White nationalist Richard Spencer planned his “danger tour” in 2016 claiming he’d “hit all the major” state-funded research-intensive schools, making his argument for a white ethno-national state directly to college students (Mangan). Spencer was originally scheduled to appear at the University of Cincinnati (UC) in March 2018 as part of this tour, but his engagement was postponed indefinitely (Sewell, “White Nationalist Richard Spencer’s University of Cincinnati Lawsuit Ends”). Sadly, it was not postponed by the university administration to protect the lives of people of color (student and non-students), nor was it a rejection of Spenser’s abhorrent message. It was due to money.
The university asserted its right to both require extra security and for the individual renting the facility to pay those fees. Spencer’s lawyer, Kyle Bristow, argued that the additional $11,000 security fee was an “unconstitutional” free-speech tax (Sewell, “White Nationalist Richard Spencer’s Planned University of Cincinnati Campus Visit Off.”). Yet, the institution’s actions allowed a university response stating that Spencer’s free-speech rights were not being violated. Rather, UC argued that it is was protecting itself from the huge financial costs accrued at other tour stops, like Texas A&M in December 2016 (Najmadadi). In this way UC can argue it’s the proverbial “marketplace of ideas,” but the expenses of that market must be paid by someone else other than the university.
I understand the response by UC as embedded within an absolutist free-speech model, where censorship of speech is never allowable. And considering similar cases like the University of Florida in October 2017 (Hartocollis) and Michigan State in March 2018 (Svrluga), campuses where Spencer was eventually allowed to speak after out of court settlements, this response strategy seems to be the best option. I want to argue, however, that adopting this absolutist stance within an argument couched in economic impact is unwise. Indeed, I believe that abandoning this absolutist stance rearticulates and opens up alternative, more productive forms of response. To do so, I will first briefly describe the connections between free-speech absolutism and economics, discussing the use of the Commerce Clause in the Civil Rights Movement. Next, I will show how this type of argument necessarily elides the emotional impact a racist, like Spencer, wants from college campuses. Finally, I will offer tactics that recognize Spencer’s desires; and student, faculty, and staff desires; and that better represent the values hoped for on university campuses.
Free Speech Absolutism: A Rhetorical Construction with Political Impact
The unstated premise on both sides of the Spencer-UC conflict is free-speech absolutism. Yet as historian Mark Bray argues, there are several legal and social practices Americans daily participate in that limit free speech; “whether it’s liable or obscenity or copyright infringement and corporate license—all sorts of things” in capitalist society make the belief in absolute free speech “ludicrous” (Story). The genius of Spencer’s tactic is to argue that the denial of such absolutism is also a denial of the workings of the university as a marketplace of ideas; moreover, that it’s an undue burden on that marketplace’s ability to cross over institutional, regional, and state boundaries to require speakers nationwide to pay for performing such speech acts.
In doing so, Spencer is invoking one of the strategies of the Civil Rights Movement: The Commerce Clause of the U. S. Constitution. While the invocation of the Commerce Clause was controversial, Civil Rights Movement supporters often invoked the clause when seeking justice. For instance, after the passage of the 1964 Civil Rights Act, the Federal government invoked the clause to enforce the law’s requirements. This first instance of the clause being used was in Katzenbach v. McClung, which involved Ollie’s BBQ. The attorneys (not fully supported by their peers) argued the restaurant’s proprietors were violating the Commerce Clause because by only serving the white people of Mobile, Alabama, the owner was ordering less from his suppliers, who were spread out all over the United States. By ordering less, Ollie’s was curtailing those suppliers’ profits. As such, the white’s only policy was creating an undue burden on interstate commerce. Thus, such actions denied Congress the sole right to regulate and control interstate commerce, a violation of the Constitution. The Supreme Court ultimately accepted this argument, nationalizing the argument’s power.
With this precedent set, the Federal attorneys were able to sue institutions and businesses nationwide. If still not accepted as a good strategy by everyone involved, the Commerce Clause became the “magic wand” for Civil Rights cases; “the [Federal] government didn’t even have to show up” (“One Nation, Under Money”) to court to defend its position if it invoked it. In the incident examined here, representatives for the university are arguing that Spencer’s appearance places an undue economic burden on the campus community; Spencer is arguing that the university is denying the commerce of ideas by adding an undue financial burden to unpopular speakers. Both arguments exist within a logic where student bodies and university campuses are seen as economic conduits. It is attacking that definition, a definition that can be used as a means to support the circulation of hate speech, that I now want to confront.
