There Should Always Be Freedom in OU

Over the weekend, you may have seen the video of the SAE fraternity at the University Oklahoma singing a racist song about how there would never be black SAE. Well, they were right about that. There never will be a black SAE. This is because the University responded to the video by dissolving the chapter of the frat and expelling two of the students.

The former decision is right and proper, I think. However, I’m having serious problems with the latter. And so are a lot of people:

The University of Oklahoma’s decision to expel two fraternity members who led a racist chant on a bus provoked criticism Wednesday from several legal experts who said that the students’ words, however odious, were protected by the First Amendment’s guarantee of freedom of speech.

“The courts are very clear that hateful, racist speech is protected by the First Amendment,” said Erwin Chemerinsky, a constitutional scholar and dean of the law school at the University of California, Irvine.

Official punishment for speech could be legal if the students’ chant constituted a direct threat, leading a reasonable person to fear for his or her safety, or if it seemed likely to provoke an immediate violent response, according to Mr. Chemerinsky and several other legal scholars, liberal and conservative alike.

But in this case, these experts said, there is no evidence of any direct threat or provocation, and as a publicly financed institution, the university is subject to constitutional boundaries.

I’ve seen similar commentary all over the blogosphere. First Amendment badass Mark Randazza:

I’m not going to get into a discussion of whether I approve of it or not. (I don’t, but that’s all I’ll say about it). You have the right to be racist. I want that freedom. But, somewhere along the way, we decided that eliminating bad thoughts is more important than freedom.

Like it or not, these kids were expressing a political and social opinion. I do not care if you agree with it or not. They have a First Amendment right to freedom of association – that means they can be in a private club that says “no niggers allowed.” I can’t say that I would want to belong to such a club, but the KKK and the American Nazi Party not only have a right to exist, but serve a valuable function — even if that function is only to serve as a negative example.

Further, they have a right to express themselves — even with views that you might find abhorrent. That’s what freedom is.

Several scholars have argued that the song constitute an action and “threat”. I’ll let Scott Greenfield take that one, referencing the famous Skokie cases where the ACLU defended the free speech rights of Nazis:

These SAE boys don’t deserve the protection of the First Amendment, any more than the neo-Nazis in Skokie did. But we don’t do it for them. We do it for us. We do it because speech is either protected for all or protected for none.

There are no wiggly lines that allow us to find some sneaky back-door around the protections of the First Amendment. There is no combination of words expressing our feelings about the relative worth of rights, the relative horror of flagrantly racist speech, the unworthiness of expression, that allows us to shed the protection of the First Amendment when we feel so strongly that it should not be provided. This is precisely when the protections of the Constitution must kick in, must apply, must be upheld in the face of our strongest feelings that we don’t want it to.

You can read more from Eugene Volokh and Doug Mataconis, who get into the Constitutional issues. As a public university, the University of Oklahoma is bound to respect the free speech rights of their students. And the attempt to end-around the First Amendment by claiming a racist song constitutes an “action” is offensive. Greenwald had this to say, albeit in a different context:

We’ve said it a million times: free speech isn’t just for speech we like. It’s for speech we hate. It’s for speech that offends us. It’s for speech that shocks the senses. But more than that: I want the bigots of the world1 to feel like they can say what they want. Which do you think is better? A society in which racists go underground? Or a society in which the ugliness be out and open for everyone to see? When I was a kid, some anti-semitic bigots burned a cross on the lawn of my synagogue. That was much scarier and more dangerous than a bunch of KKK jerks marching along the highway.

It’s become common to refer to incidents like this as “teachable moments”. Maybe. But if it is, the lesson being taught is the wrong one. The lesson is that we will punish speech we don’t like.

The other day, the ACLU took another unpopular stand: defending the free speech rights of the Washington Redskins. In doing so, they quoted the great sage Jeffrey Lebowski: “you’re not wrong; you’re just an asshole”:

The ACLU has a history of defending the speech rights of groups we disagree with, because the First Amendment doesn’t protect only popular ideas. The Washington team’s choice of name is unfortunate. They should be – and are being – pressured to change it. But it isn’t government’s role to pick and choose which viewpoints are acceptable and which are not.

Readmit the students, OU. Make this a teachable moment. And the lesson to teach is that free speech applies to everyone, including assholes.

1. Putting aside whether these students are actual bigots or are just drunken idiots singing a dumbass song.

Update: Jamelle Bouie

As far as the University of Oklahoma is concerned, I should say I’m not thrilled with the punishment. Disbanding the fraternity might be justified, but expelling students for hate speech is an extreme response that runs afoul of free-speech norms, if not the First Amendment.

Education would be better. The University of Oklahoma is two hours away from Tulsa, which in 1921 was the site of one of the worst anti-black race riots in American history. More than a thousand whites stormed the black district of Tulsa and razed it to the ground, killing hundreds and leaving thousands homeless and destitute. Black Tulsa never recovered, but memories of the attack live on among descendants of the victims.

Don’t expel the boys. Bring them to Tulsa. Have them see the memorials and talk to the children of survivors. Give them a chance to see what their words actually mean, and whether they want to be the kinds of people who sing about lynching for fun.


Comments are closed.

