In the wake of the expulsions of two members of Oklahoma University’s SAE chapter for racist slurs and threats, some people are asking: aren’t these students protected by the constitutional right to free speech? (For reference, here is the video in question.)
The short answer is yes. Were their actions morally reprehensible? Yes. Were they a demoralizing example of how much progress remains to be made in civil rights nationwide? Yes. But that isn’t the question. The question is: are they illegal? Technically, no. If free speech is truly committed to “uninhibited, robust, and wide-open” public discourse, no opinion can be illegal—even the most abhorrent.
Remember, these are the same laws that protected the Westboro Baptist Church in 2011. In a Supreme Court ruling, the group’s inflammatory actions—including protests of soldiers’ funerals and vicious anti-homosexual posters and songs—were deemed legal under US law. Despicable, yes. But ultimately not illegal. Chief Justice John Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”
The argument against expelling the two OU students is largely an echo of Roberts’ ruling. Ken Paulson, the President of the First Amendment Center at Middle Tennessee State University, explains here: “The impulse to expel is understandable, but the decision is on constitutionally questionable ground. A public university is subject to the free speech guarantees of the First Amendment and may not punish students because they hold offensive views.”
And on the flip-side, St. Louis University Law Professor Justin Hansford claims that the free-speech argument does not apply here because, “when you’re looking at the decision to expel a student, you’re looking a violation of the terms of sort of a contract that they signed when they agreed to attend the university.”
Part of the university’s mission—and, we can presume, its student contract—includes maintaining a safe atmosphere for all students, which is the argument the administration seems to have taken. Additionally, the students’ insistance on disallowing black members goes directly against the university’s non-discrimination policy. OU’s President David Boren explains in his letter of expulsion that the students were cited as creating a hostile environment for others.
The bone of contention here, as this Atlantic article explores, appears to be the limits of free speech—what they are, where they fall, and who gets to decide them. As I see it, the argument against expulsion is following the law by the letter, rather than by the intention. Yes, restricting freedom of speech may be a slippery slope, but it isn’t as slippery as some are implying. Laws provide the framework, but it is our moral judgment that allows us to interpret them, and no racist chant is ever going to be accused of inspiring the type of “robust discourse” to which the First Amendment is alluding.
Furthermore, free-speech advocates point out that nowhere among the slurs and invectives of the students’ chant was a specific threat against a specific person or persons. True, the students sing their preference of lynching rather than allowing black members in their fraternity, but since they don’t specify a target or a focus, these advocates insist it isn’t technically a threat.
And sure, if we’re going to try to match up the lines of the law to the specifics of this case, then they didn’t verbalize a by-the-letter threat. But can you really argue that they didn’t pose a threat, either by their actions or those they might inspire? Can you claim that the First Amendment is so rigid and binding that our moral judgment holds no bearing on its application? Is the “slippery slope” really so steep that we don’t dare apply human reasoning to the outlines of our legal proceedings?
To quote Kent Greenfield, author of the above Atlantic article: “If that is what the First Amendment means, I dissent.”