Commerce as The Rejection of Desire, Endorsement of Hate Speech
The ideograph “free speech” within the U.S. is informed by the philosophical tenets of liberalism. A conviction of this philosophy is that “liberals don’t accept ideology. They don’t believe in it. They believe in facts and evidence, and that was a conscious choice back in the 18th century—to reject ideology to give respectability to liberalism” (Crowley qtd. in Skinnell et al.). Such a stance was aligned with the Enlightenment belief in the scientific method, a style of argument divorced from desire. As Sharon Crowley points out, desires are “emotional,” and therefore bad, in this “objective” style of argument. Yet, she notes, that in everyday life, “[p]eople express desires all the time in their warrants. That’s what they hang their arguments on” (Crowley qtd. in Skinnell et al.). Moreover, Crowley asserts that an everyday rhetor’s conclusion is always “drawn from a piece of desiring. That [desire] seems to be a really strong motivation in popular argument” (Crowley qtd. in Skinnell et al.).
Consequently, in the Commerce Clause there is no room for desire as its embedded in a document revered as the par excellence of Enlightenment thinking. Invoking the clause inherently excludes emotion. This was potentially a strong move when that emotion/desire was racist. Yet, in the case of Spencer, this denial of desire/emotion has a negative effect. When we are limited to “free speech” as commerce, we remove arguments that emerge from the feeling of danger, of threat. We create a social reality where educated, serious people (defined as unemotional and premised on logic/economics) cannot articulate the premise of Spencer’s speech acts as an irrational desire for a “pure” white ethno-nationalist state. The counter-argument to Spencer’s argument must rest on the aforementioned free-speech absolutism, which means it must be couched in economic terms. For opponents to recognize the underlying desire for racial purity in Spencer’s argument will remove their arguments from acceptable debate—on campuses and in civil society. Talking about emotions and feelings, with consequent considerations for safety, is seen as facile.
Consequently, Spencer’s argument is given the status of a rational argument that must be heard, even explored—regardless of the ghastly history of white supremacy in the United States. In effect, Spencer’s belief system and his correlating desired actions are recast within rationality, meaning the resulting arguments based in white supremacy must be given the full weight of consideration of reasonable arguments. Spencer uses this to his advantage, with the net gain of legitimacy for white nationalism. The only seemingly rational response is to argue the economic impact of the speech to the university; therefore, UC’s levying of fees is seen as the rational—if not the only—way to exclude Spencer from campus.
And it is important to note that the Commerce Clause, as initial protector against racism, is no longer a defensive barrier for marginalized populations in the United States. That is, UC’s tactic of deploying the Commerce Clause has been losing traction for nearly two decades, beginning with the Supreme Court case United States v. Morrison.
Previous to a hearing by the Supreme Court, Christy Brzoncala accused two Virginia Tech (VT) football players, James Crawford and Antonio Morrison, of raping her. The university failed to punish Crawford and simultaneously suspended Morrison, which the VT administration eventually rescinded. Brzoncala then took the case to criminal court, where a state grand jury did not find enough evidence to charge either Crawford or Morrison. Brzoncala then sued using the Violence Against Women Act, and the case eventually wound its way to the U.S. Supreme Court.
Once there, Brzoncala’s attorney used the Commerce Clause, arguing that Brzoncala’s civil rights had been violated when Crawford and Morrison where not held liable by Virginia state courts or even by VT. In doing this, Brzoncala’s counsel was arguing that violence against women created an undue burden on commerce, hurting the interconnected, overall U.S. economy by removing consumer-workers and potential consumer-workers from the public sphere, and consequently, billions of dollars from the U.S. economy. Ruling in favor of Brzoncala, her attorneys argued, would not only provide the justice she deserved but also create a butterfly effect that would protect all women in the boundaries of the U.S., and therefore, the American economy.
Brzoncala lost. In explaining its decision, the Rehnquist court stated, “gendered motivated crimes of violence are not, in any sense of the phrase, economic activity…we reject the argument that Congress may regulate non-economic, violent conduct based solely on that conduct’s remote effect on interstate commerce” (“One Nation Under Money”). In essence the court ruled that emotional safety, premised on bodily identity, ensured by an abstract notion of commerce was not a valid argument. This 19-year-old judgment, while seemingly unrelated, could be invoked to remove the rhetorical and financial firewall that UC has relied on to keep Spencer off its campus.
