Testing the limits — ours and of the law — of 'free speech'

March 12, 2015


By Gene Policinski
Inside the First Amendment 

Once again, the brutal language of racism tests our commitment to free speech.

Only a bigot could approve of the chant using the "N-word" sung by Sigma Alpha Epsilon (SAE) members at the University of Oklahoma on a charter bus Saturday, loudly proclaiming African Americans would never be admitted to their fraternity chapter and gleefully mentioning lynching.

Consider the "song" in all its awful nature:

There will never be a nigger at SAE
There will never be a nigger at SAE
You can hang him from a tree
But he'll never sign with me
There will never be a nigger at SAE

What could be worse?

How about this taking place on the same weekend the nation was commemorating the 50th anniversary of the famed civil rights confrontation at Selma's Edmund Pettus Bridge?

Awful. Disgusting. Repellent. Sickening.

But also, protected free speech.

The 10-second video clip was sent anonymously by email Sunday afternoon to the student newspaper, The Oklahoma Daily, and to a campus organization. Within hours, it had the nation's attention.

University president David Boren — a former governor and U.S. senator — was outraged. He quickly ordered the fraternity house vacated and closed, declaring that "effective immediately, all ties and affiliations between this University and the local SAE chapter are hereby severed."

A day later, he expelled two students whom he identified as being in "leadership" roles connected to the obnoxious singing. And it's there where President Boren crossed a clear constitutional line.

Condemning the song in the strongest possible way, at multiple occasions: Yes: Exactly the kind of response the First Amendment provides for — more speech to counter speech you don't like.

Shutting down the frat house: The university's Regents apparently own the building and may evict occupants. The national governing body of SAE, as a private operation, also had the right to end its affiliation and to close down its own local chapter.

But a host of cases reaching all the way to the U.S. Supreme Court, some involving similarly repugnant behavior — a fraternity's "ugly woman" contest, for example — say clearly that content-based punishments of individual speakers will not stand.

The former governor and U.S. senator said Monday that any punishments would be "carefully directed" to pass constitutional muster and cited his belief the singing students were creating a "hostile learning environment." But saying it's so doesn't make it legal — or right.

Boren and a few scholars have raised the specter of potential civil rights violations or violation of the school's student code of "rights and responsibilities," and indirectly embraced the underlying logic of what courts have called "optimum conditions for learning" and a university's "substantial interest in maintaining an educational environment free of discrimination and racism."

But even those worthy elements run up against the core First Amendment principle that government may not punish anyone for the content of their speech or for having a view that many — or even most — find offensive.

Put most simply: We have the right to offend others and to freedom from the fear of being punished for expressing such views.

If the expulsions are challenged in court, the university will have the difficult task of proving that this one-time incident constituted a direct or pervasive threat or provocation, substantially affected the ability of OU students to get a good education, and that there were no other, more-narrowly focused actions than expulsion available to counter the negative impact. The student code would fall even more quickly before the First Amendment right of free speech — which cannot be signed away or overridden via a college rulebook.

Clearly, the public excoriation, rallies, marches, closing of the frat house and already announced plans for the university community to conduct meetings and seminars to put more emphasis on diversity, offer such alternative — and longer-lasting — remedies. And all of those are more First Amendment-oriented than expulsion.

Boren made it clear how he feels about the content of the SAE members' speech:

"To those who have misused their free speech in such a reprehensible way, I have a message for you. You are disgraceful. You have violated all that we stand for. You should not have the privilege of calling yourselves 'Sooners.' Real Sooners are not racist. Real Sooners are not bigots."

A call for fairness and equality that follows in the path set out by those Selma marchers five decades ago — including the hope of a better future.

But can any real question remain that by expelling them, this public university wasn't punishing the two students — and potentially more involved in the incident — for the content and viewpoint expressed in that reprehensible "song"?

Let's not compound one wrong with another.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.

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