by Brianne Recker

ONE OF THE pillars of American law and society is the First Amendment, specifically governmental protection of citizens’ freedom of speech and freedom of expression. Another celebrated aspect of our national identity is the ideal of equality regardless of race, gender, or other arbitrary traits. Sadly, we know that this notion is indeed idealistic, as discrimination lives on. This truth has been displayed in the recently leaked video of University of Oklahoma Sigma Alpha Epsilon Fraternity members chanting a racist song during a bus ride.

The lyrics go, “There will never be a n***** at SAE/You can hang him from a tree but he’ll never sign with me.”

The individuals who participated in this chant have expressed a form of free speech. This song is a flagrant display of racial discrimination laced with threats of lynching. Racist speech is protected under the First Amendment, but because the actions of the SAE members have been made public, the words of these students serve as more than a display of racial prejudice.

The students on Oklahoma’s campus who hear such taunts and feel threatened deserve to be protected just as much as the individuals who spoke them deserve to have their right to free speech protected. In light of these considerations, it is time to reconsider the conditions under which this type of speech is protected by law, namely if  speech instills legitimate fear and, in turn, has the potential to inflict harm.

Brandenburg v. Ohio was a landmark Supreme Court case which determined what types of harmful speech could still be protected under the First Amendment.

Clarence Brandenburg, a KKK leader in Ohio, was charged with advocating violence after leading a rally fueled by racist sentiment. However, the final ruling was that Brandenburg could not be indicted because the acts did not incite, and were not likely to incite, imminent violence.

Eugene Volokh, a prominent law professor known for his scholarship on the First Amendment, recently published a Washington Post piece titled, “What speech is going to justify expulsion next, if the OU/SAE expulsion is accepted as proper?” Volokh is concerned that by punishing speech that is discriminatory towards blacks, speech that is discriminatory towards any group could be punished equally, free speech would no longer be protected.  Prof. Volokh writes that the decision of University of Oklahoma President David Borden to expel the SAE offenders is unconstitutional.

Prof. Volokh’s concerns present legitimate grounds for consideration, but there is a greater issue at hand. The First Amendment protects free speech, but the Preamble to our Constitution was created to “establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”

President Borden writes in this statement to the perpetrators: “You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.”

Oklahoma is a public university, and obligated to act and reprimand under United States law. Although individuals such as Prof. Volokh have looked to the First Amendment in order to oppose the students’ expulsions, I see no fault in President Borden’s decision to punish the students. If Dr. Borden’s primary goal is to protect the students of his university from harm, then his decision is justified. While protecting the free speech of students is certainly important, it is of the utmost importance for the University of Oklahoma to provide a safe campus.

Punishing particular expressions of racism is not a call to change all laws which govern hate-speech or the freedom of expression. In order to promote the safety and well-being of all individuals on the University of Oklahoma campus, the severity of the actions by the SAE members cannot be ignored. If the desire to protect all speech is the be-all and end-all, then by all means, allow students to sing about lynching and discrimination, but be prepared to accept that many others may feel personally threatened.  The OU/SAE incident illustrates the necessity to create an environment that is safe for all persons and that doing so should overrule the First Amendment’s protection of racist speech.

Though landmark court cases such as Brandenburg v. Ohio are crucial in defining our nation’s laws and how individual incidents and cases are resolved, it is important to remember that Supreme Court rulings exist in long historical perspective. For instance,  Brown v. Board of Education overturned segregation in public schools 90 years after Plessy v. Ferguson created the concept of separate but equal.

Do we really have racially integrated schools if certain students still feel discriminated against and threatened with lynching?

Brandenburg v. Ohio and Brown v. Board of Education only go halfway in creating safe learning spaces for all students, regardless of race. The University of Oklahoma SAE incident challenges the interpretation of the law set in motion by Brandenburg v. Ohio—that there must be the threat of the incitement of violence for speech to be punished. Though the words sung by the SAE students may not urge those who hear them to go out and commit the acts stated, it is doubtful that black students on any campus would feel safe in an environment where such language went unpunished.

The primary concern in addressing The University of Oklahoma/SAE incident should not be to debate whether hostile words are protected, but whether the students who feel threatened by these words feel protected and are safe.

Brianne Recker is a sophomore at the University of Michigan.