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Title: No, a public university may not expel students for racist speech
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URL Source: http://www.washingtonpost.com/news/ ... el-students-for-racist-speech/
Published: Mar 10, 2015
Author: Eugene Volokh
Post Date: 2015-03-10 12:28:51 by A K A Stone
Keywords: None
Views: 6086
Comments: 43
Some Oklahoma University students in the Sigma Alpha Epsilon fraternity were videorecorded singing (as best I and others can tell), There will never be a nigger at SAE There will never be a nigger at SAE You can hang him from a tree But he’ll never sign with me There will never be a nigger at SAE Oklahoma University president David Boren said, “If I’m allowed to, these students will face suspension or expulsion.” But he is not, I think, allowed to do that. 1. First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions — see here for some citations. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993). (I set aside the separate question of student speech that is evaluated as part of coursework or class participation, which necessary must be evaluated based on its content; this speech clearly doesn’t qualify.) 2. Likewise, speech doesn’t lose its constitutionally protection just because it refers to violence — “You can hang him from a tree,” “the capitalists will be the first ones up against the wall when the revolution comes,” “by any means necessary” with pictures of guns, “apostates from Islam should be killed.” 3. To be sure, in specific situations, such speech might fall within a First Amendment exception. One example is if it is likely to be perceived as a “true threat” of violence (e.g., saying “apostates from Islam will be killed” or “we’ll hang you from a tree” to a particular person who will likely perceive it as expressing the speaker’s intention to kill him); but that’s not the situation here, where the speech wouldn’t have been taken by any listener as a threat against him or her. Another is if it intended to solicit a criminal act, or to create a conspiracy to commit a criminal act, but, vile as the “hang him from a tree” is, neither of these exceptions are applicable here, either. 4. Some people have suggested that the speech may be evidence of discriminatory decisionmaking by the fraternity in admitting members. A university may demand that groups to which it provides various benefits not discriminate in admissions. See Christian Legal Society v. Martinez (2010). Indeed, nondiscrimination rules are applicable to groups generally, even apart from any benefits they get; much depends on whether the groups are seen as small and selective enough to be covered by a right to “intimate association,” and on whether apply antidiscrimination law to the groups would interfere with the groups’ expression of their ideas, and thus burden their right to “expressive associations.” See Roberts v. U.S. Jaycees (1983); Boy Scouts of America v. Dale (2000). The university might thus be able to discipline students who (a) are involved in a fraternity’s admissions decisions, and (b) can be shown to have denied membership to people based on race, or intentionally tried to communicate to potential members that they would deny them membership that way. I don’t think that a discussion saying that discrimination ought to take place, or even that at some unspecified time it will take place, would suffice to constitute a violation of the antidiscrimination rules, though it might be used as evidence in a future case where discrimination against a particular applicant might be alleged. But even if the group is found to have discriminated against black applicants, and some particular members were found to have participated in that decision, the penalty for that has to be based on the penalties that are actually meted out to people who violate this rule. If discrimination by a group generally leads to a fine against the group, or a reprimand of the participants, or even derecognition of the group, the university can’t then expel students who engage in the same action but who also engage in constitutionally protected speech — that sort of disparate treatment shows that the school is really punishing people for their speech, not for their conduct. This is a familiar principle from antidiscrimination law: if a black student is expelled based on conduct for which white students are generally just mildly reprimanded, the law recognizes that the expulsion was based on the student’s race, not just the student’s punishable conduct. The conduct in that situation is being used in large part as a pretext for race discrimination. Likewise, if SAE members are expelled based on conduct for which people who didn’t engage in SAE’s speech would generally just be mildly reprimanded, the expulsion would be based on the speech, not the members’ punishable conduct, which would just be pretext for punishing students for the ideas they were expressing to each other. 5. Of course, this just applies to the university. It certainly makes sense that the national fraternity may suspend the student chapter, and that other fraternity or sorority organizations refuse to deal with the chapter (or even its students). Fraternities, at least in principle, aim to promote certain principles of morality and behavior, such as the national SAE’s True Gentleman creed: The True Gentleman is the man whose conduct proceeds from good will and an acute sense of propriety, and whose self-control is equal to all emergencies; who does not make the poor man conscious of his poverty, the obscure man of his obscurity, or any man of his inferiority or deformity; who is himself humbled if necessity compels him to humble another; who does not flatter wealth, cringe before power, or boast of his own possessions or achievements; who speaks with frankness but always with sincerity and sympathy; whose deed follows his word; who thinks of the rights and feelings of others, rather than his own; and who appears well in any company, a man with whom honor is sacred and virtue safe. SAE may quite rightly insist that people who so sharply depart from such principles no longer use SAE’s name. (I don’t think a university may suspend a fraternity just based on its speech, but that question is likely rendered moot by national SAE’s actions here.) Likewise, I imagine that the fraternity members’ speech will more generally affect their social lives and their professional lives, as some people choose not to do business with them in the future. (In some states, even private employers are limited in their ability to discriminate against employees or job applicants based on their speech, but that’s true only in some states and generally only as to employment; and, rightly or wrongly, such discrimination often happens without the applicant’s even knowing that it’s happening.) How long this sort of misbehavior should dog a person is an interesting ethical question, but in any event it’s pretty clear that the offending students are going to pay a substantial social and likely economic price for their actions. Under the First Amendment, though, the government — including Oklahoma University — generally cannot add to this price, whether the offensive speech is racist, religiously bigoted, pro-revolutionary, or expressive of any other viewpoint, however repugnant it might be.
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#1. To: A K A Stone (#0)
Good, educating post, many of us have forgotten how important the First is and how broad it's protections are, we have been forced to spend to much time protecting the Second, and the third through tenth. The Bill of Rights Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If any students are expelled, I don't think it would be a first amendment issue. It would be more along the lines of harassment where "the conduct is severe or pervasive enough to create an environment that a reasonable person would consider intimidating, hostile, or abusive". But a few members from one fraternity saying they refuse to admit a class of people who wouldn't want to be members anyways is hardly creating a hostile environment.
The university did just expel those students. So, as an act of power, they certainly can do it. Now, the question is whether they can make it stick. And the answer is: probably. For what can the students do to force their way back in, other than sue? And when they do, that will be the center of attention on them for the next 5 years. If they take the expulsion and disappear, they will be able to rehabilitate themselves somewhere, eventually. But if they sue, then this event will be the center of their lives for the next several years, and their chances of ever overcoming it will be vastly diminished. So, they've been expelled, and they won't sue, and that will be that. There will be no civil rights organization ready to take on THIS tar-baby of a case. Constitutional? Unconstitutional? It will never be tested in court. Fait accompli: the students are expelled, and that is that.
This guy must think we still have Freedom of Speech in this country. That hasn't been true since 1964.
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
It would be more along the lines of harassment where "the conduct is severe or pervasive enough to create an environment that a reasonable person would consider intimidating, hostile, or abusive". Yeah,and they will be going after the La Raza crowd,the "We're here and we're queer!1" crowd,the Muslims, and the homies using the same standard?
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
Dat bees uh "white bread honkie baby",homes.
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
I'm sure the school has a code of conduct which addresses this. Based on that, the expulsions will stick.
"Being born again, not of corruptible seed, but of incorruptible, by the word of God, which liveth and abideth for ever." (1 Peter 1:23)
They should go after those groups. But they won't.
