if the court didn’t demand that, anytime the state didn’t want anyone to speak, they could claim ‘fear of violence.’
Rambo said that the case would be a close call, assuming an unbiased court.
“It’s a really close call. To put it in terms that litigators often say, [Wiginton] has the law, and the university has the facts,” Rambo said.
Rambo added that the university could settle out of court, but does not believe they would.
“I don’t see what the university has to gain by letting the rally go forward, although it might talk settlement just to get logistical control over the rally participants,” Rambo said.
According to a report from the Texas Tribune, Wiginton is weighing leading a march on campus despite his rally being canceled.
“In a statement, Wiginton said he is considering leading a march on a public street through the university instead of his originally scheduled ‘White Lives Matter’ rally,” the Tribune reported.
Rambo said that Wiginton could face criminal trespassing if he were to do so.
“Criminal trespassing could be a problem for him,” Rambo said. “That’s generally what the violation is if someone has given you a distinct warning to not be on the property, and you violate that. What would happen is that the First Amendment thing would not be in play [for the criminal trespassing charge].”
Regarding the issue of A&M being a public forum, Rambo said that it’s more complicated than yes or no.
“Universities are not just public forums at large,” Rambo said. “But space on universities can become a public forum if they allow people to use it for speech. If it’s not considered a public forum, then the university has a much lower standard of proof, with respect to banning the speech.”
Rambo went on to say that with these facts, the case would come down to if A&M’s decision to cancel was based on concerns of violence or not.
“Even so, on these facts, the case will come down to whether the University’s decision is based on real concerns about violence and disruption on campus that it truly cannot prevent, or on disapproval of the viewpoint expressed by the white supremacists,” Rambo said.
Rambo said that, at the end of the day, if A&M makes a case for not being able to prevent violence, she does not believe a court would make A&M allow the rally to happen.
“I suspect that a court would not make a university endure violence on its campus,” Rambo said.
Rambo also said that the case would come back to if there was reasonable proof that violence would occur.
“At some point, someone is going to have to find a limit to that, so that people don’t get stripped of speaking freely,” Rambo said.
Rambo said any case brought would be brought in federal court because the free speech issue presents a federal question.
The Texas A&M legal team declined to comment.
If the suit were to be filed, it would be an injunction under U.S Code Title 42, Chapter 21, Subchapter 1, Section 1983. According to the Cornell Law School Legal Information Institute, the code reads as “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

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