This will likely come as a surprise to no one: Fraternities consistently produce some of the least sympathetic cases for campus free speech advocates. Those of you who have followed my work over the years know that college students can and do get in trouble for remarkably tame speech, from the student who was expelled for a Facebook collage criticizing a parking garage to, more recently, a student who was not allowed to walk at his graduation because of his mild criticism of his university's bureaucracy. Fraternities, on the other hand, sometimes get in trouble for incidents like dressing in blackface and Klan robes for a Halloween party, as Tau Kappa Epsilon at the University of Louisville did in 2001. Most recently, in the fall of 2010, Yale's chapter of Delta Kappa Epsilon (DKE) apparently required pledges to march around campus chanting repugnant slogans like "My name is Jack, I'm a necrophiliac, I fuck dead women" and "No means yes, yes means anal." While Supreme Court decisions in favor of the likes of Fred Phelps and the Westboro Baptist Church demonstrate that the offensiveness of a particular expression is not a legitimate reason to ban it, the often intentionally puerile and offensive speech of fraternity members poses a real challenge to those of us who try to build grassroots support for free speech on campus. But make no mistake, the dilemmas posed by fraternity incidents like these and, more importantly, from the way fraternities choose to handle them, have ramifications far beyond the strange parallel universe of Greek life. The free speech controversies posed by fraternities -- and the responses to them -- often threaten the free speech rights of all students. This concern applies equally to public colleges, which are directly bound by the First Amendment, and to most private colleges, which are bound by their explicit promises to respect their students' freedom of expression. In my 10 years defending student rights at the Foundation for Individual Rights in Education, fraternity free speech cases have often followed this pattern:
- Fraternity members do something specifically intended to offend -- and, lest we ignore much of modern day comedy and satire, it is important to note we often value poking fun at sacred cows -- but the frat brothers overshoot their mark. Word gets out to the larger campus and the community erupts in calls to punish the fraternity.
- The fraternity members and the fraternity itself apologize, and the students throw themselves at the mercy of the college and their superiors within the frat. Often the fraternity or its national organization will launch some kind of investigation resulting in the punishment of individual members, if not the whole fraternity.
- Occasionally, instead of apologizing, a member of the fraternity realizes that even though the speech was offensive, it's probably protected by the First Amendment, and so he decides to stand up for himself. In that case, time and time again, his fellow members will not support him and the student ends up being both punished by the fraternity and rendered defenseless against the university.
- In the rare case that the entire campus chapter fraternity is united in its desire to fight for its First Amendment rights to provoke and offend, their national organization does not have their back and either pressures the fraternity to back down or punishes it outright.