Of course, the Constitution pertains only to government limitations.
I specifically was addressing the political effect of speech, which the poster mentioned. I was not talking about people tempering by choice out of courtesy of others. That is personal, not political.
My point is, if someone does not like your speech, they cannot complain to government and get you legally punished because they do not politically like what you said. Therefore, warning your kids of the political effects of speech essentially is the self-imposed limitation on one’s political power, which is something I would never tell my kids to do.
Additionally, I do not count people’s social reaction as punishment because people do that in other countries without a protective document such as the Constitution; social and political are not in the same realms, as many posters here have already pointed out.
Speech may have social consequences, but should not have political consequences vis a vs government consequences - that was the point of my post. Trust this is clearer.
OK, @Hunt, so the university in your view was wrong to expel the students. As I understand it, your objection is not that the party was private and the university has no business interfering in private communication, but the stronger claim that speech should not be abridged just because it’s vile. Should the fraternity members also be free to march through the quad singing the lynching song?
I’m trying to figure out how, under the First Amendment absolutist position, we prevent the university from turning into a YouTube comments section, where the useful discourse is shouted down by the speech equivalent of ads for dating sites and “male enhancement,” and comments on the sexual desirability of any female poster who dares to wade in.
“Should the fraternity members also be free to march through the quad singing the lynching song?”
I think some of us have been very clear that the context in which the song was “broadcast” is important.
So, no, marching through the quad singing the lynching song could potentially be taken to creating a hostile environment in a way that is a bit more nuanced with the song-on-the-private-bus.
Some people are saying that this speech shouldn’t have been punished by expulsion because it was private-- and I agree with that.
But as I understand it, some people on this thread are saying the speech shouldn’t have been punished by expulsion because the students have the First Amendment right to vile, offensive speech, even in public. That’s a much stronger claim.
Of course, it’s my opinion. Boren may have a few problems if he has to explain himself before a judge who shares it. If the judge finds that the argument is frivolous, it will not have been “correct” to pursue it.
I think Boren knows better, and so do his lawyers. They are rolling the dice. The students may not sue, or they may lawyer up and deal. Or they might sue, and it might go to a judge who is willing to accept the weak argument.
@Cardinal Fang, the answer to your question is that each situation has to be judged according to the standards for free speech and its exceptions. I think marching through the quad singing the song is probably protected, as long as there is no implication that threats are being aimed at a particular person. Sure, it’s a vile message. That’s not enough to allow a state actor to punish it. By the way, I think a college can regulate speech to prevent speech from being shouted down–thus, I would approve of rules prohibiting disruption of scheduled speeches, for example. That’s not dependent on the content of the speech.
I think it’s useful to think of any particular speech (like the marching through the campus), and then imagine the same speech in a letter to the editor of the school newspaper, or delivered from the podium at a public debate. This helps separate the content from other aspects of the behavior.
And you might have to make some difficult distinctions. Thus, just marching through the quad chanting might be protected–but encircling the Afro-Am House and then making the same chant may not be.
I do absolutely nothing in that instance. For all its worth, I wonder how many of the posters here are AA. Actually I probably know because we are all pretty consistent posters. In this instance, I feel that the actions against the fraternity are warranted by the school. Fraternities and sororities are expelled from schools for much less (if they had been singing about hazing it would have probably resulted in the same punishment). It is a part of their agreement with the school - it is a privilege to be there not a right.
On the other hand, I do disagree with suspending and/or expelling the students, though this has already occurred. They have the absolute right to be a racist. They have a right to espouse their views in class openly and have others debate them. That is what college is for.
As an AA, I am not shocked, appalled or surprised by the behavior. Sorry folks, never bought into the post racial crap after my dear President was elected. All it did was bring it to a head. However, if everyone who, in private, made racial, sexist, anti-Semitic, or disturbing statements were banned from school, the campuses would be quiet indeed. But so would boardrooms and locker rooms. AND, before you all start piping in about how your child would never and how you have raised them better, you should read the statements of the parents of the two young men who have been disciplined. Of course they would never have expected this behavior from their child - and I actually believe they are sincere.
When my D went off to Yale I warned her about the world she was about to enter. The bubble I had kept her in at her extremely liberal/progressive high school was about to burst. She is going to school with students who swear that there were absolutely no gay people in their 3,000 person high school, who have never seen a AA student who could speak articulately, or and Asian who liked to play basketball and not be a mathlete. Being 55 and an AA woman, I was around when there were “whites only” water fountains and we couldn’t sit at lunch counters. Call me a cynic but nothing that I am seeing is surprising me. Sorry.
The President of Yale at his freshman address talked about tolerance of speech that you don’t agree with. He mentioned the numerous speakers who had come to campuses around the country and been shouted down by students. He stated emphatically that this would be unacceptable at Yale and that as a premier institution, it must allow views to be heard that may be abhorrent to some. He challenged the freshman to understand how allowing those to disagree with you an opportunity to speak is central to what makes a great university a place where everyone feels safe expressing themselves, whether others agree with them or not.
