Because It’s Not OK

When the ACLU prevailed in National Socialist Party of America v. Village of Skokie in 1977, it was to make a point that the protection of the First Amendment was for unpopular speech. After all, popular speech needed no protection. It was not to say that the speech was worthwhile, or acceptable, or even okay with them. But it was speech, and that was reason enough for it to be protected.

Now, some frat boys from SAE at the University of Oklahoma have disgraced themselves.  It was caught on video and published, and the President of the University, David Boren, has expelled two students and threatened to shutter the fraternity, condemning the speech as creating a hostile educational environment.  More sanctions may be coming.

On the one hand, this couldn’t have happened to a nicer bunch of guys.  Post hoc explanations that they didn’t really mean it, aren’t really racists, don’t make it okay.  There are lines one doesn’t cross, even in jest, and “only kidding” is so utterly inadequate as to offend again. There are no jokes to be had here.

And that’s what’s making people’s heads explode, because what happened here was so offensive, so unbearable, that there must be a way to punish it.  And, indeed there is.  Let the students who engaged in this speech be held accountable for it.  The video is there for all to see who at the University of Oklahoma would do such a thing. 

Let them be pariahs for their speech.  Let them hear the counterspeech of their friends and classmates.  Let them bear the consequences of the expression of twisted words.

Some lawprofs, like Eugene Volokh, Scott Lemieux and Howard Wasserman, have taken the position that, vile as this may be, it’s exactly what the First Amendment protects. Others won’t give up without a fight, raising issues like Tinker (which applies to secondary education in the 10th Circuit) to Title IX’s hostile educational environment language.

But many others, lawyers, scholars, good people, are using Herculean efforts to find a way out from under this protection.  They raise vague and amorphous counter-rights, conflate speech with conduct, try to pigeonhole racist speech as obscenity or fighting words.  That they struggle to find a way out from under the First Amendment is understandable, maybe even admirable in a way.

But the point of constitutional protections isn’t to make it easy to circumvent them, no matter how pure your intentions or how just your cause may feel.  The right exists precisely to protect the most vile of speech, for that’s the speech most at risk.

A little context may bring some better appreciation of the point. Consider the most horrific crime, a disgusting rape and brutal murder of a lovely and innocent child, by a person whose background suggests no saving grace. The proof of guilt of this worthless miscreant was obtained in a warrantless search of his home, without exception to the Fourth Amendment.

Without this evidence, this defendant will walk free.  Do we proclaim that someone so horrible, who committed a crime so awful, is undeserving of the protection of the Fourth Amendment because society hates him and his crime so much that, well, he just doesn’t deserve to be protected?

Some will say yes, this time we let the protection of the Fourth Amendment slide, because this defendant is so hated that we choose not to allow him to enjoy it. He doesn’t deserve it.  And indeed, he doesn’t.

But then, this horrible person doesn’t enjoy the protection of the Constitution because he deserves it. He enjoys it because we deserve it, because it is there for the rest of us, and either it is upheld for all or it’s only available by popular vote.

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.

The speech was vile. The speech is protected by the First Amendment to the United States Constitution. And nothing about that changes the fact that the students who uttered this speech should endure the brutal opprobrium of their fellow students, their teachers, their friends, their parents, and everyone else in society who will hold them in infamy for their words.

This speech was not okay. This is why it is protected by the First Amendment.

 

34 comments on “Because It’s Not OK

  1. traderprofit

    Scott, is the U of O considered to be “government?” I thought I recalled you saying only the government could violate one’s constitutional rights. If so can one agree to waive certain of these rights other than, say, joining the military?

    1. SHG Post author

      It’s a state school. Fully government. The military has a different analysis based on compelling governmental interest, which would require a different and lengthy explanation that doesn’t bear upon what happened here.

  2. Voltaire

    “These SAE boys don’t deserve the protection of the First Amendment, any more than the neo-Nazi’s in Skokie did. But we don’t do it for them. We do it for us.”

    Great line! Definitely going to steal that one…

  3. Hal

    Well said, Counselor. At the risk of sounding like I’m blowing hot air up your shorts, this was such a clear and convincing argument that it had me completely reverse my opinion on the issue. That their speech was so reprehensible is exactly why it deserves protection seems, at first blush, counterintuitive… but you’re right.

    1. John Barleycorn

      The esteemed one can be down right vicious when he builds up a head of steam after gnawing on his pencil.

      One crazy mofo for sure! I don’t even want to know what he can do with an eraser.

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  5. Jamie R

    No doubt, many of the people calling for all SAEs to be expelled were tweeting “Je suis Charlie” two months ago.

      1. REvers

        “Je suis SAE” doesn’t quite have the same feel to it, for sure. Maybe “Yes, they’re dumbasses, but they have rights!” might look okay on the front of a t-shirt if it was written in French.

      2. Patrick Maupin

        It does feel qualitatively different, in the sense that mocking a class of people because of their beliefs is different than mocking a class of people because of their genetic makeup.

        OTOH, the taboo against mocking people because of their genetic makeup does make it difficult to direct criticism towards beliefs that are more widely shared by people of that genetic makeup than by the general public.

