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 lefthave 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.