Is even the vilest speech protected? The expulsions of racist chanters at the University of Oklahoma has riled up conservative commentators. No matter how hateful the speech, some say, colleges have no right to expel students for exercising their rights to say it. I can’t help but think that the real target of conservative ire is the current vibe on college campuses.
In this case, the speech in question was undeniably horrifying. Frat members sang along that Sigma Alpha Epsilon would never welcome an African American member. Of course, they used a much more offensive term than “African American.” They cheerfully shouted that they could lynch any offender. Horrible stuff.
But is it protected?
Eugene Volokh of the Volokh Conspiracy thinks so. There is no exception to free-speech rights for racist language, even language that creates “hostile environments.” Unless one is issuing specific threats, one may even use language that suggests violence.
Voices of protest? Or drunken howl?
At National Review, David French agrees. In its rush to justice, French says, the university failed to observe basic constitutional principles. It was entirely right and just for the national officers of the fraternity to punish the Oklahoma chapter. And it seems fair that the Sooner football team will now lose a prize recruit—to Alabama, no less. But such private-party sanctions are different than official university sanctions.
As have many other conservative commentators, French identifies the broader problem as one of higher-education ideology careening out of control. “Our public universities,” French writes,
are becoming national leaders in trampling the Constitution to legislate their brand of “inclusive” morality.
I understand the argument. And generally, in these pages, I try to refrain from injecting my own opinions. I can’t help but wonder, though, if these conservative intellectuals have over-stepped in their constitutional rationalizations. It seems some conservatives are too quick to protest any action by the leaders of today’s universities.
As I argue in my new book, this anti-university tradition among conservative intellectuals has a long history. Beginning in the late nineteenth century, conservative thinkers bemoaned the changes taking place at leading schools. Instead of passing along time-tested truths, universities made it their job to subvert and question those ideas.
These days, many conservatives lament, universities have become special homes for welcoming certain sorts of offensive speech. For instance, as Professor Volokh points out, many kinds of hateful speech—even violent speech—have long been recognized as protected on campus. No student would be sanctioned for displaying pictures of African American militants wielding shotguns and intoning, “By Any Means Necessary.”
There seems to be an important difference, though, between speech meant to protest against existing conditions and the SAE’s brand of exuberantly hateful race-baiting. The students in this case were not engaged in thoughtful commentary on unfair conditions. They did not hope to attract attention to their cause by using intentionally inflammatory language.
Instead, this looks like a drunken outburst of knee-jerk segregationism, a case in which vino exposed a terrible veritas. When exposed, the expelled students did not defend their actions on the grounds of free speech. Rather, they humbly acknowledged the shamefulness of their actions.
Indeed, it might have been more compelling as a free-speech case if the students had defended their outburst. If, that is, students had been even more painfully racist; if they had been intentionally offensive and if they had knowingly provoked this sort of reaction, then they would have a better claim to constitutional protection. It seems to me, though, that these students are merely petty campus despots, shouting in secret language that they abjure in public.
Does it count as an exercise of free speech when even the speakers find it offensive?
I Love You but You're Going to Hell 
galacticexplorer
/ March 12, 2015I don’t see this as a “free speech” issue. Just because students are legally allowed to say hateful things doesn’t mean they are exempt from consequences. If I said the sorts of things they said at my job, I would be fired for creating a hostile environment. The college is within its rights to expel them as well for the same reasons. Now, there’s always the question of “how much is too much?” in the interest of protecting as much free exchange of ideas as possible while still maintaining a healthy environment for students. But you’re right, that really depends on context. Using angry or hateful speech in protest of a problem in order to draw attention should rightly be considered differently than hate speech intended solely for the purpose of exclusion and marginalization of a group of people.
Neil Rickert
/ March 12, 2015I’m a tad uncomfortable with this.
On the one hand, “free speech” does not mean “free of all consequences.” On the other hand, I would have preferred the university to hold an expulsion hearing, where the students would be allowed to make a case. My guess is that the students would have voluntarily left, rather than face the hearing.
Agellius
/ March 13, 2015I think I agree with Neil. I would be surprised if the students didn’t voluntarily leave the university. I can’t imagine that if they stayed, their lives wouldn’t be hell. As far as the free speech issue, what’s the point of such a right if things that are offensive aren’t protected? Why isn’t pornography outlawed since it offends millions of religious people? Why aren’t cartoons of Muhammed illegal? Or the wearing of swastikas?
Dan Knauss
/ March 16, 2015If this frat had been engaged in a public political protest, I think that would be protected and appropriate, but if as part of that protest they were deemed to be instigating violence, that is not protected. As part of a semi-private social event this chanting is on the same level as the (tolerated) speech of other frats that have notorious “traditional” songs advocating rape and violence against women and other categories of people. Since the schools themselves are bound by Title IX, taking disciplinary and even legal action against these frats seems appropriate. If racists want to have a racist frat, the few conservative religious colleges that are able to opt out of Title IX are the only possible haven.
@Adam — I’m thrown by your attempt to make a moral distinction between minority militancy against a majority and majority militancy against a minority. Both can be protected speech, and both can be deemed criminal in different contexts. Both are equally capable of great injustice and tear at the social fabric. I believe they’re so damaging we’d be better off if we criminalized them as hate speech as Canada does by defining very clearly what counts as valid political speech and what does not. For historic and demographic reasons there may often be a greater tolerance afforded to minorities, but that should be a matter for judicial discretion, not public policy.
Apart from its ineuality, legislating a moral distinction on the basis of an assumed power differential would probably have very bad effects. White supremacists have always claimed they are the persecuted minority and use evidence to support their claims as a major recruiting tool. When white people become a minority majority in the US the supremacists will not become more legitimate and more deserving of protection for hateful, violent, threatening speech.
Adam Laats
/ March 16, 2015Dan,
You’re right, of course. I did not mean to say that a minority qua minority had certain constitutional rights that majority groups did not. What I was awkwardly trying to say was that there seems to be a difference between speech that is meant as a protest or as some kind of artistic statement and speech that is merely drunkenly obnoxious.
I don’t think it’s true, though, that white supremacists have always claimed they are the persecuted minority. Until very recently, white supremacy had a shockingly mainstream appeal among whites. Just a couple of examples will make the case. First, remember Woodrow Wilson’s infamous comment after screening Birth of a Nation in the White House: “History written with lightning.” Even more recently, remember Nixon’s famous “Southern strategy:” Win the White House with dogwhistle appeals to a presumed “Silent Majority” of tacit white supremacists.
Dan Knauss
/ March 16, 2015That makes sense. I agree that white supremacism has long had a mainstream appeal as a and may even be enjoying a kind of comeback nowadays. Despite being mainstream and even popular at times, white supremacists can still regard themselves as members of an embattled minority or — as I should have said — a potential minority.
White supremacism always sold itself on the fear of “dilution” and loss of liberties, as well as insecurity and emasculation, in the face of the political enfranchisement and perceived criminality of minority groups. Behind this is the fear of becoming less dominant and eventually a minority, if only in certain locales. In areas where whites historically have been or are a minority today, from the old south to former industrial cities in the north, militant racist groups often focus their recruiting on the prison yard logic of “you’re a minority here and you need to protect yourself and your family.” The perpetual “Illegal Immigration Stories” feature on US Rep. Steve King’s .gov site beats the drum for a similar message to Iowans who are afraid their state, city neighborhood, or town may be “taken over” by a minority group. Anti-abolition or pro-segregation whites as well as many of today’s conservatives identify themselves as a minority because of the political and ideological collusion they see between “white liberals” and “non-native American” or African-American populations.