  1. Santino

    With modern technology there is no need for the school administration to suspend them.  I’m sure most of the students at OU have seen the video.  I also assume most students at OU vehemently oppose the offending statements.  Therefore, I think, in the end the students would choose to leave the school anyway out of shame.  Which is a valid consequence of free speech.

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  2. Balthazar

    I expect a lawsuit incoming from the 2 students that were expelled any day now, sad part is the morons will probably get a payday for being racist assholes.

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  3. Hal_10000 *

    Therefore, I think, in the end the students would choose to leave the school anyway out of shame.  Which is a valid consequence of free speech.


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  4. ilovecress

    We had a similar incident in the UK a couple of weeks ago, when there was a video of some Chelsea fans chanting racist songs on the Paris metro on the way back from the game. IMHO it was handled in exactly the right way, with basically everyone from the Club manager to the players to ex players publicly coming out and saying that the people were idiots.

    As a private organisation though, they did ban them from attending matches. Do you guys think that if OU was a private institution they should expel these guys?

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  5. richtaylor365

    Good post, Hal

     Do you guys think that if OU was a private institution they should expel these guys?


    There never will be a black SAE.


    Sigma Alpha Epsilon is a nation wide fraternity, 200 plus chapters (you can view their home page here), their motto “The True Gentleman”, have several black males on their home page, so I suspect there are black members of this fraternity.



    The former decision is right and proper, I think. However, I’m having serious problems with the latter. 

    I think both were wrong. Of course freedom of speech protects everyone, even bigots, that part was a no brainer. But even shutting down the on campus fraternity smacked of a knee jerk response by a running scared college president (plug in any university, media outlet, of Hollywood, same little girl scarred mentality). The fraternity condemned the incident publicly on their home page , they summarily dismissed the offenders from the fraternity. But why close the whole fraternity? If this was say a bus full of science nerds going to some tech conference somewhere and 2 bigots broke out into a racist song, would the school shut down the science department? They were OU students, should not the president take responsibility for 2 of his students, maybe he should resign (it was afterall on his watch) or just close down the whole college.

    Picture this scenario, a frat party where predominantly black students brake out into lyrics of the latest “cop killer” song, or something disparaging to white students, and all caught on video. You think anything at all would have happened?

    I hope these 2 bigots sue the college. The right response would have been to ignore it. Everyone on campus saw the video, whatever friends these 2 clowns had, I doubt they are friends now. The 2 can eat by themselves and associate by themselves. Their punishment is to be ostracized by the rest of the students.


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  6. ilovecress

     Do you guys think that if OU was a private institution they should expel these guys?


    Why’s that Rich? I’m honestly a bit conflicted about it, so I’d be interested to hear your thinking on it.

    As for the running scared president – my guess is that he made the correct move PR wise. A couple of days worth of blog posts debating whether or not the decision was correct is preferable to having the word ‘racist’ attributed to your brand. It’s not pretty, but that’s how it works…

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  7. repmom

    I don’t think the two students should have been expelled either, but I, too, would like to hear more, rich, on your thoughts on the private institution.

    It does seem like there would be a difference in should versus could. Seems a private one would have the right to expel them if they so chose.

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  8. richtaylor365

    My opinion is thus, when students enter a college, any college, there is a contract declared. I, the student, give you money and in return you, the college, educate me and provide me with a document that enables me to secure a job and provide me with a living. Exercising a Constitutionally secured right (free speech) should not get me expelled from the college. Now if I commit a crime, or get caught cheating (essentially committing fraud) then sure, the college can kick me out, but not for exercising my First Amendment right.

    What better laboratory is there than a college campus where students can learn about protected speech and the Constitutional limits thereof? Or, one of the things that separate us from Totalitarian nations is that here a person has a right to be racist;

     Further, they have a right to express themselves — even with views that you might find abhorrent. That’s what freedom is.

    Exactly right, and limiting one secured right over the pretense of hurt feelings threatens all civil liberties, for everyone. College is where these delicate sensitive flowers need to learn real tolerance, especially tolerance for different points of view.


    As far as private institutions, I guess if the college is religious in nature and requires you to adhere to a morals clause, under that agreement the college could expel you, but I would prefer to use this as a teaching moment (God, I hate that term) where vile abhorrent speech can be condemned and still be tolerated. Make the offending racists attend sensitivity training. This college president missed a golden opportunity to remind the public that freedoms are sacrosanct, hurt feelings aren’t. He can identify the offenders and condemn their words, then remind everyone that protecting racist speech goes a long way to protecting their own.

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  9. Xetrov

    Many colleges have Honor Codes that students agree to abide by while students.  Not sure if that’s the case here, but if there is, and they violated it, I don’t have a huge problem with them being removed from the student rolls, even though they have the Freedom of Speech.  If there is no Honor Code at this college, then I don’t think they have grounds for expelling them.

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  10. Hal_10000 *

    Rich, I agree that, if I were running a private institution, I would not expel them. In fact, I would send out a letter to the students explaining why I wasn’t expelling them.  The difference with Oklahoma is that, as a public institution, they can’t expel students for speech (see my link to Volokh). Speech codes at public universities, funded by taxpayers and run by the state, have been found unconstitutional by unanimous courts.

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