Because Auburn is a public institution, its actions are governed by the First Amendment. This has consequences. In its 1995 decision in Rosenberger v. University of Virginia, for example, the Supreme Court held that the University of Virginia could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. That same principle clearly applies in the Spencer situation, because Auburn routinely permits speakers who convey various points of view to speak on campus.

Auburn may defend its decision on the grounds that, unlike other speakers, Mr. Spencer’s speech could generate a violent response. Thus, the university argues, there is a reasonable justification to forbid his speech, even though other people’s are routinely allowed.

This debate has long interested the Supreme Court, which came to the conclusion in the 1960s that threats of violence cannot, except in truly extraordinary circumstances, justify government action that silences a speaker. Rather, the court has held that the government’s constitutional obligation in such circumstances is to take all reasonable steps to protect the rights of the speaker.

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