"Being born again, not of corruptible seed, but of incorruptible, by the word of God, which liveth and abideth for ever." (1 Peter 1:23)
I would be more precise and say "Based on that, the expulsions will cite to a written code." I would say "Based on the students' lack of challenge, the expulsions will stick". IF the students stood up full-throated, hired lawyers and fought to the death, they could probably overturn the convictions. They sang a song at a private function. It was an expression of free speech. The University is public. It can write rules saying that it can retaliate against disfavored speech, but the students could challenge that in federal court, and win on the First Amendment before the Supremes (assuming that there were judges willing to take the case). The price of their "victory" would be lifetime name recognition, lifetime unemployment. The price to their families would be massive legal bills: no organization will take this case pro-bono: the students are students. So their parents would have to bear the full legal cost of fighting to "make a point"...and that point is? That people can't be outright expelled for singing nasty racist doggerel. To fight this would probably eventually mean winning it, and that would probably be the ultimate Pyrrhic victory. You get to go back to a second-rate school to pay for a diploma you'll never be able to use, because nobody is ever going to hire you. Far better to capitulate and disappear, than you blazon your name in lights and be all over the news, by name and face, for the next five years. Worse, you'll have to keep apologizing for what you sang over and over again. The students probably didn't mean it, not to the depths their mere words would indicate. So they would have to crawl through the gutter of self-accusation for years and years to argue that they shouldn't be expelled from a second-rate school for a stupid mistake. Or they would have to light themselves on fire and become radical racists, trying to get the sympathy of the Stormfront crowd. There are a couple of folks here on LF who would enthusiastically root for them...but not so much that they'd send actually MONEY to their legal defense fund. In 2015, if you're going to exult in old-style racism, you should expect to be destroyed if you get heard, because you will be, and nobody is going to rally to your defense in any meaningful way. If we had not killed a million people in a civil war over slavery, and if we had not sicced dogs and turned firehoses on peaceful black marchers and had Senate filibusters against black voting rights, in our lifetimes, this would not be the toxic plutonium waste of an issue that it is. But we did. A lot of blood was shed, a lot of lives were damaged, and the victors of this fight in America are no more going to let the losers of that fight get back up and express themselves publicly than the Jews are going to let the Nazis do it. Nazis and American Black-haters fall into the same category: the designated Scum of the Earth, never, ever, EVER to be allowed so much as a shred of dignity, or even humorous regard, in the lands they devastated again. Americans poke fun at Nazis, because we beat them. But Nazis don't get to be anything other than invisible in Germany. Same thing with Black haters in America. They still exist, and there is no sense of humor about that in this society, particularly not when it's whites (and particularly Southern or rural whites) doing it. And most especially when the "humor" is a white inside joke that is actually meant to, subtly, make the point that something is still a whites-only preserve. That flag doesn't get to be flown in America any more. Germans are prohibited from having Nazi paraphernalia of any kind. Their are not prohibited to let their minds go THERE. Americans are no PROHIBITED from letting little glimpses of that past shown, but anybody who is damnfool enough to do it who gets caught is publicly beaten with a tire iron, and NOBODY will come to his defense. History has consequences. Slavery and segregation killed a lot of people and destroyed a lot of lives. One side lost, and the winners have no sense of humor about it whatsoever. This will not change until the generation that actually LIVED THROUGH SEGREGATION, which is still very much alive (and middle aged) has passed on, and their children have passed on. In the third or fourth generation hence, humor will return. Today, the wounds are too fresh to too many living people. It was a real blood and guns war, with lots of death and suffering, the winners are still alive, so are the losers, and the winners are never, ever, ever going to let the losers get back up. There are still living Nazis in Germany. And those people will submerge that aspect of themselves for the rest of their lives. They shall not express it. They shall, in fact, SUBMIT their personal political views, utterly, to the force of the winners, just exactly as THEY made the people THEY dominated submit. The difference is that the Nazis lost for good, and will NEVER be allowed back up off of their supine, living-at-suffrance position of subordinated, silenced inferior scum until their last breath. Same thing with American racists. The country went through too much on account of those scum. Whenever they or their kids ever show their heads, they will be beaten down, and to death if necessary, to make the point that there is, in FACT, NO FREEDOM OF SPEECH for THAT position. There was no freedom for slaves, despite the Constitution, and there is not, IN FACT, freedom of speech for people who hate and denigrate Blacks. And there never will be again. Once upon a time, they ruled, like Nazis. Now, like Nazis, they are defeated, and they will be held down, in submission, and beaten into silence ever single time they ever open their mouths. War has consequences. The US Constitution itself, the Constitution of 1787, did not survive the Civil War that ended slavery. And the post-Civil War settlement of States Rights that allowed oppression that stopped short of slavery, only held for one more centuries. After all of that struggle, and all of that bitterness, the victors are as bitter as the losers, and are every bit as determined to enforce THEIR will on the defeated as Bull Connor or any overseer ever was at enforcing his on the people whom they viewed as their inferiors. The two sides hate each other, one side won a two century struggle, many survivors of the fight are still alive. There is no humor on matters of white racism towards blacks, and there isn't going to be, ever again, as long as we live. Some white fools need to periodically be legally lynched to remind the whites who think that way they they will stay in line or die. That's the way it is. I cannot look at it and truly say that it is unjustified. It's revenge. Not Christian. But then again, boasting about keeping blacks out of a university club isn't Christian either. I do feel sorry for the kids. They made a dumb mistake, and now their lives will not rise to the potential they had before. But that's true of anybody who plays with fire. If some German just loves swastikas because he finds them "artistic", he had damned well better learn to suppress his artistic proclivities, because his society will destroy him for it. America used to destroy uppity blacks - with nooses, fire and dogs. Today, American destroys racist whites. The blacks were held down for 350 years. The racist whites have only been held down for about 30. Nobody alive will ever live in a time when white racists have freedom of speech again. It will be over a century. The First Amendment does not apply to white racist speech. Anybody who thinks differently is welcome to step up and be lynched: uppity white racists get legally lynched, as an example to the rest to SHUT UP. That's the way it is. It is unconstitutional - technically. The Constitution did not save the blacks from the whites. The Constitution if fact offers no real protection to white racists, and it never will again. Ever. The white racists lost, like the Nazis, and their nose will be ground back into the shit of their own defeat every single time they ever are stupid enough to stick it up again. This is so. And it will not change. Those kids must not fight. They must be contrite. And they must build their lives anew, never going down that stupid path again - just like any other convict of a serious crime. Make no mistake: being an overtly racist white is as serious a social crime in America as being an uppity black was in the days of segregation. Racist whites are legally lynched, and they have no sanctuary. The wheel has turned, and it will not turn back - because the Mexicans don't care.
I am sure the school has a code of conduct as well. The students apparently violated it. Whoever recorded the video/audio may have done so as well. Expulsion for disciplinary reasons triggers the constitutional right to notice and a hearing. Government imposition of a stigma accompanied by an expulsion or dismissal meets the stigma plus requirement to trigger the constitutional due process rights as well. The summary expulsion may not stick. The issue will be due process. Has the student been afforded timely notice and the constitutional right to be heard at a hearing? Does the student's presence endanger persons or property or threaten disruption of the academic process justifying immediate removal from school, (with the necessary notice and hearing to follow as soon as practicable). It's a State school. The accused must be given a hearing with notice and an opportunity to be heard. If the school has not provided due process, this expulsion will fail. They must afford the required due process. https://supreme.justia.com/cases/federal/us/419/565/case.html Goss v. Lopez, 419 U.S. 565 (1975) Goss v. Lopez No. 73-898 Argued October 16, 1974 Decided January 22, 1975 419 U.S. 565 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO Syllabus Appellee Ohio public high school students, who had been suspended from school for misconduct for up to 10 days without a hearing, brought a class action against appellant school officials seeking a declaration that the Ohio statute permitting such suspensions was unconstitutional and an order enjoining the officials to remove the references to the suspensions from the students' records. A three-judge District Court declared that appellees were denied due process of law in violation of the Fourteenth Amendment because they were "suspended without hearing prior to suspension or within a reasonable time thereafter," and that the statute and implementing regulations were unconstitutional, and granted the requested injunction. Held: 1. Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment. Pp. 419 U. S. 572-576. (a) Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred, and must recognize a student's legitimate entitlement to a public education as a property interest that is protected by the Due Process Clause, and that may not be taken away for misconduct without observing minimum procedures required by that Clause. Pp. 419 U. S. 573-574. (b) Since misconduct charges, if sustained and recorded, could seriously damage the students' reputation, as well as interfere with later educational and employment opportunities, the State's claimed right to determine unilaterally and without process whether that misconduct has occurred immediately collides with the Due Process Clause's prohibition against arbitrary deprivation of liberty. Pp. 419 U. S. 574-575. (c) A 10-day suspension from school is not de minimis and may not be imposed in complete disregard of the Due Process Page 419 U. S. 566 Clause. