Richard Spencer’s Biceps (and why his legal ability to maintain them matters)

Can’t a neo-Nazi go to the gym in peace? This is not a rhetorical (nor a sarcastic) question, but one that implicates our civil rights, civil liberties, and cultural values and meta values.  The legal answer is that a gym may generally terminate the membership of one of its patrons for political reasons.  However, the gym also has the prerogative to continue the membership.  No gym can be required to terminate Spencer’s membership.  The cultural answer, I hope, is that some gyms do allow Richard Spencer to continue to use their facilities.


This week, white nationalist Richard Spencer was confronted at his Alexandria, Virginia gym by a professor at Georgetown University’s School of Foreign Service.  The professor, C. Christine Fair, recognized Spencer, although he denied his identity.  Fair loudly confronted Spencer, told him that his presence at the gym was unacceptable, and called a woman who did not recognize Spencer “ignorant” for intervening on his behalf.  Fair was asked to leave the gym for creating a disturbance, but, shortly after, Spencer’s membership was revoked for unexplained reasons.

Fair, on her Tumblr page, has suggested that allowing Spencer to continue to use the gym would create a “hostile work environment” for women and minorities.  However, Spencer’s quiet use of the gym cannot be the basis of an employment discrimination claim.  If the government permitted lawsuits against gyms for allowing racists as customers, then it would be abridging the speech of these racists, in violation of the First Amendment.  The gyms would be required to revoke membership of any racists, based on a state-created cause of action, causing a direct chilling of speech.  Hostile work environment claims require severe, pervasive, unwanted conduct – in part to avoid intruding upon people’s First Amendment rights.  Spencer’s conduct at the gym does not rise to this level; it is objectionable solely because of his expressed beliefs.

Additionally, Spencer is not an employee of the gym.  A hostile work environment claim based on views expressed outside the workplace by a customer would be a novel claim indeed, and one that should not succeed.  (Indeed, one court held that an employee of Wal-Mart could be fired for yelling loudly at the workplace, in violation of company policy, after a customer called her a racial slur.)

No gym must terminate Spencer’s membership based on comments he has made outside of the gym.  However, the gym may terminate the membership of Richard Spencer, who coined the term “alt-right” and heads the National Policy Institute. Richard Spencer denies that he is a Nazi, but his “Hail Trump” salutes suggest otherwise.  Although public accommodations laws generally provide that businesses that serve the public may not discriminate on characteristics such as race, gender, religion, or sexual orientation, most of these laws allow for discrimination based on political beliefs.  So, most gyms in America (including gyms in Virginia) are free to include or exclude Richard Spencer as they please.

As for what a gym should do, my own view is that we, as a society, must examine not only our values, but our “meta values,” including how much we tolerate diversity of values and how we confront and interact with others who do not share our values.  Yelling to solve differences or denying service to those whose views one finds unacceptable are, in my view, indicative of faulty meta values,  These polarizing, dismissive tactics create bad norms around free speech values and undermine pluralism.  I think many would agree that a gym should not generally deny membership based on soneone’s politics, but believe Richard Spencer is an exceptional case.   Richard Spencer jeopardizes important equality values and many argue that his speech is closely tied to violence.  Neither of these arguments, however, should trump our meta value of tolerance to a plurality of ideas.

One common argument for why “hate speech” – a category of speech that does not actually exist in American jurisprudence – should not receive First Amendment protection is because this speech is closely tied to violent action or illegal conduct, such as race discrimination.  These arguments, however, are also made against rock music, pornography, and even comedy.   Extremists of any ideology may turn violent, but we cannot blame speakers who do not incite this violence.  Of course, Richard Spencer and most of civilized society do not simply disagree about, say, the baseline level of health care a government must provide for its citizens.  Richard Spencer believes members of minority groups are genetically, innately inferior and has called for “peaceful ethnic cleansing.”  However – and this is where reasonable minds can disagree- when Richard Spencer is at the gym, I believe that he should receive the equal treatment he would not grant to others.

As someone whom Spencer would deem undeserving of equal status, I would rather live a country where Spencer can lift weights in peace – so long as he spews his racial hatred elsewhere – than one in which university professors accost him and make false claims about his legal rights.  Spencer is villified solely for his opinion and his desire to express it.  He threatens no one at the gym, and should be treated accordingly.  The continued vitality of our meta values and our First Amendment rights requires the distinction between those who have wrong or evil opinions and those who take wrong or evil actions.  Although gyms have every right to terminate his membership, I hope his opinions do not banish him from all gyms.  No one has to smile at Richard Spencer at the gym – I certainly wouldn’t- but he has committed no crime and has violated no one’s rights.

The ability for a white nationalist to find a gym may seem like an insignificant topic, both culturally and legally.  In other countries – for example, currently, in Turkey – dictators jail people and take away their passports just for speaking out against the government.  Indeed, in this country, Erdogan’s security detail violently beat up people protesting at the Turkish embassy.  There are serious threats to free speech and free speech values happening throughout the world.

The reason Richard Spencer’s rights here matter at all is precisely because of the ease with which people across the globe lose their free speech protections.  Stifling dissent and suppressing other democratic freedoms have an interdependent relationship.  In this country, I fear dictatorship much less knowing that our uniquely robust First Amendment protects, for example, satirical Twitter accounts that criticize the President.   The Trump era has been marked by many things, but one of them is mobilization and protest.  This protest is made possible not only by our legal free speech protections, but a culture that supports those protections – and supports them in broad ways.  If we, as a society, indulge the view that some ideas are too dangerous to be expressed, that culture begins to erode — and with it, our legal protections.


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