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.