The Limits of Free Speech

The Supreme Court's interpretation of the First Amendment would protect even the racist chant at the University of Oklahoma—but it shouldn't.


Members of a fraternity at the University of Oklahoma were recently filmed chanting that they’d rather see a black student lynched than as a member of their clan. The now viral video of dapper, privileged white men shouting, “There will never be a nigger at SAE, you can hang him from a tree” reminds us of our greatest national shame. The chant has been roundly condemned as abhorrent. But after university president David Boren announced the expulsion of two students leading the chants, prominent legal scholars from the right and left have come to their defense. The university is a public institution, they say, and punishing the students for what they said—no matter how vile—violates the First Amendment’s commitment to “uninhibited, robust, and wide-open” discourse.

Oklahoma could make a decent argument that the students’ chant created a hostile educational environment and was thus unprotected speech, but these scholars are likely correct as a predictive matter. If this situation were litigated before the current Supreme Court, the students would almost certainly win. The frat boys’ howls are reminiscent of the Westboro Baptist Church’s “God hates fags” protests near military funerals, which the Supreme Court protected a few years ago. And while public university hate-speech codes have never been litigated at the Supreme Court, they have been trounced in lower courts.

We are told the First Amendment protects the odious because we cannot trust the government to make choices about content on our behalf. That protections of speech will inevitably be overinclusive. But that this is a cost we must bear. If we start punishing speech, advocates argue, then we will slide down the slippery slope to tyranny.

If that is what the First Amendment means, then we have a problem greater than bigoted frat boys. The problem would be the First Amendment.

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.

The way we interpret the First Amendment need not be simplistic and empty of nuance, and was not always so. The Supreme Court unanimously held over eighty years ago that “those words which by their very utterance inflict injury … are no essential part of any exposition of ideas.” And in 1952 the Court upheld an Illinois statute punishing “false or malicious defamation of racial and religious groups.” These rulings, while never officially reversed, have shrunk to historical trinkets. But they mark a range of the possible, where one can be a staunch defender of full-throated discourse but still recognize the difference between dialogue and vomitus.

When frat boys delight in singing about lynching in Oklahoma, or loop a noose around the statue of James Meredith at Ole Miss, or publish a “rape guide” at Dartmouth, the First Amendment tells us our remedy to these expressions of hatred is to grimace and bear it. Or ignore it. Or speak out against it. But punish it we cannot. That would go too far; we would slide down the slippery slope to tyranny.

Those not targeted by the speech can sit back and recite how distasteful such racism or sexism is, and isn’t it too bad so little can be done. Meanwhile, those targeted by the speech are forced to speak out, yet again, to reassert their right to be treated equally, to be free to learn or work or live in an environment that does not threaten them with violence. The First Amendment’s reliance on counterspeech as remedy forces the most marginalized among us to bear the costs of the bigots’ speech. Counterspeech is exhausting and distracting, but if you are the target of hatred you have little choice. “Speak up! Remind us why you should not be lynched.” “Speak up! Remind us why you should not be raped.” You can stay silent, but that internalizes the taunt. The First Amendment tells us the government cannot force us either to remain silent or to speak, but its reliance on counterspeech effectively forces that very choice onto victims of hate speech.

The First Amendment tells us that threats are punishable, but only if they are targeted at specific individuals. Burning a cross on the front lawn of a family’s home can be a threat; burning one in a field outside of town is not. The latter is protected; the former is not. The secret of converting threats into protected speech, says the First Amendment, is to aim them at more people. The First Amendment asks African American students at the University of Oklahoma to set aside their fear that a bus of white men cheerfully singing about lynching might end badly for someone, somewhere. No one in particular was the focus of the threat; it was a generalized threat of violence, receiving full constitutional protection. The First Amendment tells us that the fear of those being targeted, no matter how reasonable, counts hardly at all. What matters is whether drunken frat boys intend to whip themselves into a murderous frenzy then and there, or whether they could wait awhile. The First Amendment tells us we may not punish them for expressing glee that someone, someday, would kill a “nigger.” That would risk a slide down the slippery slope to tyranny.

Yet is the slippery slope so slick that we cannot fathom any restrictions on the worst speech? Is the slope so steep that we cannot recognize the harms flowing from assertions of privileged hatred subjecting whole populations to fear of violence? Does it really risk tyranny to expel a couple of racist punks?

If that is what the First Amendment means, I dissent.