But he did.
He did it by calling it “threatening.”
Volokh: “[T]he speech wouldn’t have been taken by any listener as a threat against him or her.”
But he did.
He did it by calling it “threatening.”
Volokh: “[T]he speech wouldn’t have been taken by any listener as a threat against him or her.”
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March 10th, 2015 at 1:51PM
Volokh and I differ about a lot of things. He is a radical libertarian and I believe in a lot of regulation. But when it comes to what the First Amendment currently means (always a prediction), given its case law cocoon, he is usually right and probably is in this case. The First Amendment, as explicated in court decisions, especially mistrusts government regulation of anything that might contain an idea, liberally construed. Particularly political ideas. Lot’s of horrible stuff is protected.
As to what the First Amendment should mean, or, more broadly, how much speech should be protected under say a revised, better Bill of Rights provision, Volokh would probably stand pat. After twenty five years of teaching First Amendment law, I still vacillate about how I would design a system. Often I find myself happy that the Germans can go after the Nazi party. But, on the other hand, I don’t live there and once one starts letting the government or the majority (not really the same) regulate speech then who knows what it will deem beyond the pale of protection tomorrow. Perhaps it is better, as we pretty much do now, to require that words lead fairly directly to something like flesh-ripping harm,* before we can punish their use.
*Ok this is a little dramatic, but it gets the emphasis right. The First Amendment topography is complex, but generally highly protective of speech. There are exceptions. For example, true threats of illegal harm and the counseling of immediate law breaking are unprotected as are commercial misstatements. Otherwise many SEC regulations and many consumer protection laws would be unconstitutional. I’d love to see a Saul Steinberg map of the varying protections of the First Amendment. I used to draw my tentative version for my students. It took up lots of whiteboard space. But the bottom line is thatthis sort of speech –speech about racial matters however crude– is generally highly protected from regulation by the state or its arms such as state schools: hence the skepticism of legal academics of all political stripes concerning the constitutionality of many state university speech codes.
March 10th, 2015 at 2:47PM
It may be that Boren knows perfectly well the expulsions are legally shaky, but doesn’t much care. The expelled students might choose not to take their expulsion to court (where they’d have to publicly own up to some pretty shameful behavior). Even if they do, and Oklahoma loses, the story probably won’t be nationwide front-page news. Boren might just be calculating that the immediate PR value of bold action outweighs any liability incurred down the road.
March 10th, 2015 at 3:09PM
DrDr —
That might not just have been good pr, but could even be seen, from one perspective, as an understandable, though not lawful, act of moral outrage. Perhaps one might see a sort of Constitutional civil disobedience. Perhaps, in other words his heart was partially in the right place. One risk to that: when government officials act in ways later found unconstitutional, but in good faith at the time because the constitution was less than clear, they have official immunity from money damage claims, though not from actions brought against them seeking injunctive relief. But if they violate clear law, they lose this official immunity from money damage claims for constitutional torts. I suppose Boren consulted with university counsel and made his calculations, however they were divided between some sort of principle at some level and pr, on the one hand, and the risks of liability on the other.
March 10th, 2015 at 3:23PM
Agreed.
March 12th, 2015 at 9:44AM
For anyone interested — and anyone who teaches at a public university should be — this is an accurate description of current First Amendment law as it bears on these issues — e.g. student speech codes or firing faculty for outrageous statements– written by a scholar whose focus is largely on these subjects and whose work in this field I respect greatly:
http://www.huffingtonpost.com/geoffrey-r-stone/racist-rants-and-the-univ_b_6844500.html
So Boren at least risks a court finding that he violated clear law and thus risked a money damages award against the university and/or him personally. And cash awards are made in cases involving the expulsion of students or firing of faculty based on their expression.
But I do understand the temptation to do exactly what Boren did.
This pretty much repeats my comments on the thread above, but I think reading Stone’s short pop piece is worthwhile.