Following the expulsion of two students at the University of Oklahoma for blatant racism, longtime civil liberties attorney Harvey Silverglate and Tufts University Center for Race & Democracy founding director Peniel Joseph debated over the true limits of free speech and whether the punishment fit the crime. 

JIM BRAUDE: Harvey, let me start with you: does the punishment fit the crime, or is that vile chant protected speech?

HARVERY SILVERGLATE: The punishment may fit the crime, but the problem is the punishment is unconstitutional.

BRADE: Why?

SILVERGLATE: There is no question that that chant was protected by the First Amendment, and really that’s not really a viable issue. If the kids went to court to sue, they would win in a heartbeat. The thing is, I don't think they have the guts to actually go to court.

BRAUDE: Let's not discuss reality for a second; let's discuss the Constitution. Why do you say there’s absolutely no question—because it’s a public university?

SILVERGLATE: Because it is a public university; therefore, the First Amendment constrains the conduct of the administration, and in the speech case, this is protected speech. The Supreme Court has made it very clear in a cross-burning case in Virginia that if the speech is directly threatening, then it can be punished. But if it's not directly threatening, it can’t be punished.

BRAUDE: Peniel, did he convince you?

PENIEL JOSEPH: No, I think they should have been expelled. I'm not a constitutional scholar, but I will say that every community, whether it’s a public or private university, decides what actions can suddenly lead to somebody being expelled from that community. Right there, that action—in terms of those talking about lynching, the “N-word,” that’s a violation—if

this was anti-Semitic, I would agree with the same thing: they needed to be expelled. I think Harvey is right to the extent that if they made a legal case, who knows what would happen, but certainly the actions were justified.

BRAUDE: Aren't you worried as an academic about the proverbial slippery slope in this situation? Even if you say, this language and that language clearly qualifies them for expulsion, and I don’t believe it violates the constitution, how about one layer down and one layer down, when the administration doesn't like what they are hearing?

JOSEPH: I think free speech is different from hate speech. By the time you are looking at somebody talking about lynching, or what if they said they wanted to kill Jews or Muslims? We all would have said, hey, these people should be expelled regardless of what people are saying constitutionally, is this free speech?

BRAUDE: But you wouldn’t have said the people he described should have been expelled, would you?

SILVERGLATE: No. First of all, hate speech is protected. There’s an awful lot of Supreme Court precedent protecting the most hateful speech: the Nazis marching in Skokie; the problem is, it's hard for us when there is an incident like this that is vile speech—the whole scene was vile, if you watch the video. But the Constitution protects the vile as well as the virtuous.

BRAUDE: The language used by the former United States Sen. Borne says they created a hostile educational environment for others. My sense is the reason he used that language, is because their argument, were they sued under the Constitution would be, it's not the speech; it's the consequences of the speech. It's the environment it creates. and that is not protected. Would he be right in that case?

SILVERGLATE: No, absolutely wrong. This is an attempt to turn the English language around so that you don't have to use the same terms of the Supreme Court used. The Supreme Court has talked about hate speech being protected, so now there's hostile environment speech. No matter what you call it, a rose by any other name, as they say, smelleth as sweet or as bitter.

BRAUDE: Is that hostile environment thing move you?

JOSEPH: Yeah, it does. They do create a hostile environment. I'm at Tufts, and anybody who’s been at a college campus—there's these incidents of whether people are being harassed sexually or a bad racial climate, sometimes religious attacks. The president is right. That kind of speech, if it's unpunished, does create a hostile climate on campus.

SILVERGLATE: Can I just point out, the hostile environment was created not by the people chanting on the bus but whoever taped it and leaked it out. If it hadn’t been for the leaker, the students were not talking to anybody except themselves on a bus.

BRAUDE: Well if it had not been for the chanter, there would not have been a leaker, correct? When you say the hostile environment, Harvey Silverglate, doesn't do it, let's assume there’s tangible evidence that the hostile environment that was created—assuming there was one—makes a student on that campus feel threatened. There’s a young black kid as a freshman, and he or she feels as a result of that language, I’m scared on this campus; I’m scared to walk around on this campus. Still not a problem?

SILVERGLATE: Still not a problem. On a college campus, you can’t have a situation where sensitivities are so high and speech rights are so low that there's really no learning that goes on. And it just doesn't—It's especially true on a college campus.

BRAUDE: He has written “[The] Shadow University.” There is this movement to basically clamp down on any speech that is politically incorrect. Obviously it goes well beyond that. But that is the slippery slope I’m talking about, Peniel, and I know you care about that.

JOSEPH: I'm all for free speech, and if there was a presentation where somebody was saying something offensive, that is one thing, but you can create a hostile climate with the racial slurs. And once they investigated this and talked to other students, people said hey, on campus there's only 5 percent black undergraduates at OU. They do feel at times a hostile environment, and that tape is reflective of that.

BRAUDE: If they couldn’t find a student at the University of Oklahoma who said those words, “I feel threatened, and that I feel I am in a hostile environment” would you agree with him, even if you had a hard time getting there, that the words alone, as grotesque as they are, are protected by free speech, if there's no other fallout beyond that?

JOSEPH: Well, my concern is that less about free speech protection and more about what can the university do within their purview to punish students who create a hostile environment. I don’t necessarily disagree with what Harvey is saying about Constitution and free speech, but I think there's implications for our speech. So you can have free speech—I can have free speech as a professor, but I can actually have to pay consequences or responsibility for that speech. And here I’m saying I think the consequences were justified.

BRAUDE: Understood. Harvey Silverglate, 30 seconds.

SILVERGLATE: Wouldn't you like to know, if you are on a campus, who the haters are? If you don't allow them to speak, you never find out. I feel safer, safer, knowing who doesn't like me and who does.

BRAUDE: How about 10 seconds on that, Peniel Joseph?

JOSEPH: I think he is right, but in this context, punishment fits the crime. Not always, but right here, yes.

BRAUDE: Good to see you both.