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. Pp. 419 U. S. 575-576. 2. Due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version. Generally, notice and hearing should precede the student's removal from school, since the hearing may almost immediately follow the misconduct, but if prior notice and hearing are not feasible, as where the student's presence endangers persons or property or threatens disruption of the academic process, thus justifying immediate removal from school, the necessary notice and hearing should follow as soon as practicable. Pp. 419 U. S. 577-584. 372 F.Supp. 1279, affirmed. Re free speech, see: https://supreme.justia.com/cases/federal/us/410/667/case.html Papish v. Board of Curators, 410 U.S. 667 (1973) Papish v. Board of Curators of the University of Missouri No. 72-794 Decided March 19, 1973 410 U.S. 667 ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Expulsion of student for distributing on campus a publication assertedly containing "indecent speech" proscribed by a bylaw of a state university's Board of Curators held an impermissible violation of her First Amendment free speech rights, since the mere dissemination of ideas on a state university campus cannot be proscribed in the name of "conventions of decency." Certiorari granted; 464 F.2d 136, reversed. PER CURIAM. Petitioner, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper "containing forms of indecent speech" [Footnote 1] in violation of a bylaw of the Board of Curators. The newspaper, the Free Press Underground, had been sold on this state university campus for more than four years pursuant to an authorization obtained from the University Business Office. The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover, the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read: ". . . With Liberty and Justice for All." Secondly, the issue contained an article entitled "M___f___ Acquitted," which discussed the trial and acquittal on an assault Page 410 U. S. 668 charge of a New York City youth who was a member of an organization known as "Up Against the Wall, M___f___." Following a hearing, the Student Conduct Committee found that petitioner had violated Par. B of Art. V of the General Standards of Student Conduct, which requires students "to observe generally accepted standards of conduct," and specifically prohibits "indecent conduct or speech." [Footnote 2] Her expulsion, after affirmance first by the Chancellor of the University and then by its Board of Curators, was made effective in the middle of the spring semester. Although she was then permitted to remain on campus until the end of the semester, she was not given credit for the one course in which she made a passing grade. [Footnote 3] After exhausting her administrative review alternatives within the University, petitioner brought an action Page 410 U. S. 669 for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of Missouri. She claimed that her expulsion was improperly premised on activities protected by the First Amendment. The District Court denied relief, 331 F.Supp. 1321, and the Court of Appeals affirmed, one judge dissenting. 464 F.2d 136. Rehearing en banc was denied by an equally divided vote of all the judges in the Eighth Circuit. The District Court's opinion rests, in part, [Footnote 4] on the conclusion that the banned issue of the newspaper was obscene. The Court of Appeals found it unnecessary to decide that question. Instead, assuming that the newspaper was not obscene and that its distribution in the community at large would be protected by the First Amendment, the court held that, on a university campus, "freedom of expression" could properly be "subordinated to other interests, such as, for example, the conventions of decency in the use and display of language and pictures." Id. at 145. The court concluded that "[t]he Constitution does not compel the University . . . [to. allow] such publications as the one in litigation to be publicly sold or distributed on its open campus." Ibid. This case was decided several days before we handed down Healy v. James,408 U. S. 169 (1972), in which, while recognizing a state university's undoubted prerogative Page 410 U. S. 670 to enforce reasonable rules governing student conduct, we reaffirmed that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." Id. at 408 U. S. 180. See Tinker v. Des Moines Independent School District,393 U. S. 503 (1969). We think Healy makes it clear that the mere dissemination of ideas -- no matter how offensive to good taste -- on a state university campus may not be shut off in the name alone of "conventions of decency." Other recent precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected. E.g., Kois v. Wisconsin,408 U. S. 229 (1972); Gooding v. Wilson,405 U. S. 518 (1972); Cohen v. California,403 U. S. 15 (1971). [Footnote 5] There is language in the opinions below which suggests that the University's action here could be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination. While we have repeatedly approved such regulatory authority, e.g., Healy v. James, 408 U.S. at 408 U. S. 192-193, the facts set forth in the opinions below show clearly that petitioner was expelled because of the disapproved content of the newspaper, rather than the time, place, or manner of its distribution. [Footnote 6] Page 410 U. S. 671 Since the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University's action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct, the judgments of the courts below must be reversed. Accordingly, the petition for a writ of certiorari is granted, the case is remanded to the District Court, and that court is instructed to order the University to restore to petitioner any course credits she earned for the semester in question and, unless she is barred from reinstatement for valid academic reasons, to reinstate her as a student in the graduate program. [...]
For the record I just posted this article because I thought it was interesting. I haven't even actually seen the video that this article talks about.
The issue will really be whether or not the students seek a process at all. If they don't fight, there's no issue. There's only an issue if they fight. If they fight and win, the victory will be Pyrrhic.
That seems to be what all the legal talking heads agree on. I heard last night on Megan's show that the students are now considering legal action against the university.
"Being born again, not of corruptible seed, but of incorruptible, by the word of God, which liveth and abideth for ever." (1 Peter 1:23)
If they fight and win, the victory will be Pyrrhic. It will not be a fight. It will be ritual slaughter in the courtroom if due process was denied. The violation of the rights of the students will be the only material issue. The plaintiff prevailing on a complaint of violation of constitutional rights would not by a Pyrrhic victory. The expulsion would be null and void upon summary judgment. The merits of the charge against the students will not be an issue. The speech, regardless of how repulsive, is protected by the First Amendment. The expulsion must be based on their conduct and not on the content of their speech. Boren said, I hope that students involved in this incident will learn from this experience and realize that it is wrong to use words to hurt, threaten, and exclude other people. A racist chant on a Kappa Kappa Kappa bus cannot be construed as being to hurt, threaten, or exclude any of the OU members of KKK. The chant was apparently heard live only by those on the bus. The chant allegedly impacted the entire university community because some unidentified person distributed a video through social media. Legislator cum executive Boren appeared to indicate he was offended by the content of their speech. That was a death blow to his own case. In Iota XI v George Mason University, the District Court granted summary judgment against GMU on the grounds that they had violated the protected free speech rights of the students. GMU appealed, claiming there remained factual issues which should have been weighed. In affirming, the Circuit Court stated, "the district court was correct in concluding that there was no outstanding issue of material fact." The Circuit Court stated, citing GMU affidavits, "Importantly, the affidavits establish that the punishment was meted out to the Fraternity because its boorish message had interfered with the described University mission. It is manifest from these circumstances that the University officials thought the Fraternity intended to convey a message. The Fraternity members' apology and post-conduct contriteness suggest that they held the same view." Importantly, OU statements go to the same point and the students apoligized with post-conduct contriteness, almost as if they were aware of this court opinion. The Court also stated, "We must emphasize, as have other courts, that "the manner of [its action] cannot consist of selective limitations upon speech." And, "The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint. The decision of the district court is affirmed. AFFIRMED." Iota XI v George Mason University, 4th Cir 91-2684, 993 F2d 386 (1993) IOTA XI CHAPTER OF SIGMA CHI FRATERNITY; John Howlin; John Singsank, Plaintiffs-Appellees, No. 91-2684. United States Court of Appeals, Fourth Circuit. Argued May 4, 1992. [387] Paul Joseph Forch, Sr. Asst. Atty. Gen., Richmond, VA, argued (Mary Sue Terry, Atty. Gen., H. Lane Kneedler, Chief Deputy Atty. Gen., R. Claire Guthrie, Deputy Atty. Gen., Martha M. Parrish, Asst. Atty. Gen., on brief), for defendants-appellants. Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, argued, Jeanne Goldberg, Victor M. Glasberg & Associates, Alexandria, VA, Michael P. McDonald, Center for Individual Rights, Washington, DC, Stephen B. Pershing, ACLU of Virginia, Richmond, VA, for plaintiffs-appellees. Before WIDENER and MURNAGHAN, Circuit Judges, and SPROUSE, Senior Circuit Judge. OPINION SPROUSE, Senior Circuit Judge: George Mason University appeals from a summary judgment granted by the district court to the IOTA XI Chapter of Sigma Chi Fraternity[1] in its action for declaratory judgment and an injunction seeking to nullify sanctions imposed on it by the University because it conducted an "ugly woman contest" with racist and sexist overtones. We affirm. I Sigma Chi has for two years held an annual "Derby Days" event, planned and conducted both as entertainment and as a source of funds for donations to charity. The "ugly woman contest," held on April 4, 1991, was one of the "Derby Days" events. The Fraternity staged the contest in the cafeteria of the student union. As part of the contest, eighteen Fraternity members were assigned to one of six sorority teams cooperating in [388] the events. The involved Fraternity members appeared in the contest dressed as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman. He was painted black and wore stringy, black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman's breasts and buttocks. He spoke in slang to parody African-Americans. There is no direct evidence in the record concerning the subjective intent of the Fraternity members who conducted the contest. The Fraternity, which later apologized to the University officials for the presentation, conceded during the litigation that the contest was sophomoric and offensive. Following the contest, a number of students protested to the University that the skit had been objectionably sexist and racist. Two hundred forty-seven students, many of them members of the foreign or minority student body, executed a petition, which stated: "[W]e are condemning the racist and sexist implications of this event in which male members dressed as women. One man in particular wore a black face, portraying a negative stereotype of black women." On April 10, 1991, the Dean for Student Services, Kenneth Bumgarner, discussed the situation with representatives of the objecting students. That same day, Dean Bumgarner met with student representatives of Sigma Chi, including the planners of and participants in the "ugly woman contest." He then held a meeting with members of the student government and other student leaders. In this meeting, it was agreed that Sigma Chi's behavior had created a hostile learning environment for women and blacks, incompatible with the University's mission. The Dean met again with Fraternity representatives on April 18, and the following day advised its officers of the sanctions imposed. They included suspension from all activities for the rest of the 1991 spring semester and a two-year prohibition on all social activities except pre-approved pledging events and pre-approved philanthropic events with an educational purpose directly related to gender discrimination and cultural diversity. The University's sanctions also required Sigma Chi to plan and implement an educational program addressing cultural differences, diversity, and the concerns of women. A few weeks later, the University made minor modifications to the sanctions, allowing Sigma Chi to engage in selected social activities with the University's advance approval. On June 5, 1991, Sigma Chi brought this action under 42 U.S.C. § 1983[2] against the University and Dean Bumgarner. It requested declaratory judgment and injunctive relief to nullify the sanctions as violative of the First and Fourteenth Amendments. Sigma Chi moved for summary judgment on its First Amendment claims on June 28, 1991, filing with its motions numerous affidavits explaining the nature of the "ugly woman contest." Also submitted were large glossy photographs of the participants as they appeared in the skits, including photographs of the Fraternity member depicting the offensive caricature of the black woman. In addition to the affidavit of Dean Bumgarner explaining his meetings with student leaders, the University submitted the affidavits of other officials, including that of University President George W. Johnson and Vice-President Earl G. Ingram. President Johnson, by his affidavit, presented the "mission statement" of the University: (4) We are committed to teaching the values of equal opportunity and equal treatment, respect for diversity, and individual dignity. (5) Our mission also includes achieving the goals set forth in our affirmative action [389] plan, a plan incorporating affirmative steps designed to attract and retain minorities to this campus. .... (7) George Mason University is a state institution of higher education and a recipient of federal funds. Vice President Earl G. Ingram's affidavit represented: (7) While the University has progressed in attracting and retaining minority students, it cannot expect to maintain the position it has achieved, and make further progress on affirmative action and minority issues that it wishes to make, if behavior like that of Sigma Chi is perpetuated on this campus. The district court granted summary judgment to Sigma Chi on its First Amendment claim, 773 F.Supp. 792 (E.D.Va.1991). II The University urges that the district court's grant of summary judgment was premature. It stresses that there remain factual issues which the district court should have weighed in its conclusion. According to the University, the Fraternity's intent in staging the contest is crucial to the issue of whether its conduct was expressive. The University also stresses that if given time it could demonstrate more completely the harm the contest caused to its educational mission. It is, of course, beyond cavil that summary judgment should not be granted while a viable issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment principles require the court to find that the evidence is such that a jury could not reasonably find for the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of a suit under the applicable law preclude entry of summary judgment. In our view, for the reasons that follow, the district court was correct in concluding that there was no outstanding issue of material fact. III We initially face the task of deciding whether Sigma Chi's "ugly woman contest" is sufficiently expressive to entitle it to First Amendment protection. From the mature advantage of looking back, it is obvious that the performance, apart from its charitable fund-raising features, was an exercise of teenage campus excess. With a longer and sobering perspective brought on by both peer and official disapproval, even the governing members of the Fraternity recognized as much. The answer to the question of whether the First Amendment protects the Fraternity's crude attempt at entertainment, however, is all the more difficult because of its obvious sophomoric nature. A First Amendment principles governing live entertainment are relatively clear: short of obscenity, it is generally protected. See, e.g., Barnes v. Glen Theatre, Inc., ___ U.S. ___, ___, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (nude dancing); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 1245-47, 43 L.Ed.2d 448 (1975) (musical "Hair"); Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir.1985) (blackface performance), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986). As the Supreme Court announced in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), "[e]ntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment ... fall [390] within the First Amendment guarantee." Id. at 65, 101 S.Ct. at 2180. Expression devoid of "ideas" but with entertainment value may also be protected because "[t]he line between the informing and the entertaining is too elusive." Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948). Thus, we must determine if the skit performed by Sigma Chi comes within the constitutionally protected rubric of entertainment. Unquestionably, some forms of entertainment are so inherently expressive as to fall within the First Amendment's ambit regardless of their quality. For example, in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), the Supreme Court flatly ruled that "[m]usic, as a form of expression and communication, is protected under the First Amendment." Id. at 790, 109 S.Ct. at 2753. Justice Kennedy explained: Id. (citations omitted). Motion pictures, too, are included within the free speech guarantee of the First Amendment. The Court emphasized in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), that "[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform." Id. at 501, 72 S.Ct. at 780; see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976) (motion picture theaters involve communication protected by the First Amendment, but the state can regulate their secondary effects). Even crude street skits come within the First Amendment's reach. In overturning the conviction of an amateur actor for wearing a military uniform in violation of a federal statute, the Supreme Court discussed the statute's "theatrical production" exception.[3] Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558-59, 26 L.Ed.2d 44 (1970). Responding to the Government's argument that the amateur skit was not a "theatrical production," Justice Black, writing for the majority, stated: Id. Although this part of the opinion related to interpretation of the involved statute, Justice Black proceeded to declare that an actor participating in even a crude performance enjoys the constitutional right to freedom of speech. Id. at 63, 90 S.Ct. at 1559. Bearing on this dichotomy between low and high-grade entertainment are the Supreme Court's holdings relating to nude dancing. See Barnes v. Glen Theatre, Inc., ___ U.S. at ___, ___, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975); California v. LaRue, 409 U.S. 109, 116-18, 93 S.Ct. 390, 395-97, 34 L.Ed.2d 342 (1972). Most recently, in Barnes, the Supreme Court conceded that nude dancing is expressive conduct entitled to First Amendment protection.[4] Barnes, ___ U.S. at ___, [391] 111 S.Ct. at 2460. In Barnes, the Court reviewed a Seventh Circuit opinion authored by Judge Flaum, Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir.1990) (en banc), rev'd sub nom. Barnes v. Glen Theatre, Inc., ___ U.S. ___, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), which thoroughly analyzed the questions of whether and how nude dancing is expression entitled to First Amendment protection. The Miller opinion noted that dance is inherently expressive entertainment, as it conveys emotions and ideas. Judge Flaum refused to distinguish "high" art from "low" entertainment on the asserted basis that low entertainment "fail[s] to communicate a defined intellectual thought." Id. at 1086. Applying the test enunciated in Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989),[5] he concluded that nude dancing communicated a message of eroticism and sensuality, understood by its viewers as such. Miller, 904 F.2d at 1087. Thus, notwithstanding its artistic quality, nude dancing was sufficiently expressive to entitle it to First Amendment protection. Justice White's dissent in Barnes echoed Judge Flaum's opinion: Barnes, ___ U.S. at ___, 111 S.Ct. at 2475, 115 L.Ed.2d at 529 (White, J., dissenting) (quoting Salem Inn, Inc. v. Frank, 501 F.2d 18, 21 n. 3 (2d Cir.1974), modified sub nom. