I was recently interviewed for U.S. News & World Report about University of Oklahoma President David Boren's decision to expel two Sigma Alpha Epsilon fraternity members for engaging in racist chanting. The university's actions clearly violate the students' constitutional rights, I have argued, given that their contemptible speech was almost certainly protected under the First Amendment. With that in mind, I say they should sue:
Robby Soave, staff editor for Reason Magazine, a libertarian publication, argued that the decision could limit speech on college campuses, and hopes that the group brings legal action against the school.
"It's best for a climate of free speech on campuses if they sue, because it has a chilling effect if they don't," Soave said . "Other people could choose to not say things because of the consequences they might suffer."
Others believe that these students engaged in speech so offensive that it created a hostile learning environment for black students. In a widely-circulated Atlantic article, law professor Kent Greenfield argued that while the current Supreme Court would hypothetically side with the expelled students, it would be better for society if the First Amendment was not understood to protect such abjectly offensive speech:
No one with a frontal lobe would mistake this drunken anthem for part of an uninhibited and robust debate about race relations. The chant was a spew of hatred, a promise to discriminate, a celebration of privilege, and an assertion of the right to violence–all wrapped up in a catchy ditty. If the First Amendment has become so bloated, so ham-fisted, that it cannot distinguish between such filth and earnest public debate about race, then it is time we rethink what it means.
Greenfield is wrong—not about the speech in question, which was indeed a spew of hatred, but about whether it's possible to prohibit that type of speech without putting socially-valuable speech in danger. That's because sorting bad speech from useful speech is a job no agent of the government can be trusted to execute properly. Doing so would require an exercise of subjective determination that would, by necessity, send a message to devotees of controversial ideas that they will be held up to the censor's scrutiny if they speak. These are not conditions under which a robust and intellectually-challenging environment thrives.
Indeed, who can say for certain that the racist chanting served no useful purpose? In a sense, it was highly educational: We now know SAE has permitted (or even encouraged) a culture of lingering racism. The speech has served as a reminder that society had not totally quashed the evils of racial animus and racial discrimination. University campuses have more work to do on these fronts—more work, I believe, than many people would have recognized before this incident was publicized.
That's precisely why even speech that persuades no one, that contains not even a kernel of truth, can nevertheless serve a useful purpose—even if it's only result is to make us more certain of our own opinions. Campuses shouldn't be afraid to let racists and bigots be heard, and all people of decency should be more confident in their own ability to hear, reject, and denounce evil ideas, rather than the expression of evil ideas.