Racists Welcome

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?

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?

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