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University of Oklahomas Sigma Alpha Epsilon (SAE) attracted national attention when
the president of the fraternity closed the fraternity house after two of their members, Levi
Pettit and Parker Rice, led a racist chant on a bus. They chanted repeatedly, You can hang
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them on a tree, but theyll never sign with me, there will never be an nigga (in) SAE.
Both
members were expelled from the university and have sued the university for violating their First
Amendment rights in restricting their free speech. This paper will explore and argue why their
expulsions would most likely to be considered an unconstitutional restriction on free speech.
The Court would most likely not consider this to be a fighting words case. Fighting words
is defined as Intimidating speech directed at a specific individual in a face-to-face
2
confrontation (that is) likely to inflict injury or incite an immediate breach of the peace
Both
members were chanting to a group of people on the bus, and they were not targeting a specific
individual. They did not engage in making any face-to-face confrontation with a specific party as
in the case of Chaplinsky v. New Hampshire, in which Chaplinsky mocked and targeted a city
3
marshall.
________________________________________
1. "Oklahoma SAE Frat: Two Students Expelled Over Racist Chants."
YouTube
. ABC News.
Web. 17 Apr. 2015. <
https://www.youtube.com/watch?v=nU-ZbjB00k8&spfreload=10
>.
2. Powerpoint Slides. (2015)
3. Chaplinsky v. New Hampshire. Supreme Court of the United States. (1942)
This, however, would be considered a hate speech case. Hate speech is defined as
statement or symbolic speech act that is potentially insulting or offensive to another because
the speech suggests something negative about the other persons race, ethnicity, gender,
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religion or sexual orientation.
The two members were chanting offensive statements about a
certain group of people, in this case, African-Americans. The First Amendment prohibits the
government from regulating hate speech, and hence the speech is a fully protected expression.
The Court would have to apply the Strict Judicial Scrutiny to determine whether the
government restriction is constitutional.
In order to prove its restriction on the speech is constitutional, OU would have to prove
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that it has a compelling and legitimate interest in restricting the speech.
According to Schenck
________________________________________
4. Messenger, Ashley G.
A Practical Guide to Media Law
., 2015. Print.
5. Powerpoint Slides. (2015)
6. Schenck v. United States.
Supreme Court of the United States. (1919)
In other words, the government must have an compelling interest in restricting the speech (as
in the case concerning with national security), and speech itself have to be significantly harmful
(not just merely harmful). Similarly, in Terminiello v. Chicago,
Pastor Arthur Terminiello was
arrested for breach of peace after he delivered a speech outside a Chicago auditorium
criticizing and condemning various racial and political groups. However, his speech was
protected, and Court held that the ordinance of breach of peace was unconstitutional. The
Court stated that the government could only restrict speech in the event that was
"likely to
produce a clear and present danger of a serious substantive evil that rises far above public
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inconvenience, annoyance, or unre
st."
In
other words, in order for the government to restrict,
the speech has to cause more than public disturbances. This aspect was further highlighted as
Justice Douglas noted, "A function of free speech under our system is to invite dispute. It may
indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction
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with conditions as they are, or even stirs people to anger."
Hence in other words, the
government could not ban a speech merely because too many people find it offensive or
merely because the government disagrees with it, it has to have a more compelling reason to
restrict the speech.
The Court also acknowledged that Speech is often provocative and
c
hallenging. It may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom of speech, though not
absolute...is nevertheless protected against...punishment.
________________________________________
7. Terminiello v. Chicago
.
Supreme Court of the United States. (1949)
8. Terminiello v. Chicago
.
Supreme Court of the United States. (1949)
This point was further enhanced as Justice Vinson noted, Freedom of speech undoubtedly
means freedom to express views that challenge deep-seated, sacred beliefs, and to utter
9
sentiments that may provoke resentm
ent.
Second, the government has the burden of proving that their restriction is effective in
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preventing the specific har
m.
I
n Whitney v. California, the government would be effective for
punishing the speech only if the speech would incite violence or a crime; it could not punish the
speech merely because of its offensiveness. The Court also made a clear distinction between
expressing a viewpoint (advocacy) and committing a crime (use of criminal and unlawful
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metho
ds).
It hi
ghlight the aspect that the Constitution guarantees free speech and do not
permit the State to forbid advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
12
produce such action
.
