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.