1

Composed by: Tisha Claudia Lim

Course name: JOUR400, Section0201
Topic: First Amendment Exam & Worksheet Analysis
Professor Deborah Nelson
Date: 4/17/2015

University of Oklahomas Sigma Alpha Epsilon (SAE) attracted national attention when
the president of the fraternity closed the fraternity house after two of their members, Levi
Pettit and Parker Rice, led a racist chant on a bus. They chanted repeatedly, You can hang
1
them on a tree, but theyll never sign with me, there will never be an nigga (in) SAE.
Both

members were expelled from the university and have sued the university for violating their First
Amendment rights in restricting their free speech. This paper will explore and argue why their
expulsions would most likely to be considered an unconstitutional restriction on free speech.
The Court would most likely not consider this to be a fighting words case. Fighting words
is defined as Intimidating speech directed at a specific individual in a face-to-face
2
confrontation (that is) likely to inflict injury or incite an immediate breach of the peace
Both

members were chanting to a group of people on the bus, and they were not targeting a specific
individual. They did not engage in making any face-to-face confrontation with a specific party as
in the case of Chaplinsky v. New Hampshire, in which Chaplinsky mocked and targeted a city
3
marshall.

________________________________________
1. "Oklahoma SAE Frat: Two Students Expelled Over Racist Chants."
YouTube
. ABC News.
Web. 17 Apr. 2015. <
https://www.youtube.com/watch?v=nU-ZbjB00k8&spfreload=10
>.
2. Powerpoint Slides. (2015)
3. Chaplinsky v. New Hampshire. Supreme Court of the United States. (1942)

This, however, would be considered a hate speech case. Hate speech is defined as
statement or symbolic speech act that is potentially insulting or offensive to another because
the speech suggests something negative about the other persons race, ethnicity, gender,
4
religion or sexual orientation.
The two members were chanting offensive statements about a

certain group of people, in this case, African-Americans. The First Amendment prohibits the
government from regulating hate speech, and hence the speech is a fully protected expression.
The Court would have to apply the Strict Judicial Scrutiny to determine whether the
government restriction is constitutional.
In order to prove its restriction on the speech is constitutional, OU would have to prove
5
that it has a compelling and legitimate interest in restricting the speech.
According to Schenck

v. United States, the Court stated that

The freedom of speech protected by the Fi
rst
Amendment may become subject to prohibition when of such a nature and used in such
circumstances a to create a clear and present danger that they will bring about the substantive
evils which Congress has a right to prevent. Schenck, who mailed circulars to draftees urging
them to seek insubordination, was not protected. The Court noted that that it is imperative for
the government to restrict such spee
ch (for obstructing the draft) during wartime. The Court
noted that When a nation is at war, many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight, and that no
6
Court could regard them as protected by any constitutional right.

________________________________________
4. Messenger, Ashley G.
A Practical Guide to Media Law
., 2015. Print.
5. Powerpoint Slides. (2015)
6. Schenck v. United States.
Supreme Court of the United States. (1919)

In other words, the government must have an compelling interest in restricting the speech (as
in the case concerning with national security), and speech itself have to be significantly harmful
(not just merely harmful). Similarly, in Terminiello v. Chicago,
Pastor Arthur Terminiello was
arrested for breach of peace after he delivered a speech outside a Chicago auditorium
criticizing and condemning various racial and political groups. However, his speech was
protected, and Court held that the ordinance of breach of peace was unconstitutional. The
Court stated that the government could only restrict speech in the event that was
"likely to
produce a clear and present danger of a serious substantive evil that rises far above public
7
inconvenience, annoyance, or unre
st."
In
other words, in order for the government to restrict,

the speech has to cause more than public disturbances. This aspect was further highlighted as
Justice Douglas noted, "A function of free speech under our system is to invite dispute. It may
indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction
8
with conditions as they are, or even stirs people to anger."
Hence in other words, the

government could not ban a speech merely because too many people find it offensive or
merely because the government disagrees with it, it has to have a more compelling reason to
restrict the speech.
The Court also acknowledged that Speech is often provocative and
c
hallenging. It may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom of speech, though not
absolute...is nevertheless protected against...punishment.
________________________________________
7. Terminiello v. Chicago
.
Supreme Court of the United States. (1949)
8. Terminiello v. Chicago
.
Supreme Court of the United States. (1949)

This point was further enhanced as Justice Vinson noted, Freedom of speech undoubtedly
means freedom to express views that challenge deep-seated, sacred beliefs, and to utter
9
sentiments that may provoke resentm
ent.

