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Thursday, April 02, 2015

Where have you gone, Mary Beth Tinker?

Recent incidents of universities expelling students for racist or offensive speech have included an interesting feature--none of the students seem inclined to sue or otherwise contest the punishments as violating the First Amendment. The two guys from Oklahoma have been on a Regret Tour, seemingly apologizing to every African-American they can find (including random Oklahoma legislators). A story described one of them as having "withdrawn" from OU (interesting language given that OU President David Boren made it very clear that he had expelled them). The University of Maryland went after one student for sending racist emails and the student left, at least for a semester, by "mutual consent." This despite the fact that most commentators believe, doctrinally at least, that expulsion for the speech in these cases violates the First Amendment.

One explanation is that the social norms against racist and other offensive speech have so taken hold that people "caught" engaging in such expression do not want to own or defend it in public. Given the social reproach that they are subject to, ordinary people (as opposed to truly hateful sociopaths such as Fred Phelps) no longer want to fight for the right to say what they did or for the underlying principle that offensive speech is protected.  They instead run and hide to let the storm blow over. From a social standpoint, it perhaps is good for norms of equality to take hold.

From a legal standpoint, however, it is unfortunate. Legal rights are lost if not exercised and defended or if those who violate those rights are not called to account. In this context, that requires the speaker to challenge the punishment in court. Moreover, the reluctance to sue increases the power of university officials to impose constitutionally suspect punishment. As one emailer put it, a university president can impose any punishment he wants, "effectively daring the frat members to call his or her bluff."

I have no evidence for this notion, but I wonder if the students are not essentially settling--they agree not to sue, they step away from school for a semester or two, then they are allowed to return once things have quieted down.

Posted by Howard Wasserman on April 2, 2015 at 04:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


I agree with Howard. Say what you want. Societal retribution intellectually has little to do with constitutional rights. You shouldn't be punished by the system for speaking your mind, even if it is wrong-headed and no one will be your friend. I don't agree with Fred Phelps' children (I think Fred is dead) but I think they are fairly entertaining. Don't give them more credibility by banning their speech, or throwing anyone off campus.

Posted by: Marcos Antonio Mendoza | Apr 5, 2015 4:06:11 PM

First, we can't bracket textual arguments because the textual arguments matter to the answer. Second, I don't see an inherent inconsistency. I can believe that society is better off if those who do express racist views are shunned by society and crawl back under a rock, while also believing there is a an individual-autonomy benefit to being able to express those views and that it is problematic for government to punish those views with impunity (which is the result of the speakers' unwillingness to challenge the punishment).

Posted by: Howard Wasserman | Apr 3, 2015 4:27:16 PM

What I'm about to say is very crude, but I don't get the distinction you're making between a social standpoint and a legal standpoint. If it's good from a social standpoint that no one wants "to own or defend" racist speech, why wouldn't it be good from a legal standpoint? Why wouldn't we want doctrine to follow what's good from a social standpoint? Of course, there are all kinds of arguments for protecting racist speech, but (bracketing textual and originalist arguments about the meaning of the First Amendment) they're are all, I think, arguments that it's socially beneficial to protect racist speech. For example, protecting racist speech promotes democratic self-governance (Robert Post); protecting racist speech hastens the end of racism because the public airing of racist ideas will tend to discredit them. And so on. But once you concede that it's good from a social standpoint that students aren't defending their racist speech, I don't see how it can be good for a legal standpoint for them to sue and for courts to vindicate their rights to engage in racist speech.

Posted by: Asher | Apr 3, 2015 4:21:07 PM

Well, a university president can impose any punishment on someone who's too embarrassed by his or her conduct to want to be put in the position of having to defend (the right to engage in) it. It's only a tactical advantage: it won't work against committed speakers making statements they believe, like Tinker. So if there's an increase in the power of university officials, it's fairly slight. Looking at these cases as a First Amendment scholar, perhaps one is liable to minimize the extent to which they're of a piece with run-of-the-mill student discipline cases in which people get drunk, do something stupid (like seriously damage property), and get expelled. I think that reality explains why many of us are relaxed about these outcomes and don't conclude that a public university would now be more likely to succeed were it to try to remove a student for intentional and committed racist speech.

Posted by: New Yorker | Apr 2, 2015 5:15:11 PM

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