The following is from the Supreme Court unanimous opinion in Chaplinsky v. New Hampshire:
This would appear to apply to the SAE brothers who were expelled.
Cardinal Fang, even the mighty OCR will get slapped if they challenge the First Ammendment in court.
I understand that society at large wants a pre-school like environment for our college students where everyone holds hands and sings Kumbaya while painting rainbows, everyone lives in harmony and there is no conflict (but lots of trigger warnings). (Well, everyone except the professors who want to teach diverse, often conflicting, prone to cause unease, and provocative ideas.) But that wish may not be fulfilled if it comes in conflict with the Constitution. If speech - note, speech and not action - by itself causes a hostile environment in a public institution - note, public and not private - then unfortunately those that feel that it is hostile will just have to suck it up as speech is protected. They have full right, of course, to counter speech with speech.
But they do not have the right to silence such speech. I am surprised that so many adults do not know this, as this is something even my 8th grader knows (he is being taught civics now in school).
In that case, would you support expelling every person who sings to or raps to popular music which contains misogynist lyrics, much of which also includes references to committing violence against women, even if it occurs not in public but in a privately owned or rented car, bus, etc. on the way to a private party?
Perhaps we should move past a 1942 ruling and look into more recent rulings as quoted in the Eugene Volokh article.
What’s the relevant case law, other than Chaplinsky?
I agree with Swimkidsdad that what the SAE brothers said was no less offensive than what Chaplinsky said. I could imagine that a court could conclude that using the term “n####” in such a disparaging way and joking about lynching could be deemed “epithets and personal abuse” that is unprotected by the First Amendment, or that “n#####” “said without a disarming smile” was a fighting word.
Many of the questions asked here have already been answered, often several times.
We do know that in the past, SAE has had African-American members. My understanding is that it has only had two. They have appeared on TV discussing this issue.
I know “Momma B” who sang the N word while listening to a record isn’t the focus of this discussion, but she has been pilloried in the press. Much as I usually like Jon Stewart’s Daily Show, I think he was incredibly unfair to her. For those willing to listen, watch this interview of the 2 Oklahoma SAE alumni. http://www.cnn.com/2015/03/11/us/oklahoma-fraternity-house-mom/index.html They don’t think she should have sung along with the song, but they ALSO say she is NOT a racist. They knew her well and at least one has called her to tell her that since the video of her went viral.
“Yet both are equally protected by the Constitution. That’s the part a few are finding hard to accept.”
SCOTUS has already ruled in a few cases that speech in public schools is not be an absolute right. If the fraternity believes their rights have been violated they too can sue - just like the plaintiffs did it these other cases - who sued and lost. Also, speech is not protected from consequences at all in a private school or business and it is not protected if the speech is deemed “fighting words” regardless of where such speech took place.
I hope the good people of Oklahoma also bring suit against the law just passed in the Oklahoma House which will allow only marriages for people of “faith.” It hasn’t gone to their Senate yet, or the Governor - but considering it’s Oklahoma…
The state of Oklahoma is also requiring anyone who wants to be married must successfully complete a pre-marriage counseling program of at least 4 hours.
Here is a copy of the bill.
http://webserver1.lsb.state.ok.us/cf_pdf/2015-16%20INT/hB/HB1125%20INT.PDF
PG; But you don’t seem to be able to consider that perhaps they were not the innocent drunk guys just singing a song to be funny, and perhaps, just perhaps are in fact young racists that understood exactly what they were saying. They aren’t 12, they are 18-22 yos. I doubt they would sing this out in the open.
I agree that this could have been a teachable moment. I disagree that having this only be a teachable moment, and not one with swift and significant consequences, would have really taught these men anything. They are way too old not to have heard anti-racist messages in their schools or houses of worship before this. And if they did not, then their parents and teachers did not do their job.
What do lawyers here think about the Supreme Court opinion swimkidsdad posted?
Does it apply to the OU situation?
I don’t think this speech passes muster as “fighting words” because they had no intentions of anyone outside of that bus hearing it.
The Volokh link states that there is no exception to the First Amendment either for situations “creating a hostile environment.” That one doesn’t seem so absolute to me, but of course I am not a professor of Constitutional law at UCLA either.
Cardinal Fang and EmilyBee, I think it is generally smarter to accept the opinion of Constitutional scholars over debating law in a public forum when neither debating party has any legal education. Note that not a single Constitutional scholar has come ahead and said that the actions of the university are legal. To the contrary, every single such scholar who opined on this issue in public have said that the university broke the law. (I am happy to be proven wrong on this, of course, so would welcome citations from you.)
You may believe that you or I or some other folks on this forum with no legal training whatsoever have a better shot interpreting the Constitution than those who made a career out of it, but I must humbly disagree. You are free to continue in your pursuit to prove all Constitutional scholars wrong, of course. Most reasonable people would conclude that such a pursuit is not worthy of any consideration.
I wish people would read every post and link on this thread before commenting. I know it is onerous, but some of the same ideas seem to be brought up over and over.
This is a wise question. Let the lawyers opine on legal matters, and let non-lawyers learn instead of challenging.
So far, from what I have read, the lawyers have all opined that the First Ammendment has been violated.
@RondolnBFlat, florida26 claims to be a lawyer and has expressed a dissenting opinion from the others. Personally, I felt he lost credibility when he inexplicably brought in the false equivalencies of child pornography and prostitution to the debate, but nevertheless…
Then I guess we have to go by majority opinion then.
In general, I always get a chuckle whenever I see a non-lawyer vigorously debate a lawyer on interpretation of law.
“Note that not a single Constitutional scholar has come ahead and said that the actions of the university are legal. To the contrary, every single such scholar who opined on this issue in public have said that the university broke the law. (I am happy to be proven wrong on this, of course, so would welcome citations from you.)”
I believe there has already been a post in this thread linking a constitutional scholar who disagrees. I will try to go back and find it.
Thank you, but I will continue to post my opinion regardless of what others, including lawyers, opinions are.
I think we all have a right to express our opinions. It’s just that some are borne out of ignorance.
I think we all have a right to express our opinions. It’s just that some are borne out of ignorance.
RandolnBFlat, have you ever had a lawyer? They aren’t all knowing. They also disagree with each other. 
Well, here you go.
"In a break with most legal experts, Daria Roithmayr, a law professor at the University of Southern California who has written about the interplay of law and racism, said that a plausible argument could be made that the students’ action caused a “material disruption” in the university’s educational mission and was not protected by the First Amendment.
“The entire university now has to repudiate the bigotry of a fraternity,” she said, and for black students, “it’s a massive disruption.”