Suppose a fraternity house had the habit of walking through the cafeteria every day, rating the sexual desirability of every woman sitting having lunch: 10 here, 5 there, 2 over there in the corner. Protected speech? Let’s assume that nobody thinks these slimy frat boys are threatening violence.
Age isn’t an excuse, but in doling out punishments, followers ought not to be deemed leaders. Boren is being disingenous when he says he has expelled the “leaders.” Rice’s remarks suggest he was taught the words of this song as a pledge. The tape suggests that the other people singing the song already knew the words.
Again, it does NOT matter if Rice and Pettit violated some fraternity code of conduct. They were not expelled for violating one. It isn’t just or fair to come up with some additional grounds for expelling someone after you’ve given a reason. The reason for the expulsion given here was creating a hostile environment for other students. OU has to prove they did.
I think that’s a stretch. The bus driver’s feelings are irrelevant unless he was an African-American STUDENT. Rice and Pettit were expelled for creating a hostile environment which interfered with the education of other students. Frankly, I don’t think what they did interfered with the education of other students.
Has anyone else here read “The Circle?” There are elements of that in this case.
I disagree with Hunt here. I don’t think they are free to do that because doing that would create a “hostile environment” which WOULD impact African-American students’ education.
I have no problem with expelling these guys from SAE. I have no problem expelling SAE from OU. However, as appalled as I am by the video, I think expelling these two young men does trample on their rights of free speech.
Moreover, I think expelling them amounts to “cosmetic surgery.” Seriously, a freshman and sophomore are responsible for creating an environment which made singing that song acceptable? I don’t think so. And kicking them out, while it may placate some student groups, is not going to change a thing.
The probable outcome, IMO, is a new rule in frats and sororities that all cell phones must be turned in before all meetings and social events.
Well, I question the idea of a “hostile environment” as an exception to First Amendment rights in the first place, because it’s such a slippery slope idea. I’m too lazy to see how well-established that idea is in the case law. I do think that it’s nonsense under the facts of this particular case, even if it can be a valid theory in another case.
I saw this type of speech at a campus I visited. I felt is was quite offensive, and obviously hostile to any person on campus who has ever made the decision to terminate a pregnancy. It was telling that the general student population was avoiding the area of the display like the plague.
Don’t feel like going back and reading, but I don’t think Boren claimed they were leaders in the general sense, only that they were “chant leaders”, which the video seems to indicate.
I doubt the real leaders, supposedly their “brothers” will come to their aid.
If Nazis can march through an area heavily populated by Holocaust victims…
If Charlie Hebdo can publish offensive anti-Islam (or whatever religion) cartoons…
Why would it be illegal for frat boys to sing about lynching on a private bus?
All of these are loathsome actions, IMO. But I fail to see how they are different in terms of free speech/1st Amendment.
I would LIKE to see those frat boys punished, by the way. Deep down, I think it’s an emotional response that’s better off curtailed to protect the larger issue of freedoms that come at a price.
But I welcome this debate: this is one of the huge issues of our time.
It is an opinion that appears to be shared by the majority of practicing attorneys here on CC, and more importantly, by most First Amendment scholars who have commented on the issue.
This isn’t a “gray area” of the law. “Hostile environment” is a term of art that’s been well defined by case law, and these kids’ actions don’t come anywhere near meeting that definition.
I agree with the earlier comments suggesting that Boren made a business decision. He knows the expulsions won’t withstand judicial scrutiny (and may even subject him and the University to civil liability under 42 USC 1983), but he decided protecting the University’s reputation was worth the potential liability. The media storm over this incident will die down in a few weeks, and once that happens, the University will work out a deal that allows the students to withdraw without a formal expulsion on their record.
Rather than ban the boys from marching through campus singing their song, perhaps they should be encouraged to do so. Then they would really get to see the power of free speech in action.
The hostile environmental argument would be easier to make if a group were walking through the quad singing this song on a daily basis. That would intimidate students of color and prevent them from enjoying a part of campus free of harassment. Free speech can be limited if it impinges on other rights. If they only did it once, as a “protest” or demonstration, it may well be protected free speech.
With the women in the cafeteria, if they believed they were being harassed based on their gender, then that would likely be illegal, especially since it is directed at a particular person.
Not easy, as recent SOTUS cases show that they highly value first amendment rights, perhaps over the right to be free from harassment in general (thinking of the clinic buffer zone case). However, if the harassment is based on race or gender, then that may push it into discrimination and not allowed.
“I think it’s useful to think of any particular speech (like the marching through the campus), and then imagine the same speech in a letter to the editor of the school newspaper, or delivered from the podium at a public debate. This helps separate the content from other aspects of the behavior.”