Mike Kueber's Blog

March 27, 2015

The First Amendment and the expulsion of two SAE fraternity brothers at OU

Filed under: Education,Law/justice — Mike Kueber @ 9:06 pm
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Shortly after the SAE fraternity and two of its members were expelled from OU, I heard some chatter suggesting that these actions violated America’s constitutional right to free speech. But the chatter was quickly shut down by the conventional wisdom that you have the right to say something, and other people have the right to shun you for what you say.

Despite my law degree, I accepted this conventional wisdom despite a gnawing feeling that it was too simplistic. Today, however, I stumbled across a two-week-old article in the NY Times that reports legal experts – conservative and liberal – are in agreement that OU’s actions violated the First Amendment. The crux of the matter is that OU is a public institution and as such it is not allowed to punish free speech unless “the students’ chant constituted a direct threat, leading a reasonable person to fear for his or her safety, or if it seemed likely to provoke an immediate violent response.” This limitation would not apply to a business or even a private college.

Not surprisingly, the students of OU seem to approve the sanctions, but of course the First Amendment is not intended to protect popular causes. Rather, its purpose is to protect unpopular speech from popular mobs.