The Tulsa World’s March 17 editorial, “There is no room for racism at OU,” presents a deeply and dangerously illiberal perspective on freedom of speech.
In spite of very clear First Amendment case law protecting offensive, even abhorrent speech, the World praised OU President David Boren for his prompt expulsion of two SAE fraternity members.
Members of the World’s editorial board also wrote that they “don’t believe anyone’s First Amendment rights have been violated.”
If we take this proclamation at face value, it could mean one of two things. At best, it betrays a brand of credulousness to which a newspaper ought to be immune. At worst, it’s characteristic of a deeply and dangerously illiberal attitude toward free speech in general.
Taking the two possibilities in order:
The World seems to take Boren and his supporters at their word. When Boren or anyone else says that OU is legally obligated to maintain a hospitable learning environment, it seems the World would say ‘OK.’ And so would we.
But when someone says that OU was entitled to expel two of its students who supposedly created a “hostile learning environment,” I’d have to disagree. The World, it seems, is totally fine with this justification.
That’s too bad. The law Boren and his supporters are paraphrasing is Title VI of the Civil Rights Act of 1964, which prohibits, among other things, federally funded educational institutions from discriminating on the basis of race.
The Department of Education’s Office for Civil Rights, which is responsible for enforcing Title VI, says that schools need to respond to “racial harassment” that is “sufficiently severe, persistent or pervasive” so as to interfere when someone’s ability to benefit from their education is hindered.
But the incident at issue, one chant sung on a bus by a crowd of fraternity brothers and their friends, was neither severe, persistent nor pervasive—even if it was abhorrent.
It sounds like World is counting on a court to find that the speech in question was not protected and that Boren’s actions were justified under Title VI.
But the World’s editorial seems to go further than that. Let’s look at it again: “We don’t believe anyone’s First Amendment rights have been violated.”
I’m reminded of something that a World editor said in a recent discussion about free speech. Meeting at a discussion co-sponsored by the Faculty of Communication and the Collegian, he said something to this effect: “There are consequences for free speech.”
At the time, I was deeply unsettled by this line of argument. More so, now that it’s popping up in the World’s editorial comments.
It’s hard to imagine a more quintessential violation of the First Amendment than a public university punishing a student for a single instance in which that student said something offensive.
But in the eyes of the World, any punishment is just a consequence of that student’s exercising free speech. The World’s version of freedom of speech, it seems, is limited to the freedom from prior restraint; i.e. “You can say what you want, but you might not like what happens afterward.”
This is a deeply illiberal, almost authoritarian perspective on free speech. On this formulation, the freedom to say what you wish is unlimited, but the right to do so with impunity ends at the whims of those in power, who turn out to be little more than enlightened despots.
I don’t know about you, but when it comes to the phrase “enlightened despots,” I’m more ready to count on the second half than on the first.