On March 8, a video went viral, showing members of the Sigma Alpha Epsilon fraternity of Oklahoma University singing a racist chant on a charter bus. Sung to the tune of “If You are Happy and You Know it,” the chant uses a racial slur, references lynching and encourages discriminatory policy against African Americans.
In response, the college has expelled two students suspected of having leading roles in the chant and removed the fraternity’s charter. However, some wonder if they were right to do this.
The national fraternity and the President of OU released statements condemning the behaviors and actions of the students as “unacceptable and racist,” but is it illegal to say something racist? Taking it further, is it legal for a government institution to punish someone for racist speech? These questions and the controversy at OU have stirred up a debate surrounding free speech.
But what exactly constitutes free speech, and how does it differ from hate speech? There are both socially popularized ideas about hate speech and a specific legal definition of when speech is criminal and able to be prosecuted lawfully.
According to the American Bar Association’s public education effort, in law, hate speech is described as “any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages, or intimidates a protected individual or group.” Socially, it seems there is a separate definition.
Many OU students have come forth, claiming that racism is very much alive and well at the university. Even future students’ decisions to attend OU have been impacted.
On March 9, Sports Illustrated Wire reported that Oklahoma Sooners recruit Jean Delance “announced his decommitment from the school on Monday, citing personal reasons.” The article continued that “Bob Prysbylo spoke to Delance after his announcement and said Delance was ‘greatly impacted’ by the video.”
Similarly, due to the sudden initiative and punishing of students for this particular act, criticism exists as to what the university is seemingly okay with and what they selectively choose to champion, perhaps over or instead of, other pertinent social issues ranging from sexual violence, misogyny and even to the university’s history with recorded offenses.
The sudden urge to prosecute may seem insincere to some, including Sinclair Nursing student Austin Slayton.
“It should not take national attention to combat racism,” Slayton remarks. “It’s not like the problem popped up out of nowhere.”
Still, more questions persist: if a student says something racist on a recording taken outside of school, similarly to the fraternity’s incident, should they be expelled as well?
At least one woman, thought to belong to the sorority Delta Delta Delta, can be seen and heard on video. Tri Delta has released statements that they are not under investigation and that the woman in the video does not belong to the sorority.
“The statement made by the national office of Delta Delta Delta was made in support of the university’s actions. However, the Theta Gamma chapter is not under investigation by the university, nor have any chapter members been identified within the videos released,” reads part of the statement sent by OU’s Theta Gamma chapter of Delta Delta Delta to News on 6 Oklahoma.
Still, should everyone face the same punishment? Colleges and workplaces have, on several attempts, tried to create a “speech code” for acceptable speech. These codes have repeatedly been struck down as violating the free speech rights of students and employees.
How is our own history related to prosecuting speech crimes? Our Constitution, as it was amended on Dec. 15, 1791, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech.”
However, this has not stopped some states from having additional descriptions of their freedom of speech within their state constitutions. Ohio’s state constitution’s bill of rights is very similar to the national bill of rights.
Until 1969, The Ohio Criminal Syndicalism statute was lawful. Under the statute, even the mere advocacy of violence could be met with criminal charges and punished. So how and why was this law struck down?
According to Cornell’s Legal Information Institute, Clarence Brandenburg of Ohio had reached out to the press inviting them to cover a KKK rally in Hamilton the summer of 1964. During the rally, supporters and members of the Ku Klux Klan were robed, burned a cross and were in the possession of firearms. The speeches were full of derogatory language aimed mostly at Jewish and African American groups.
Brandenburg was soon charged on the grounds of advocating for violence under the now struck down criminal syndicalism statute. He was sentenced with
1-10 years and a $1000 fine. The appeal was dismissed, but the case found its way to the Supreme Court. The Supreme Court found that Brandenburg’s right to free speech was infringed as he did not meet the qualifications of what would become the Brandenburg test.
In order for speech to be restricted, particularly when inflammatory speech intending to advocate illegal action, the speech must constitute both of these qualifiers: 1.) The advocacy is directed to inciting, or producing imminent lawless action, and 2.) The advocacy is also “likely to produce such action.”
As read by the Per Curiam opinion of the court’s ruling, “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.”
Free speech is a concept that has been a recurring debate centric to many historic Supreme Court cases. Speech even played a role in the Brown v. Board of Education majority opinion’s decision to strike down state-sponsored segregation, stating that “separate educational facilities are inherently unequal.”
According to Street Law, Inc., the court found that speech plays a role in inequality as it could be used to reinforce minority subordination by “feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone. . . .”
Some people feel the term “hate speech” is often misused, leading to confusion between the actual crime of hate speech in law and the use of hateful, yet lawful speech without grounds for legal action.
According to Goodreads.com William Churchill even weighed in on free speech during his time.
“Everyone is in favor of free speech,” said Churchill. “Hardly a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.”
In the midst of this debate, Sigma Alpha Epsilon has since hired lawyer Stephen Jones to represent them with plans on taking legal action against the university, according to Oklahoma’s News Channel 4.
Barton Kleen
Social Media Editor