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FIRE’s Robert Shibley with Don Lemon last night to talk about whether the racist chant performed by University of Oklahoma (OU) students (members of the university’s now-disbanded chapter of the Sigma Alpha Epsilon fraternity), viewed millions of times on , is constitutionally protected speech. He was joined by Oklahoma State University professor Joey Senat, who agreed with FIREthat the chant is protected under the First Amendment, and attorney Areva Martin, who disagreed. During the segment, Shibley and Senat refuted several purported reasons why OU President David Boren’s decision to expel two students who participated in the chant was justified.

Shibley quickly got to the bottom line: “People have the ability and the right to express unpopular and even, frankly, repugnant ideas on a college campus when it’s a public college campus like the University of Oklahoma.”

Martin countered with the idea that the chant created a “hostile environment” for students of color, arguing that OU had a duty to respond by punishing the students involved. However, as Senat pointed out, definitions of “harassment” used by schools must be consistent with the First Amendment—that means that punishable speech “must go beyond the mere expression of words … that are offensive.” The Supreme Court defined unprotected student-on-student harassment in Davis v. Monroe County Board of Education (1999) as conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Citing Davis, Shibley argued that “a single chant on a bus can’t possibly rise to that standard.” Although other incidents may have upped racial tensions at OU, is clear: He decided to expel two students for their involvement in “leading [the] racist and exclusionary chant.” As Senat noted, “there’s no discussion that they committed any other sort of discriminatory act.”

Martin also compared the case at OU with one in which colleagues engaged in harassment in the workplace. In such a situation, an employer would be obligated to take steps against the harassers in order to remedy the hostile environment. “That’s the same standard that applies to universities that receive federal funding under Title VI,” Martin said. But it is not the same standard, as Shibley swiftly pointed out; Senat added that “these are not employees.” The standard for punishable speech in the employment context is a less stringent one than that of peer harassment in the educational context, with good reason: The Supreme Court has repeatedly emphasized the importance of unfettered debate in the university setting, which “peculiarly the ‘marketplace of ideas.’” Employees, on the other hand, are employed to fulfill their employers’ objectives.

In contrast to the Davis standard, the Court has held that harassment in —that is, in the workplace setting—is “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment” (internal quotation omitted). Among other differences in the standard, there is a significant range of speech that may alter a student’s educational environment but that would not “effectively den[y him] equal access to an institution’s resources and opportunities,” and speech within that range is constitutionally protected at a public university like OU.

Lemon asked whether the chant could be punishable on the basis that it incites violence. But like harassment, “incitement” has a specific legal definition, and speech that does not fall within that definition may not be punished under the First Amendment. The Supreme Court held in Brandenburg v. Ohio (1969) that incitement is that which is directed toward, and likely to, produce imminent lawless action. Aside from the question of whether this chant was ever likely to inspire actual violence, Shibley clarified that punishable speech is “incitement to immediate unlawful action”—not “incitement to something that might happen sometime in the future, which is the most you could say about this chant.”

Statements that constitute true threats are also unprotected by the First Amendment. But the chant as captured on video doesn’t constitute a true threat, which the as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” FIREis not aware of anyone who has seriously suggested that the fraternity members were actually planning on hanging a black student from a tree. Moreover, if the students truly meant to communicate their intent, they wouldn’t have performed the chant only in front of other fraternity members, who would not have been the target of the threat. Considering how comfortable college administrators are labeling everything a “threat,” it’s notable that Boren’s letter characterizes the chant as “racist and exclusionary” instead of “threatening.”

Finally, as Torch readers know, speech merely because it is racist or offensive, even if many would call it “hate speech.”

The First Amendment protects the vast majority of expression, including that which demonstrates complacency with or advocacy for racism. Shibley and Senat did an admirable job highlighting the boundaries between constitutionally protected speech and unprotected speech on CNN last night, and OU should pay better attention to these boundaries.