It may look like “hate speech” to some people, but the “Kanye Western” theme party jointly thrown by a fraternity and sorority at UCLA is “likely” protected speech – and by punishing them, the university could be sued for violating their First Amendment rights.
That’s the analysis of UCLA’s own First Amendment expert, law professor Eugene Volokh, writing in The Washington Post:
Costumes that convey a message are treated as speech for First Amendment purposes (see, e.g., Schacht v. United States (1970) and Cohen v. California(1971)). And a university may not punish speech based on its allegedly racist content; see, e.g., Rosenberger v. Rector (1995), which holds that a university may not discriminate against student speech based on its viewpoint.
Though UCLA is bound by 9th U.S. Circuit Court of Appeals precedents, the 4th Circuit across the country has squarely ruled on the issue (upholding an “ugly woman contest“), and such rulings “tend to be viewed as highly persuasive precedent,” Volokh writes:
Nor does it matter that this is only an “interim suspension.” The First Amendment prohibits brief punishments for past speech, and brief restrictions on future speech, as well as long-term ones. (As this very incident shows, “social activities” of fraternities often include activities that convey a message on social or ideological topics.) Indeed, interim speech restrictions imposed before a full investigation and adjudication have historically been seen as more constitutionally suspect (as so-called “prior restraints”) …
Volokh himself asked UCLA for an explanation, and the school confirmed it wasn’t punishing non-speech “misbehavior”:
As best I can tell, this is a punishment purely based on the allegedly racially offensive content of the fraternity and sorority’s expression — and the message sent to other organizations is that, if you express views (jocularly or seriously) that are seen as racially offensive, you too may be suspended. And such a punishment violates the First Amendment.
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