The president of Oklahoma University came down hard and quick on one of the school’s fraternities after a viral video showed chapter members in an openly racist chant vowing to bar African Americans from their brotherhood. Millions of Americans who had never heard of Sigma Alpha Epsilon were introduced to the fraternity by hearing OU chapter members on a chartered bus chanting, “There’ll never be a n***** in SAE.”
OU President David Boren, a former Oklahoma governor and U.S. senator, responded all but immediately to the YouTube video by shuttering SAE’s frat house and expelling two of the students identified as helping lead the chant [March 9]. Boren drew widespread acclaim for his actions, but First Amendment experts have criticized the moves as free-speech violations.
The experts who questioned the actions ranged across the ideological spectrum from the libertarian-minded Eugene Volokh to two nationally prominent liberals, Erwin Chemerinsky and Geoffrey Stone. A minority view was heard from Daria Roithmayr, a law professor at the University of Southern California who studies the intersection of law and racism. But the most full throated critique came from a Boston College law professor, Kent Greenfield, who argued in a column for The Atlantic that the Supreme Court’s interpretation of the First Amendment may protect the frat boys’ racist chant “but it shouldn’t.”
It is risky business indeed to take on Volokh, Chemerinsky, and Stone, all at the same time, but a Supreme Court precedent ignored so far in the debate upholds the university’s decision. Boren plausibly justified his decisions on the ground that the chant disrupted the university’s educational mission. But the stronger argument is that the university has the power to prevent recognized student organizations from engaging in illegal racial discrimination and that the frat boys’ chant amounted to proclaiming and reinforcing such a policy.
The strongest Supreme Court precedent for the school is a commercial speech decision, Pittsburgh Press Co. v. Human Relations Commission (1973), that rejected a newspaper’s First Amendment right to advertise illegal conduct specifically, sex discrimination in employment. Back in the now-forgotten old days, the newspaper separated job listings in its classified ads by sex: “Male Help Wanted” and “Female Help Wanted.” The city’s human relations commission cited a local ordinance aimed not only at employers but also employment agencies and advertising media in ordering the newspaper to cease and desist the practice. The newspaper responded with a First Amendment defense.
The court’s decision was divided 5-4, but the majority was emphatic in rejecting the newspaper’s defense. “Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance,” Justice Lewis F. Powell Jr. wrote (emphasis in original). “We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes.”
“The illegality in this case may be less overt, but we see no difference in principle here,” Powell continued. Any claimed First Amendment interest, he said, was “altogether absent when the commercial activity itself is illegal, and the restriction on advertising is incidental to a valid limitation on economic activity.”
Admittedly, Pittsburgh Press predates by a couple of years the seminal Supreme Court precedents that established the commercial speech doctrine. But despite four decades of evolution, the holding still stands: the government can prohibit speech that specifically proposes illegal conduct.
The OU boys on the bus were doing exactly that: advertising a policy of illegal discrimination and reinforcing that policy for all those who heard it. The university prohibits fraternities and sororities from practicing racial discrimination. Federal civil rights law also probably applies to the fraternity, which is as much a public accommodation as private civic clubs that the court has held subject to civil rights laws in decisions in the 1980s.
The First Amendment experts who see problems with the university’s actions all viewed the dispute in terms of precedents limiting the government’s power to control hate speech or supposed threats. “Racist speech is constitutionally protected,” Volokh, a professor at UCLA, wrote on his eponymous blog The Volokh Conspiracy, “and universities may not discipline students based on their speech.” Chemerinsky, founding dean of the University of California-Irvine Law School, and Stone, a former dean at the University of Chicago, voiced similar views in comments to The New York Times and elsewhere.
The frat boys’ chant included a chilling reference to possible violence against a would-be African American brother: “You can hang him from a tree, but he can never sign with me.” The experts found that language too general to lose First Amendment protection under the Supreme Court’s key precedent, Brandenburg v. Ohio (1969), which blocked prosecution of Ku Klux Klan members for burning a cross as part of a rally in an open field.
The frat boys’ threat could easily be construed as more concrete than the Klan’s public rally. In any event, Boren is right in contending that the chant was disruptive for the 30,000-student campus. The First Amendment interest in protecting the chant is, as Powell wrote in Pittsburgh Press, “altogether absent.”
The two expelled students have apologized, but the SAE chapter has now hired a lawyer for possible litigation on the issue. OU can stand its ground. Public universities must respect freedom of speech, of course, but First Amendment doctrine does not disable university administrators from acting against racial discrimination and racist speech that interferes with the rights of others.