Free Speech and Nazis

Just a couple weeks back Spiegel Online ran an article, “Should Neo-Nazi Students be Named and Shamed?“, that gives this blog a provocative (eh, probably not that provocative) opportunity to put its namesake first principles to the test. The authors describe a scene at Bochum University in which, in the midst of a lecture, anti-fascist activists burst in and identified a student as a member of a neo-Nazi political party. They write:

The Antifa operation in Bochum raises a question that many universities and colleges in Germany are grappling with. How should universities respond when right-wing extremists study on campuses? And how should one react if they are publicly exposed?

As I am unfamiliar with German free speech law, it seems to make sense to transpose those questions to an American setting. In some ways, the First Amendment provides a blanket answer, at least for state universities. One assumes it would be unlawful to prevent a neo-Nazi from attending, say, UMass, or from starting a neo-Nazi student organization. And similarly, it seems like it would be unlawful to prevent anti-fascists from vocally and actively protesting the presence of the hypothetical neo-Nazi. But I imagine the university would also be able to do something like assert a compelling interest in, “ensuring the smooth functioning of an institution of higher learning” and take steps to prevent disruptions like the one described in the Spiegel article. So perhaps if the neo-Nazi student organization brings a Holocaust-denier to campus, and anti-fascist protesters make such a disruption as to make his/her talk untenable, the university wouldn’t be acting unlawfully by having them removed from the venue.*

The question is slightly more interesting in the case of a private college or university. On the face of it, it would seem that, from a legal perspective, the institution could handle neo-Nazis and their opposition however it wanted. As a private entity the First Amendment isn’t really operative. But perhaps (and maybe here our resident law expert can weigh in?) you could get somewhere arguing that by taking federal money institutions of higher learning incur First Amendment responsibilities as agents of the Federal government. Or something.

The question gets most interesting if you posit a scenario which is unlikely to actually be the case in the U.S. Imagine a private institution of higher learning that says, “We don’t care if you’re a neo-Nazi, and we also don’t care if you, as an anti-fascist protester, burst into classrooms to name-and-shame neo-Nazis.” Is that kind of disruption one we should accept or condemn?** I really don’t have strong intuitions one way or the other. I think if you really pushed me on it, I’d say social norms should prioritize open debate rather than frenzied denunciation. And maybe the anti-fascists in question would be better off directly debating the neo-Nazi and taking the opportunity to tear him/her to shreds. But really, it’s hard to get all that worked up about anti-fascists exposing neo-Nazis. Because, you know, they’re neo-Nazis.

*Though presumably they would be well within their First Amendment rights to kick up an enormous ruckus immediately outside the venue. In compliance with local noise ordinances, of course
**Assume, for these purposes, that it’s not a question of constant disruptions making class impossible to ever teach, but a one-off occurrence that serves to prominently identify the hypothetical neo-Nazi