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)). In sum, although the Barnes plurality did not explore these views, it appears that the low quality of entertainment does not necessarily weigh in the First Amendment inquiry. It would seem, therefore, that the Fraternity's skit, even as low-grade entertainment, was inherently expressive and thus entitled to First Amendment protection. See Barnes, ___ U.S. at ___, 111 S.Ct. at 2460; Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981); Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558, 26 L.Ed.2d 44 (1970). B The University nevertheless contends that discovery will demonstrate that the contest does not merit characterization as a skit but only as mindless fraternity fun, devoid of any artistic expression. It argues further that entitlement to First Amendment protection exists only if the production was intended to convey a message likely to be understood by a particular audience. See Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989). From the summary judgment record, the University insists, it is impossible to discern the communicative intent necessary to imbue the Fraternity's [392] conduct with a free speech component. As indicated, we feel that the First Amendment protects the Fraternity's skit because it is inherently expressive entertainment. Even if this were not true, however, the skit, in our view, qualifies as expressive conduct under the test articulated in Texas v. Johnson. It is true that the Johnson test for determining the expressiveness of conduct requires "'[a]n intent to convey a particularized message'" and a great likelihood "`that the message would be understood by those who viewed it.'" Id. (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974)). As Johnson and Spence point out, however, the intent to convey a message can be inferred from the conduct and the circumstances surrounding it. Thus viewed, the University's argument is self-defeating. The affidavit from the University's Vice-President, Earl Ingram, stated that the message conveyed by the Fraternity's conduct — that racial and sexual themes should be treated lightly — was completely antithetical to the University's mission of promoting diversity and providing an educational environment free from racism and sexism. Dean Bumgarner, in his affidavit, stated that the University Importantly, the affidavits establish that the punishment was meted out to the Fraternity because its boorish message had interfered with the described University mission. It is manifest from these circumstances that the University officials thought the Fraternity intended to convey a message. The Fraternity members' apology and post-conduct contriteness suggest that they held the same view. To be sure, no evidence suggests that the Fraternity advocated segregation or inferior social status for women. What is evident is that the Fraternity's purposefully nonsensical treatment of sexual and racial themes was intended to impart a message that the University's concerns, in the Fraternity's view, should be treated humorously. From the Fraternity's conduct and the circumstances surrounding it, we have no difficulty in concluding that it intended to convey a message. As to the second prong of the Johnson test, there was a great likelihood that at least some of the audience viewing the skit would understand the Fraternity's message of satire and humor. Some students paid to attend the performance and were entertained. What the Fraternity did not anticipate was the reaction to their crude humor by other students on campus and University officials who opposed the racist and sexist implications of the Fraternity's skit. Even considering, therefore, the sparsity of the evidentiary record, we are persuaded that the Fraternity's "ugly woman contest" satisfies the Johnson test for expressive conduct.[6] IV If this were not a sufficient response to the University's argument, the principles relating to content and viewpoint discrimination recently emphasized in R.A.V. v. City of St. Paul, ___ U.S. ___, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), provide a definitive answer. Although the Court in St. Paul reviewed the constitutional effect of a city "hate speech" ordinance, and we review the constitutionality of sanctions imposed for violating University policy, St. Paul's rationale applies here with equal force. Noting that St. Paul's city ordinance prohibited displays [393] of symbols that "arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," but did not prohibit displays of symbols which would advance ideas of racial or religious equality, Justice Scalia stated: "The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects." Id. at ___, ___, 112 S.Ct. at 2541, 2547. As evidenced by their affidavits, University officials sanctioned Sigma Chi for the message conveyed by the "ugly woman contest" because it ran counter to the views the University sought to communicate to its students and the community.[7] The mischief was the University's punishment of those who scoffed at its goals of racial integration and gender neutrality, while permitting, even encouraging, conduct that would further the viewpoint expressed in the University's goals and probably embraced by a majority of society as well. "The First Amendment generally prevents government from proscribing ... expressive conduct because of disapproval of the ideas expressed." Id. at ___, 112 S.Ct. at 2542 (citing Johnson, 491 U.S. at 406, 109 S.Ct. at 2540). The University, however, urges us to weigh Sigma Chi's conduct against the substantial interests inherent in educational endeavors. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism, and in providing gender-neutral education. Yet it seems equally apparent that it has available numerous alternatives to imposing punishment on students based on the viewpoints they express.[8] We agree wholeheartedly that it is the University officials' responsibility, even their obligation, to achieve the goals they have set. On the other hand, a public university has many constitutionally permissible means to protect female and minority students. We must emphasize, as have other courts, that "the manner of [its action] cannot consist of selective limitations upon speech." St. Paul, ___ U.S. at ___, 112 S.Ct. at 2548; see also Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (invalidating a ban on residential picketing that exempted labor picketing); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 1559, 26 L.Ed.2d 44 (1970) (invalidating a law that allowed wearing military uniforms only in dramatic portrayals that did not "tend to discredit the military"). The First Amendment forbids the government from "restrict[ing] expression because of its message [or] its ideas." Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint. The decision of the district court is affirmed. AFFIRMED.
Any victory will be Pyrrhic for the individuals. Right now, they're obscure. Fight this in federal court, and they won't be. Walk away, start anew, they will be able to go on with their lives. "Win" and force their way back into the university…and what comes next, for years and years and years, will make the game not worth the candle for them. Do you know any whistleblowers? I do. They fought. In the end, they "won". Now they can't get employment in anything like what they once had. An "ugly woman context" is not the same thing as "no niggers will ever get in here". It's fundamentally different. The former is related to the latter by analogy only. The latter IS the issue in our national closet, it IS the birth defect. It's the same in abstract legal thinking. In the real world, it isn't even close.
It would be more along the lines of harassment where "the conduct is severe or pervasive enough to create an environment that a reasonable person would consider intimidating, hostile, or abusive". Harassment my ass. To be guilty of harassment, you must harass, annoy or alarm with speech... unfortunately for all the victims in this case, THEY WEREN'T ON THAT BUS TO BE HARASSED. Imho, these idiots singing their racist song, amongst their white selves, in private on that bus, should be a constitutionally protected event. If people don't wanna be offended, DON'T WATCH A VIDEO OF A PRIVATE EVENT. Peoples feelings don't outtrump my right to speech... regardless how ignorant my speech is.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
Can you calculate that in damages due to the unconstitutional actions of David Boren acting in his official capacity as President of the University? Boren screwed the pooch. He might have to welcome the fraternity back if they want to return.
Imho, these idiots singing their racist song, amongst their white selves, in private on that bus, should be a constitutionally protected event. Here is how it apparently came to receive wide distribution. http://www.cnn.com/2015/03/09/us/oklahoma-fraternity-chant/ 'Disgraceful' University of Oklahoma fraternity shuttered after racist chant By Eliott C. McLaughlin, CNN The student newspaper, The Oklahoma Daily, received the video in a Sunday email, said print Editor Katelyn Griffith. The fraternity celebrated its Founder's Day on Saturday, and the video showed members traveling to a formal event that evening, she said. "We decided that this was definitely a story they needed to cover without question," she told CNN. "This was something that we knew wouldn't be tolerated by the students at OU and the university at large." http://www.usatoday.com/story/news/nation/2015/03/09/oklahoma-fraternity-racist-video/24634005/ With publication of the video, the University just discovered it has been hosting an all-White fraternity. They were shocked, shocked I tell you.
The protestors never noticed because they must have been too busy watching BLACK ENTERTAINMENT TV.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
Nobody can, or will. He didn't force out the fraternity; the fraternity's parent organization shut the chapter. They cannot be forced to reopen it. If they win, they'll be reinstated at the school, after a bitter public fight, and there names and faces will be known forever, and they'll be doomed. Disappear into the twilight and be forgotten and move on. The right to sing racist songs is not a hill worth dying on.
No they weren't. But the video brought it right into their living room. "If people don't wanna be offended, DON'T WATCH A VIDEO OF A PRIVATE EVENT." If people want the privacy to say whatever they want, THEN DON'T MAKE A F**KING VIDEO OF IT AND POST IT TO YOUTUBE.
"If people don't wanna be offended, DON'T WATCH A VIDEO OF A PRIVATE EVENT." If people want the privacy to say whatever they want, THEN DON'T MAKE A F**KING VIDEO OF IT AND POST IT TO YOUTUBE. I still disagree. If they weren't breaking the law on that bus, then their actions should be considered legal and justifiable.... and if those weak people with hurt feelings don't wanna be hurt, don't watch the video. The only punishment I'll admit that should take place is banishment from their fraternity. They represent a bigger organization than those on the bus... and it's not a right to be in that fraternity. I have no problem having them cast out as damage control... but to try and criminally charge or kick out of college is a punishment that gives more power to people's feelings than other people's natural born rights.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
What happened on the bus didn't stay on the bus. That's the problem. No different than the guy who smoked "in" his house. "and if those weak people with hurt feelings don't wanna be hurt, don't watch the video." Can we show x-rated movies at 9:00 am on Saturday on NBC, and those who object should be told, "Don't watch"?
So, if someone's legal free speech actions should be leaked out... the people speaking are the bad guys? I think the person that leaked the video should be hung up by his ball sack... but this overly sensitized society will make a hero out of him. Just like they did with that bimbo and the pro basketball team owner.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
In America, 'we' can and do show x-rated movies at 9:00 am on Saturday on cable/satellite tv, -- and those who object ARE told, "Don't watch". But then, of course, we have boobies like misterwhite, who advocate making 'laws' that prohibit such activities. -- They should move to China.
