Free Speech or Inciting Violence?

U. of Maryland discovers that, in wake of Oklahoma fraternity's racist chant, offensive statements by fraternity members will get more scrutiny -- both from those demanding tough responses and those who want no response.

March 16, 2015

This article contains explicit and potentially offensive terms that are essential to reporting on this situation.

The University of Maryland at College Park chapter of the Kappa Sigma fraternity has suspended one of its members for writing an e-mail that used racial slurs and seemed to encourage sexual assault. The e-mail was written more than a year ago, but only in the aftermath of the University of Oklahoma scandal about racist chants by a fraternity did the e-mail get publicized and draw attention from both the fraternity and the university.

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"My dick will be sucked and fucked in compound basement, whether you guys like it or not,” the student wrote to six others. “Don't invite nigger gals or curry monsters or slanted eye chicks, unless they're hot. Ziggy, you're [sic] girl can come. She's cool. Remember my niggas, erect, assert, and insert, and above all else, fuck consent."

The incident, along with the ongoing investigation at the University of Oklahoma into fraternity members singing a racist song there, has raised questions about how far administrators can go in punishing the worst kinds of speech and how much their hands are tied by the First Amendment.

In a statement Friday, Wallace Loh, Maryland’s president, said the university was investigating the e-mail and had met with both the student and the fraternity. While questions remain regarding how long other members of the fraternity were aware of the e-mail, the chapter and Kappa Sigma's national organization were quick to condemn the e-mail last week. "The language and views expressed in the e-mail were inexcusable and are in stark contrast to the values of Kappa Sigma Fraternity," Kappa Sigma stated. "They are counter to everything Kappa Sigma stands for."

The University of Southern California chapter of Kappa Sigma was involved in a similar e-mail scandal in 2011, with a fraternity newsletter advising members to avoid Middle Eastern women and referring to other women as "targets," and not "actual people."

Last week, the national organization suspended the author of the Maryland e-mail soon after it was leaked. As a public institution, the university may not be able to impose a similar sanction, free speech advocates argue.

Loh wrestled with the issue in a live Twitter chat Friday, saying he was “shaken” by the e-mail, but that he would “ensure due process and protect the free speech guaranteed by our Constitution.”

“It is one of our nation’s core values that the government should not be able to tell us what we can and cannot say,” Loh tweeted. “Protecting speech, however, does not mean agreeing with it. And quite honestly, I am struggling with justifying this e-mail as speech. Where does free speech and hate speech collide? What should prevail? What justification can we have that tacitly condones this kind of hate?”

In response to a question from a student, Loh added that the university must determine if, by encouraging others to “fuck consent,” the student was inciting sexual violence. “When does speech incite violence?” he tweeted. “Is this like yelling 'fire' in a crowded theater?”

The Foundation for Individual Rights in Education stated that the student’s e-mail would not meet the legal definition of a “true threat,” the threshold required for a statement to lose First Amendment protection.

“From the limited context presently available, it does not appear that the e-mail meets this legal standard,” FIRE stated. “To the extent the e-mail presents evidence of unlawful activity, such activity may be investigated, as long as the students accused of misconduct are afforded meaningful due process rights. If, however, the University of Maryland were to initiate disciplinary action against the e-mail’s student author solely on account of the e-mail’s content, it would likely violate the student’s First Amendment rights.”

A similar argument was made last week in regard to the expulsion of two Oklahoma students who led a bus full of Sigma Alpha Epsilon members in singing a racist song about not allowing black students to join the fraternity. The university's president, David Boren, said their expulsion was the result of the students creating “a hostile educational environment for others.” The song's lyrics, which also included a reference to lynching, do not rise to the legal definition of inciting violence or discrimination, FIRE stated.

Writing for The Washington Post last week, Eugene Volokh, a law professor at the University of California at Los Angeles, agreed, saying, "There is no First Amendment exception for racist speech, or exclusionary speech, or -- as [in] the cases I mentioned above -- for speech by university students that 'has created a hostile educational environment for others.’”

During a press conference Friday, Stephen Jones, the lawyer representing the executive board of Oklahoma’s chapter of SAE, said he agreed to take their case because he "saw it as a First Amendment” issue. Jones, a former political opponent of Boren's, is not representing the two expelled students, however. The university ordered the chapter closed last Monday, and demanded that all members leave the house by midnight on Tuesday.

“All speech with minor exceptions is generally protected, so to censure someone or discipline them for nothing more than speech, that's a long way from the cup to the lip,” Jones said. “The university certainly has codes of conduct, but whether any of those trump First Amendment, that has yet to be determined.”

But for some students at the University of Maryland and the University of Oklahoma -- many of whom turned to social media to express their outrage -- the racist and sexist language used by the fraternity members certainly feels threatening and hostile. Condemning the speech without also punishing those who expressed it, students said, does not go far enough. "I'm damn near in tears," one Maryland student tweeted at Loh. "This isn't right. I shouldn't have to work with/participate with someone who openly says things like that."

Maryland's Black Student Union also weighed in on Twitter, stating that diversity training and other educational efforts are not sufficient.

"This is supposed to be our campus too, we want the university to stand up for us," the group tweeted. "How much more negative publicity is it going to take for the university to take REAL action against these racist comments?"


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