With the news that University of Oklahoma President David Boren would be expelling two members of the SAE fraternity for singing a racial-slur-laden song, there has been an expected uptick in First Amendment experts in the comments sections of the news sites and social media outlets I frequent.
Eugene Volokh preemptively wrote a spot-on piece for the Washington Post about why Oklahoma may not expel these students (and then updated it a few hours later after the school, uh, expelled the students). Volokh breaks down the legal reasoning perfectly, and I need not add anything to his thorough, big-picture argument.
Having said that, there are a few specific, recurring misconceptions I’ve seen crop up since the expulsion announcement. I think these are worth addressing:
1. “The First Amendment only protects you from being prosecuted by the government, not from being expelled from a school. The right to free speech is not a right not to get expelled.”
Huge problems here. First, Oklahoma is a public (taxpayer-funded, state-run) university. For First Amendment purposes, that makes it “the government.” As a state actor, it is subject to the Constitution, including the requirement that it not violate the free-speech rights of its students.
Secondly, the “free speech doesn’t entitle you not to get expelled” argument is a predictable mutation of the “you have the right to say whatever you want, but not a right to be protected from consequences” meme that I’ve discussed before. The normal go-to for these folks is to say that “free speech only applies when the government is involved.”
Now, confronted with a situation in which a government entity is involved, many of them seem to want to limit the definition of “government” to, I don’t know—the police? The military? A legislator with a lasso? A gun-wielding President?
Either way, the thrust of many of these arguments seems to be that anything short of being rounded up and thrown in jail by jackbooted thugs is permissible in the name of punishing unpopular or offensive speech. This position is obviously not supported by law or reason.
2. “The University of Oklahoma wins because of Bethel School District v. Fraser.”
This is a more advanced argument, one I’ve seen on Gawker quite a bit over the last 24 hours. It’s a point made by folks who have at least a basic working knowledge of First Amendment jurisprudence. Briefly, Bethel dealt with a school district punishing a student who made a sexual-innuendo-laced speech at a high school’s student government assembly. The Court upheld the school’s power to punish the student for pulling the stunt.
However, one can draw many important distinctions between Bethel and the present situation. The two key differences are that, first, a high school has a heightened expectation of supervisory control over its students (most of whom are minors) under the doctrine of in loco parentis. This tenet broadly means that the school stands in the “shoes” of parents when the students are under its temporary custody and supervision. By contrast, that doctrine effectively disappeared from higher education many decades ago.
That’s hugely important, particularly when, as here, students are not afforded due process prior to being expelled or otherwise punished for speech.
Moreover—and possibly even more critically—the fact pattern in Bethel involved a school-sanctioned event held on school property. The offensive song sung by SAE underclassmen took place on what amounted to a private party bus, and was only disseminated via a video recording.
Those two distinctions taken together are massively damaging to any legal argument Oklahoma would try to make in that vein. But there’s one more major avenue . . .
3. “Oklahoma didn’t run afoul of the First Amendment because it expelled these students for violating a code of conduct to which the students consented! The First Amendment has nothing to do with this!”
Let’s engage in a thought experiment. Do we agree that it would be unlawful for a state college to expel a student (without a hearing to boot!) if the university president simply announced a set of speech-related rules that the student had violated? Ok. Let’s assume that we do agree on that point.
How does merely calling rules a “code of conduct” magically make them a-OK?
It’s absurd to say that a school doesn’t violate a student’s speech rights with a speech-sanctioning code of conduct to which students are required to agree as a condition of enrollment. If a school may force a student to sign away his speech (and/or due process) rights merely to attend the school, then much of the Constitution is instantly rendered meaningless on college campuses.
But maybe that’s the point.
My final thought on this topic is that I have no doubt that there are many people, a sizable portion of whom reside within academia, who would prefer that rules banning all speech they find objectionable replace any sort of system in which offensive speech has legal protection.
They believe in two related ideas: That free speech is overvalued, or even “dangerous,” and that college students should be treated like children. I reject both of these ideas, although, after accidentally watching what’s left of MTV for a few painful seconds recently, I object to the former more strenuously than the latter.
The situation in Oklahoma has become an important test case: In this era of social media voices carrying so much (too much) weight, is lopsided public opinion sufficient to trump the legal rights of reviled people who have said things that those in power find offensive?
President Boren is clearly betting the answer is yes.
The gambit is that, even if the students have the better of the legal argument, that the overwhelming condemnation by the school and the student body will intimidate them into full-on retreat in an effort to make this story “go away” as soon as possible. We’ve seen this in other contexts already, where a university administrator may overreact in the face of shaky evidence in order to soften public outcry.
The lesson seems to be that, in 2015, depriving a few folks of due process is a less painful option than enduring the negative PR that might result from social-media outrage.
A fairly obvious First Amendment violation has occurred at Oklahoma, but we still see stories like this one that make it not-at-all-clear whether the school will (or should) be taken to task for that violation, or this one, which seems to indicate an unwillingness by at least one of the students to press the issue in the hopes of gaining mercy from the public.
My own view is that opportunists will always look to score political points by trampling on the free speech rights of easy, unpopular targets—if not out of ambition, then out of a fear of being viewed as sympathetic to those targets, thereby also becoming a target.
It doesn’t take any courage or character to protect only the rights of the beloved. We’re at our best as a society and as a nation when we remember and honor that principle.
“Even for the villains?,” you ask.
Especially for the villains.