Second, the government has the burden of proving that their restriction is effective in
10
preventing the specific har
m.
I
n Whitney v. California, the government would be effective for

punishing the speech only if the speech would incite violence or a crime; it could not punish the
speech merely because of its offensiveness. The Court also made a clear distinction between
expressing a viewpoint (advocacy) and committing a crime (use of criminal and unlawful
11
metho
ds).
It hi
ghlight the aspect that the Constitution guarantees free speech and do not

permit the State to forbid advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
12
produce such action
.
Hence the government would not be effective in preventing the harm if

the speech would not incite or produce a crime. Similarly, In Virginia v. Black, the Court noted
that the government may punish or restrict a speech if the speaker has an intention to intimate
or threaten a person or a group of people. The Court stated,
A prohibition on true threats
protects individuals from the fear of violence and the
disruption that fear engenders, as well as
13
from the possibility that the threatened violence will occur.
In other words, the government

would be effective in preventing the harm of true threat by restricting the speech, but it could
14
not restrict speech that that are not likely to inspire fear of bodily harm.

________________________________________
9. Terminiello v. Chicago
.
Supreme Court of the United States. (1949)
10. Powerpoint Slides. (2015)
11. Whitney v. California
.
Supreme Court of the United States. (1927)
12. Messenger, Ashley G.
A Practical Guide to Media Law
., 2015. Print.
13. Virginia v. Black
.
Supreme Court of the United States. (2003)
14. Virginia v. Black
.
Supreme Court of the United States. (2003)

Third, the government would have to prove that the restriction is narrowly drawn in order for
15
the restriction on the speech to be constitutional.
The government must show the the least

restrictive means to further the articulated interest.

16
I
n other words, regulations that are too
vague and overly broad would most likely be struck down as unconstitutional. In R.A.V. v. St.
Paul, the Court unanimously struck down an ordinance which prohibits the display of a symbol
which one knows or has reason to know arouses anger, alarm or resentment in others on the
basis of race, color, creed, religion or gender." The Court stated, The ordinance's content
discrimination is not justified on the ground that the ordinance is narrowly tailored to serve a
compelling state interest in ensuring the basic human rights of groups historically discriminated
against, since an ordinance not limited to the favored topics would have precisely the same
17
beneficia
l effect.
Hence, a discriminatory law would most likely be unconstitutional if it is

overly broad that goes beyond...to cover words that cause a generalized reactions of hurt
18
feelings or offense,
or if it is too expansive that "it prohibits otherwise permitted speech
19
solely on the basis of the subjects the speech addresses."
Lastly, the government would have

to prove that there is no alternative way to prevent the harm that is less destructive of the First
20
Amendment,
and this is seen in the case of United States v. OBrien.

________________________________________
15. Powerpoint Slides. (2015)
16. Ruane, Kathleen. "Freedom of the Speech and Press: Exception to the First
Amendment."
Congressional Research Service
(2014). Print.
17. R.A.V. v. St. Paul
.
Supreme Court of the United States. (1992)
18. Powerpoint Slides. (2015)
19. R.A.V. v. St. Paul
.
Supreme Court of the United States. (1992)
20. Powerpoint Slides. (2015)

The Court held that the draft card law prohibiting the destruction of the card was constitutional
because the cards served as an important tool in the draft system, an
d that there is no other
21
way to ensure the integrity of the cards except to ban their intentional destruction.
The

Court stated, A governmental regulation is sufficiently justified if it...furthers an important or

substantial governmental interest unrelated to the suppression of free expression, and if the
incidental restriction on alleged First Amendment freedom is no greater than is essential to that
22
interes
t.
Hence, the speech may be restricted if the government could prove that there is no

other alternative less damaging than the First Amendment to prevent the harm (but it must be
independent from the suppression of free speech).
Using the aforementioned to draw inferences, the government would most like not be
able to meet the Strict Judicial Scrutiny in the case of the SAE members. First, the Court would
most likely not consider their racist chant to be substantive evil that would cause more than
public unrest (they were chanting in on a bus to a limited number of hearers). Even if they
chanted in a large open space, the Court would most likely not consider their speech to be a
compelling interest for the government to restrict. As noted above and in the case of
Terminiello, the government could not punish a speech merely because it is socially disfavored,
provoking or offensive. In Snyder v. Phelps, the family of a deceased marine sued members of
the Westboro Baptist Church for picketing at his funeral and for crying out offensive remarks
such as God Hate Fags. The Court mentioned that the speech occurred at a public place
______________________________________
21. Messenger, Ashley G.
A Practical Guide to Media Law
., 2015. Print.
22. United States v. OBrien
.
Supreme Court of the United States. (1968)