Toward New Tactics
Using United States v. Morrison to make it clear that the Commerce Clause strategy doesn’t always work, let me present a modest solution. First, though, look at these pictures (see fig. 1 and fig. 2):
The above amenities are located at Louisiana State University (LSU); the pool with a “river” is the infamous “Lazy River” often discussed in academic circles over the last few years. I don’t present these images to ridicule LSU but to point out how important the comfort of tuition paying students is to university administrators. This is a recent movement in the culture of the American academy; as Jack Stripling explains, “leaders of cash-strapped institutions feel obliged to service the whims and desires of tuition-paying students, whose satisfaction has become ever more crucial as state support wanes.”
Consequently, LSU undergraduates are now in a client-provider relationship with LSU’s administrators. Also, LSU flatly refused, in August 2017, Spencer admittance to its campus (Ballard). Using Marc Bousquet’s How the University Works as a framework, I assert this sort of resort existence for undergraduates is the outcome of neoliberal economics applied to the university. Students aren’t so much people as they are “’financial flows…[that is] money’” where every decision “‘translates directly or indirectly into a revenue or expense’” (Bousquet, Ausubel qtd. in Bousquet 22). For LSU’s administrators and trustees, amenities like the Lazy River are an expense that will land more revenue via tuition dollars. In this interpellation of the university, graduate students are a cost, but an efficient one needed to keep the university solvent. Graduate students form a continuous supply of flexible labor, meaning instructors who serve as “low-cost teaching labor ‘just in time’ to any point on the factory floor” (Bousquet 24). Mobilizing the desire/anger/fear/outrage of a fair number of both student groups is central to the tactics I describe below.
If Spencer eventually does acquire a speaking date at LSU, then there should be pre-emptive protests leveraging the language and values of the neoliberal university. Specifically, there should be a work stoppage combined with demonstrations at board of trustees’ meetings. A campus stakeholder could organize such an event by reaching out to various under/grad student groups that would be opposed to a Spencer speaking engagement. This organizer, working with her new allies, would also organize tenure-stream, contingent faculty, and graduate students; those who join from this pool would organize walkouts, on-campus teach-ins, weaponize sick days, and devise a campaign refusing to turn in grades. All groups would show up at board of trustees’ meetings with signs explaining the action each person will take to protest Spencer’s appearance. Here, the undergraduates would display signs threatening to transfer schools.
While all of this is going on, another colleague-collaborator should then coordinate a social-media strategy (hashtags, streaming video, and posting pics and/or videos on a social media platform), while yet another collaborator should contact the local media, including the campus newspaper, about these demonstrations. Each group, with their plans solidified, should then show up to every board of trustees meeting until the Spencer event and hold up signs broadcasting what they’re willing to do to stop Spencer’s talk. Before, during, and after each meeting, the protestors should utilize social media to broadcast their resistance and be open to giving interviews with legitimate press after each meeting.
The benefits of this action would be multiple. First, in using the language and targeting the values of the neoliberal university, the board and the president of the university are more likely to take the anti-Spencer point of view seriously. Second, the entire university doesn’t seem complicit in white supremacy. Third, the alliances and tactics are put into place that can be utilized for future campus campaigns. Fourth, and most importantly, an organic moment of free speech by campus stakeholders is used to challenge Spencer’s claim to space on campus, not legal maneuvering that puts into question the value of students, faculty, and staff of color, their right to be on campus, their right to safety, or their basic humanity.
In matters of social justice and the protection of specific bodies, the Commerce Clause strategy has been the way institutions like the University of Cincinnati has engaged in conflicts concerning free speech. However, revisiting United States v. Morrison demonstrates that this strategy cannot be relied on as the cure-all for combating hate. Especially with Donald Trump’s recent pledge to deny federal funds to any university that denies platforms to far-right speakers (Kanefield), new anti-hate speech tactics utilizing free-speech rights are now needed more than ever. If activists/rhetoricians don’t create and perform new rhetorical practices in response to visiting rhetors like Spencer, the American academy will be a crueler, more unjust place for it.
Brian Bailie is an Assistant Professor of English in the English and Communication Department at the University of Cincinnati, Blue Ash College. His work has also appeared in Composition Forum, KB Journal, and Reflections: A Journal of Community-Engaged Writing and Rhetoric. He has also served as an associate editor of Reflections; a co-editor of the Parlor Press series Best of the Journals in Rhetoric and Composition; and he is currently the interviews editor at Composition Forum. His current research focuses on protest rhetorics, racism, white supremacy, issues of free speech, public rhetorics, community publishing, and community writing.