Big difference between ponography and racial speech. Imho Besides, this wasn't broadcast by the speakers of the video. Imho, the dude recording a group for the purpose of putting it on YouTube, without anyone's concent or knowledge they were being recorded is criminal... called eavesdropping. He should have been charged
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
Of course. X-rated movies are available 24/7,365 days a year. Not that I know this personally,you understand. I'm just reporting on what AKA Stone tells me. What you can't do is force NBC or any other station to show them against their will.
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
There is a big difference between a F-16 and a Piper Cub too,but they are both airplanes. Imho, the dude recording a group for the purpose of putting it on YouTube, without anyone's concent or knowledge they were being recorded is criminal... called eavesdropping. He should have been charged I couldn't agree more. He was obviously recording it without the knowledge and consent of the people he was filming at a private party,and that is against the law practically everywhere.
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
I've looked at the issue of intercept of an oral communication and can't be sure if the recording or release could be a felony. The recording, or its release, could be in violation of the Oklahoma Security of Communications Act. If so, it would be inadmissible in any hearing. Was the person who made the recording a party to the communication, or did the person obtain prior consent of a party to the communication? Was the person who made the recording chanting at the same time? If the person who made the recording provided a copy to someone else, and there was further distribution, the public release could be by an anonymous person who was not even on the bus. He could have shared in with a girlfriend who shared it with her sorority. If the recording was unlawful, the whole thing may be inadmissible at any hearing. NOTE: The immediately below excerpt is from the Student Code of Conduct for Oklahoma State University (as distinct from the University of Oklahoma) and is not directly applicable to the instant case. I do not find the issue of recording directly addressed by the University of Oklahoma, but it is covered by the Oklahoma Statutes. http://www.osu-tulsa.okstate.edu/studentconduct/3.php III. Prohibited Conduct The following list describes actions which detract from the effectiveness of a University community and for which students are subject to disciplinary action. The list is not all-inclusive but contains examples of prohibited behavior. . . . 23. Disorderly conduct is behavior that is disorderly, lewd, indecent or a breach of peace on University property or at University-sponsored activities. Included is any non-consensual photography, video or audio recording of another person on University premises when such recording causes or is likely to cause injury or distress. This conduct would be a violation off campus if it interfered with an individual’s educational opportunities. http://www.detectiveservices.com/2012/02/27/state-by-state-recording-laws/ See OK Stat. § 13-176.1 thru 14, "Security of Communications Act," added by laws 1982, c. 143, § 1. Was the recording person a party to the conversation, or did he/she have the prior consent of a party? Were the utterances of the parties "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstance justifying such expectation." §13-176.2. Definitions. 1. “Aggrieved person” means a person who was a party to any intercepted wire, oral or electronic communication or a person against whom the interception was directed; 2. “Aural acquisition” means obtaining knowledge of a communication through the sense of hearing which is contemporaneous with the communication; 3. “Aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception; . . . 9. “Intercept” means the aural acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical or other device; . . . 12. “Oral communication” means any communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstance justifying such expectation; 13. “Person” means any individual, partnership, association, joint-stock company, trust, corporation or political subdivision including an employee or agent thereof; §13-176.3. Prohibited acts - Felonies – Penalties - Venue. 1. Willfully intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept any wire, oral or electronic communication; 2. Willfully uses, endeavors to use or procures any other person to use or endeavor to use any electronic, mechanical or other device to intercept any oral communication; 3. Willfully discloses or endeavors to disclose to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained in violation of the provisions of the Security of Communications Act; 4. Willfully uses or endeavors to use the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained in violation of the provisions of the Security of Communications Act; §13-176.4. Acts not prohibited. . . . 5. a person not acting under color of law to intercept a wire, oral or electronic communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless the communication is intercepted for the purpose of committing any criminal act; or §13-176.6. Use of certain intercepted communications as evidence prohibited.
I'd have hoped if this act constituted a crime, someone would have charged. It very well might not be in that state. Last I knew, almost all states have evesdropping laws... and this incident certainly qualifies if they have any type of evesdropping law on the books.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
You're right, not enough fingers and toes. SAE started in 1856 (in Alabama) and in 1909 at University of Oklahoma. Its regional directors are all White. When a guy is in an all-White Fraternity, under an organization with all-White regional directors, in Oklahoma, just how damaged can he feel because the Black Fraternity outs him for using the N-word? It like outing a rapper. Reportedly, it is the only fraternity which started in the South. A large part of fraternity benefits, besides keggers, is ring knocking or networking. They can sue, win, and put it on their resume. Of course, for court purposes, they can accept your cataclysmic assessment of damages.
It may be that they do not know who made the recording. The hostile leak of the recording may have been by someone else who they do not want to charge. I can imagine the public relations nightmare of charging the leaker and paying damages to the dudes on the bus. It appears that it may have been a crime, and the OSU provision seems to recognize the statute that way. The dude who recorded it may not have intended wider release when he emailed it to perhaps one person.
Reportedly, it is the only fraternity which started in the South. A large part of fraternity benefits, besides keggers, is ring knocking or networking. They can sue, win, and put it on their resume. Of course, for court purposes, they can accept your cataclysmic assessment of damages. We'll see how it plays out. In a reliably white country, it may have played out by those laws you cited. In a country that is rapidly changing, those laws may not hold when put to the test. This is a really bad hill to die on, because in the process of dying, you may effect a law change too, in the direction you don't want. But have at it! If they want to roll the dice and charge those guns, let them. Wrong fight, wrong cause, wrong place. The law as it has been may be upheld. But then again, it may be gutted. The laws against sodomy and against drugs held for a long time, until they didn't. The laws against unreasonable searches held for a long time, until they didn't. Put a really disgusting case like this one in front of a federal judiciary that is now mostly Obama and Clinton appointees, and maybe the law as it was will be upheld. But then again, maybe the facts of the case are sufficiently hideous that the judges will be able to pare back on white racist speech. Not all speech, mind you, just that particular sort of speech. Sort of like how pacifist teaching against the draft in World War I became "crying fire in a crowded theater". It may well be that whites in any institution anywhere, using the word "nigger" and boasting about how blacks will never get in, is crying "fire" in a crowded theater. And then the disaster will be complete. One thing is for sure: this will not be a pro-bono case. No civil rights group on the right is going to take this for free. So the parents of those white kids are going to shell out a lot of coin to fight this. They may win, if the law holds. They may just compound the disaster, by giving judges the exemplary bad case by which to change the law. Roll the dice. Go ahead. You may win. But then again, you may REALLY hate the outcome. I think you will really hate the outcome. In the aftermath, you'll have to write up a whole new set of legal arguments as to what the white racist speech case is DISTINGUISHABLE from all of the other free speech cases. Roll the dice. Light the fire. See what happens.
Aren't you indicting the whole fraternity system?
Two centuries of First Amendment precedent will not be overturned. Nor should it.
Aren't you citing Delta House for your authority or diversion or whatever?
[...] I think you will really hate the outcome. In the aftermath, you'll have to write up a whole new set of legal arguments as to what the white racist speech case is DISTINGUISHABLE from all of the other free speech cases. Dream on. I think I am certain of the outcome based on the constitution and very old and well established Supreme Court precedent. In the instant case, you do not even get to argue the merits on the First Amendment claim until the University clears the due process hurdle of the 14th Amendment. The underlying merits of the case do not come into play where the case is foreclosed by a failure of due process. Due process is not a techicality, it is a constitutional requirement. This is unlikely to go to court as the University will settle its losing case. Politician Boren got his 15 minutes of fame and absolutely screwed the legal case. One protected free speech is not distinguishable from another. The purpose of the constitution is to protect from government interference in free speech. Congress was explicitly prohibited from passing any law abridging the freedom of speech. A group of Whites on a bus, chanting the N-word that can be heard by nobody but those on the bus, cannot be misconstrued to shouting fire in a crowded theater, no matter how hard you try. It was not likely to cause anyone on the bus to run for the exits. See Iota XI v George Mason University, 4th Cir 91-2684, 993 F2d 386 (1993), supra. The First Amendment exists expressly to protect objectionable speech.
Two centuries? Peacefully opposing the draft in wartime is "Crying fire in a crowded theater", and criminal sedition.