          1. Patrick Maupin

            Yeah, but like most jokes, it only works because of some kernel of truth, no matter how small…

  6. Fubar

    U of OK may think it’s omniscient,
    But its Con Law is sadly deficient.
    Expelling these students
    Goes against jurisprudence.
    SAE dumped the chapter — sufficient!

  7. John Monson

    —“Consider the most horrific crime, a disgusting rape and brutal murder of a lovely and innocent child, by a person whose background suggests no saving grace. The proof of guilt of this worthless miscreant was obtained in a warrantless search of his home, without exception to the Fourth Amendment.
    Without this evidence, this defendant will walk free. Do we proclaim that someone so horrible, who committed a crime so awful, is undeserving of the protection of the Fourth Amendment because society hates him and his crime so much that, well, he just doesn’t deserve to be protected?”—

    The government already does proclaim that they can pick and choose who the Constitution will apply to.
    A case almost identical to the above was that of John Couey (convicted of killing Jessica Lunsford). The warrant to search his property was given after obtaining a confession from him. He confessed after having asked for a lawyer 8 times.
    The judge paid lip service to the Constitution by forbidding the jury from hearing the confession, but then allowed in all the illegally obtained evidence anyway.

    1. SHG Post author

      So what’s your point, that the violation of constitutional rights no longer matters because of what happened in one case, and now it’s too late and we should give up on the Constitution?

      1. John Monson

        How many examples do you want?
        How many times can the government get away with openly violating someones rights before you would agree that the government can pick and choose who has rights?

        1. SHG Post author

          You seem to have a total disconnect between your purpose and what you write. You’re blindly doing the opposite of what you’re trying to do, and obviously don’t get it. For your own sake, stop commenting.

        2. Myles

          Why do you post comments like this? They just make my head hurt trying to figure out how anyone can so twist their grasp of reality to not understand how they’ve managed to get it ass backwards. Why do this to people?

          1. SHG Post author

            My apologies. He means well, but has no business commenting on a law blog. He doesn’t understand, and won’t be back. If it makes you feel better, reading his comments gave me a headache too.

    1. SHG Post author

      What a great question. If only there was a way to find out.

      Or, because I’m such a swell guy, try this:

      “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.

      You’re welcome.

      1. Ryan

        I thought it wasn’t a true threat, but the doctrine seems really unclear. And I was having a hard time understanding why this wasn’t a true threat.
        [Ed. Note: Link deleted per rules.]

        Mr. Mystal argues why it is.

        1. SHG Post author

          So you asked the wrong question, included a link despite my rules, and finally got around to your point. Elie is expressing his feelings about the lynching part of the chant, which he takes personally. It’s akin to why we don’t let the parent of a murdered child decide the proper punishment for murderers. His perspective is emotional, but the law is rational. There is nothing unclear about it.

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  9. TM

    I appreciate you, Scott.

    Standing in line at the coffee shop this morning, the guy in line in front of me was buying a paper with his coffee. Pointed to an article about this and made a comment to me about how impressed he is with how wonderfully the school is handling these racist boys.

    Needless to say, the conversation proceeded to take a turn he was not anticipating.

  10. ExEMT

    This discussion helps immensely on the First Amendment for those “outside” the law. I deeply appreciate the breakdown. You linked to some great articles. Your phrase “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.” is a certifiable home run. I hope you don’t mind that being cited. Brevity yet very profound and succinct.

    Out of curiosity (and risk of getting whacked for asking), do you follow the Foundation for Individual Rights in Education (FIRE)? Just curious if you’ve seen their cases online. I would never be brave enough to actually ask for a reply, but still curious.

  11. Bruce Godfrey

    The constitutional issue is clear. In concurrence, I’d argue that even a private school should not have kicked the students out, on prudential grounds.

    The wrong lesson to teach young people is that offensive people and offensive behavior simply disappear from this world because it’s offensive. Sometimes, the offense lingers; nearly 150 years after the firing of the last Confederate bullet, the CSA and its traitorous latter-day enthusiasts obdure and beget. Sometimes it repents, as in the cases of George Wallace and some of the men who cracked skulls on the Edmund Pettus Bridge 50 years ago. Sometimes, miserably, it gets worse.

    What doesn’t happen on this planet is the spontaneous combustion of offensive people and offensive ideas. To make such people disappear by magic, in the absence of a violation of the rights (not sensibilities) of others, is to turn college into even more of a Never Never Land. Further, it teaches students that they have the right to expect “those in charge”, rather than peers, to define and uphold community standards.

    Finally, expulsion sends the specific racist fools back home to Mom and Dad. They should instead go to their lectures, submit their papers, study their readings, do their lab work and watch their peers isolate them from civilized society, until they grow up and realize that there’s much more to live than keeping a [Black American] out of SAE. They should learn what “hang them from a tree” in fact has meant for 200+ years in this country. They could with time and mortification of the soul rebound, undergo a true conversion, what Christians call metanoia, what Jews call teshuva. They won’t do any of that in Mom’s basement whining self-righteously about how the university violated their rights (indeed true, but irrelevant to their own moral responsibility and development.)

    1. SHG Post author

      You make very persuasive points as to why it’s not only the lawful thing, but the more effective way to deal with vile speech for colleges not constrained by constitutional requirements.

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