JURIST Guest Columnist Howard M. Wasserman, of Florida International University College of Law, discusses the First Amendment and the University of Oklahoma’s decision to expel fraternity members that used racially insensitive language …

The First Amendment, Justice Holmes wrote in US v. Schwimmer, protects “not free thought for those who agree with us but freedom for the thought that we hate.” Someone forgot to tell that to University of Oklahoma President David Boren.

Boren this week expelled two student members of Oklahoma’s SAE fraternity who were captured on video leading a racist chant among fraternity members. Boren insisted that the two students had “created a hostile learning environment for others” through their speech because the “threatening racist chant” was heard not only by those on the bus, but the entire university community when the video was distributed through social media. Boren also pledged to impose appropriate disciplinary action on any other chanting students who could be identified from the video.

There is no question that the speech is reprehensible and deserving of condemnation. The SAE national fraternity revoked the OU chapter’s charter, disassociating itself from these individuals and all the members of the now-closed chapter have moved out of the house.

Unfortunately for Boren and his political grandstanding, it is highly unlikely that his further actions in expelling the students will withstand judicial scrutiny should they sue. (This perhaps is a large if; prudence may compel the students to hide quietly for a time and try to move on with their lives). As reprehensible as the chant was, nothing about it exceeded the bounds of First Amendment protection.

The utterance of racist messages and epithets is constitutionally protected, so long as the racist speech does not fall within some other recognized category of unprotected expression, such as incitement, fighting words or “true threats.” But this chant cannot be understood as falling into any of those categories. It was not fighting words—words which by their very nature invite a violent response (or, as Justice Kagan recently put it [PDF], words “that would cause a reasonable person to punch you in the face”). But the category of fighting words has been narrowed, requiring targeted expression at a particular person during an up-close face-to-face encounter. It is not fighting words to burn a flag, even when veterans or other patriotic Americans are watching, nor is it fighting words to march in Nazi uniforms before a gathering of survivors of the Shoah. It certainly is not fighting words to lead a group chant talking about people who are not present at the time.

Nor could the chant constitute a “true threat.” The Supreme Court in Virginia v. Black defined that as occurring “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” A speaker must “direct[] a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Boren hinted at this category in labeling the chant “threatening.” Again, however, “threatening” has a particular First Amendment meaning that is not captured here, where the chant was not directed to any particular individuals and not done in a way that would put anyone in fear of bodily harm. Although the chant included the line “[y]ou can hang him from a tree,” that reference directed at the world, without more, cannot constitute a threat.

Boren also dropped the phrase “hostile learning environment for others” as a further justification for the expulsion. His likely point is that for the university to allow such speech would violate Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal funds (including universities) from discriminating on the basis of race or allowing a racially discriminatory environment to exist. But the Civil Rights Act cannot trump the First Amendment. Government can punish speech, even to avoid its own statutory liability, only if the speech falls into one of those unprotected categories. “Hostile environment” is not a recognized unprotected category. In fact, lower courts have invalidated every public university speech code ever challenged, including ones focused specifically on limiting speech that creates a hostile educational environment. The need to avoid a hostile environment is not recognized as a basis for limiting otherwise-protected, even if hateful, expression.

The expulsion here thus looks like simple naked viewpoint discrimination. The university punished the students for their speech because it objected to the content of that speech, specifically the racist viewpoint reflected in the chant. Had the students chanted that African-Americans were welcome in SAE or had they never mentioned race at all, they obviously would not have been punished. When government punishes speech because of its content, it must satisfy strict scrutiny, showing that its actions were the least restrictive means to serve a compelling government interest. And viewpoint discrimination is an extreme form of content discrimination that virtually never survives strict scrutiny. Even conceding that Oklahoma has a compelling interest in creating a non-hostile environment for students of color, it is not clear that punishing students who express a contrary viewpoint is the least restrictive means to achieve that end. In particular, the Court just a few years ago emphasized in US v. Alvarez the availability of government counter-speech as a less restrictive alternative to punishing speakers for the content of their speech. Boren and the University of Oklahoma certainly could makes their distaste for SAE’s speech and their commitment to racial equality clear, even while allowing students to say otherwise from the margins. In fact, the university might be the ideal place for counter-speech; the school performs an inculcatory function for a student body with which it can regularly and systematically communicate and it has regular opportunities to join with other students and student organizations to make clear that, regardless of what a few SAE members might say, African-Americans and others are welcome on campus.

The university’s only conceivable argument is that it enjoys broader power to regulate its students’ speech than the government has to regulate citizens’ speech. The Supreme Court’s decision in Tinker v. Des Moines Indep. Sch. Dist. establishes that schools can regulate speech that is likely to cause a “substantial disruption.” But this argument faces several hurdles. First, Tinker generally does not apply to universities, only to secondary schools. Courts proceed on the belief (erroneous, in the view of Professor Eric Posner) that college students are adults who enjoy more freedom of speech within the school setting than their high school counterparts. In Healy v. James, the Supreme Court cited Tinker, but then insisted that “First Amendment protections should apply with less force on college campuses than in the community at large.” Again, this explains why every challenged university speech code has been invalidated, even if some of the speech prohibited under the code would be seen as disruptive under Tinker.

Fortunately for Boren, Oklahoma lies in the Tenth Circuit, one circuit that does apply Tinker to university speech, despite the language in Healy. But even applying Tinker, the university’s actions remain problematic. This speech occurred off-campus, on a bus used by a group of students to attend an off-campus, non-university-sponsored event and the speech was intended to remain among the group on that bus. Even assuming a university’s power to control racist speech in the classroom, in the dorm room, and even on the quad, it should not extend beyond university grounds or beyond university programs. Moreover, any substantial disruption is not a product of the chant itself; the students did not direct their speech at the broader university community, did not intend for the broader community to hear it and did not publish or distribute its speech among that community. The wider community only heard the speech because someone other than the speakers put it out there, presumably without the students’ knowledge or permission. Tinker cannot be so broad as to give a school control over any and all speech by its students so long as that speech reaches campus, regardless of how or by whom.

In announcing the expulsion, Boren praised what he called the “‘Real Sooners,” who believe in mutual respect for all.” He remains free, and should be encouraged, to rally with those “Real Sooners” in support of equality and mutual respect. But the First Amendment means he cannot get there by eliminating those who offer a different message.

(Special thanks to Eugene Volokh of the UCLA School of Law for some helpful suggestions and additions.)

Howard M. Wasserman is Professor of Law at Florida International University College of Law in Miami, Florida. He earned his J.D. from Northwestern University School of Law and a B.S. from Northwestern University.

Suggested citation: Howard M. Wasserman, University of Oklahoma Expels the First Amendment, JURIST – Academic Commentary, Mar. 14, 2015, http://jurist.org/academic/2015/03/howard-wasserman-first-amendment.php