Friday, March 13, 2015

Was the racist rant, at OU, protected by the First Amendment when posted? Was the expulsion of the students constitutional?



Did the University of Oklahoma, though the actions of president David Boren, violated the first amendment rights of two students by expelling them?  It’s noteworthy that the expulsion letters provide for a mechanism for repeal
  
Matt Pearce writes, “probably” in the Los Angeles Times, here.  There are similar pieces in Time, Kfor, and the Washington Post (column by Eugene Volokh here  ). 

My take is, maybe. 

First, the speech was not protected if it made a direct threat, or was part of a conspiracy to commit and illegal act.  The reference to hanging or lynching might be perceived as crossing that line.  There is a documentary film, “American Lynching”, by the late Gode Davis, which is not completed.  If it were available, I wonder if it would affect the debate. I have a Wordpress posting on the progress of this film, Feb. 6, 2014 here.  Of course, however, one could also say that if the students’ chant actually conveyed a threat online, they could be prosecuted (or the poster could). 

Second, is the issue of conflating speech with “conduct”.  Where did we see this done before?  We saw it in the early days of the debate over gays in the military, after President Clinton took office in 1993, leading to the “Don’t Ask, Don’t Tell” policy.  In my first book (“Do Ask Do Tell I”) I had even supported the idea that speech in closed spaces could need more regulation (the whole “White House Letter” from 1993). 

Even though OU is a public university it has to deal with the fact that it has a somewhat “closed” environment where it needs to restrain some conduct in order to protect a learning environment.   O its face, that sounds reasonable, up to a point.

There is also a question that the offense came from private postings on private social media accounts (or it could have happened with shared or sole web hosting).  Yet, the whole point of many postings is to go public, so the speaker has to take some responsibility for the likelihood that the contents will be known and active in that space (the campus).  This has led to an area I have called “conflict of interest” in other discussions. For example, persons who have authority over others in the workplace or classroom have to be accountable for the idea that their public speech could create a hostile environment.  But that might not apply to undergraduate college students.


In at least two major episodes of my life, there were significant consequences for my speech.  In 1961, I was “expelled” from William and Mary after telling the Dean of Men, in a closed meeting, that I viewed myself as a “latent homosexual”.  That should have been protected speech, by modern standards. 


In 2005, I was removed from a substitute teaching assignment (with the confluence of a lot of coincidences and complications) after a fictitious screenplay I had posted, about a sub, resembling me, allowing himself to be “seduced” by a student, came to the attention of a school.  (It’s covered here July 27, 2007).   Since this was a public school system, was that protected speech?  If it could be construed to have the “purpose” of goading students into actually trying it (since it didn’t have another apparent commercial purpose), that could be an issue, and a dangerous one, but that’s a stretch.  Was it “offensive” to teachers?  Possibly in that it suggested also that any teacher could get set up (like in the 2003 Lifetime film “Student Seduction”), but maybe that is something that should be said.  Did I have the proper “standing” to post this, or did it create some kind of conflict of interest?  I wasn’t in a position to grade students, so that gets into the “implicit content” problem.

As far as closing the fraternity, the University's case seems much stronger.  It is under some obligations under a Civil Rights Act not to provide a discriminatory environment.  But the idea that individual undergraduate students played a leadership role in creating a hostile environment legally seems like a stretch, when it comes to expulsion.  But the University may be right in acting quickly and then offering a willingness to answer questions later. 
   
So there is a lot going on here, legally speaking.  I wonder what the Legal Guys will say on CNN Saturday. But any students publicly involved, expelled or not, will have to live with their "online reputations" for a long time.  And I helped contribute to that circumstance years ago. 


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