Racist frat boys say the N-word, racist frat boys get expelled, otherwise intelligent white people cry "free speech" and wonder why black people can't just have thicker skins when white people threaten to kill them. It's all happened before, and it will all happen again.
The legal issue here is quite simple. You can't expel people for "mere speech" from a public university. Nobody reasonable disagrees with that standard. If all the kids had said was "Fee Fie Foe Figger, I hate a n***er," they wouldn't have been expelled. They'd still be odious humans. Life would go on much as it has these past 400 years in the New World.
But that's not what they said. They also contemplated hanging said African-Americans from trees. That's a threat. That's a threat to the safety of every black person on campus at Oklahoma. That's the ball game: you can say whatever you want, but once you start threatening people's safety, you're out.
In the Washington Post, Eugene Volokh rightly says that the issue is whether or not the threat of violence was a "true threat." But then, he goes all old white man on us:
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.
Now, I get how a white listener wouldn't take the threat as a true threat. They weren't threatening Eugene Volokh. And, I don't know, maybe when white people are by themselves, they talk like this and they all understand that they don't actually intend to solicit a lynch mob to go after the black people on campus. Who knows what you say when I'm not around. Maybe white people are just used to chants about hanging people from trees, and intuitively know that the drunk frat boys weren't serious?
But that's not really an objective reading of the situation, at least if we dispense with the notion that the white perspective is the only objective one. Objectively, a bus of drunk white people were singing about hanging people. Buses of drunk white people singing about hanging folks is a true threat, because sometimes buses of drunk white people then actually go out and hang people. IT'S HAPPENED BEFORE.
In fact, I'm getting pretty sick of white people telling me how I'm supposed to perceive threats from white people. Of course I perceive the chant as an attempt to solicit a criminal act. How could I not? Don't most hate crimes committed against African-Americans start with drunk douchebags talking about n***ers?
If you are a white person who has been part of a lynch mob, maybe you can tell me more about how these things get rolling (though, I'm not sure I'd actually trust the judgment of white people who have been parts of lynch mobs). But if you are white person who has NOT been a part of a lynch mob, please STFU about what is threatening to that one black "friend" you have. You don't know. NOBODY IS SINGING ABOUT HANGING YOU. You don't have a grandparent or an uncle who was lynched/almost lynched/taught you how to avoid lynchings.
The threat of being beat up or worse by a mob of angry white people is REAL. It's evidently not something most white people would understand. I've been on the Boston T on Saint Patrick's Day. I've been to the pre-race party before the Indianapolis 500. I've had to stop for gas in New Boston, Texas. You have no idea how THREATENING drunk white people can be when they start talking about hanging n***ers.
Yes, the lynching song was a "true threat." The fact that I have to argue about it makes it all the more terrifying.
(Image of a thing actually used by drunk white people to kill black people, courtesy of Shutterstock)