(hence a matter of public concern), and is entitled to protection under the First Amendment. It
stated, Such speech cannot be restricted simply because it is upsetting or arouses
contempt...the government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable...Indeed, the point of all speech protection...is to
shield just those choices of content that in someones eyes are misguided, or even hurtful. The
court also noted, [We] must tolerate insulting, and even outrageous, speech in order to
provide adequate breathing space to the freedoms protected by the First Amendment.
23

Hence, the government could not restrict the speech of SAE members even if it found their
speech to be repugnant, offensive or outrageous, and their speech would be protected under
the First Amendment. Second, the restriction would not stand because their speech did not
constitute an intent to incite a crime. Accordin
g to Newsweek, the two members and the
24
students have been drinking before going on the bus.
The Court would most likely hold that

they were merely chanting out of excitement (to entert

ain the people on the bus) and did not
have the intention to produce an act of unlawful violence. Third, banning a speech merely
because of the use of words such as nigga or for making racial slurs (chants) would most likely
be held overly broad and unconstitutional because the government would have to ban all
speech that contain such racial remarks, as noted in the case of R.A.V. v. City of St. Paul.
______________________________________
23. Snyder v. Phelps
.
Supreme Court of the United States. (2011)
24. "Oklahoma Fraternity Learned Racist Chant at National SAE Event." Newsweek, 27 Mar.
2015. Web. 17 Apr. 2015.
<
http://www.newsweek.com/oklahoma-fraternity-learned-racist-chant-national-sae-ev
ent-317438
>.

Since the government would most likely not meet the first criterion of the Strict Judicial
Scru
tiny, the third and fourth criteria would not be applicable.
The SAE case closely resembles the case of Dambrot v. Central Michigan University.
According to an 1993 Pittsburgh Post-Gazette article, Dambrot, a Central Michigan University
basketball coach, was fired after making offensive statements such as play like niggers in the
25
cour
t.
The Court held that his speech was protected, and the Court ruled that the university

code of anti-discriminatory harassment policy to be unconstitutional. The Court noted, The

University could not...
establish an anti-discrimination policy which had the effect of prohibiting
certain speech because it disagreed with ideas or messages sought to be conveyedNor could
the University proscribe speech simply because it was found to be offensive, even gravely so, by
large numbers of people. The Court also noted that the policy was overly broad and vague. It
stated, Though some statements might be seen as universally offensive, different people find
different things offensive...Several players testified they were not offended by Dambrot's use of
the N-wor
d...The CMU policy, as written, does not provide fair notice of what speech will
26
violate the policy.
In other words, consistent with the abovementioned, the government

could not restrict a spee

ch merely because it found it to be offensive or repulsive to many.
Hence with the aforementioned argument, OU would most likely not prevail, and the
expulsions of the two members would most likely be constituted an unconstitutional restriction
on free speech.
______________________________________
25. Washington, Jesse.
Players Support Coach Fired for Racial Comment
22 Apr. 1993.
Pittsburgh Post-Gazette. Web. 19 Apr. 2015.
<
https://news.google.com/newspapers?id=hoVIAAAAIBAJ&sjid=m24DAAAAIBAJ&pg=47
62,3827728
>.
26. Dambrot v. Central Michigan University
.
United States District Court of Appeals for the
Sixth Circuit. (1995)

First Amendment Exam Analysis Worksheet

1. Restriction on free speech

2. Fully protected speech
3. Strict Judicial Scrutiny
4. Offensive/Racist Speech (Racist Chant)
5. Hate Speech case
6. Snyder v. Phelps, R.A.V. v. St. Paul, Terminiello v. United States
7. Legal principles include: In order for the government to restrict speech, the speech
has to bring about substantive evils, or likely to incite crime or likely to inspire
fear of bodily harm etc.
8. (a) Is a compelling government interest? (b) Does the restriction advance the
government interest (c) Is the restriction narrowly drawn? (d) Is there no alternative
less damaging to the First Amendment?
9. (a) United States v. OBrien (b) Dambrot v. Central Michigan University (based on
news article and court case) (c) Facts from SAE case (based on news article and news
video)