We'll find out…if the parents of these students are willing to pony up for the legal costs of taking it to the Supremes. Otherwise, they'll stay expelled and it'll all remain conjecture.
Your claim tends to be self-defeating. You speak of a case that would go to the Supremes conditioned on parents ponying up for legal costs. If it promised to go to the Supremes, lawyers would line up to take the case. They would pay for the opportunity to argue before SCOTUS. Even if fully litigated, this case will not be taken by SCOTUS. It would never get cert. Fraternities, and fraternity chapters, may keep lawyers on speed dial. This chapter already has a high-profile lawyer on the job (who ran against Boren for the Senate). This case will never be fully litigated, it will be settled with a confidentiality agreement. https://en.wikipedia.org/wiki/Stephen_Jones_%28attorney%29 Stephen Jones, (born July 1, 1940), is an attorney best known for taking on a series of high-profile civil rights cases beginning with his defense of a Vietnam War protestor, including Timothy McVeigh, and continuing with the fraternity involved in the 2015 University of Oklahoma Sigma Alpha Epsilon racism incident. Biography Stephen Jones was born on July 1, 1940 in Lafayette, Louisiana. His father was an oil field supplies sales manager and his mother was the bookkeeper for a wealthy financier. Jones grew up in suburban Houston, received a law degree from the University of Oklahoma in 1966 and settled in Enid, Oklahoma where he still lives. Jones was a member of Phi Alpha Delta and served as Associate Editor of the Oklahoma Bar Journal from 1979 to 1986. He has been married to his wife Sherrel for the last 40 years and they have raised four children. Legal career On May 5, 1970, the day after National Guardsmen had shot and killed four students at Kent State University, Keith Green was arrested at the University of Oklahoma for carrying a Viet Cong flag in violation of a state law prohibiting the display of a "red flag or emblem of anarchy or rebellion". After 12 lawyers had refused to defend the student, Jones took the case and was promptly dismissed from the Enid, Oklahoma law firm where he was employed. Jones argued in court that the disloyalty statute was unconstitutional and the judge dismissed the case, overturning the statute. Later Jones would go on to represent Abbie Hoffman, the radical Yippie, when Oklahoma State University refused to let him speak on campus. In 1975, Jones defended Bobby Wayne Collins, who was accused of the worst mass killing in Oklahoma history at the time. Mervin Thrasher (28), his wife Sandra (27), their two young children (Penny (5) and Robert (18mos)) were senselessly murdered in their four room farm home one mile north of Woodward, Oklahoma. Collins was found guilty and sentenced to death for the brutal crime. On appeal in 1977, Jones successfully had Collin’s death sentence commuted to a life sentence. Bobby Wayne Collins is scheduled for a parole hearing in July 2009. Jones ran unsuccessfully for public office four times, including a U.S. Senate race against David Boren in 1990. In 1997, Stephen Jones was the lead defense attorney for Timothy McVeigh, who was on trial for the Oklahoma City bombing. McVeigh wanted to use the "necessity defense," but Jones took a different tack, even traveling to other countries in search of evidence because he believed that McVeigh did not act alone in the bombing. McVeigh was convicted on all counts and executed in 2001. Jones served as the attorney for a former House page involved in the Mark Foley scandal. He also served as the defense lawyer for Raye Dawn Smith in the trial concerning the rampant abuse and eventual murder of her daughter Kelsey Smith-Briggs. In 2015 Jones was hired by the fraternity chapter involved in the 2015 University of Oklahoma Sigma Alpha Epsilon racism incident to explore the chapter's legal options. Usually, neither side will want their dirty laundry aired in open court. Out of the woodwork might come witnesses to tell about current university officials and prominent alumni who chanted the chant as students. The University may not wish to publicly argue how it managed to remain deaf, dumb and blind. In the apology of student Parker Rice, And the National Frat HQ contests that the song was taught. Perhaps it descended from the heavens and everybody on the bus was just suddenly imbued with the words of the chant. Or, perhaps the Frat and the University would rather not get into a public fight about how long this chant has been taught and chanted, and tolerated. http://www.theatlantic.com/features/archive/2014/02/the-dark-power-of-fraternities/357580/ A yearlong investigation of Greek houses reveals their endemic, lurid, and sometimes tragic problems—and a sophisticated system for shifting the blame. Caitlin Flanagan One warm spring night in 2011, a young man named Travis Hughes stood on the back deck of the Alpha Tau Omega fraternity house at Marshall University, in West Virginia, and was struck by what seemed to him—under the influence of powerful inebriants, not least among them the clear ether of youth itself—to be an excellent idea: he would shove a bottle rocket up his ass and blast it into the sweet night air. And perhaps it was an excellent idea. What was not an excellent idea, however, was to misjudge the relative tightness of a 20-year-old sphincter and the propulsive reliability of a 20-cent bottle rocket. What followed ignition was not the bright report of a successful blastoff, but the muffled thud of fire in the hole. Also on the deck, and also in the thrall of the night’s pleasures, was one Louis Helmburg III, an education major and ace benchwarmer for the Thundering Herd baseball team. His response to the proposed launch was the obvious one: he reportedly whipped out his cellphone to record it on video, which would turn out to be yet another of the night’s seemingly excellent but ultimately misguided ideas. When the bottle rocket exploded in Hughes’s rectum, Helmburg was seized by the kind of battlefield panic that has claimed brave men from outfits far more illustrious than even the Thundering Herd. Terrified, he staggered away from the human bomb and fell off the deck. [...] While many of these suits never make it to trial, disappearing into confidential settlements (as did that of Louis Helmburg III, nearly two years after he filed his lawsuit) or melting away once plaintiffs recognize the powerful and monolithic forces they are up against, the narratives they leave behind in their complaints—all of them matters of public record—comprise a rich and potent testimony to the kinds of experiences regularly taking place on college campuses. Tellingly, the material facts of these complaints are rarely in dispute; what is contested, most often, is only liability. [...]
The fraternity is not going to defend the expulsees. It shut the chapter at the university, for now, and threw the offenders out of the fraternity. It's not going to spend any effort defending the miscreants, but rather, is piling on. So it won't be the fraternity stepping up in this case. If there's to be any contest, it will be the students themselves. No civil rights group is going to stand up and invest its legal resources in fighting for the right of Southern assholes to sing racist songs. These are the most unsympathetic plaintiffs imaginable. Nobody is going to take this on pro-bono. If they want to fight it, they will have to hire lawyers, and they'll have to pay every dime. They won't get the top flight lawyers, because top flight lawyers will not want to touch this tar baby: very unappetizing plaintiffs, and we're not talking about a criminal defense here, but a civil suit. Nobody decent is likely to do this on contingency either. It's going to be expensive for the parents. Nobody is going to help. The expulsions will stand because the kids and their parents will decide, rightly, that it is not worth the expense and further damage to their reputations of fighting it. There won't be a settlement agreement either, because there won't be an effective lawsuit, and the college knows that it doesn't have to give an inch on this.
So it won't be the fraternity stepping up in this case. If there's to be any contest, it will be the students themselves. All wrong. The SAE Alumni Board of the fraternity voted to retain Steven Jones. It is the fraternity alumni board acting, not the individual students. Jones stressed that he has not been hired by the two expelled students. The chant is unlikely to be of very recent origin. The alumni will know which of the university PTB know it and have sung it. Neither the fraternity national office nor the university want a very public squabble about what has been tolerated. Boren is an old Democrat in a very Republican state. Mitt Romney won the state by over 35 points. Romney's lowest vote percentage in any county was 57.4%. Republicans hold 100% of the state executive positions, over 70% of the House, and 75% of the Senate. The alumni are very likely very Republican. Boren is a nice, bit Obama-connected target. Money is not an issue and even the ACLU opined that they see no way the court would side with the university. Boren could kick the local chapter off campus but he can not make the alumni disappear. The fraternity national office can make believe nobody taught the chant to the chanters, but they cannot make believers out of the alumni, nor can they tell the alumni what to do. The national office would really, really not like to explain what it has done over the past century to promote Black inclusion in the local chapter besides learning the chant. by Nolan Clay Alumni of an ousted fraternity at the University of Oklahoma have hired prominent Oklahoma attorney Stephen Jones. Jones confirmed Friday he was hired to advise alumni on the board overseeing OU's Sigma Alpha Epsilon chapter of their legal rights. He said the alumni are upset with President David Boren who kicked the fraternity off campus after videos surfaced of fraternity members singing a racist song aboard a bus last Saturday night. He said the board hired him Thursday after an emergency meeting and he is reviewing paperwork before deciding what legal steps he might take. He said no decision has been made yet on whether to sue the university or Boren. He also said he has not been hired by two fraternity members who were expelled. [...] On Thursday, the American Civil Liberties Union of Oklahoma said: "Any sanction imposed on students for their speech must ... be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such. Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter."
