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Racist Rants and the University of Oklahoma: Getting It Wrong

03/11/2015 12:00 am ET | Updated May 11, 2015

University of Oklahoma President David Boren has expelled two students, members of SAE fraternity, for participating in a racist rant on a bus. The rant included the following:

There will never be a nigger at SAE
There will never be a nigger at SAE
You can hang him from a tree
But he'll never sign with me
There will never be a nigger at SAE

Needless to say, such language is abhorrent. But the University of Oklahoma cannot constitutionally expel the students for this expression.

The Supreme Court has made it quite clear that public universities cannot constitutionally discipline their students for speech merely because it offends the university's sense of decency.

In Healy v. James, for example, a state college in 1969 refused recognition to a proposed student chapter of Students for a Democratic Society (SDS). The college argued that its denial of recognition was justified because SDS adhered to "a philosophy of violence and disruption." This was especially worrisome, the college explained, at a time of widespread disruption on college campuses, often accompanied by trespass, vandalism, and arson.

The Supreme Court held that the college could not constitutionally deny recognition to SDS, even though its advocacy of violence and disruption might well be "repugnant." The Court explained that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." To the contrary, "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American" colleges and universities, and in our constitutional system, a college or university "may not restrict speech or association simply because it finds the view expressed by any group to be abhorrent." The "critical line," the Court held, is whether the speech in question was likely to incite imminent lawless action. Short of that, the speech -- and the organization -- were protected by the First Amendment.

Similarly, in Papish v. University of Missouri, the Court held that a state university could not constitutionally expel a student for distributing on campus a student newspaper containing a political cartoon depicting policemen raping the Statue of Liberty and an article using the phrase "mother-fucker." Because the student was expelled for "the disapproved content" of her speech, the Court held that the university violated her rights under the First Amendment.

In light of those precedents, it seems clear that the University of Oklahoma violated the First Amendment when it expelled the SAE students for their offensively racist expression. Now, I know it may seem crazy to say that a state university cannot constitutionally expel students for such outrageous speech. But the very point of the First Amendment is that the government cannot censor people (including students) merely because it finds their speech abhorrent.

The central meaning of the First Amendment is that we do not trust the government to decide for us what we should be allowed to hear, read, see, or know. We know that, given the power to censor, and given the realities of human nature, those with the authority to censor will inevitably deny us access to ideas, information, theories, images, and arguments, not because we would necessarily find them to be stupid, pointless, offensive, dangerous, or wrong, but because they don't want us to hear them.

Of course, a commitment to freedom of speech does not mean endorsement of the views of others. One can be revolted by the rant of these students and still defend their right to be obnoxiously offensive. As Voltaire observed, and as summarized by Evelyn Beatrice Hall in her biography of the great thinker, "I do not agree with what you have to say, but I will defend to the death your right to say it." That is the essence of a true commitment to freedom of expression.

Faced even with speech we find to be odious, obnoxious, and offensive, the only response a commitment to freedom of expression leaves us is not suppression, but more speech -- speech that says "You are wrong, you are an idiot, and here is why!" As Justice Louis Brandeis explained almost a century ago, in a system of free expression, the proper response to bad speech is not censorship, but good speech.

And that is precisely what happened at the University of Oklahoma. Students, faculty, alumni, and administrators came together to affirm that the expression indulged in by the SAE students was odious, stupid, insulting, offensive, and degrading. They did what the First Amendment expects us to do -- to answer bad speech with condemnation. And in the end, the people will judge.

There are, of course, those who will argue that the speech of these students was beyond the pale. It was "hate" speech -- speech that is so vile, so degrading, so insulting, so offensive that it is beyond what the First Amendment protects. But the Supreme Court has repeatedly -- and correctly -- rejected this notion. The First Amendment denies the government -- including state-run universities -- the authority to decide that certain speech is so outrageous that it may be banned.

Now, to be clear, there are exceptions to this principle. Speech that expressly threatens particular individuals, speech that expressly harasses particular individuals, speech that expressly defames particular individuals, speech that invades the privacy of particular individuals can be restricted, both in society generally and in a university. Moreover, like any educational institution, a state university can properly regulate what speech is appropriate in a classroom. Use of the word "nigger" in a classroom when the word is irrelevant to the material being taught can be restricted.

But as the Court made clear in Healy, Papish, and other decisions, a public university generally has no more authority to regulate offensive speech on a campus and a city has to regulate offensive speech on a city street.

I join President David Boren and the University of Oklahoma in denouncing the racist rant of these students. But to expel students for what they say and think -- however odious their words may be -- violates the very constitutional principles upon which the University of Oklahoma was founded.

This was a great, if difficult, teaching moment. It is a shame that President Boren and the University of Oklahoma taught their community the wrong lesson.