Hence the government would not be effective in preventing the harm if
the speech would not incite or produce a crime. Similarly, In Virginia v. Black, the Court noted
that the government may punish or restrict a speech if the speaker has an intention to intimate
or threaten a person or a group of people. The Court stated,
A prohibition on true threats
protects individuals from the fear of violence and the
disruption that fear engenders, as well as
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from the possibility that the threatened violence will occur.
In other words, the government
would be effective in preventing the harm of true threat by restricting the speech, but it could
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not restrict speech that that are not likely to inspire fear of bodily harm.
________________________________________
9. Terminiello v. Chicago
.
Supreme Court of the United States. (1949)
10. Powerpoint Slides. (2015)
11. Whitney v. California
.
Supreme Court of the United States. (1927)
12. Messenger, Ashley G.
A Practical Guide to Media Law
., 2015. Print.
13. Virginia v. Black
.
Supreme Court of the United States. (2003)
14. Virginia v. Black
.
Supreme Court of the United States. (2003)
Third, the government would have to prove that the restriction is narrowly drawn in order for
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the restriction on the speech to be constitutional.
The government must show the the least
overly broad that goes beyond...to cover words that cause a generalized reactions of hurt
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feelings or offense,
or if it is too expansive that "it prohibits otherwise permitted speech
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solely on the basis of the subjects the speech addresses."
Lastly, the government would have
to prove that there is no alternative way to prevent the harm that is less destructive of the First
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Amendment,
and this is seen in the case of United States v. OBrien.
________________________________________
15. Powerpoint Slides. (2015)
16. Ruane, Kathleen. "Freedom of the Speech and Press: Exception to the First
Amendment."
Congressional Research Service
(2014). Print.
17. R.A.V. v. St. Paul
.
Supreme Court of the United States. (1992)
18. Powerpoint Slides. (2015)
19. R.A.V. v. St. Paul
.
Supreme Court of the United States. (1992)
20. Powerpoint Slides. (2015)
The Court held that the draft card law prohibiting the destruction of the card was constitutional
because the cards served as an important tool in the draft system, an
d that there is no other
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way to ensure the integrity of the cards except to ban their intentional destruction.
The
other alternative less damaging than the First Amendment to prevent the harm (but it must be
independent from the suppression of free speech).
Using the aforementioned to draw inferences, the government would most like not be
able to meet the Strict Judicial Scrutiny in the case of the SAE members. First, the Court would
most likely not consider their racist chant to be substantive evil that would cause more than
public unrest (they were chanting in on a bus to a limited number of hearers). Even if they
chanted in a large open space, the Court would most likely not consider their speech to be a
compelling interest for the government to restrict. As noted above and in the case of
Terminiello, the government could not punish a speech merely because it is socially disfavored,
provoking or offensive. In Snyder v. Phelps, the family of a deceased marine sued members of
the Westboro Baptist Church for picketing at his funeral and for crying out offensive remarks
such as God Hate Fags. The Court mentioned that the speech occurred at a public place
______________________________________
21. Messenger, Ashley G.
A Practical Guide to Media Law
., 2015. Print.
22. United States v. OBrien
.
Supreme Court of the United States. (1968)
(hence a matter of public concern), and is entitled to protection under the First Amendment. It
stated, Such speech cannot be restricted simply because it is upsetting or arouses
contempt...the government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable...Indeed, the point of all speech protection...is to
shield just those choices of content that in someones eyes are misguided, or even hurtful. The
court also noted, [We] must tolerate insulting, and even outrageous, speech in order to
provide adequate breathing space to the freedoms protected by the First Amendment.
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Hence, the government could not restrict the speech of SAE members even if it found their
speech to be repugnant, offensive or outrageous, and their speech would be protected under
the First Amendment. Second, the restriction would not stand because their speech did not
constitute an intent to incite a crime. Accordin
g to Newsweek, the two members and the
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students have been drinking before going on the bus.
The Court would most likely hold that
Since the government would most likely not meet the first criterion of the Strict Judicial
Scru
tiny, the third and fourth criteria would not be applicable.
The SAE case closely resembles the case of Dambrot v. Central Michigan University.
According to an 1993 Pittsburgh Post-Gazette article, Dambrot, a Central Michigan University
basketball coach, was fired after making offensive statements such as play like niggers in the
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cour
t.
The Court held that his speech was protected, and the Court ruled that the university