We'll revisit as things develop.
Amendment II.
Amendment III.
Amendment IV.
Amendment V.
Amendment VI.
Amendment VII.
Amendment VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX.
Amendment X.
#2. To: A K A Stone (#0)
"Under the First Amendment ..."
#3. To: A K A Stone (#0)
#4. To: A K A Stone (#0)
#5. To: misterwhite (#2)
If any students are expelled, I don't think it would be a first amendment issue.
#6. To: Vicomte13 (#3)
There will be no civil rights organization ready to take on THIS tar-baby of a case.
#7. To: Vicomte13 (#3)
#8. To: sneakypete (#5)
Yeah,and they will be going after the La Raza crowd,the "We're here and we're queer!1" crowd,the Muslims, and the homies using the same standard?
#9. To: redleghunter (#7)
I'm sure the school has a code of conduct which addresses this. Based on that, the expulsions will stick.
#10. To: redleghunter, Vicomte13, A K A Stone (#7)
I'm sure the school has a code of conduct which addresses this. Based on that, the expulsions will stick.
U.S. Supreme Court
U.S. Supreme Court
#11. To: nolu chan (#10)
#12. To: nolu chan (#10)
The summary expulsion may not stick. The issue will be due process.
#13. To: nolu chan (#10)
It's a State school. The accused must be given a hearing with notice and an opportunity to be heard. If the school has not provided due process, this expulsion will fail. They must afford the required due process.
#14. To: Vicomte13, redleghunter (#12)
If they don't fight, there's no issue. There's only an issue if they fight.
993 F.2d 386 (1993)
v.
GEORGE MASON UNIVERSITY; Kenneth E. Bumgarner, Defendants-Appellants.
Decided May 10, 1993. (3) George Mason University is committed to promoting a culturally and racially diverse student body.... Education here is not limited to the classroom.
(6) The University's affirmative action plan is a part of an overall state plan designed, in part, to desegregate the predominately "white" and "black" public institutions of higher education in Virginia.... The behavior of the members of Sigma Chi that led to this lawsuit was completely antithetical to the University's mission, as expressed through its affirmative action statement and other pertinent University policies, to create a non-threatening, culturally diverse learning environment for students of all races and backgrounds, and of both sexes.
Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order.
It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays.
"[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who ... wants some `entertainment' with his beer or shot of rye."
does not and cannot condone this type of on-campus behavior which perpetuated derogatory racial and sexual stereotypes, tends to isolate minority students, and creates a hostile and distracting learning environment. Such behavior is incompatible with, and destructive to, the University's mission of promoting diversity within its student body [and] sends a message to the student body and the community that we ... are not serious about hurtful and offensive behavior on campus.
#15. To: nolu chan (#14)
#16. To: misterwhite (#2)
any students are expelled, I don't think it would be a first amendment issue.
#17. To: Vicomte13 (#15)
"Win" and force their way back into the university…and what comes next, for years and years and years, will make the game not worth the candle for them.
#18. To: GrandIsland, misterwhite (#16)
Harassment my ass. To be guilty of harassment, you must harass, annoy or alarm with speech... unfortunately for all the victims in this case, THEY WEREN'T ON THAT BUS TO BE HARASSED.
Updated 2:57 PM ET, Tue March 10, 2015 How it surfaced
The video was posted online Sunday by Unheard, a black student group at OU. The fraternity's national headquarters said Sunday night that an investigation confirmed that it was local SAE members on the video chanting racial slurs against blacks and indicating that blacks would never be admitted to the fraternity's chapter in Norman. The chant also makes reference to lynching.
#19. To: nolu chan (#18)
With publication of the video, the University just discovered it has been hosting an all-White fraternity. They were shocked, shocked I tell you.
#20. To: nolu chan (#17)
Can you calculate that in damages due to the unconstitutional actions of David Boren acting in his official capacity as President of the University? Boren screwed the pooch. He might have to welcome the fraternity back if they want to return.
#21. To: GrandIsland (#16)
(Edited)
"THEY WEREN'T ON THAT BUS TO BE HARASSED."
#22. To: misterwhite (#21)
(Edited)
No they weren't. But the video brought it right into their living room.
#23. To: GrandIsland (#22)
"If they weren't breaking the law on that bus, then their actions should be considered legal and justifiable...."
#24. To: misterwhite (#23)
What happened on the bus didn't stay on the bus. That's the problem.
#25. To: Y'ALL, misterwhite, advocating prohibitive 'law' again. (#23)
Can we show x-rated movies at 9:00 am on Saturday on NBC, and those who object should be told, "Don't watch"?
#26. To: misterwhite (#23)
Can we show x-rated movies at 9:00 am on Saturday on NBC, and those who object should be told, "Don't watch"?
#27. To: misterwhite, AKA Stone (#23)
Can we show x-rated movies at 9:00 am on Saturday on NBC, and those who object should be told, "Don't watch"?
#28. To: GrandIsland (#26)
(Edited)
Big difference between ponography and racial speech. Imho
#29. To: GrandIsland, misterwhite (#26)
Imho, the dude recording a group for the purpose of putting it on YouTube, without anyone's concent or knowledge they were being recorded is criminal... called eavesdropping. He should have been charged
Student Code of Conduct
Oklahoma – A person may intercept a wire, oral, or electronic communication when the person is a party to the conversation or when one party to the conversation has given prior consent.
As used in the Security of Communications Act:
Except as otherwise specifically provided in this act, any person is guilty of a felony and upon conviction shall be punished by a fine of not less than Five Thousand Dollars ($5,000.00), or by imprisonment of not more than five (5) years, or by both who:
It is not unlawful pursuant to the Security of Communications Act for:
Whenever any wire, oral or electronic communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of the Security of Communications Act.
#30. To: nolu chan (#29)
(Edited)
I've looked at the issue of intercept of an oral communication and can't be sure if the recording or release could be a felony.
#31. To: Vicomte13 (#20)
Nobody can, or will.
If they win, they'll be reinstated at the school, after a bitter public fight, and there names and faces will be known forever, and they'll be doomed.
#32. To: GrandIsland (#30)
I'd have hoped if this act constituted a crime, someone would have charged.
#33. To: nolu chan (#31)
When a guy is in an all-White Fraternity, under an organization with all-White regional directors, in Oklahoma, just how damaged can he feel because the Black Fraternity outs him for using the N-word? It like outing a rapper.
#34. To: nolu chan (#29)
"I've looked at the issue of intercept of an oral communication and can't be sure if the recording or release could be a felony."
#35. To: Vicomte13 (#33)
The law as it has been may be upheld. But then again, it may be gutted.
#36. To: misterwhite (#34)
Aren't you indicting the whole fraternity system?
#37. To: Vicomte13 (#33)
One thing is for sure: this will not be a pro-bono case. No civil rights group on the right is going to take this for free. So the parents of those white kids are going to shell out a lot of coin to fight this. They may win, if the law holds. They may just compound the disaster, by giving judges the exemplary bad case by which to change the law.
#38. To: nolu chan (#35)
#39. To: nolu chan (#37)
I think I am certain of the outcome based on the constitution and very old and well established Supreme Court precedent.
#40. To: Vicomte13 (#39)
We'll find out…if the parents of these students are willing to pony up for the legal costs of taking it to the Supremes.
Stephen Jones (attorney)
I know everyone wants to know why or how this happened. I admit it likely was fueled by alcohol consumed at the house before the bus trip, but that’s not an excuse. Yes, the song was taught to us, but that too doesn’t work as an explanation.
The Dark Power of Fraternities
March 2014
The Atlantic
#41. To: nolu chan (#40)
(Edited)
#42. To: Vicomte13 (#41)
The fraternity is not going to defend the expulsees. It shut the chapter at the university, for now, and threw the offenders out of the fraternity. It's not going to spend any effort defending the miscreants, but rather, is piling on.
Ousted University of Oklahoma fraternity hires prominent attorney Stephen Jones
Modified: March 13, 2015 at 8:23 am
Published: March 13, 2015
#43. To: nolu chan (#42)
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